Exhibit 4(h)(i)
AMENDED AND RESTATED DECLARATION OF TRUST
OF
NEW YORK COMMUNITY CAPITAL TRUST (.)
Dated as of (.), (.)
TABLE OF CONTENTS
Page
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ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation...................................................2
SECTION 1.2 Definitions......................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.................................9
SECTION 2.2 Lists of Holders of Securities...................................9
SECTION 2.3 Reports by the Property Trustee.................................10
SECTION 2.4 Periodic Reports to Property Trustee............................10
SECTION 2.5 Evidence of Compliance with Conditions Precedent................10
SECTION 2.6 Events of default; Waiver.......................................10
SECTION 2.7 Default; Notice.................................................12
ARTICLE III
ORGANIZATION
SECTION 3.1 Name............................................................13
SECTION 3.2 Office..........................................................13
SECTION 3.3 Purpose.........................................................13
SECTION 3.4 Authority.......................................................13
SECTION 3.5 Title to Property of the Trust..................................14
SECTION 3.6 Powers and Duties of the Administrative Trustees................14
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees............17
SECTION 3.8 Powers and Duties of the Property Trustee.......................18
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.....20
SECTION 3.10 Certain Rights of Property Trustee..............................22
SECTION 3.11 Delaware Trustee................................................24
SECTION 3.12 Execution of Documents..........................................24
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities..........24
SECTION 3.14 Duration of Trust...............................................25
SECTION 3.15 Mergers.........................................................25
SECTION 3.16 Property Trustee May File Proofs of Claim.......................27
ARTICLE IV
COMPANY
SECTION 4.1 Company's Purchase of Common Securities.........................28
SECTION 4.2 Responsibilities of the Company.................................28
SECTION 4.3 Right to Proceed................................................28
SECTION 4.4 Right to Dissolve Trust.........................................29
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee...................29
SECTION 5.2 Delaware Trustee................................................30
SECTION 5.3 Property Trustee; Eligibility...................................30
SECTION 5.4 Certain Qualifications of Administrative Trustees and
Delaware Trustee Generally...................................31
SECTION 5.5 Administrative Trustees.........................................31
SECTION 5.6 Appointment, Removal and Resignation of Trustees................32
SECTION 5.7 Vacancies Among Trustees........................................34
SECTION 5.8 Effect of Vacancies.............................................34
SECTION 5.9 Meetings........................................................34
SECTION 5.10 Delegation of Power.............................................35
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.....35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions...................................................36
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.........................36
SECTION 7.2 Execution and Authentication....................................37
SECTION 7.3 Form and Dating.................................................37
SECTION 7.4 Registrar, Paying Agent and Transfer Agent......................39
SECTION 7.5 Paying Agent to Hold Money in Trust.............................39
SECTION 7.6 Replacement Securities..........................................40
SECTION 7.7 Outstanding Preferred Securities................................40
SECTION 7.8 Preferred Securities in Treasury................................40
SECTION 7.9 Temporary Securities............................................40
SECTION 7.10 Cancellation....................................................41
SECTION 7.11 CUSIP Numbers...................................................42
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust............................................42
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities..........................................43
SECTION 9.2 Transfer Procedures and Restrictions............................44
SECTION 9.3 Deemed Security Holders.........................................48
SECTION 9.4 Book-Entry Interests............................................48
SECTION 9.5 Notices to Clearing Agency......................................49
SECTION 9.6 Appointment of Successor Clearing Agency........................49
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.......................................................49
SECTION 10.2 Exculpation.....................................................50
SECTION 10.3 Fiduciary Duty..................................................50
SECTION 10.4 Indemnification.................................................51
SECTION 10.5 Outside Businesses..............................................54
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.....................................................55
SECTION 11.2 Certain Accounting Matters......................................55
SECTION 11.3 Banking.........................................................55
SECTION 11.4 Withholding.....................................................56
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments......................................................56
SECTION 12.2 Meetings of the Holders; Action by Written Consent..............59
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee..............60
SECTION 13.2 Representations and Warranties of Delaware Trustee..............61
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.........................................................62
SECTION 14.2 Governing Law...................................................63
SECTION 14.3 Intention of the Parties........................................63
SECTION 14.4 Headings........................................................63
SECTION 14.5 Successors and Assigns..........................................64
SECTION 14.6 Partial Enforceability..........................................64
SECTION 14.7 Counterparts....................................................64
TERMS OF PREFERRED SECURITIES COMMON SECURITIES...............................I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE...........................A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE..............................A2-1
CROSS-REFERENCE TABLE*
Section of
Trust Indenture
Act of 1939, Section of
as amended Declaration
- --------------- -------------------
310(a) ........................................ 5.3
310(b) ........................................ 5.3(c); 5.3(d)
311(a) ........................................ 2.2(b)
311(b) ........................................ 2.2(b)
312(a) ........................................ 2.2(a)
312(b) ........................................ 2.2(b)
313 ........................................ 2.3
314(a) ........................................ 2.4, 2.7(c); 3.6(j)
314(b) ........................................
314(c) ........................................ 2.5
315(a) ........................................ 3.6(j); 3.9
315(b) ........................................ 2.7(a)
315(c) ........................................ 3.9(a)
315(d) ........................................ 3.9(b)
316(a) ........................................ 2.6
316(c) ........................................ 3.6(e)
317(a) ........................................ 3.8(e); 3.8(h)
317(b) ........................................ 3.8(i); 7.5
318 ........................................ 2.1
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* This Cross-Reference Table does not constitute part of this Declaration and
shall not affect the interpretation of any of its terms or provisions.
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NEW YORK COMMUNITY CAPITAL TRUST (.)
Dated as of (.), (.)
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of (.), (.), by and among the Trustees (as defined herein), the
Company (as defined herein) and the Holders (as defined herein), from time to
time, of undivided beneficial interests in the assets of the Trust to be issued
pursuant to this Declaration;
WHEREAS, the Delaware Trustee (as defined herein) and the Company
established New York Community Capital Trust (.) (the "Trust"), a trust created
under the Delaware Statutory Trust Act pursuant to a Declaration dated as of
(.), (.) (the "Original Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on (.), (.)for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust, investing the proceeds thereof in certain
Debentures of the Company (each as hereinafter defined), and engaging in only
those activities necessary, advisable or incidental thereto; and
WHEREAS, all of the Trustees and the Company, by this Declaration, amend
and restate each and every term and provision of the Original Declaration;
WHEREAS, all of the Trustees and the Company, by this Declaration, ratify
the actions of each Trustee taken prior to the date hereof;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a statutory trust under the Statutory Trust Act and that this
Declaration constitute the governing instrument of such statutory trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the Securities (as defined
herein) representing undivided beneficial interests in the assets of the Trust
issued hereunder, subject to the provisions of this Declaration and, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above or elsewhere herein have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration and each Annex and Exhibit hereto, as modified, supplemented or
amended from time to time;
(d) all references in this Declaration to Articles and Sections and Annexes
and Exhibits are to Articles and Sections of and Annexes and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires;
(f) a term defined in the Indenture (as defined herein) has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa and a
reference to any masculine form of a term includes the feminine form of such
term, as applicable.
Section 1.2 Definitions.
The following terms have the following meanings:
"Administrative Trustee" has the meaning set forth in Section 5.1.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar or Transfer Agent.
"Authorized Officer" of a Person means any other Person that is
authorized to legally bind such former Person.
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"Book-Entry Interest" means a beneficial interest in the Global
Preferred Security registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday, a Sunday, or a day
on which banking institutions in (i) the Borough of Manhattan in the City of New
York or (ii) Wilmington, Delaware are authorized or required by law, regulation
or executive order to remain closed.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a global certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Date" under the Underwriting
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if at any time after the
execution of this Declaration such Commission is not existing and performing the
duties now assigned to it under applicable federal securities laws, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in Section 7.1(a).
"Common Securities Subscription Agreement" means the Common Securities
Subscription Agreement, dated as of the Closing Date, between the Trust and New
York Community Bancorp, Inc. relating to the Common Securities.
"Company" means New York Community Bancorp, Inc., a Delaware
corporation, in its capacity as sponsor, or any successor entity resulting from
any merger, consolidation, amalgamation or replacement by or conveyance,
transfer or lease of its properties as an entirety or substantially as an
entirety, in its capacity as sponsor of the Trust.
"Company Indemnified Person" means (a) any Administrative Trustee; (b)
any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners,
3
employees, representatives or agents of any Administrative Trustee; or (d) any
officer, director, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee at
which the corporate trust business of the Property Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Declaration is located at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debentures" means the (.)%Junior Subordinated Deferrable Interest
Debentures due (.), (.)of the Company issued pursuant to the Indenture.
"Definitive Preferred Securities" has the meaning set forth in Section
7.3(c).
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders in accordance
with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Transfer Agent" has the meaning set forth in Section 7.4.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(j).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Preferred Security" has the meaning set forth in Section
7.3(a).
"Holder" means a Person in whose name a Security or Successor Security
is registered on the register maintained by or on behalf of the Registrar, such
Person being a beneficial owner of the Trust within the meaning of the Statutory
Trust Act.
4
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture, dated as of (.), between the Company
and the Indenture Trustee, as amended from time to time.
"Indenture Event of Default" means an Event of default (as defined in
the Indenture) that has occurred and is continuing with respect to the
Debentures.
"Indenture Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Initial Optional Redemption Date" has the meaning set forth in
Section 4(b) of Annex I hereto.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation, and the rules and
regulations promulgated thereunder.
"Investment Company Event" has the meaning set forth in Section 4(c)
of Annex I hereto.
"Issuer Order" shall mean a written order signed in the name of the
Trust by an Administrative Trustee and delivered to the Property Trustee.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Like Amount" has the meaning set forth in Section 3 of Annex I
hereto.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in Liquidation Amount" means, with respect to the Trust
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Trust Securities voting together
as a single class or, as the context may require, Holders of outstanding
Preferred Securities or Holders of outstanding Common Securities voting
separately as a class, excluding the Trust and the Company and any Affiliate
thereof, who are the record owners of more than 50% of the aggregate liquidation
amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to but
5
excluding the date upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
"Officers' Certificate" means, when delivered by the Trust, a
certificate signed by a majority of the Administrative Trustees and, when
delivered by the Company, a certificate signed by any two of the Chairman, a
Vice Chairman, the Chief Executive Officer, the President, a Vice President, the
Chief Financial Officer, the Treasurer, the Chief Accounting Officer, the
Secretary or an Assistant Secretary of the Company. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include, where applicable:
(a) a statement that each officer signing the Certificate has read the
covenants or conditions and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether or not, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of the Company, and who shall be acceptable to the Property Trustee.
"Participants" has the meaning specified in Section 7.3(b).
"Paying Agent" has the meaning specified in Section 7.4.
"Payment Amount" has the meaning specified in Section 6.1.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning specified in Section 7.1(a).
"Preferred Securities Guarantee" means, the Preferred Securities
Guarantee Agreement, dated as of the Closing Date, entered into by New York
Community Bancorp, Inc., with respect to the Preferred Securities.
6
"Preferred Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules o 1 f such Clearing Agency).
"Preferred Security Certificate" has the meaning set forth in Section
9.4.
"Property Trustee" has the meaning set forth in Section 5.3(a).
"Property Trustee Account" has the meaning set forth in Section
3.8(c)(i).
"Quorum" means a majority of the Administrative Trustees or, if there
are only two Administrative Trustees, both of them.
"Redemption Price" has the meaning set forth in Section 4(a) of Annex
I hereto.
"Registrar" has the meaning set forth in Section 7.4.
"Regular Record Date" means the date on which determination is made
as to which Holders' Distributions are payable.
"Regulatory Capital Event" has the meaning set forth in Section 4(c)
of Annex I hereto.
"Related Party" means, with respect to the Company, any direct or
indirect wholly owned subsidiary of the Company or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Company.
"Responsible Officer" means any officer within the Corporate Trust
Office of the Property Trustee with direct responsibility for the administration
of this Declaration and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act, or any
successor rule or regulation.
"Securities" or "Trust Securities" means the Common Securities and the
Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
7
"Securities Guarantees" means the Common Securities Guarantee and the
Preferred Securities Guarantee.
"Special Event" has the meaning set forth in Section 4(c) of Annex I
hereto.
"Special Event Redemption Price" has the meaning set forth in Section
4(c) of Annex I hereto.
"Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code (S) 3801 et seq., as it may be amended from time to time, or
any successor legislation.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in Section
3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section
3.15(b)(i).
"Super Majority" has the meaning set forth in Section 2.6(a) (ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex I
hereto.
"10% in Liquidation Amount" means, with respect to the Trust
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holders of outstanding Trust Securities voting together
as a single class or, as the context may require, Holders of outstanding
Preferred Securities or Holders of outstanding Common Securities voting
separately as a class, excluding the Trust and the Company and any Affiliate
thereof, who are the record owners of 10% or more of the aggregate liquidation
amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury Department, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Enforcement Event" means, with respect to the Securities, an
event of default under this Declaration, which occurs upon the happening of an
Indenture Event of Default.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
8
"Trust Property" means (a) the Debentures, (b) any cash on deposit in
or owing to the Property Trustee Account and (c) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to this Declaration.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue as a trustee of
the Trust in accordance with the terms hereof, and all other Persons who may
from time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee or the
Trustees shall refer to such Person or Persons solely in their capacity as
trustees hereunder.
"Underwriting Agreement" means the underwriting agreement, dated (.),
between the Company, the Trust and the Underwriters with respect to the initial
offering of the Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration in order for this
Declaration to be qualified under the Trust Indenture Act and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by (S)(S) 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the Trust's classification as a grantor trust for United States
federal income tax purpose and shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in the assets of
the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Company and the Administrative Trustees on behalf of the
Trust shall provide the Property Trustee, unless the Property Trustee is
Registrar for the Securities, (i) as of the Regular Record Date or other record
date relating to the payment of any Distribution, at least one Business Day
prior to the date for payment of such Distribution, except while the Preferred
Securities are represented only by one or more Global Preferred Securities, a
list, in such form as the Property Trustee may reasonably require, of the names
and addresses of the Holders ("List of
9
Holders") as of such record date, provided that, neither the Company nor the
Administrative Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time that the List of Holders does not differ from
the most recent List of Holders given to the Property Trustee by the Company and
the Administrative Trustees on behalf of the Trust, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 15 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting in
such capacity), provided that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under (S)(S)
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the year of the
first anniversary of the issuance of the Preferred Securities) the Property
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by (S) 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by (S) 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of (S) 313(d) of the Trust Indenture
Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Company and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee and the Commission such documents, reports
and information as are required by (S) 314 (if any) of the Trust Indenture Act
and shall provide to the Property Trustee the compliance certificate required by
(S) 314 of the Trust Indenture Act in the form, in the manner and at the times
required by (S) 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Company and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent provided for in this Declaration that relate to any of the
matters set forth in (S) 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to (S) 314(c)(1) of the
Trust Indenture Act may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Trust Enforcement Event in respect of the Preferred Securities and its
consequences, provided however, if the underlying Indenture Event of Default:
10
(i) is not waivable under the Indenture, the related Trust Enforcement
Event under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
aggregate principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the related Trust Enforcement
Event under this Declaration may only be waived by the vote of the Holders
of at least the proportion in aggregate liquidation amount of the Preferred
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of (S)
316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
Upon such waiver, any such Trust Enforcement Event with respect to the Preferred
Securities arising therefrom shall be deemed to have been cured, for every
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other Trust Enforcement Event with respect to the Preferred Securities or
impair any right consequent thereon. Any waiver by the Holders of the Preferred
Securities of a Trust Enforcement Event with respect to the Preferred Securities
shall also be deemed to constitute a waiver by the Holders of the Common
Securities of any such Trust Enforcement Event with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Trust Enforcement Event with respect to the Common
Securities and its consequences, provided that, if the underlying Indenture
Event of Default is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Trust Enforcement Event
under the Declaration as provided below in this Section 2.6(b), the Trust
Enforcement Event under the Declaration shall also not be waivable. The Holders
of Common Securities shall be deemed to have waived any such Trust Enforcement
Event with respect to the Common Securities and the consequences thereof until
all Trust Enforcement Events with respect to the Preferred Securities have been
cured, waived or otherwise eliminated. Until all Trust Enforcement Events in
respect of the Preferred Securities shall have been so cured, waived or
otherwise eliminated the Property Trustee will be deemed to be acting solely on
behalf of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Securities.
The foregoing provisions of this Section 2.6(b) shall be in lieu of
(S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such (S)(S)
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon
such waiver, any such Default shall cease to exist and any Trust Enforcement
Event with respect to the
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Common Securities arising therefrom shall be deemed to have been cured for every
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other Trust Enforcement Event with respect to the Common Securities or impair
any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee, at
the direction of the Holders of the Preferred Securities, constitutes a waiver
of the Trust Enforcement Event under this Declaration. The foregoing provisions
of this Section 2.6(c) shall be in lieu of (S) 316(a)(1)(B) of the Trust
Indenture Act and such (S) 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act.
SECTION 2.7 Default; Notice.
(a) The Property Trustee shall, within 90 days after a Responsible Officer
has actual knowledge of the occurrence of a Trust Enforcement Event with respect
to the Securities, transmit by mail, first class postage prepaid, to the
Holders, notice of such Trust Enforcement Events, unless such Trust Enforcement
Event has been cured before the giving of such notice or previously waived;
provided, however, that except in the case of a default arising from the
nonpayment of principal of or interest (including Compounded Interest and
Additional Sums (as such terms are defined in the Indenture), if any) on any of
the Debentures, the Property Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Property Trustee shall not be deemed to have knowledge of any Trust
Enforcement Event except:
(i) an Indenture Event of Default under Sections 5.01(a) (other than
the payment or nonpayment of Compounded Interest or Additional Sums) and
5.01(b) of the Indenture; or
(ii) an Indenture Event of Default as to which the Property Trustee
shall have received written notice or of which a Responsible Officer
charged with the administration of the Declaration shall have actual
knowledge.
(c) Within ten Business Days after a Responsible Officer has actual
knowledge of the occurrence of any Trust Enforcement Event, the Property Trustee
shall transmit notice of such Trust Enforcement Event to the Holders of the
Preferred Securities, the Administrative Trustees and the Company, unless such
Trust Enforcement Event shall have been cured or waived. The Company and the
Administrative Trustees shall file annually with the Property Trustee a
certification as to whether or not they are in compliance with all the
conditions and covenants applicable to them under this Declaration.
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ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named New York Community Capital Trust (.) as such name may be
modified from time to time by the Administrative Trustees following written
notice to the Delaware Trustee, the Property Trustee and the Holders. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o New York Community
Bancorp, Inc., 615 Merrick Avenue, Westbury, New York 11590. On ten Business
Days' prior written notice to the Delaware Trustee, the Property Trustee and the
Holders of Securities, the Administrative Trustees may designate another
principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and sell
the Securities, (b) use the proceeds from the sale of the Securities to acquire
the Debentures, and (c) except as otherwise limited herein, to engage in only
those other activities necessary, advisable or incidental thereto, including
without limitation, those activities specified in Sections 3.6, 3.8, 3.9, 3.10,
3.11 and/or 3.12. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, mortgage or pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust.
SECTION 3.4 Authority.
(a) Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by one or more of the Administrative Trustees in accordance with
their powers shall constitute the act of and serve to bind the Trust and an
action taken by the Property Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration.
(b) Except as expressly set forth in this Declaration and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
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(c) Unless otherwise determined by the Administrative Trustees and except
as otherwise required by the Statutory Trust Act or applicable law, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.8.
(d) Notwithstanding anything contained herein or elsewhere to the contrary,
the Trust has power and authority and is hereby authorized and empowered,
without the need for any further action on its part (i) to execute, deliver and
perform its obligations under the Underwriting Agreement, the Common Securities
Subscription Agreement, the Debenture Subscription Agreement, and the Securities
and (ii) to perform its obligations under this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and the
Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Administrative Trustees.
Subject to Section 5.5, the Administrative Trustees acting individually or
together shall have the exclusive right, power, duty and authority, and are
hereby authorized and directed, to cause the Trust to engage in the following
activities:
(a) to issue and sell the Securities in accordance with this Declaration;
provided, however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities; and, provided
further, that there shall be no interests in the Trust other than the
Securities;
(b) in connection with the issue of the Preferred Securities, to:
(i) execute and file with the Commission one or more registration
statements on Form S-3 prepared by the Company, including any and all
amendments thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Company, or take
any acts as determined by the Company to be necessary in order to qualify
or register all or part of the Preferred Securities in any State in which
the Company has determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by the Company, to the
NYSE or any other national stock exchange or the NASDAQ Stock Market's
National Market for listing or quotation upon notice of issuance of any
Preferred Securities;
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(iv) execute and file with the Commission a registration statement on
Form 8-A, including any amendments thereto, prepared by the Company,
relating to the registration of the Preferred Securities under Section
12(b) of the Exchange Act;
(v) execute and enter into one or more purchase agreements providing
for the sale of the Common Securities and the purchase of the Debentures;
and
(vi) execute and deliver letters, documents or instruments to DTC.
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders;
(d) to give the Company and the Property Trustee prompt written notice of
the occurrence of a Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Securities as to such actions and applicable record
dates;
(f) to take all actions and perform such duties as may be required of the
Administrative Trustees pursuant to the terms of the Securities set forth in
Annex I hereto, and to execute and deliver Issuer Orders as described in
Sections 7.6 and 7.9(a);
(g) to the fullest extent permitted by law, to bring or defend, pay,
collect, compromise, arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust ("Legal Action"), unless pursuant to
Section 3.8(e), the Property Trustee has the exclusive power to bring such Legal
Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Administrative Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
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(l) to act as, or appoint another Person to act as, registrar, transfer
agent and paying agent for the Securities;
(m) to give prompt written notice to the Property Trustee and the Holders
of any notice received from the Company of its election to defer payments of
interest on the Debentures by extending the interest payment period under the
Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory trust under the laws of the State of
Delaware and of each other jurisdiction in which such existence is necessary to
protect the limited liability of the Holders or to enable the Trust to effect
the purposes for which the Trust was created;
(o) to take any action, not inconsistent with this Declaration or with
applicable law, that the Administrative Trustees determine in their discretion
to be necessary or desirable in carrying out the activities of the Trust as set
out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Company to ensure that the Debentures will
be treated as indebtedness of the Company for United States federal income
tax purposes, provided that such actions do not adversely affect the
interests of Holders; and
(p) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Administrative Trustees, on behalf of the
Trust.
(q) to execute and deliver all documents, agreements, certificates and
instruments, exercise all rights and powers, perform all duties and do all
things for and on behalf of the Trust in all matters necessary, advisable or
incidental to the foregoing or the transactions contemplated thereby.
The Administrative Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrative Trustees shall not take
any action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
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Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.6 shall be reimbursed by the Company.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the Property Trustee and
the Delaware Trustee) shall not, and the Administrative Trustees shall cause the
Trust not to, engage in any activity other than as required or authorized by
this Declaration. Notwithstanding any provision in this Declaration to the
contrary, the Trust shall not:
(a) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders pursuant to
the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust Property for other than a Trust purpose or execute
any mortgage in respect of, or pledge, any Trust Property;
(d) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(e) possess any power or otherwise act in such a way as to vary the
Trust Property or the terms of the Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities;
(g) other than as provided in this Declaration or Annex I hereto, (A)
direct the time, method and place of conducting any proceeding with respect
to any remedy available to the Indenture Trustee, or exercising any trust
or power conferred upon the Indenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable under the
Indenture, or (C) exercise any right to rescind or annul any declaration
that the principal of all the Debentures shall be due and payable; or
(h) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required unless the
Trust shall have received an opinion of independent tax counsel experienced
in such matters to the effect that such amendment, modification or
termination will not cause more than an insubstantial risk that the Trust
will not be classified as a grantor trust for United States federal income
tax purposes.
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SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Property Trustee in trust for the benefit of the Trust and
the Holders. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 5.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Debentures to the Administrative Trustees or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders and,
upon the receipt of payments of funds made in respect of the Debentures
held by the Property Trustee, deposit such funds into the Property Trustee
Account and make payments or cause the Paying Agent to make payments to the
Holders from the Property Trustee Account in accordance with Section 6.1;
funds in the Property Trustee Account shall be held uninvested until
disbursed in accordance with this Declaration; and the Property Trustee
Account shall be an account that is maintained with a banking institution
the rating on whose long-term unsecured indebtedness by a "nationally
recognized statistical rating organization," as that term is defined for
purposes of Rule 436(g)(2) under the Securities Act, is at least equal to
the rating assigned to the Preferred Securities, unless the Preferred
Securities are not rated, in which case the banking institution's long-term
unsecured indebtedness shall be rated at least investment grade by a
"nationally recognized statistical rating organization";
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Administrative
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders upon the occurrence of certain
events.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
this Declaration and the Securities.
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(e) Subject to Section 3.9(a), the Property Trustee shall take any Legal
Action which arises out of or in connection with a Trust Enforcement Event of
which a Responsible Officer has actual knowledge or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture Act;
provided, however, that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Company to pay
the principal of or interest (including Compounded Interest and Additional Sums,
if any) on the Debentures on the date such principal or interest (including
Compounded Interest and Additional Sums, if any) or is otherwise payable (or in
the case of redemption, on the redemption date), then a Holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest (including Compounded Interest and
Additional Sums, if any) on the Debentures having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such Holder (a
"Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the Holders of the Common
Securities will be subrogated to the rights of such Holder of Preferred
Securities to the extent of any payment made by the Company to such Holder of
Preferred Securities in such Direct Action. Except as provided in the preceding
sentences, the Holders of Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders pursuant to the terms of the
Securities and this Declaration; or
(ii) a successor Property Trustee has been appointed and has accepted
that appointment in accordance with Section 5.6 (a "Successor Property
Trustee").
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Debentures under the Indenture and,
if a Trust Enforcement Event actually known to a Responsible Officer occurs and
is continuing, the Property Trustee shall, for the benefit of Holders, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of this Declaration and the Securities.
(h) The Property Trustee shall be authorized to undertake any actions set
forth in (S) 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent, the Property
Trustee may authorize one or more Persons to act as additional Paying Agents and
to pay Distributions, redemption payments or liquidation payments on behalf of
the Trust with respect to all Securities and any such Paying Agent shall comply
with (S) 317(b) of the Trust Indenture Act. Any such additional Paying Agent may
be removed by the Property Trustee at any time the Property Trustee remains as
Paying Agent and a successor Paying Agent or additional Paying Agents may be
(but are not required to be) appointed at any time by the Property Trustee while
the Property Trustee is acting as Paying Agent.
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(j) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Administrative Trustees
set forth in Section 3.6.
Notwithstanding anything expressed or implied to the contrary in this
Declaration or any Annex or Exhibit hereto, (i) the Property Trustee must
exercise the powers set forth in this Section 3.8 in a manner that is consistent
with the purposes and functions of the Trust set out in Section 3.3, and (ii)
the Property Trustee shall not take any action that is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.
(k) If the Property Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Property Trustee or to such Holder, then and in every such case the
Corporation, the Property Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Property Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) If a Trust Enforcement Event has occurred (that has not been cured or
waived pursuant to Section 2.6) of which a Responsible Officer has actual
knowledge, the Property Trustee shall exercise such of the rights and powers
vested in it by this Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event of which the
Property Trustee has knowledge as provided in Section 2.7(b), and after the
curing or waiving of all such Trust Enforcement Events that may have
occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Declaration and in
the Securities and the Property Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Declaration and in the Securities, and no implied
covenants or obligations shall be read into this Declaration against
the Property Trustee; and
(B) in the absence of bad faith on the part of the Property Trustee,
the Property Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Property Trustee and
conforming to the requirements of this Declaration; provided,
20
however, that in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not on their face they
conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be personally liable for any error
of judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Property Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Property Trustee shall not be personally liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in Liquidation
Amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers;
(v) the Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Debentures and the Property
Trustee Account shall be to deal with such property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or personally liability
for or with respect to the value, genuineness, existence or sufficiency of
the Debentures or the payment of any taxes or assessments levied thereon or
in connection therewith;
(vii) the Property Trustee shall not be personally liable for any
interest on any money received by it except as it may otherwise agree in
writing with the Company. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the Property
Trustee Account maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law;
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Company with their
respective duties under this Declaration, nor shall the Property Trustee be
liable for any default or misconduct of the Administrative Trustees or the
Company; and
(ix) in the event that the Property Trustee is unable to decide
between alternative courses of action permitted or required under this
Declaration or any other document, or is unsure as to the application of
any provision of this Declaration or any other document, or
21
any such provision may be ambiguous as to its application or in conflict
with any other applicable provision, permits any determination by the
Property Trustee, or is silent or incomplete as to the course of action
that the Property Trustee is required to take with respect to a particular
set of facts, the Property Trustee may give notice (in such form as shall
be appropriate under the circumstances) to the Company and/or to the
Holders requesting instruction from any of them, and to the extent that the
Property Trustee acts or refrains from acting in good faith in accordance
with any such instruction received, the Property Trustee shall not be
personally liable, on account of such action or inaction, to any Person,
and if the Property Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking action, and shall have no personal liability to any Person for such
action or inaction.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the appropriate Person;
(ii) any direction or act of the Company or the Administrative
Trustees contemplated by this Declaration may be sufficiently evidenced by
an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Company or the Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other experts of
its selection, and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts' area
of expertise shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion; such counsel may be
counsel to the Company or any of its Affiliates, and may include any of its
employees; and
22
the Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or
direction of any Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including reasonable
attorneys' fees and expenses and the expenses of the Property Trustee's
agents, nominees or custodians) and liabilities that might be incurred by
it in complying with such request or direction, including such reasonable
advances as may be requested by the Property Trustee; provided, however,
that, nothing contained in this Section 3.10(a)(vi) shall be taken to
relieve the Property Trustee, upon the occurrence of an Event of Default
(of which, other than in the case of Events of Default under Sections
5.01(a) and 5.01(b) of the Indenture, which the Property Trustee is deemed
to have knowledge of as provided in Section 2.7(b) hereof, a Responsible
Officer of the Property Trustee has actual knowledge), of its obligation to
exercise the rights and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys, and the Property Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent, custodian, nominee or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders, and the signature of the Property
Trustee or its agents alone shall be sufficient and effective to perform
any such action and no third party shall be required to inquire as to the
authority of the Property Trustee to so act or as to its compliance with
any of the terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Property Trustee (i) may request instructions from the Holders which
instructions may only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be entitled to direct the
Property Trustee under the terms of the Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
23
received, and (iii) shall be protected in conclusively relying on or acting
in accordance with such instructions;
(xi) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Declaration; and
(xii) the Property Trustee shall not be personally liable for any
action taken, suffered, or omitted to be taken by it in good faith, without
negligence or willful misconduct, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than Section
5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Trustees described in this Declaration (except as required under the Statutory
Trust Act). Except as set forth in Section 5.2, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of (S)
3807 of the Statutory Trust Act. In the event the Delaware Trustee shall at any
time be required to take any action or perform any duty hereunder, the Delaware
Trustee shall be entitled to the benefits of Section 3.9(b)(ii) to (viii),
inclusive, and Section 3.10. No implied covenants or obligations shall be read
into this Declaration against the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise required by applicable law, each Administrative Trustee,
individually, is authorized to execute and deliver on behalf of the Trust any
documents, agreements, instruments or certificates that the Administrative
Trustees have the power and authority to execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Company, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the Trust Property or any part
24
thereof. The Trustees make no representations as to the validity or sufficiency
of this Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless earlier dissolved pursuant to the provisions of Article
VIII hereof, shall dissolve on (.), (.).
SECTION 3.15 Mergers.
(a) The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person, except as described in
Section 3.15(b) and (c) and except with respect to the distribution of
Debentures to Holders pursuant to Section 8.1(a)(iii) of this Declaration or
Section 3 of Annex I.
(b) The Trust may, at the request of the Company, with the consent of the
Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders, the Delaware
Trustee or the Property Trustee, merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, a trust organized as such under the
laws of any State; provided that:
(i) if the Trust is not the successor entity, such successor entity
(the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under the
Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities") so long as the Successor Securities rank the same as
the Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise;
(ii) if the Trust is not the successor entity, the Company expressly
appoints a trustee of the Successor Entity that possesses the same powers
and duties as the Property Trustee with respect to the Debentures;
(iii) the Successor Securities (excluding any securities substituted
for the Common Securities) are listed, quoted or included for trading, or
any Successor Securities will be listed, quoted or included for trading
upon notification of issuance, on any national securities exchange or with
any other organization on which the Preferred Securities are then listed,
quoted or included;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) or the
25
Debentures to be downgraded by any nationally recognized statistical rating
organization that publishes a rating on the Preferred Securities or the
Debentures;
(v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders (including the holders of any Successor
Securities) in any material respect (other than with respect to any
dilution of the interests of such Holders or holders, as the case may be,
in the Successor Entity);
(vi) the Successor Entity has a purpose identical in all material
respects to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Company has received an opinion of
independent counsel to the Trust experienced in such matters to the effect
that:
(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders (including the
holders of any Successor Securities) in any material respect
(other than with respect to any dilution of the interests of such
Holders or holders, as the case may be, in the Successor Entity);
(B) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor the
Successor Entity will be required to register as an Investment
Company; and
(C) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Trust (or the Successor
Entity) will continue to be classified as a grantor trust for
United States federal income tax purposes;
(viii) if the Trust is not the Successor Entity, the Company or any
permitted successor or assignee of the Company owns all of the common
securities of the Successor Entity and guarantees the obligations of the
Successor Entity under the Successor Securities at least to the extent
provided by the Securities Guarantees;
(ix) the Successor Entity expressly assumes all of the obligations of
the Trust; and
(x) there shall have been furnished to the Property Trustee an
Officers' Certificate and an Opinion of Counsel, each to the effect that
all conditions precedent in this Declaration to such transaction have been
satisfied.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in aggregate liquidation amount of the Securities,
consolidate, amalgamate, merge
26
with or into, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to, any other Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity not to be
classified as a grantor trust for United States federal income tax purposes.
SECTION 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities are then due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Property Trustee has made any
demand on the Trust for the payment of any past due Distributions) shall be
entitled and empowered, to the fullest extent permitted by law, by intervention
in such proceeding or otherwise to:
(a) file and prove a claim for the whole amount of any Distributions owing
and unpaid in respect of the Securities (or, if the Securities are original
issue discount securities, such portion of the liquidation amount as may be
specified in the terms of such securities) and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding; and
(b) collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee consents
to the making of such payments directly to the Holders, to pay to the Property
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing contained herein shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt, on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or compensation affecting
the Securities or the rights of any Holder or to authorize the Property Trustee
to vote in respect of the claim of any Holder in any such proceeding.
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ARTICLE IV
SPONSOR
SECTION 4.1 Company's Purchase of Common Securities.
At the Closing Date the Company will purchase all of the Common Securities
then issued by the Trust, in an amount equal to at least 3% of the total capital
of the Trust, at the same time as the Preferred Securities are issued and sold.
SECTION 4.2 Responsibilities of the Company.
In connection with the issue and sale of the Preferred Securities, the
Company shall have the exclusive right and responsibility to engage in, or
direct the Administrative Trustees to engage in, the following activities:
(a) to prepare for filing by the Trust with the Commission one or more
registration statements on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the states in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Company deems necessary
or advisable in order to comply with the applicable laws of any such states;
(c) if so determined by the Company, to prepare for filing by the Trust an
application to the NYSE or any other national stock exchange or the NASDAQ
National Market for listing or quotation upon notice of issuance of the
Preferred Securities;
(d) if so determined by the Company, to prepare for filing by the Trust
with the Commission a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the Exchange
Act, including any amendments thereto;
(e) to prepare any registration statements or reports required to be filed
or submitted with the Commission with respect to the Securities pursuant to the
Exchange Act, unless performed by the Administrative Trustees; and
(f) to negotiate the terms of and execute and deliver the Underwriting
Agreement providing for the issuance of the Preferred Securities.
SECTION 4.3 Right to Proceed.
The Company acknowledges the rights of the Holders of Preferred Securities,
in the event that a failure of the Trust to pay Distributions on the Preferred
Securities is attributable to the failure of the Company to pay the principal of
or interest on the Debentures, to institute a proceeding
28
directly against the Company for enforcement of its payment obligations in
respect of the Debentures.
SECTION 4.4 Right to Dissolve Trust.
The Company will have the right at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as required by
applicable law, to cause the Debentures to be distributed to the Holders in
liquidation of the Trust. Such right is subject to the Company's having received
(i) an Opinion of Counsel to the effect that such distribution will not cause
the Holders of Preferred Securities to recognize gain or loss for United States
federal income tax purposes and (ii) all required regulatory approvals.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Company may, by
written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting;
provided, however, that, the number of Trustees shall in no event be less
than three (3); provided further that (1) one Trustee, in the case of a
natural person, shall be a person who is a resident of the State of
Delaware or that, if not a natural person, is an entity which has its
principal place of business in the State of Delaware (the "Delaware
Trustee"); (2) there shall be at least one Trustee who is an employee or
officer of, or is affiliated with, the Company (an "Administrative
Trustee"); and (3) one Trustee shall be the Property Trustee for so long as
this Declaration is required to qualify as an indenture under the Trust
Indenture Act, and such Trustee may also serve as Delaware Trustee if it
meets the applicable requirements. Notwithstanding the above, unless a
Trust Enforcement Event shall have occurred and be continuing, at any time
or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Holders of a Majority in
Liquidation Amount of the Common Securities acting as a class at a meeting
of the Holders of the Common Securities, and the Administrative Trustees
shall have power to appoint one or more Persons either to act as a
co-trustee, jointly with the Property Trustee, of all or any part of the
Trust Property, or to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in such capacity any
property, title, right or power deemed necessary or desirable, subject to
the provisions of this
29
Declaration. In case a a Trust Enforcement Event has occurred and is
continuing, the Property Trustee alone shall have power to make any such
appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
For so long as required by the Statutory Trust Act, the Delaware Trustee
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law,
provided, however, that, if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee and
Section 3.11 shall have no application.
The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Facsimile No.: (302) 636-4145
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the "Property Trustee") which
shall act as Property Trustee and which shall:
(i) not be an Affiliate of the Company; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an indenture trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
30
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of (S) 330(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Common Securities (as if it were the obligor
referred to in (S) 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of (S) 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the first provision
contained in (S) 310 (b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Facsimile No.: (302) 636-4145
SECTION 5.4 Certain Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
--------------------------
--------------------------
--------------------------
c/o New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
Telephone: (516) 683-4100
Telecopier: (516) 683-8385
31
(a) Except as otherwise expressly set forth in this Declaration and except
if a meeting of the Administrative Trustees is called with respect to any matter
over which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) Unless otherwise required by the Statutory Trust Act or other
applicable law, any Administrative Trustee acting alone is authorized to execute
on behalf of the Trust any documents which the Administrative Trustees have the
power and authority to cause the Trust to execute pursuant to Section 3.6.
(c) An Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b) hereof and to Section 6(b) of Annex I hereto,
Trustees may be appointed or removed without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Company;
(ii) unless a Trust Enforcement Event shall have occurred and be
continuing after the issuance of any Securities, by vote of the Holders of
a Majority in Liquidation Amount of the Common Securities voting as a class
at a meeting of the Holders of the Common Securities or by written consent
in lieu of such meeting; and
(iii) if a Trust Enforcement Event shall have occurred and be
continuing after the issuance of the Securities, with respect to the
Property Trustee or the Delaware Trustee, by vote of Holders of a Majority
in Liquidation Amount of the Preferred Securities voting as a class at a
meeting of Holders of the Preferred Securities or by written consent in
lieu of such meeting, and with respect to the Administrative Trustees, in
the manner set forth in Section 5.6(a)(ii) hereof.
(b) The Property Trustee shall not be removed in accordance with Section
5.6(a) until a successor Trustee possessing the qualifications to act as
Property Trustee under Section 5.3(a) (a "Successor Property Trustee") has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the removed Property Trustee,
the Administrative Trustees and the Company; and
(c) The Delaware Trustee shall not be removed in accordance with this
Section 5.6(a) until a successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 5.2
32
and 5.4 (a "Successor Delaware Trustee") has been appointed and has accepted
such appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the removed Delaware Trustee, the Property Trustee (if
the removed Delaware Trustee is not also the Property Trustee), the
Administrative Trustees and the Company.
(d) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the other
Trustees, the Company and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided,
however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Company, the Delaware Trustee (if the resigning Property Trustee
is not also the Delaware Trustee) and the resigning Property
Trustee; or
(B) until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the Holders; and
(ii) no such resignation of the Delaware Trustee shall be effective
until a Successor Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Property Trustee (if the resigning Delaware
Trustee is not also the Property Trustee), the Company and the resigning
Delaware Trustee.
(e) The Holders of the Common Securities or, if a Trust Enforcement Event
shall have occurred and be continuing after the issuance of the Securities, the
Holders of the Preferred Securities shall use their best efforts to promptly
appoint a Successor Property Trustee or Successor Delaware Trustee, as the case
may be, if the Property Trustee or the Delaware Trustee delivers an instrument
of resignation in accordance with this Section 5.6.
(f) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 5.6
within 60 days after delivery of an instrument of resignation or removal, the
Property Trustee or Delaware Trustee resigning or being removed, as applicable,
may petition any court of competent jurisdiction for appointment of a Successor
Property Trustee or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper to prescribe, appoint a
Successor Property Trustee or Successor Delaware Trustee, as the case may be.
33
(g) No Property Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(h) At the time of resignation or removal of the Property Trustee or the
Delaware Trustee, the Company shall pay to such Trustee any amounts that may be
owed to such Trustee pursuant to Section 10.4.
(i) Any successor Delaware Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State of the State of Delaware
identifying the name and principal place of business of such Successor Delaware
Trustee in the State of Delaware.
SECTION 5.7 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.l, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to dissolve, liquidate or annul the Trust or to terminate this
Declaration. Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with Section 5.6, the Administrative Trustees in office,
regardless of their number, shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration.
SECTION 5.9 Meetings.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the
34
ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Administrative
Trustees may be taken at a meeting by vote of a majority of the Administrative
Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter, provided that, a Quorum is present, or without a meeting
by the unanimous written consent of the Administrative Trustees. In the event
there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
SECTION 5.10 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Declaration.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee or any
Administrative Trustee that is not a natural person, as the case may be, may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee, as the case may be, shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
the Property Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided such Person shall be otherwise
qualified and eligible under this Article and provided further that such Person
shall file an amendment to the Certificate of Trust with the Delaware Secretary
of State as contemplated in Section 5.6(h).
35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the applicable terms
of the relevant Holder's Securities. If and to the extent that the Company makes
a payment of interest (including Compounded Interest and Additional Sums),
premium and/or principal on the Debentures held by the Property Trustee (the
amount of any such payment being a "Payment Amount"), the Property Trustee shall
and is directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders in accordance
with the terms of the Securities.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall, on behalf of the Trust, issue one
class of capital securities representing undivided preferred beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I (the "Preferred Securities") and one class of common securities representing
undivided common beneficial interests in the assets of the Trust having such
terms as are set forth in Annex I (the "Common Securities"). The Trust shall
issue no securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued and, subject to the
terms of this Declaration, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and entitled to the benefits of this
Declaration, and the Holders thereof shall be entitled to the benefits of this
Declaration.
(d) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
36
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by an
Administrative Trustee. In case any Administrative Trustee of the Trust who
shall have signed any of the Securities shall cease to be such Administrative
Trustee before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the Person who signed such
Securities had not ceased to be such Administrative Trustee; and any Securities
may be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Administrative Trustees of the Trust,
although at the date of the execution and delivery of this Declaration any such
person was not an Administrative Trustee.
(b) One Administrative Trustee shall sign the Preferred Securities for the
Trust by manual or facsimile signature. Unless otherwise determined by an
Administrative Trustee on behalf of the Trust, an Administrative Trustee shall
sign the Common Securities for the Trust by manual signature.
(c) A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Declaration. A Common Security shall be valid upon
execution by an Administrative Trustee without any act of the Property Trustee.
(d) Upon receipt of an Issuer Order to do so, the Property Trustee shall
authenticate the Preferred Securities for original issue. The aggregate number
of Preferred Securities outstanding at any time shall not exceed the number set
forth in Annex I hereto except as provided in Section 7.6.
(e) The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee hereunder with respect to the Company or an Affiliate.
SECTION 7.3 Form and Dating.
The Preferred Securities shall be evidenced by one or more certificates
substantially in the form of Exhibit A-1, and the Common Securities shall be
evidenced by one or more certificates substantially in the form of Exhibit A-2.
The Property Trustee's certificate of authentication shall be substantially in
the form set forth in Exhibit A-1. Certificates representing the Securities may
be printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to an Administrative Trustee, as evidenced by the
execution thereof. The Securities may have letters, "CUSIP" or other numbers,
notations or other marks of identification or designation and such legends or
endorsements required by law, stock exchange rule, agreements to which the Trust
is subject, if any, or usage, provided that, any such notation, legend or
endorsement is in a form acceptable to the Administrative Trustees, as evidenced
by their execution thereof. The Trust at the direction of the Company, shall
furnish any such legend not contained in Exhibit A-1 to the
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Property Trustee in writing. Each Preferred Security shall be dated the date of
its authentication. The terms and provisions of the Securities set forth in
Annex I and the forms of Securities set forth in Exhibits A-1 and A-2 are part
of the terms of this Declaration and, to the extent applicable, the Property
Trustee and the Company, by their execution and delivery of this Declaration,
expressly agree to such terms and provisions and to be bound thereby.
(a) Global Preferred Security. Unless otherwise specified in the terms of
the Preferred Securities set forth in Annex I, the Preferred Securities
Certificates, on original issuance, will be executed and issued by the Trust and
authenticated by the Property Trustee in the form of one or more,
fully-registered, global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Depository Institution, by,
or on behalf of, the Trust or, which shall be deposited on behalf of the
purchasers of the Preferred Securities represented thereby with the Property
Trustee, at its Corporate Trust Office, as custodian for the Clearing Agency,
and registered in the name of the Clearing Agency or a nominee of the Clearing
Agency, duly executed by the Trust and authenticated by the Property Trustee as
hereinafter provided. The number of Preferred Capital Securities represented by
the Global Capital Securities may from time to time be increased or decreased by
adjustments made on the records of the Property Trustee and the Clearing Agency
or its nominee as hereinafter provided. Such Global Certificates shall initially
be registered on the books and records of the Trust in the name of DTC or its
nominee, and no Preferred Security Beneficial Owner will receive a Definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.7.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply only to the
Global Preferred Security and such other Preferred Securities in global form as
may be authorized by the Trust to be deposited with or on behalf of the Clearing
Agency.
An Administrative Trustee shall execute and the Property Trustee
shall, in accordance with this Section 7.3, authenticate and make available for
delivery initially a single Global Preferred Security that (i) shall be
registered in the name of Cede & Co. or other nominee of such Clearing Agency,
and (ii) shall be delivered by the Property Trustee to such Clearing Agency or
pursuant to such Clearing Agency's written instructions or, if no such written
instructions are received by the Property Trustee, held by the Property Trustee
as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency ("Participants")
shall have no rights under this Declaration with respect to the Global Preferred
Security held on their behalf by the Clearing Agency or by the Property Trustee
as the custodian of the Clearing Agency or under such Global Preferred Security,
and the Clearing Agency may be treated by the Trust, the Property Trustee and
any agent of the Trust or the Property Trustee as the absolute owner of such
Global Preferred Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trust, the Property Trustee or any
agent of the Trust or the Property Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Clearing Agency or
impair, as between the Clearing Agency and its Participants, the operation of
customary practices of such Clearing Agency governing the exercise of the rights
of a holder of a beneficial interest in the Global Preferred Security.
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(c) Definitive Preferred Securities. Except as provided in Section 7.9 or
9.2(f)(i), owners of beneficial interests in the Global Preferred Security will
not be entitled to receive physical delivery of certificated Preferred
Securities ("Definitive Preferred Securities").
SECTION 7.4 Registrar, Paying Agent and Transfer Agent.
The Trust shall maintain in the Borough of Manhattan, The City of New York
or in the City of Wilmington, Delaware (i) an office or agency where Preferred
Securities may be presented for registration of transfer ("Registrar"), (ii) an
office or agency where Preferred Securities may be presented for payment
("Paying Agent") and (iii) an office or agency where Securities may be presented
for exchange ("Transfer Agent"). The Registrar shall keep a register of the
Preferred Securities and of their transfer. The Trust may appoint the Registrar,
the Paying Agent and the Transfer Agent and may appoint one or more
co-registrars, one or more additional paying agents and one or more additional
Transfer Agents in such other locations as it shall determine. The term
"Registrar" includes any additional registrar, the term "Paying Agent" includes
any additional paying agent and the term "Transfer Agent" includes any
additional Transfer Agent. The Trust may change any Paying Agent, Registrar,
co-registrar or Transfer Agent without prior notice to any Holder. The Paying
Agent shall be permitted to resign as Paying Agent upon 30 days' written notice
to the Property Trustee, the Administrative Trustees and the Company. The Trust
shall notify the Property Trustee of the name and address of any Agent not a
party to this Declaration. If the Trust fails to appoint or maintain another
entity as Registrar, Paying Agent or Transfer Agent, the Property Trustee shall
act as such. The Trust or any of its Affiliates may act as Paying Agent,
Registrar, or Transfer Agent.
The Trust shall act as Paying Agent, Registrar and Transfer Agent for the
Common Securities.
The Trust initially appoints the Property Trustee as Registrar, Paying
Agent and Transfer Agent for the Preferred Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the Property Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Property Trustee all money held by the Paying Agent for the
payment of liquidation amounts or Distributions, and will notify the Property
Trustee if there are insufficient funds for such purpose. While any such
insufficiency continues, the Property Trustee may require a Paying Agent to pay
all money held by it to the Property Trustee. The Trust at any time may require
a Paying Agent to pay all money held by it to the Property Trustee and to
account for any money disbursed by it. Upon payment over to the Property
Trustee, the Paying Agent (if other than the Trust or an Affiliate of the Trust)
shall have no further liability for the money. If the Trust or the Company or an
Affiliate of the Trust or the Company acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent.
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SECTION 7.6 Replacement Securities.
If a Holder claims that a Security owned by it has been lost, destroyed or
wrongfully taken or if such Security is mutilated and is surrendered to the
Trust or in the case of the Preferred Securities to the Property Trustee, an
Administrative Trustee shall execute and the Property Trustee shall, upon
receipt of an Issuer Order to do so, authenticate and make available for
delivery a replacement Security if the Property Trustee's requirements are met.
An indemnity bond must be provided by the Holder which, in the judgment of the
Property Trustee, is sufficient to protect the Trustees, the Company, the Trust
or any authenticating agent from any loss which any of them may suffer if a
Security is replaced. The Trust may charge such Holder for its expenses in
replacing a Security.
SECTION 7.7 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the Preferred
Securities authenticated by the Property Trustee except for those canceled by
it, those delivered to it for cancellation, and those described in this Section
as not outstanding.
If a Preferred Security is replaced, paid or purchased pursuant to Section
7.6 hereof, it ceases to be outstanding unless the Property Trustee receives
proof satisfactory to it that the replaced, paid or purchased Preferred Security
is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with the terms of
this Declaration, they cease to be outstanding and Distributions on them shall
cease to accumulate.
A Preferred Security does not cease to be outstanding because one of the
Trust, the Company or an Affiliate of the Company holds the Security.
SECTION 7.8 Preferred Securities in Treasury.
In determining whether the Holders of the required amount of Securities
have concurred in any direction, waiver or consent, Preferred Securities owned
by the Trust, the Company or an Affiliate of the Company, as the case may be,
shall be disregarded and deemed not to be outstanding, except that for the
purposes of determining whether the Property Trustee shall be fully protected in
relying on any such direction, waiver or consent, only Securities which the
Property Trustee actually knows are so owned shall be so disregarded.
SECTION 7.9 Temporary Securities.
(a) Until Definitive Preferred Securities are ready for delivery, the Trust
may prepare and, in the case of the Preferred Securities, the Property Trustee
shall, upon receipt of an Issuer Order to do so, authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
Definitive Preferred Securities but may have variations that the Trust considers
appropriate for temporary Securities. Without unreasonable delay, the Trust
shall prepare and, in the case of the
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Preferred Securities, the Property Trustee shall, upon receipt of an Issuer
Order to do so, authenticate Definitive Preferred Securities in exchange for
temporary Securities.
(b) The Global Preferred Security deposited with the Clearing Agency or
with the Property Trustee as custodian for the Clearing Agency pursuant to
Section 7.3 shall be transferred to the beneficial owners thereof in the form of
Definitive Preferred Securities only if such transfer complies with Section 9.2
and (i) the Clearing Agency notifies the Company that it is unwilling or unable
to continue as Clearing Agency for such Global Preferred Security or if at any
time such Clearing Agency ceases to be a "clearing agency" registered under the
Exchange Act, and, in each case, a clearing agency is not appointed by the
Company within 90 days of receipt of such notice or of becoming aware of such
condition, (ii) a Default or an Event of Default has occurred and is continuing,
or (iii) the Trust at its sole discretion elects to cause the issuance of
Definitive Preferred Securities.
(c) Any Global Preferred Security that is transferable to the beneficial
owners thereof in the form of Definitive Preferred Securities pursuant to this
Section 7.9 shall be surrendered by the Clearing Agency to the Property Trustee
to be so transferred, in whole or from time to time in part, without charge, and
the Property Trustee shall authenticate and make available for delivery, upon
such transfer of each portion of such Global Preferred Security, an equal
aggregate liquidation amount of Preferred Securities of authorized denominations
in the form of Definitive Preferred Securities. Any portion of the Global
Preferred Security transferred pursuant to this Section shall be registered in
such names as the Clearing Agency shall direct.
(d) Subject to the provisions of Section 7.9(c), the Holder of the Global
Preferred Security may grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold interests through Participants,
to take any action which such Holder is entitled to take under this Declaration
or the Securities.
(e) In the event of the occurrence of any of the events specified in
Section 7.9(b), the Trust will promptly make available to the Property Trustee a
reasonable supply of certificated Preferred Securities in fully registered form
without distribution coupons.
SECTION 7.10 Cancellation.
The Trust at any time may deliver Preferred Securities to the Property
Trustee for cancellation. The Registrar, Paying Agent and Transfer Agent shall
forward to the Property Trustee any Preferred Securities surrendered to them for
registration of transfer, redemption, exchange or payment. The Property Trustee
shall promptly cancel all Preferred Securities surrendered for registration of
transfer, redemption, exchange, payment, replacement or cancellation and shall
dispose of canceled Preferred Securities in accordance with its customary
procedures unless the Trust otherwise directs. The Trust may not issue new
Preferred Securities to replace Preferred Securities that it has paid or that
have been delivered to the Property Trustee for cancellation or that any Holder
has exchanged.
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SECTION 7.11 CUSIP Numbers.
The Trust in issuing the Preferred Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Property Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders of Preferred
Securities; provided that, any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Preferred
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Preferred
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Property Trustee
of any change in the CUSIP numbers.
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall automatically dissolve:
(i) upon the bankruptcy of the Company;
(ii) upon the filing of a certificate of dissolution or liquidation or
its equivalent with respect to the Company; or the revocation of the
Company's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) following the distribution of a Like Amount of the Debentures to
the Holders, provided that, the Property Trustee has received written
notice from the Company directing the Property Trustee to dissolve the
Trust (which direction is optional, and except as otherwise expressly
provided below, within the discretion of the Company), and provided,
further, that such direction and such distribution is conditioned on (a)
the receipt by the Company of any and all required regulatory approvals,
and (b) the Company's receipt and delivery to the Administrative Trustees
of an opinion of independent tax counsel experienced in such matters, which
opinion may rely on public or private rulings of the Internal Revenue
Service, to the effect that the Holders of the Preferred Securities will
not recognize any gain or loss for United States federal income tax
purposes as a result of the dissolution of the Trust and the distribution
of Debentures;
(iv) upon the entry of a decree of judicial dissolution of the Trust
by a court of competent jurisdiction;
(v) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders in accordance with the terms of the Securities;
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(vi) upon the redemption or repayment of the Debentures or at such
time as no Debentures are outstanding; or
(vii) the expiration of the term of the Trust provided in Section
3.14.
(b) As soon as is practicable upon completion of winding up of the Trust
following the occurrence of an event referred to in Section 8.1(a) and the
satisfaction of creditors of the Trust in accordance with applicable law, the
Administrative Trustees shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State of the State of Delaware in accordance
with the Statutory Trust Act.
(c) The provisions of Section 3.9 and Article X shall survive the
dissolution and termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Declaration and in accordance
with the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) For so long as the Preferred Securities remain outstanding, the Company
shall covenant:
(i) to maintain, directly or indirectly, 100% ownership of the Common
Securities; provided, however, that any permitted successor of
the Company (in its capacity as issuer of the Debentures) under
the Indenture may succeed to the Company's ownership of such
Common Securities;
(ii) to use its reasonable best efforts to cause the Trust to (a)
remain a statutory trust, except in connection with the
distribution of the Debentures to the Holders in liquidation of
the Trust, the redemption of all of the Securities, or certain
mergers, consolidations, conversions or amalgamations, each as
permitted by this Declaration, (b) not to voluntarily dissolve,
wind up, liquidate or be terminated, except as permitted by this
Declaration and (c) otherwise continue to be classified as a
grantor trust for United States federal income tax purposes;
(iii) to use its commercially reasonable efforts to ensure that the
Trust will not be an Investment Company required to be registered
under the Investment Company Act;
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(iv) not to take any action that would be reasonably likely to cause
the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal
income tax purposes; and
(v) to use its reasonable best efforts to cause each Holder to be
treated as owning an undivided beneficial interest in the assets
of the Trust.
(c) The Trust shall cause to be kept at the Corporate Trust Office the
books and records which, subject to such reasonable regulations as it may
prescribe, the Trust shall provide for the registration of Preferred Securities
and of the transfer of Preferred Securities, which will be effected without
charge but only upon payment in respect of any tax or other governmental charges
that may be imposed in relation to it. Upon surrender for registration of
transfer of any Preferred Securities, an Administrative Trustee shall cause one
or more new Preferred Securities to be issued in the name of the designated
transferee or transferees. If so required by the Property Trustee, every
Preferred Security surrendered for registration of transfer shall be accompanied
by a written instrument of transfer in form satisfactory to the Registrar duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Preferred Security surrendered for registration of transfer shall be
delivered to the Registrar and canceled in accordance with Section 7.10. A
transferee of a Preferred Security shall be entitled to the rights and subject
to the obligations of a Holder hereunder upon the receipt by such transferee of
a Preferred Security. By acceptance of a Preferred Security or any interest
therein, each transferee shall be deemed to have agreed to be bound by this
Declaration.
(d) If the Preferred Securities are to be redeemed in part, neither the
Administrative Trustees nor the Trust shall be required to register the transfer
of or exchange any Preferred Securities:
(i) during a period beginning on the opening of business 15 days
before the day of the mailing of a notice of redemption of Preferred
Securities in accordance with applicable redemption procedures governing
the Preferred Securities or any notice of selection of Preferred Securities
for redemption; or
(ii) so selected for redemption, except the unredeemed portion of any
such Preferred Securities being redeemed in part.
SECTION 9.2 Transfer Procedures and Restrictions.
(a) Transfer and Exchange of Definitive Preferred Securities. When
Definitive Preferred Securities are presented to the Registrar or co-registrar:
(i) to register the transfer of such Definitive Preferred Securities;
or
(ii) to exchange such Definitive Preferred Securities which became
mutilated, destroyed, defaced, stolen or lost, for an equal number of
Definitive Preferred Securities, the Registrar or co-registrar shall
register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met;
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provided, however, that the Definitive Preferred Securities surrendered for
registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Trust and the Registrar or
co-registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing;
(b) Restrictions on Transfer of a Definitive Preferred Security for a
Beneficial Interest in the Global Preferred Security. A Definitive Preferred
Security may not be exchanged for a beneficial interest in the Global Preferred
Security except upon satisfaction of the requirements set forth below. Upon
receipt by the Property Trustee of a Definitive Preferred Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Property Trustee, together with written instructions
directing the Property Trustee to make, or to direct the Clearing Agency to
make, an adjustment on its books and records with respect to the Global
Preferred Security to reflect an increase in the number of the Preferred
Securities represented by such Global Preferred Security, then the Property
Trustee shall cancel such Definitive Preferred Security and cause, or direct the
Clearing Agency to cause, the aggregate number of Preferred Securities
represented by the Global Preferred Security to be increased accordingly. If the
Global Preferred Security is not then outstanding, an Administrative Trustee on
behalf of the Trust shall issue and the Property Trustee shall authenticate,
upon written order of any Administrative Trustee, a new Global Preferred
Security representing an appropriate number of Preferred Securities.
(c) Transfer and Exchange of the Global Preferred Security. Subject to
Section 9.2(f), the transfer and exchange of the Global Preferred Security or
beneficial interests therein shall be effected through the Clearing Agency in
accordance with this Declaration (including applicable restrictions on transfer
set forth herein, if any) and the procedures of the Clearing Agency therefor.
(d) Transfer of a Beneficial Interest in the Global Preferred Security for
a Definitive Preferred Security.
(i) Any Person having a beneficial interest in the Global Preferred
Security may upon request, but only upon 20 days prior notice to the
Property Trustee, and if accompanied by the information specified below,
exchange such beneficial interest for a Definitive Preferred Security
representing the same number of Preferred Securities. Upon receipt by the
Property Trustee from the Clearing Agency or its nominee on behalf of any
Person having a beneficial interest in the Global Preferred Security of
written instructions or such other form of instructions as is customary for
the Clearing Agency and certification(s) from the transferor in a form
substantially similar to that attached hereto as the form of "Assignment"
in Exhibit A-1, which may be submitted by facsimile, then the Property
Trustee will cause the aggregate number of Preferred Securities represented
by the Global Preferred Security to be reduced on its books and records
and, following such reduction, the Trust will execute and the Property
Trustee will authenticate and make available for delivery to the transferee
a Definitive Preferred Security.
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(ii) Definitive Preferred Securities issued in exchange for a
beneficial interest in the Global Preferred Security pursuant to this
Section 9.2(e) shall be registered in such names and in such authorized
denominations as the Clearing Agency, pursuant to instructions from its
Clearing Agency Participants or indirect participants or otherwise, shall
instruct the Property Trustee in writing. The Property Trustee shall
deliver such Preferred Securities to the Persons in whose names such
Preferred Securities are so registered in accordance with such instructions
of the Clearing Agency.
(e) Restrictions on Transfer and Exchange of the Global Preferred Security.
Notwithstanding any other provisions of this Declaration (other than the
provisions set forth in subsection (h) of this Section 9.2), the Global
Preferred Security may not be transferred as a whole except by the Clearing
Agency to a nominee of the Clearing Agency or another nominee of the Clearing
Agency or by the Clearing Agency or any such nominee to a successor Clearing
Agency or a nominee of such successor Clearing Agency.
(f) Authentication of Definitive Preferred Securities. If at any time:
(i) a Default or an Event of Default has occurred and is continuing,
(ii) the Trust, in its sole discretion, notifies the Property Trustee
in writing that it elects to cause the issuance of Definitive Preferred
Securities under this Declaration, or
(iii) the Clearing Agency notifies the Company that it is unwilling or
unable to continue as Clearing Agency for such Global Preferred Security or
if at any time such Clearing Agency ceases to be a "clearing agency"
registered under the Exchange Act, and, in each case, a clearing agency is
not appointed by the Company within 90 days of receipt of such notice or of
becoming aware of such condition,
then an Administrative Trustee on behalf of the Trust will execute, and the
Property Trustee, upon receipt of a written order of the Trust signed by one
Administrative Trustee requesting the authentication and delivery of Definitive
Preferred Securities to the Persons designated by the Trust, will authenticate
and make available for delivery Definitive Preferred Securities, equal in number
to the number of Preferred Securities represented by the Global Preferred
Security, in exchange for such Global Preferred Security.
(g) Cancellation or Adjustment of Global Preferred Security. At such time
as all beneficial interests in the Global Preferred Security have either been
exchanged for Definitive Preferred Securities to the extent permitted by this
Declaration or redeemed, repurchased or canceled in accordance with the terms of
this Declaration, such Global Preferred Security shall be returned to the
Clearing Agency for cancellation or retained and canceled by the Property
Trustee. At any time prior to such cancellation, if any beneficial interest in
the Global Preferred Security is exchanged for Definitive Preferred Securities,
Preferred Securities represented by such Global Preferred Security shall be
reduced and an adjustment shall be made on the books and records of the Property
Trustee and the Clearing Agency or its nominee to reflect such reduction.
46
(h) Obligations with Respect to Transfers and Exchanges of Preferred
Securities.
(i) To permit registrations of transfers and exchanges, the Trust
shall execute and the Property Trustee shall authenticate Definitive
Preferred Securities and the Global Preferred Security at the Registrar's
or co-registrar's request in accordance with the terms of this Declaration.
(ii) Registrations of transfers or exchanges will be effected without
charge, but only upon payment (with such indemnity as the Trust or the
Company may require) in respect of any tax or other governmental charge
that may be imposed in relation to it.
(iii) The Registrar or co-registrar shall not be required to register
the transfer of or exchange of (a) Preferred Securities during a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption or any notice of selection of Preferred Securities for
redemption and ending at the close of business on the day of such mailing
or (b) any Preferred Security so selected for redemption in whole or in
part, except the unredeemed portion of any Preferred Security being
redeemed in part.
(iv) Prior to the due presentation for registration of transfer of any
Preferred Security, the Trust, the Property Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the Person in whose name a
Preferred Security is registered as the absolute owner of such Preferred
Security for the purpose of receiving Distributions on such Preferred
Security and for all other purposes whatsoever, and none of the Trust, the
Property Trustee, the Paying Agent, the Registrar or any co-registrar shall
be affected by notice to the contrary.
(v) All Preferred Securities issued upon any registration of transfer
or exchange pursuant to the terms of this Declaration shall evidence the
same security and shall be entitled to the same benefits under this
Declaration as the Preferred Securities surrendered upon such registration
of transfer or exchange.
(i) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no responsibility or obligation to
any Preferred Security Beneficial Owner, a Participant in the Clearing
Agency or other Person with respect to the accuracy of the records of the
Clearing Agency or its nominee or of any Participant thereof, with respect
to any ownership interest in the Preferred Securities or with respect to
the delivery to any Participant, beneficial owner or other Person (other
than the Clearing Agency) of any notice (including any notice of
redemption) or the payment of any amount, under or with respect to such
Preferred Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Preferred
Securities shall be given or made only to or upon the order of the
registered Holders (which shall be the Clearing Agency or its nominee in
the case of the Global Preferred Security).
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The rights of Preferred Security Beneficial Owners shall be exercised only
through the Clearing Agency subject to the applicable rules and procedures
of the Clearing Agency. The Property Trustee may conclusively rely and
shall be fully protected in relying upon information furnished by the
Clearing Agency or any agent thereof with respect to its Participants and
any Preferred Security Beneficial Owners.
(ii) The Property Trustee and the Registrar shall have no obligation
or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Declaration or under applicable
law with respect to any transfer of any interest in any Preferred Security
(including any transfers between or among Clearing Agency Participants or
Preferred Security Beneficial Owners) other than to require delivery of
such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of
this Declaration, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Security shall be
registered on the books and records of the Trust as the sole owner and Holder of
such Security for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Security on the part of any Person, whether
or not the Trust shall have actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
The Global Preferred Security shall initially be registered on the books
and records of the Trust in the name of Cede & Co., the nominee of the Clearing
Agency and no Preferred Security Beneficial Owner will receive physical delivery
of a definitive Preferred Security certificate (a "Preferred Security
Certificate") representing such Preferred Security Beneficial Owner's interests
in such Global Preferred Security, except as provided in Section 9.2 and Section
7.9. Unless and until Definitive Preferred Securities have been issued to the
Preferred Security Beneficial Owners pursuant to Section 9.2 or Section 7.9:
(a) the provisions of this Section 9.4 shall be in full force and effect;
(b) the Trust and the Trustees shall be entitled to deal with the Clearing
Agency for all purposes of this Declaration (including the payment of
Distributions on the Global Preferred Security and receiving approvals, votes or
consents hereunder) as the sole Holder of the Global Preferred Security and
shall have no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict with any
other provisions of this Declaration, the provisions of this Section 9.4 shall
control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through
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the Clearing Agency and shall be limited to those established by law and
agreements between such Preferred Security Beneficial Owners and the Clearing
Agency and/or the Clearing Agency Participants, and the Clearing Agency shall
receive and transmit payments of Distributions on the Global Preferred Security
to such Clearing Agency Participants; provided, however, that solely for the
purposes of determining whether the Holders of the requisite amount of Preferred
Securities have voted on any matter provided for in this Declaration, the
Trustees, with respect to the Global Preferred Security, may conclusively rely
on, and shall be protected in relying on, any written instrument (including a
proxy) delivered to the Trustees by the Clearing Agency setting forth the
Preferred Security Beneficial Owners' votes or assigning the right to vote on
any matter to any other Persons either in whole or in part; and the Clearing
Agency will also make book-entry transfers among the Clearing Agency
Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred Security Holders
is required to be given by a Trustee under this Declaration, such Trustee shall
give all such notices and communications specified herein to be given to the
Holder of the Global Preferred Security to the Clearing Agency and shall have no
notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Preferred Securities, the Administrative Trustees
may, in their sole discretion, appoint a successor Clearing Agency with respect
to such Preferred Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Company shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders which shall be made
solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder any deficit upon
dissolution of the Trust or otherwise.
(b) The Company, in its capacity as issuer of the Debentures, shall be
liable for all of the debts and obligations of the Trust (other than in respect
of the Securities) to the extent such debts and obligations are not satisfied
out of the Trust's assets.
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(c) Pursuant to (S) 3803(a) of the Statutory Trust Act, the Holders shall
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence (or in the case
of the Property Trustee or the Delaware Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and, if selected by such Indemnified Person who has been selected
with reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders might properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law (common or statutory) or in equity, an
Indemnified Person has duties (including fiduciary duties) to the Trust, any
other Covered Person, or any other Person, such duties may be restricted or
eliminated by provisions in this Declaration, except that this Declaration may
not eliminate the implied contractual covenant of good faith and fair dealing.
An Indemnified Person shall not be liable to the Trust, any other Covered
Person, or any other Person that is a party to or is otherwise bound by this
Declaration for breach of fiduciary duty for such Indemnified Person's good
faith reliance on the provisions of this Declaration. The provisions of this
Declaration, to the extent that they restrict or eliminate the liabilities of an
Indemnified Person otherwise existing at law or in equity (other than the duties
imposed on the Property Trustee under the Trust Indenture Act), are agreed by
the parties hereto to replace such other liabilities of such Indemnified Person,
except that no provision of this Declaration may limit or eliminate liability
for any act or omission that constitutes a bad faith violation of the implied
contractual covenant of good faith and fair dealing.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Person and any Indemnified Person, or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner
that is, or provides terms that are, fair and reasonable to the Trust or
any Holder of Securities,
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the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 10.4 Indemnification.
(a) The Company shall indemnify, to the full extent permitted by law, any
Company Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that he is or was a
Company Indemnified Person, against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the Company Indemnified Person
did not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) The Company shall indemnify, to the full extent permitted by law, any
Company Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Trust to procure a judgment in its favor by reason of the fact that he is
or was a Company Indemnified Person against expenses (including attorneys' fees
and expenses) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably
51
believed to be in or not opposed to the best interests of the Trust and except
that no such indemnification shall be made in respect of any claim, issue or
matter as to which such Company Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent that the Court of Chancery
of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such Person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or such
other court shall deem proper.
(c) To the extent that a Company Indemnified Person shall be successful on
the merits or otherwise (including dismissal of an action without prejudice or
the settlement of an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a), or in defense of any claim, issue or matter therein, he or she
shall be indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
(d) Any indemnification under paragraphs (i) and (ii) of this Section
10.4(a) (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in paragraphs (i) and (ii).
Such determination shall be made (1) by the Administrative Trustees by a
majority vote of a Quorum consisting of such Administrative Trustees who were
not parties to such action, suit or proceeding, (2) if such a Quorum is not
obtainable, or, even if obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(e) Expenses (including attorneys' fees and expenses) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 10.4(a) shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
Company as authorized in this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Company if a determination is reasonably and
promptly made (i) by the Administrative Trustees by a majority vote of a Quorum
of disinterested Administrative Trustees, (ii) if such a Quorum is not
obtainable, or, even if obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written opinion or (iii)
by the Common Security Holder of the Trust, that, based upon the facts known to
the Administrative Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in bad faith
or in a manner that the Common Security Holder did not believe to be in, or
believed was opposed to, the best interests of the Trust, or, with respect to
any criminal proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his or her conduct was unlawful.
In no event shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Common Security Holder reasonably
determine that a
52
Company Indemnified Person deliberately breached his or her duty to the Trust or
its Common or Preferred Security Holders.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other paragraphs of this Section 10.4(a) shall not be deemed
exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Company or Preferred Security
Holders of the Trust or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be provided by a
contract between the Company and each Company Indemnified Person who serves in
such capacity at any time while this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any rights or obligations
then existing.
(g) The Company or the Trust may purchase and maintain insurance on behalf
of any person who is or was a Company Indemnified Person against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the Company would have
the power to indemnify him or her against such liability under the provisions of
this Section 10.4(a).
(h) For purposes of this Section 10.4(a), references to "the Trust" shall
include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger, so that any person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
10.4(a) with respect to the resulting or surviving entity as he or she would
have with respect to such constituent entity if its separate existence had
continued.
(i) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section 10.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a Person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a Person.
(j) The Company agrees to indemnify the (i) Property Trustee acting in any
capacity hereunder (including, without limitation, as Registrar, Paying Agent
and Transfer Agent), (ii) the Delaware Trustee, (iii) any Affiliate of the
Property Trustee or the Delaware Trustee, and (iv) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Property Trustee or the Delaware Trustee (each of the
Persons in (i) through (iv), including the Property Trustee and the Delaware
Trustee in their respective individual capacities, being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, action, suit,
claim or expense including taxes (other than taxes based on the income of such
Fiduciary Indemnified Person) of any kind and nature whatsoever incurred without
negligence or bad faith on the part of such Fiduciary Indemnified Person,
arising out of or in connection with the acceptance or
53
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending against or
investigating any claim or liability in connection with the exercise or
performance of any of the powers or duties of such Fiduciary Indemnified Person
hereunder. The Company agrees to advance expenses (including legal fees)
incurred by a Fiduciary Indemnified Person in defending any claim, demand,
action, suit or proceeding, from time to time, prior to the final disposition of
such claim, demand, action, suit or proceeding, upon receipt by the Company of
an undertaking by or on behalf of such Fiduciary Indemnified Person to repay
such amount if it shall be determined that such Fiduciary Indemnified is not
entitled to be indemnified as authorized in this subsection. The obligations as
set forth in this Section 10.4(j) shall survive the resignation or removal of
the Property Trustee or the Delaware Trustee, the termination of the Trust and
the satisfaction and discharge of this Declaration.
(k) The Company agrees to pay the Property Trustee and the Delaware
Trustee, from time to time, such compensation for all services rendered by the
Property Trustee and the Delaware Trustee hereunder as may be mutually agreed
upon in writing by the Company and the Property Trustee or the Delaware Trustee,
as the case may be, and, except as otherwise expressly provided herein, to
reimburse the Property Trustee and the Delaware Trustee upon its or their
request for all reasonable expenses (including legal fees and expenses),
disbursements and advances incurred or made by the Property Trustee or the
Delaware Trustee, as the case may be, in accordance with the provisions of this
Declaration, except any such expense, disbursement or advance as may be
attributable to its or their negligence or bad faith.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Company, the Delaware Trustee and the Property
Trustee (subject to Section 5.3(c)) may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Company, the Delaware
Trustee, or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Company, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Company or any Affiliate of the Company, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Company or its Affiliates.
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ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Administrative
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be duly prepared and
delivered to each of the Holders any annual United States federal income tax
information statement required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Administrative Trustees shall endeavor to
deliver all such information statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Administrative Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Administrative Trustees on behalf of the Trust with any state or local
taxing authority.
(d) The Administrative Trustees shall cause to be prepared and delivered to
each Holder, within 90 days after the end of each Fiscal Year of the Trust,
annual financial statements of the Trust, including a balance sheet of the Trust
as of the end of such Fiscal Year, and the related statements of income or loss.
SECTION 11.3 Banking.
The Trust may maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Trustee Account and no other funds of the Trust shall be deposited
in the Property Trustee Account. The sole signatories for such accounts
55
shall be designated by the Administrative Trustees; provided, however, that the
Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.4 Withholding.
The Trust and the Administrative Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Administrative Trustees shall cause to be filed
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to Distributions or allocations to any Holder, the amount withheld shall
be deemed to be a Distribution in the amount of the withholding to the Holder.
In the event of any claim of excess withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration (including Section 7
of Annex I hereto) or by any applicable terms of the Securities, this
Declaration may only be amended by a written instrument approved and executed
by:
(i) the Company and the Administrative Trustees (or, if there are more
than two Administrative Trustees, a majority of the Administrative
Trustees);
(ii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Property Trustee, the Property Trustee; and
(iii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received:
56
(A) an Officers' Certificate from each of the Trust and the
Company that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of
the Securities); and
(B) an Opinion of Counsel (who may be counsel to the Company or
the Trust) that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of
the Securities) and that all conditions precedent to the
execution and delivery of such amendment have been
satisfied;
(ii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified for
purposes of United States federal income taxation as a
grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
(c) This Declaration shall not be amended without the consent of the
Company, a majority of the Administrative Trustees and the Holders of at least a
Majority in Liquidation Amount of the Securities if such amendment would:
(i) adversely affect the powers, preferences or special rights of the
Securities in any material respect; or
(ii) result in the dissolution, winding-up or termination of the Trust
other than pursuant to the terms of this Declaration;
provided that if any amendment referred to in clause (i) above would adversely
affect only the Preferred Securities or the Common Securities, then only the
Holders of the affected class will be entitled to vote on such amendment, and
such amendment shall not be effective except with the approval of a Majority in
Liquidation Amount of the Holders of the class of Securities affected thereby.
(d) At such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder (other than an amendment pursuant to (i) below) may be
effected only with such additional requirements as may be set forth in the terms
of such Securities;
(e) Section 10.1(c) and this Section 12.1 shall not be amended without the
consent of all of the Holders;
57
(f) Article Four shall not be amended without the consent of the Holders of
a Majority in Liquidation Amount of the Common Securities;
(g) The rights of the Holders of the Common Securities under Article V to
increase or decrease the number of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in Liquidation Amount
of the Common Securities; and
(h) This Declaration may not be amended without the consent of each Holder
affected thereby to:
(i) change the amount or timing of any Distribution on the
Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Securities as of a
specified date;
(ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after the due date of such
payment;
(iii) change the purposes of the Trust;
(iv) authorize the issuance of any additional beneficial interests in
the Trust;
(v) change the provisions relating to the distribution of amounts
payable upon the dissolution and liquidation of the Trust; or
(vi) affect the limited liability of any Holder of the Securities.
(i) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders to:
(i) cure any ambiguity, correct or supplement any provision in this
Declaration that may be inconsistent with any other provision of this
Declaration or to make any other provisions with respect to matters or
questions arising under this Declaration which shall not be inconsistent
with the other provisions of the Declaration;
(ii) to modify, eliminate or add to any provisions of the Declaration
to such extent as shall be necessary to ensure that the Trust will be
classified for United States federal income tax purposes as a grantor trust
at all times that any Securities are outstanding or to ensure that the
Trust will not be required to register as an Investment Company under the
Investment Company Act; and
(iii) add to the covenants, restrictions or obligations of the Company
or grant any additional rights to the Holders of Preferred Securities; and
58
(iv) conform any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the rights, preferences or privileges of the
Holders of the Securities.
provided, however, that in each clause above, such action shall not adversely
affect in any material respect the interests of the Holders, and any such
amendments of this Declaration shall become effective when notice thereof is
given to the Holders.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Administrative Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Administrative Trustees shall
call a meeting of the Holders of such class if directed to do so by the Holders
of at least 10% in Liquidation Amount of such class of Securities. Such
direction shall be given by delivering to the Administrative Trustees one or
more notices in writing stating that the signing Holders wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders calling a meeting shall specify in writing the Preferred
Security Certificates held by the Holders exercising the right to call a meeting
and only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings of Holders:
(i) notice of any such meeting shall be given to all the Holders
having a right to vote thereat at least seven days and not more than 60
days before the date of such meeting. Whenever a vote, consent or approval
of the Holders is permitted or required under this Declaration or the rules
of any stock exchange on which the Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be given at a
meeting of the Holders; any action that may be taken at a meeting of the
Holders may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders owning not less than the
minimum amount of Securities in liquidation amount that would be necessary
to authorize or take such action at a meeting at which all Holders having a
right to vote thereon were present and voting; prompt notice of the taking
of action without a meeting shall be given to the Holders entitled to vote
who have not consented in writing; and the Administrative Trustees may
specify that any written ballot submitted to the Security Holder for the
purpose of taking any action without a meeting shall be returned to the
Trust within the time specified by the Administrative Trustees;
(ii) each Holder may authorize any Person to act for it by proxy on
all matters in which a Holder is entitled to participate, including waiving
notice of any meeting, or voting
59
or participating at a meeting; no proxy shall be valid after the expiration
of eleven months from the date thereof unless otherwise provided in the
proxy; every proxy shall be revocable at the pleasure of the Holder
executing it; and, except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders were stockholders of a Delaware corporation;
(iii) each meeting of the Holders shall be conducted by the
Administrative Trustees or by such other Person that the Administrative
Trustees may designate; and
(iv) unless the Statutory Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Preferred Securities are then listed or trading,
otherwise provides, the Administrative Trustees, in their sole discretion,
shall establish all other provisions relating to meetings of Holders,
including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders, waiver of any such notice, action
by consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with respect
to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and warrants
to the Trust and to the Company at the date of this Declaration, and each
Successor Property Trustee represents and warrants to the Trust and the Company
at the time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) the Property Trustee is a banking corporation, a national banking
association or a bank or trust company, duly organized, validly existing and in
good standing under the laws of the United States or the State of Delaware as
the case may be, with corporate power and authority to execute and deliver, and
to carry out and perform its obligations under the terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth in Section
5.3(a);
(c) the execution, delivery and performance by the Property Trustee of this
Declaration has been duly authorized by all necessary corporate action on the
part of the Property Trustee; and this Declaration has been duly executed and
delivered by the Property Trustee and under Delaware law (excluding any
securities laws) constitutes a legal, valid and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally
60
and to general principles of equity and the discretion of the court (regardless
of whether the enforcement of such remedies is considered in a proceeding in
equity or at law);
(d) the execution, delivery and performance of this Declaration by the
Property Trustee does not conflict with or constitute a breach of the charter or
by-laws of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any federal or state banking authority under any Delaware law or
United States federal law governing the banking and trust powers of the Property
Trustee is required for the execution, delivery or performance by the Property
Trustee of this Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The initial Delaware Trustee represents and warrants to the Trust and to
the Company at the date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Company at the time of the
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee
that:
(a) the Delaware Trustee is a Delaware banking corporation, a national
banking association or a bank or trust company, duly organized, validly existing
and in good standing under the laws of the United States or the State of
Delaware, as the case may be, with corporate power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the Delaware Trustee satisfies the requirements set forth in Section
5.2.
(c) the execution, delivery and performance by the Delaware Trustee of this
Declaration has been duly authorized by all necessary corporate action on the
part of the Delaware Trustee; and this Declaration has been duly executed and
delivered by the Delaware Trustee and under Delaware law (excluding any
securities laws) constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Declaration by the
Delaware Trustee does not conflict with or constitute a breach of the charter or
by-laws of the Delaware Trustee;
(e) no consent, approval or authorization of, or registration with or
notice to, any federal or Delaware banking authority under any Delaware law or
United States federal law governing the banking and trust powers of the Delaware
Trustee is required for the execution, delivery or performance by the Delaware
Trustee of this Declaration; and
61
(f) the Delaware Trustee is a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware, and is a Person that satisfies for the
Trust Section 3807(a) of the Statutory Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, overnight courier service or confirmed telecopy, as
follows:
(a) if given to the Trust, in care of the Administrative Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders):
New York Community Capital Trust (.)
c/o New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
Attention: Administrative Trustee,
c/o Chief Financial Officer
Facsimile No.: (516) 683-8385
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as Delaware Trustee may give notice of to the
Holders):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Facsimile No.: (302) 636-4145
(c) if given to the Property Trustee, at the Property Trustee's mailing
address set forth below (or such other address as the Property Trustee may give
notice of to the Holders):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Facsimile No.: (302) 636-4145
62
(d) if given to the Holder of the Common Securities, at the mailing address
of the Company set forth below (or such other address as the Holder of the
Common Securities may give notice to the Trust):
New York Community Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
Attention: Chief Financial Officer
Facsimile No.: (516) 683-8385
(e) if given to any other Holder, at the address set forth on the books and
records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be governed
by and construed in accordance with the laws of the State of Delaware without
regard to conflict of laws principles thereof.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
63
SECTION 14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Company and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether or not so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one or more of such counterpart signature pages. All of
such counterpart signature pages shall be read as though one, and they shall
have the same force and effect as though all of the signers had signed a single
signature page.
64
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
---------------------------------
as Administrative Trustee
---------------------------------
as Administrative Trustee
---------------------------------
as Administrative Trustee
WILMINGTON TRUST COMPANY
as Delaware Trustee
By:
-----------------------------
Name:
Title:
WILMINGTON TRUST COMPANY
as Property Trustee
By:
-----------------------------
Name:
Title:
NEW YORK COMMUNITY BANCORP, INC.,
as Company
By:
-----------------------------
Name:
Title:
65
ANNEX I
TERMS OF
PREFERRED SECURITIES
COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration, dated as
of (.).(.) (as amended from time to time, the "Declaration"), the designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration, the Indenture or, if not
defined in such Declaration or Indenture, as defined in the Offering Memorandum
referred to below in Section 2(c) of this Annex I):
1. Designation and Number.
(a) Preferred Securities. (.) Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of (.) ($(.)) and
with a liquidation amount with respect to the assets of the Trust of One
Thousand Dollars ($1,000) (the "Liquidation Amount") per security, are hereby
designated for the purposes of identification only as Preferred Securities . The
certificates evidencing the Preferred Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any exchange or quotation system on or in which
the Preferred Securities are listed, traded or quoted.
(b) Common Securities. (.)Common Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of (.) ($ (.)) and a
liquidation amount with respect to the assets of the Trust of $1,000 per
security, are hereby designated for the purposes of identification only as
"Common Securities" (the "Common Securities"). The certificates evidencing the
Common Securities shall be substantially in the form of Exhibit A-2 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
(c) The Preferred Securities and the Common Securities represent undivided
beneficial interests in the assets of the Trust.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of (.) (the "Coupon Rate") of the stated liquidation amount of (.) per
Security, such rate being the rate of interest payable on the Debentures to be
held by the Property Trustee. Distributions in arrears for more than one quarter
will bear interest thereon compounded quarterly at the Coupon Rate ("Compounded
Distributions") (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest (including Additional Interest and Compounded Distributions) payable
unless otherwise stated. A Distribution
I-1
will be made by the Property Trustee only to the extent that payments are made
in respect of the Debentures held by the Property Trustee and to the extent the
Trust has funds available in the Property Trustee Account. The amount of
Distributions payable for any period will be computed for any full 90-day
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full 90-day quarterly Distribution
period on the basis of a 30-day month for which Distributions are computed.
Distributions will be computed on the basis of the actual number of days elapsed
per calendar month (but not to exceed 30 days in any month).
(b) Distributions on the Securities will be cumulative, will accrue from
(.) and, except as otherwise described below, will be payable quarterly in
arrears, on (.), (.), (.) and (.) of each year, commencing on (.) when, as and
if available for payment, except as otherwise described below (each, a
"Distribution Date"). So long as the Company shall not be in default in the
payment of interest on the Debentures, the Company has the right under the
Indenture to defer payments of interest on the Debentures by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period"), during which
Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall last beyond the Stated Maturity of the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly to the extent permitted by law during any such
Extension Period. Prior to the termination of any such Extension Period, the
Company may further extend such Extension Period; provided that such Extension
Period, together with all such previous and further extensions thereof, may not
exceed 20 consecutive quarters or extend beyond the Stated Maturity of the
Debentures. Any interest accrued on the Debentures during an Extension Period
shall be paid Pro Rata to holders of Debentures on the first payment date
following the Extension Period and the Payment Amount shall be paid Pro Rata to
the Holders on the first Distribution Date following the Extension Period. Upon
the termination of any Extension Period and the payment of all amounts then due,
the Company may commence a new Extension Period, subject to the above
requirements. In the event that the Company exercises this right, then (i) the
Company shall not declare or pay any dividend on, make a distribution with
respect to, or redeem, purchase or acquire, or make a liquidation payment with
respect to, any of its capital stock (other than (a) purchases or acquisitions
of shares of its common stock in connection with the satisfaction by the Company
of its obligations under any employee benefit plans or any other contractual
obligation of the Company (other than a contractual obligation ranking pari
passu with or junior to the Debentures), (b) as a result of a reclassification
of the Company's capital stock or the exchange or conversion of one class or
series of the Company's capital stock for another class of the Company's capital
stock or (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged), (ii) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to such Debentures and (iii) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee).
I-2
(c) Distributions on the Securities will be payable promptly by the
Property Trustee upon receipt of immediately available funds to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which will be, as long as the Preferred Securities remain in
book-entry form, one Business Day prior to the relevant payment date and, in the
event the Preferred Securities are not in book-entry form, the 15th day of the
month in which the relevant payment date occurs. The record dates and
distribution dates shall be the same as the record dates and payment dates on
the Debentures. Distributions payable on any Securities that are not punctually
paid on any Distribution Date, as a result of the Company having failed to make
the corresponding interest payment on the Debentures, will forthwith cease to be
payable to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will instead be payable to
the Person in whose name such Securities are registered on the special record
date established by the Administrative Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall not
be considered payable on any Distribution Date falling within an Extension
Period unless the Company has elected to make a full or partial payment of
interest accrued on the Debentures on such Distribution Date. Distributions on
the Securities will be paid by the Trust. All Distributions paid with respect to
the Securities shall be paid on a Pro Rata basis to Holders thereof entitled
thereto. If any date on which Distributions are payable on the Securities is not
a Business Day, then payment of the Distribution payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
(d) If at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Company will pay as additional interest ("Additional
Interest") on the Debentures held by the Property Trustee, such amounts as shall
be required so that the net amounts received and retained by the Trust and the
Property Trustee after paying any such taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust and the Property
Trustee would have received had no such taxes, duties, assessments or other
governmental charges been imposed.
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders.
I-3
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust, the Trust shall be liquidated
by the Administrative Trustees as expeditiously as the Administrative Trustees
determine to be possible by distributing to the Holders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, a Like
Amount (as defined below) of the Debentures, unless such distribution is
determined by the Property Trustee not to be practicable, in which event such
Holders will be entitled to receive out of the assets of the Trust legally
available for distribution to Holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to the
aggregate of the liquidation amount of $1,000 per Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the Securities,
Securities having a Liquidation Amount equal to the principal amount of
Debentures to be paid in accordance with their terms and (ii) with respect to a
distribution of Debentures upon the liquidation of the Trust, Debentures having
a principal amount equal to the Liquidation Amount of the Securities of the
Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets legally available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust with respect to the Securities shall be paid on a Pro Rata
basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in part, at maturity
or otherwise (either at the option of the Company or pursuant to a Special
Event, as described below), the proceeds from such repayment shall be
simultaneously applied by the Property Trustee (subject to the Property Trustee
having received written notice no later than 45 days prior to such repayment) to
redeem a Like Amount of the Securities at a redemption price equal to (i) in the
case of the repayment of the Debentures on the Maturity Date, the Maturity
Redemption Price (as defined below), (ii) in the case of the optional prepayment
of the Debentures prior to the Initial Optional Redemption Date and upon the
occurrence and continuation of a Special Event, the Special Event Redemption
Price (as defined below) and (iii) in the case of the optional prepayment of the
Debentures on or after the Initial Optional Redemption Date, the Optional
Redemption Price (as defined below). The Maturity Redemption Price, the Special
Event Redemption Price and the Optional Redemption Price are referred to
collectively as the "Redemption Price". Holders will be given not less than 30
nor more than 60 days prior written notice of such redemption.
(b) (i) The "Maturity Redemption Price" shall mean an amount equal to 100%
of the principal of, plus accrued and unpaid interest (including Compounded
Interest
I-4
and Additional Sums, if any, thereon to the date of redemption) on, the
Debentures as of the Maturity Date thereof.
(ii) The Company shall have the right (subject to the conditions in
the Indenture) to elect to prepay the Debentures, in whole or in part, at
any time on or after (.), (.)(the "Initial Optional Redemption Date"), and,
simultaneous with such prepayment, to cause a Like Amount of the Securities
to be redeemed by the Trust at the Optional Redemption Price on a Pro Rata
basis. "Optional Redemption Price" shall mean an amount equal to 100% of
the Liquidation Amount of the Securities to be redeemed, plus, accumulated
and unpaid Distributions thereon, if any, to the date of such redemption.
(c) If at any time an Investment Company Event, a Regulatory Capital Event
or a Tax Event (each as defined below, and each a "Special Event") occurs, the
Company shall have the right (subject to the conditions set forth in the
Indenture) at any time prior to the Initial Optional Redemption Date, to prepay
the Debentures in whole, but not in part, within the 90 days following the
occurrence of such Special Event (the "90 Day Period"), and, simultaneous with
such prepayment, to cause a Like Amount of the Securities to be redeemed by the
Trust at the Special Event Redemption Price on a Pro Rata basis.
"Investment Company Event" shall mean the receipt by the Company and
the Trust of an opinion of independent securities counsel experienced in such
matters to the effect that as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any rules, guidelines or policies of any
applicable regulatory authority for the Company or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of original issuance
of the Securities, the Trust is, or within 90 days of the date of such opinion
will be, considered an Investment Company that is required to be registered
under the Investment Company Act.
"Regulatory Capital Event" shall mean the receipt by the Company and
the Trust of an opinion of independent bank regulatory counsel experienced in
such matters to the effect that as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any rules, guidelines or policies of an
applicable regulatory authority for the Company or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of original issuance
of the Securities, the Preferred Securities do not constitute, or within 90 days
of the date of such opinion will not constitute, Tier 1 Capital (or its then
equivalent if the Company were subject to such capital requirement); provided,
however, that the distribution of the Debentures in connection with the
liquidation of the Trust by the Company shall not in and of itself constitute a
Regulatory Capital Event.
I-5
"Special Event Redemption Price" shall mean, with respect to any
redemption of the Securities following a Special Event, an amount in cash equal
to 100% of the principal amount of the Securities plus any accrued and unpaid
interest thereon (including Compounded Interest and Additional Sums, if any) to
the date of such redemption.
A "Tax Event" shall occur upon receipt by the Company and the Trust of
an opinion of independent tax counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws or any regulations thereunder of the United
States or any political subdivision or taxing authority thereof or therein, or
(b) any official administrative pronouncement or judicial decision interpreting
or applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Securities, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received or accrued on
the Debentures, (ii) the interest payable by the Company on the Debentures is
not, or within 90 days of the date of such opinion will not be, deductible by
the Company, in whole or in part, for federal income tax purposes, or (iii) the
Trust is, or will be within 90 days of the date of such opinion, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
(d) In the case of an optional redemption, if fewer than all the
outstanding Securities are to be so redeemed, the Common Securities and the
Preferred Securities shall be redeemed Pro Rata and the Preferred Securities to
be redeemed will be determined as described in Section 4(g)(ii) below. Upon the
entry of an order for the dissolution of the Trust by a court of competent
jurisdiction, the Debentures thereafter will be subject to optional redemption,
in whole, but not in part, on or after the Initial Optional Redemption Date.
(e) On and from the date fixed by the Administrative Trustees for any
distribution of Debentures and liquidation of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee), as the Holder of the
Preferred Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such distribution,
and (iii) any certificates representing Securities not held by the Clearing
Agency or its nominee (or any successor Clearing Agency or its nominee) will be
deemed to represent beneficial interests in a Like Amount of Debentures until
such certificates are presented to the Company or its agent for transfer or
reissue.
(f) The Trust may not redeem fewer than all the outstanding Securities
unless all accumulated and unpaid Distributions have been paid on all Securities
for all semi-annual Distribution periods terminating on or before the date of
redemption.
(g) The procedure with respect to redemptions or distributions of
Securities shall be as follows:
I-6
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Debenture/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 4(g)(i), a
Debenture/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders.
Each Debenture/Distribution Notice shall be addressed to the Holders at the
address of each such Holder appearing in the books and records of the
Trust. No defect in the Debenture/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities are
to be redeemed, the particular Securities to be redeemed shall be selected
on a Pro Rata basis (based upon Liquidation Amounts) not more than 60 nor
less than 30 days prior to the date fixed for redemption from the
outstanding Securities not previously called for redemption; provided,
however, that with respect to Holders that would be required to hold less
than 100 but more than zero Securities as a result of such redemption, the
Trust shall redeem Securities of each such Holder so that after such
redemption such Holder shall hold either 100 Securities or such Holder no
longer holds any Securities, and shall use such method (including, without
limitation, by lot) as the Trust shall deem fair and appropriate; provided,
further, that any such redemption may be made on the basis of the aggregate
Liquidation Amount of Securities held by each Holder thereof and may be
made by making such adjustments as the Trust deems fair and appropriate in
order that fractional Securities shall not thereafter remain outstanding.
With respect to Preferred Securities registered in the name of and held of
record by the Clearing Agency or its nominee (or any successor Clearing
Agency or its nominee) or any nominee, the distribution of the proceeds of
such redemption will be made to the Clearing Agency and disbursed by such
Clearing Agency in accordance with the procedures applied by such agency or
nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Debenture/ Distribution Notice (which notice will be irrevocable), then (A)
with respect to Preferred Securities issued in book-entry form, by 12:00
noon, New York City time, on the redemption date, provided that the Company
has paid the Property Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures by 10:00 a.m.,
New York City time, on the Maturity Date or the date of redemption, as the
case requires, the Property Trustee will deposit irrevocably with the
Clearing Agency or its nominee (or successor Clearing Agency or its
nominee) immediately available funds sufficient to pay the applicable
Redemption Price with respect to such Preferred Securities and will give
the Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the relevant Clearing Agency Participants, and (B) with
respect to Preferred Securities issued in
I-7
certificated form and Common Securities, provided that the Company has paid
the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Property Trustee will
irrevocably deposit with the paying agent for the Preferred Securities (if
other than the Property Trustee) funds sufficient to pay the applicable
Redemption Price to the Holders by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the
redemption date, and provided further, that any such payment shall become
due only upon surrender by the Holder of the related certificated Preferred
Securities. If a Debenture/Distribution Notice shall have been given and
funds deposited as required, if applicable, then immediately prior to the
close of business on the date of such deposit, or on the redemption date,
as applicable, Distributions will cease to accumulate on the Securities so
called for redemption and all rights of Holders so called for redemption
will cease, except the right of the Holders of such Securities to receive
the Redemption Price, but without interest on such Redemption Price, and
such Securities shall cease to be outstanding.
(iv) Payment of accumulated and unpaid Distributions on the Redemption
Date of the Securities will be subject to the rights of Holders at the
close of business on a regular record date in respect of a Distribution
Date occurring on or prior to such Redemption Date.
Neither the Administrative Trustees nor the Trust shall be
required to register or cause to be registered the transfer of (i) any
Securities beginning at the opening of business 15 days before the day of
mailing of a notice of redemption or any notice of selection of Securities
for redemption or (ii) any Securities selected for redemption, except the
unredeemed portion of any Security being redeemed. If any date fixed for
redemption of Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay). If payment of the Redemption Price with respect
to any Securities is improperly withheld or refused and not paid either by
the Property Trustee or by the Company as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities will
continue to accumulate from the original redemption date to the actual date
of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
(v) Debenture/Distribution Notices shall be sent by the Property
Trustee on behalf of the Trust to (A) with respect to Preferred Securities
issued in book-entry form, the Clearing Agency or its nominee (or any
successor Clearing Agency or its nominee), (B) with respect to Preferred
Securities issued in certificated form, to the Holders thereof, and (C)
with respect to the Common Securities, to the Holders thereof.
(vi) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and banking laws), the
Company or any of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the open market or
by private agreement.
I-8
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b), 6(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee or executing any
trust or power conferred on such Indenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 5.07 of
the Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures or (iv) consent
to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a Majority in Liquidation Amount
of all outstanding Preferred Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior approval of each Holder of the Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities except by subsequent vote of such Holders.
The Property Trustee shall notify each Holder of Preferred Securities of any
notice of default with respect to the Debentures. In addition to obtaining the
foregoing approvals of such Holders of the Preferred Securities, prior to taking
any of the foregoing actions, the Trustees shall obtain an opinion of counsel
experienced in such matters to the effect that the Trust will continue to be
classified as a grantor trust for United States federal income tax purposes
after taking any such action into account.
If a Trust Enforcement Event under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Company to pay
principal of or interest on the Debentures on the due date (or, in the case of
redemption, on the redemption date), then a Holder of Preferred Securities may
institute a proceeding directly against the Company for enforcement of payment
to such Holder of the principal of or interest on a Like Amount of Debentures (a
"Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the Common Securities Holder
will be subrogated to the rights of such Holder of Preferred Securities to the
extent of any payment made by the Company to such Holder of Preferred Securities
in such Direct Action. Except as provided in the second preceding sentence, or
except as set forth in the first sentence of Section 3.8(e) of the Declaration,
the Holders of Preferred Securities will not be able to exercise directly any
other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
I-9
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consent.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Company or any Affiliate of the
Company shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b), 6(c), and 7 or as otherwise
required by law and the Declaration, the Holders of the Common Securities will
have no voting rights.
(b) Unless a Trust Enforcement Event shall have occurred and be continuing,
any Trustee may be removed at any time by the Holder of the Common Securities.
If a Trust Enforcement Event has occurred and is continuing, the Property
Trustee and the Delaware Trustee may be removed at such time by the Holders of a
Majority in Liquidation Amount of the outstanding Preferred Securities. In no
event will the Holders of the Preferred Securities have the right to vote to
appoint, remove or replace the Administrative Trustees, which voting rights are
vested exclusively in the Company as the Holder of the Common Securities. No
resignation or removal of a Trustee and no appointment of a successor trustee
shall be effective until the acceptance of appointment by the successor trustee
in accordance with the provisions of the Declaration.
(c) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or executing any
trust or power conferred on such Indenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 5.07 of
the Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures or (iv) consent
to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a Majority in Liquidation Amount
of all outstanding Common Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior approval of each Holder of the Common Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Common Securities except by subsequent vote of such Holders. The Property
Trustee shall notify each Holder of Common Securities of any notice of default
with respect to the Debentures. In addition to obtaining the foregoing approvals
of such Holders of the Common Securities, prior to taking any of the foregoing
actions, the Trustees shall obtain an opinion of counsel experienced in such
matters to
I-10
the effect that the Trust will continue to be classified as a grantor trust for
United States federal income tax purposes after taking any such action into
account.
If an Trust Enforcement Event under the Declaration has occurred and
is continuing and such event is attributable to the failure of the Company to
pay principal of or interest on the Debentures on the due date (or in the case
of redemption, on the redemption date), then a Holder of Common Securities may
institute a Direct Action directly against the Company for enforcement of
payment to such Holder of the principal of or interest on a Like Amount of
Debentures on or after the respective due date specified in the Debentures. In
connection with such Direct Action, the rights of the Common Securities Holder
will be subordinated to the rights of Holders of Preferred Securities in respect
of any payment from the Company in such Direct Action. Except as provided in the
second preceding sentence, the Holders of Common Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Administrative Trustees will cause a notice of any meeting
at which Holders of Common Securities are entitled to vote, or of any matter
upon which action by written consent of such Holders is to be taken, to be
mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought, and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration.
In addition to the requirements set out in Section 12.1 of the
Declaration, the Declaration may be amended from time to time by the Company,
the Property Trustee and the Administrative Trustees without the consent of the
Holders to (i) cure any ambiguity, correct or supplement any provisions in the
Declaration that may be inconsistent with any other provisions, or make any
other provisions with respect to matters or questions arising under the
Declaration which shall not be inconsistent with the other provisions of the
Declaration, (ii) modify, eliminate or add to any provisions of the Declaration
to such extent as shall be necessary to ensure that the Trust will be classified
for United States federal income tax purposes as a grantor trust at all times
that any Securities are outstanding or to ensure that the Trust will not be
required to register as an Investment Company under the Investment Company Act;
(iii) add to the covenants, restrictions or obligations of the Company or grant
any additional rights to the Holders of Preferred Securities; or (iv) conform
any change in Rule 3a-5 or written change in interpretation or application of
Rule 3a-5 by any
I-11
legislative body, court, government agency or regulatory authority which
amendment does not have a material adverse effect on the rights, preferences or
privileges of the Holders of Securities; provided, however, that in each case,
such action shall not adversely affect in any material respect the interests of
any Holder, and any such amendments of the Declaration shall become effective
when notice thereof is given to the Holders. The Declaration may also be amended
by the Trustees and the Company with (i) the consent of Holders representing a
Majority in Liquidation Amount of all outstanding Securities, and (ii) receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States federal income tax purposes or the Trust's exemption from status as an
Investment Company under the Investment Company Act; provided, however, that,
without the consent of each Holder of Trust Securities, the Declaration may not
be amended to (i) change the amount or timing of any Distribution on, or the
payment required to be made in respect of, the Trust Securities as of a
specified date or (ii) restrict the right of a Holder of Trust Securities to
institute suit for the enforcement of any such payment on or after the due date
of such payment, (iii) change the purposes of the Trust, (iv) authorize the
issuance of any additional beneficial interests in the Trust, (v) change the
provisions relating to the distribution of amounts payable upon the dissolution
and liquidation of the Trust, or (vi) affect the limited liability of any Holder
of the Securities.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
according to the aggregate liquidation amount of the Securities held by such
Holder in relation to the aggregate liquidation amount of all Securities
outstanding unless, in relation to a payment, a Trust Enforcement Event under
the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by such Holder relative to the aggregate liquidation
amount of all Preferred Securities outstanding and then, only after satisfaction
of all amounts owed to the Holders of the Preferred Securities, to each Holder
of Common Securities pro rata according to the aggregate liquidation amount of
Common Securities held by such Holder relative to the aggregate liquidation
amount of all Common Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu with the Common Securities
and payment thereon shall be made Pro Rata with the Common Securities, except
that, if a Trust Enforcement Event under the Declaration occurs and is
continuing, no payments in respect of Distributions on, or payments upon
liquidation, redemption or otherwise with respect to, the Common Securities
shall be made until the Holders of the Preferred Securities shall be paid in
full the Distributions, Redemption Price, Liquidation Distribution and any other
payments to which they are entitled at such time.
I-12
10. Acceptance of Preferred Securities Guarantee, Common Securities
Guarantee. Indenture and Debentures.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee, the Common Securities Guarantee, the Indenture and the Debentures, as
applicable, including the subordination provisions therein.
11. No Preemptive Rights.
Neither the issuance of Preferred Securities, nor the issuance of
Common Securities is subject to preemptive or other similar rights. The Holders
shall have no preemptive or similar rights to subscribe for any additional
securities.
12. Miscellaneous.
These terms constitute a part of the Declaration.
The Company will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee, as applicable, and the
Indenture (including any supplemental indenture) to a Holder without charge upon
written request to the Trust at its principal place of business.
I-13
EXHIBIT A-1
IF THE PREFERRED SECURITY IS A GLOBAL CERTIFICATE, INSERT-[THIS PREFERRED
SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE DECLARATION
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITORY") OR A NOMINEE OF THE DEPOSITORY. THIS PREFERRED
SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS PREFERRED
SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THE PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL BECAUSE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A1-1
FORM OF PREFERRED SECURITY CERTIFICATE
Certificate Number [ ] Number of Preferred Securities [ ]
CUSIP No. [ ]
Certificate Evidencing Preferred Securities
of
NEW YORK COMMUNITY CAPITAL TRUST (.)
(.)%(.) Preferred Securities
(liquidation amount (.)per Preferred Security)
NEW YORK COMMUNITY CAPITAL TRUST (.), a statutory trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that (.) (the
"Holder") is the registered owner of (.) preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the (.) Preferred Securities (liquidation amount (.) per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of (.), as the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Preferred Securities as set forth
in Annex I to the Declaration. Capitalized terms used herein but not defined
shall have the meaning given them in the Declaration. The Holder is entitled to
the benefits of the Preferred Securities Guarantee to the extent provided
therein. The Company will provide a copy of the Declaration, the Preferred
Securities Guarantee and the Indenture to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
In addition, the Holder is deemed to have (i) agreed to the terms of the
Indenture and the Debentures, including that the Debentures are subordinate and
junior in right of payment to all present and future Senior Indebtedness and
Other Financial Obligations (as defined in the Indenture) as and to the extent
provided in the Indenture and (ii) agreed to the terms of the Preferred
Securities Guarantee, including that the Preferred Securities Guarantee is
subordinate and junior in right of payment to all other liabilities of the
Company, including the Debentures, except those made pari passu or subordinate
by their terms, and pari passu with the most senior preferred or preference
stock now or hereafter issued by the Company and with any guarantee now or
hereafter entered into by the Company in respect of any preferred or preference
stock of any Affiliate of the Company.
A1-2
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION OF A
BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Preferred Securities as
evidence of indirect beneficial ownership in the Debentures.
Unless the Property Trustee's Certificate of Authentication hereon has been
properly executed, these Preferred Securities shall not be entitled to any
benefit under the Declaration or be valid or obligatory for any purpose.
A1-3
IN WITNESS WHEREOF, the Trust has executed this certificate.
NEW YORK COMMUNITY CAPITAL TRUST (.)
By:
-----------------------------------
Name:
---------------------------------
Title: Administrative Trustee
dated (.),(.)
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Declaration.
WILMINGTON TRUST COMPANY,
not in its individual capacity, but
solely as Property
Trustee
By:
-----------------------------------
Authorized Signatory
A1-4
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate
per annum of (.) (the "Coupon Rate") of the stated liquidation amount of (.) per
Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate ("Compounded Distributions") (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash distributions
and any such interest (including Additional Interest and Compounded
Distributions) payable unless otherwise stated. A Distribution will be made by
the Property Trustee only to the extent that payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds available in the Property Trustee Account. The amount of Distributions
payable for any period will be computed for any full quarterly Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full 90-day quarterly Distribution period on the basis of
a 30-day month for which Distributions are computed. Distributions will be
computed on the basis of the actual number of days elapsed per calendar month
(but not to exceed 30 days in any month).
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from (.) and will be payable
quarterly in arrears on [_], [_], [_] and [_] of each year, commencing on (.) to
Holders of record on the relevant record dates, which will be, as long as the
Preferred Securities remain in book-entry form, one Business Day prior to the
relevant payment date and, in the event the Preferred Securities are not in
book-entry form, the 15th day of the month in which the relevant payment date
occurs. Such payment dates shall correspond to the interest payment dates on the
Debentures. The Company has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), provided that no Extension Period shall last beyond the
date of the maturity of the Debentures and, as a consequence of such deferral,
quarterly Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Company may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the maturity of the
Debentures. Payments of accrued Distributions will be payable to Holders as they
appear on the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension Period and
the payment of all amounts then due, the Company may commence a new Extension
Period, subject to the above requirements. The Preferred Securities shall be
redeemable as provided in the Declaration.
A1-5
[FORM OF ASSIGNMENT]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
-------------------------
Signature:
------------------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
(Signature(s) must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Trustee, which requirements include membership or
participation in STAMP or such other "signature guaranty program" as may be
determined by the Trustee in addition to or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN CON - as tenants in common
A1-6
TEN ENT - as tenants in the entireties
JT TEN - as joint tenants with right of survival
UNIF GIFT MIN ACT - under Uniform Gift to Minors Act and not as tenants
Additional abbreviations may also be used though not in the above list.
----------
I-1 ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers this Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent
- --------------------------------------------------------------------------
to transfer this Preferred Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
-------------------------------
Signature:
-------------------------------------
(Sign exactly as your name appears on the other
side of this Preferred Security Certificate)
A1-7
Signature Guarantee: Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and
loan association or credit union meeting the
requirements of the Registrar, which requirements
include membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A1-8
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS COMMON SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
A2-1
This Certificate is not transferable except in compliance with Section 9.1 of
the Declaration.
Certificate Evidencing Common Securities
of
New York Community Capital Trust (.)
Common Securities
(liquidation amount $(.) per Common Security)
New York Community Capital Trust (.), a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that New York
Community Bancorp, Inc. (the "Holder") is the registered owner of (.) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the Common Securities (liquidation amount $(.)
per Common Security) (the "Common Securities"). Subject to the terms of Section
9.1 of the Declaration (as defined below), the Common Securities are not
transferable. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of the Trust dated as of (.), (.)as the same may be amended
from time to time (the "Declaration"), including the designation of the terms of
the Common Securities as set forth in Annex I to the Declaration. Capitalized
terms used but not defined herein shall have the meaning given them in the
Declaration. The Company will provide a copy of the Declaration, the Common
Securities Guarantee and the Indenture (including any supplemental indenture) to
a Holder without charge upon written request to the Trust at its principal place
of business.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the Common Securities Guarantee to the extent provided therein.
By acceptance hereof, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this (.)
day of (.).
NEW YORK COMMUNITY CAPITAL TRUST (.)
By:
------------------------------------
Name:
Administrative Trustee
A2-2
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate per
annum of (.) (the "Coupon Rate") of the stated liquidation amount of (.) per
Common Security, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate
("Compounded Distributions") (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and any
such interest (including Additional Interest and Compounded Distributions)
payable unless otherwise stated. A Distribution will be made by the Property
Trustee only to the extent that payments are made in respect of the Debentures
held by the Property Trustee and to the extent the Property Trustee has funds
available in the Property Trustee Account. The amount of Distributions payable
for any period will be computed for any full quarterly Distribution period on
the basis of a 360-day year of twelve 30-day months, and for any period shorter
than a full 90-day quarterly Distribution period on the basis of a 30-day month
for which Distributions are computed. Distributions will be computed on the
basis of the actual number of days elapsed per calendar month (but not to exceed
30 days in any month).
Except as otherwise described below, distributions on the Common Securities
will be cumulative, will accrue from (.) and will be payable quarterly in
arrears, on [_], [_], [_] and [_] of each year, commencing on [_] to Holders of
record on the relevant record dates, which will be, as long as the Preferred
Securities remain in book-entry form, one Business Day prior to the relevant
payment date and, in the event the Preferred Securities are not in book-entry
form, the 15th day of the month in which the relevant payment date occurs. Such
payment dates shall correspond to the interest payment dates on the Debentures.
The Company has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period"),
provided that no Extension Period shall last beyond the date of the maturity of
the Debentures and, as a consequence of such deferral, quarterly Distributions
will also be deferred. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at the Coupon Rate compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the Company may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity date of the Debentures. Payments of
accrued Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Company may commence a new Extension Period, subject to
the above requirements.
The Common Securities shall be redeemable as provided in the Declaration.
A2-3
[FORM OF ASSIGNMENT]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:___________________
Signature:_______________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
(Signature(s) must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Trustee, which requirements include membership or
participation in STAMP or such other "signature guaranty program" as may be
determined by the Trustee in addition to or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN CON - as tenants in common
A2-4
TEN ENT - as tenants in the entireties
JT TEN - as joint tenants with right of survival
UNIF GIFT MIN ACT - under Uniform Gift to Minors Act and not as tenants
Additional abbreviations may also be used though not in the above list.
__________________________
I-1 ASSIGNMENT
__________________________
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers this Common
Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:___________________
Signature:_______________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
A2-5
Signature Guarantee: Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A2-6