Exhibit 4(h)(ii)
NEW YORK COMMUNITY CAPITAL TRUST (.)
AMENDED AND RESTATED DECLARATION OF TRUST
Dated as of (.), (.)
TABLE OF CONTENTS
Page
----
ARTICLE I INTERPRETATION AND DEFINITIONS..........................................1
Section 1.1. Interpretation....................................................1
Section 1.2. Definitions.......................................................2
ARTICLE II TRUST INDENTURE ACT...................................................13
Section 2.1. Trust Indenture Act; Application.................................13
Section 2.2. Lists of Holders.................................................14
Section 2.3. Reports by the Property Trustee..................................14
Section 2.4. Periodic Reports to the Property Trustee.........................15
Section 2.5. Evidence of Compliance with Conditions Precedent.................15
Section 2.6. Trust Enforcement Events; Waiver.................................15
Section 2.7. Trust Enforcement Events; Notice.................................16
ARTICLE III ORGANIZATION.........................................................17
Section 3.1. Name.............................................................17
Section 3.2. Office...........................................................17
Section 3.3. Purpose..........................................................17
Section 3.4. Authority........................................................17
Section 3.5. Title to Property of the Trust...................................18
Section 3.6. Prohibition of Actions by the Trust and the Trustees.............18
Section 3.7. Powers and Duties of the Administrative Trustees.................19
Section 3.8. Powers and Duties of the Property Trustee........................22
Section 3.9. Certain Duties and Responsibilities of the Property Trustee......24
Section 3.10. Certain Rights of the Property Trustee..........................26
Section 3.11. Powers and Duties of the Delaware Trustee.......................28
Section 3.12. Not Responsible for Recitals or Issuance of Securities..........29
Section 3.13. Duration of the Trust...........................................29
Section 3.14. Mergers, Consolidations, Conversions, Amalgamations
or Replacements of the Trust ................................29
Section 3.15. Property Trustee May File Proofs of Claim.......................31
ARTICLE IV SPONSOR...............................................................32
Section 4.1. Responsibilities of the Company..................................32
Section 4.2. Indemnification and Expenses of the Trustees.....................32
Section 4.3. Right to Proceed.................................................33
(i)
TABLE OF CONTENTS
(continued)
Page
----
ARTICLE V TRUSTEES...............................................................33
Section 5.1. Number of Trustees...............................................33
Section 5.2. Delaware Trustee; Eligibility....................................33
Section 5.3. Property Trustee; Eligibility....................................34
Section 5.4. Qualifications of Administrative Trustees Generally..............35
Section 5.5. Initial Administrative Trustees..................................35
Section 5.6. Appointment, Removal and Resignation of Trustees.................35
Section 5.7. Vacancies among Trustees.........................................37
Section 5.8. Effect of Vacancies..............................................37
Section 5.9. Meetings.........................................................37
Section 5.10. Delegation of Power by the Administrative Trustees..............37
Section 5.11. Merger, Conversion, Consolidation or Succession to Business.....38
ARTICLE VI THE SECURITIES........................................................38
Section 6.1. General Provisions Regarding the Securities......................38
Section 6.2. Execution and Authentication.....................................39
Section 6.3. Form and Dating..................................................40
Section 6.4. The Company's Purchase of the Common Securities..................41
Section 6.5. Distributions....................................................42
Section 6.6. Remarketing......................................................43
Section 6.7. Limited Right to Require Exchange of Preferred Securities
and Repurchase of Debentures..................................50
Section 6.8. Reserved.........................................................51
Section 6.9. Redemption.......................................................51
Section 6.10. Distribution of Debentures in Exchange for Securities Upon
the Occurrence of a Special Event............................53
Section 6.11. Voting Rights of the Preferred Securities.......................55
Section 6.12. Voting Rights of the Common Securities..........................57
Section 6.13. Ranking.........................................................59
Section 6.14. Registrar, Paying Agent and Transfer Agent......................59
Section 6.15. Paying Agent to Hold Money in Trust.............................59
(ii)
TABLE OF CONTENTS
(continued)
Page
----
Section 6.16. Replacement Securities..........................................60
Section 6.17. Outstanding Preferred Securities................................60
Section 6.18. Preferred Securities in Treasury................................60
Section 6.19. Deemed Security Holders.........................................60
Section 6.20. Cancellation....................................................61
Section 6.21. CUSIP Numbers...................................................61
Section 6.22. Global Preferred Securities; Legends............................61
ARTICLE VII TRANSFER OF SECURITIES...............................................63
Section 7.1. Transfer of Securities...........................................63
Section 7.2. Separation and Rejoining of Units................................64
Section 7.3. Book-Entry Interests.............................................65
Section 7.4. Notices to Clearing Agency.......................................66
Section 7.5. Appointment of Successor Clearing Agency.........................66
ARTICLE VIII DISSOLUTION AND TERMINATION OF THE TRUST............................66
Section 8.1. Dissolution and Termination of the Trust.........................66
Section 8.2. Liquidation Distribution Upon Dissolution or Termination
of the Trust..................................................67
ARTICLE IX LIMITATION OF LIABILITY OF THE HOLDERS, THE TRUSTEES OR OTHERS........69
Section 9.1. Liability........................................................69
Section 9.2. Exculpation......................................................69
Section 9.3. Fiduciary Duty...................................................69
Section 9.4. Indemnification of Company Indemnified Persons...................70
Section 9.5. Indemnification of Trustees......................................73
Section 9.6. Outside Businesses...............................................74
ARTICLE X ACCOUNTING.............................................................74
Section 10.1. Fiscal Year.....................................................74
Section 10.2. Certain Accounting Matters......................................74
Section 10.3. Banking.........................................................75
Section 10.4. Withholding.....................................................75
ARTICLE XI AMENDMENTS AND MEETINGS...............................................76
(iii)
TABLE OF CONTENTS
(continued)
Page
----
Section 11.1. Amendments......................................................76
Section 11.2. Meetings of the Holders; Action by Written Consent..............78
ARTICLE XII REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE.....80
Section 12.1. Representations and Warranties of the Property Trustee..........80
Section 12.2. Representations and Warranties of the Delaware Trustee..........81
ARTICLE XIII MISCELLANEOUS.......................................................81
Section 13.1. Notices.........................................................81
Section 13.2. Governing Law...................................................83
Section 13.3. Intention of the Parties........................................83
Section 13.4. Headings........................................................83
Section 13.5. Successors and Assigns..........................................83
Section 13.6. Partial Enforceability..........................................83
Section 13.7. Counterparts....................................................83
Section 13.8. The Exchange Agent..............................................83
EXHIBITS
Exhibit A - Form of Preferred Securities Certificate
Exhibit B - Form of Common Security Certificate
(iv)
CROSS-REFERENCE TABLE/(1)/
Section of Trust Indenture
Act of 1939, as amended Section
- ----------------------- -------
310(a) 5.3
310(b) 5.3(c); 5.3(d)
310(c) Not Applicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Not Applicable
312(a) 2.2(a)
312(b) 2.2(b)
312(c) Not Applicable
313(a) 2.3
313(b) 2.3
313(c) 2.3
313(d) 2.3
314(a) 2.4; 3.7(i)
314(b) Not Applicable
314(c) 2.5
314(d) Not Applicable
314(e) 2.5
314(f) Not Applicable
315(a) 3.9(a); 3.10(a)
315(b) 2.7(a)
315(c) 3.9(a)
315(d) 3.9(b)
316(a) 2.6; 6.10(b); 6.11(c)
316(b) Not Applicable
316(c) Not Applicable
317(a) 3.8(h); 3.15
317(b) Not Applicable
- ----------
/(1)/ This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
(v)
AMENDED AND RESTATED DECLARATION OF TRUST (the "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), the Administrative
Trustees (as defined herein) and the Company established New York Community
Capital Trust (.) (the "Trust"), a trust created under the Statutory Trust Act
(as defined herein) pursuant to a Declaration of Trust 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 and the Company taken on behalf of the Trust
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.
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 have the respective meanings assigned to them in Section 1.2;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "this Declaration" are to this Declaration as
modified, supplemented or amended from time to time in accordance with the
provisions hereof;
(d) all references in this Declaration to Articles, Sections and
Exhibits are to Articles and Sections of 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; and
(f) 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:
"Accreted Value" means, on the date of determination:
(1) with respect to any Security, the Accreted Value of a Debenture
having an aggregate principal amount equal to the aggregate
stated liquidation amount of such Security; and
(2) with respect to any Debenture, the sum of:
(i) $(.), which is the portion of the initial purchase
price of a Unit that is allocated to a Preferred
Security (as provided under Section 3.1 of the Unit
Agreement); plus
(ii) accretion of the Discount, calculated using a per annum
coupon of (.)%, payable quarterly, and an all-in-yield
of (.)% per annum on a quarterly bond equivalent yield
basis using a 360-day year of twelve 30-days months
until such sum equals $(.) on the Expiration Date.
"Administrative Trustee" has the meaning set forth in Section 5.4.
"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.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for the beneficial interests in the Global Preferred Securities, the rules
and procedures of the Depositary that apply to such transfer or exchange.
"Authorized Officer" of a Person means any other Person that is authorized
to legally bind such former Person.
"Book-Entry Interest" means a beneficial interest in the Global Preferred
Securities 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.
"Business Day" means any day other than a Saturday or 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 close.
"Calculation Agency Agreement" means the Calculation Agency Agreement,
dated as of(.), (.), between the Company and the Calculation Agent, as amended,
supplemented or replaced from time to time in accordance with its terms.
2
"Calculation Agent" means the Property Trustee, as initial Calculation
Agent under the Calculation Agency Agreement, and any successor thereto.
"Certificate" means a Common Securities Certificate or a Preferred
Securities Certificate.
"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 the Global Preferred Securities 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.
"Closing Price" of any security on any date of determination means:
(1) the closing sale price (or, if no closing sale price is reported,
the last reported sale price) of such security on the New York
Stock Exchange on such date;
(2) if such security is not listed for trading on the New York Stock
Exchange on any such date, the closing sale price as reported in
the composite transactions for the principal U.S. securities
exchange on which such security is so listed;
(3) if such security is not so listed on a U.S. national or regional
securities exchange, the closing sale price as reported by the
Nasdaq National Market;
(4) if such security is not so reported, the last quoted bid price
for such security in the over-the-counter market as reported by
the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices of such security on such date from
at least three nationally recognized independent investment
banking firms retained for this purpose by the Company.
"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 set forth in Section 6.1(a).
3
"Common Securities Certificate" means a certificate in fully registered
form representing Common Securities, substantially in the form of Exhibit B.
"Common Securities Subscription Agreement" means the subscription
agreement, dated as of (.), (.), between the Trust and the Company relating to
the purchase by the Company of (.) Common Securities of the Trust.
"Common Stock" means the common stock of the Company.
"Company" means New York Community Bancorp, Inc., a Delaware corporation,
in its capacity as sponsor, or any success or 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:
(1) any Administrative Trustee;
(2) any Affiliate of any Administrative Trustee;
(3) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Administrative
Trustee; or
(4) any officer, employee or agent of the Trust or its Affiliates.
"Compounded Distributions" has the meaning set forth in Section 6.5(b).
"Conversion Price" has the meaning set forth in the Warrant Agreement.
"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 1100 North Market Street, Rodney Square North,
Wilmington, Delaware 19890.
"Coupon Rate" has the meaning set forth in Section 6.5(a).
"Covered Person" means:
(1) any officer, director, shareholder, partner, member,
representative, employee or agent of (a) the Trust or (b) the
Trust's Affiliates; and
(2) any Holder.
"Debenture Distribution Notice" has the meaning set forth in Section
6.10(c).
"Debentures" means the (.)% Junior Subordinated Deferrable Interest
Debentures due (.), (.) to be issued by the Company pursuant to the Indenture
and to be purchased by the Trust.
4
"Debentures Subscription Agreement" means the subscription agreement, dated
as of (.), (.), between the Trust and the Company relating to the purchase by
the Trust of $(.) in aggregate principal amount of the Debentures.
"Definitive Preferred Securities" has the meaning set forth in Section 6.3.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means DTC until another Clearing Agency becomes its successor.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Discount" means the difference between the principal amount of $(.)
payable in respect of a Debenture on (.), (.) and the initial purchase price of
$(.).
"Distribution" has the meaning set forth in Section 6.5(b).
"Distribution Date" has the meaning set forth in Section 6.5(b).
"DTC" means The Depository Trust Company, the initial Clearing Agency, and
any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation, and the rules and regulations
promulgated thereunder.
"Exchange Agent" means, initially, the Property Trustee solely in its
capacity as Exchange Agent, and any successor thereto.
"Exchange Notice" has the meaning set forth in Section 8.2(c).
"Exercise Price" has the meaning set forth in the Warrant Agreement.
"Extension Period" has the meaning set forth in Section 6.5(c).
"Expiration Date" has the meaning set forth in the Warrant Agreement.
"Failed Remarketing" has the meaning set forth in Section 6.6(n).
"Failed Remarketing Date" means a Remarketing Date on which a Failed
Remarketing occurs.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System.
"Fiduciary Indemnified Person" has the meaning set forth in Section 9.5.
"First Supplemental Indenture" means the First Supplemental Indenture,
dated as of (.), (.), between the Company and the Indenture Trustee.
"Fiscal Year" has the meaning set forth in Section 10.1.
5
"Global Preferred Security" has the meaning set forth in Section 6.3.
"Global Unit Certificate" has the meaning set forth in Section 6.3.
"Guarantee" means the Guarantee Agreement, dated as of (.), (.), between
the Company, as Guarantor in respect of the Securities, and Wilmington Trust
Company, as Guarantee Trustee, as amended or supplemented from time to time in
accordance with its terms.
"Holder" means a Person in whose name a Security is registered, such Person
being a beneficial owner within the meaning of the Statutory Trust Act.
"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 or supplemented from time to time in
accordance with the terms thereof, including the First Supplemental Indenture.
"Indenture Event of Default" means an Event of Default (as such term is
defined in the Indenture) under the Indenture.
"Indenture Trustee" means Wilmington Trust Company, solely as trustee under
the Indenture or any successor thereto.
"Interest Payment Date" has the meaning set forth in the First Supplemental
Indenture.
"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" means the receipt by the Trust of an Opinion of
Counsel, rendered by an independent law firm having a recognized national
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in Investment Company Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an Investment Company
that is required to be registered under the Investment Company Act, which Change
in Investment Company Act Law becomes effective on or after the date on which
the Preferred Securities were initially issued and sold.
"Issuers" means the Company and the Trust, collectively.
"Legal Action" has the meaning set forth in Section 3.7(f).
"Legal Cause Remarketing Event" means a Remarketing Event that occurs upon
the occurrence of:
6
(1) either (a) a Tax Event or an Investment Company Event; provided
that the Administrative Trustees have been informed by an independent law
firm that such firm, for substantive reasons, cannot deliver a No
Recognition Opinion to the Trust; or (b) a Regulatory Capital Event; and
(2) the Company causes written notice of the Remarketing to be given
to the Holders of the Preferred Securities, the holders of the Units and
the holders of the Warrants.
"Legal Requirements" means compliance with all applicable laws and
regulations, if any, including, without limitation, the Securities Act,
necessary to permit (i) the Remarketing of the Preferred Securities (and the
subsequent exchange of Preferred Securities for Debentures if a purchaser in the
Remarketing so elects to exchange its purchased Preferred Securities for
Debentures pursuant to Section 6.6(c)), (ii) the contemporaneous modifications
to the terms of the Debentures pursuant to the Indenture and (iii) the
contemporaneous redemption of the Warrants.
"Like Amount" means, with respect to a redemption of the Securities,
Securities having an Accreted Value equal to the Accreted Value of Debentures to
be repaid in accordance with their terms.
"Liquidation" has the meaning set forth in Section 8.2(a).
"Liquidation Distribution" has the meaning set forth in Section 8.2(b).
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in Liquidation Amount" means, Holders of outstanding 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, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated 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 or all outstanding Securities of the relevant class, as the case may
be.
"Maturity Remarketing Date" means two Business Days prior to the Expiration
Date.
"90-Day Period" has the meaning set forth in Section 6.10(a).
"No Recognition Opinion" has the meaning set forth in Section 6.10(b)(i).
"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 Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
7
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' 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, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, rendered by an
independent law firm which shall be reasonably acceptable to the Property
Trustee.
"Optional Redemption Remarketing Event" means a Remarketing Event that
occurs because:
(1) on any date on or after (.), (.)but prior to (.), (.), the
Closing Price of a share of the Common Stock exceeds and has
exceeded for at least 20 Trading Days within the immediately
preceding 30 consecutive Trading Days and on the day on which the
Company elects to redeem the Warrants, 125% of the Conversion
Price; and
(2) within ten Business Days of such date, the Company, causes
written notice of its election to redeem the Warrants to be given
to the Holders of the Preferred Securities, the holders of the
Units and the holders of the Warrants.
"Original Declaration" has the meaning set forth in the Recitals hereto.
"Paying Agent" has the meaning set forth in Section 6.14.
"Payment Amount" has the meaning set forth in Section 6.5(f).
"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 set forth in Section 6.1(a).
"Preferred Securities Certificate" means a certificate in fully registered
form representing Preferred Securities, substantially in the form of Exhibit A.
"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 of such Clearing Agency).
"Property Account" means a segregated non-interest bearing trust account
maintained with a banking institution, the rating on whose long-term unsecured
indebtedness is at least equal
8
to the rating assigned to the Preferred Securities by a "nationally recognized
statistical rating organization" within the meaning of Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act or any successor rule.
"Property Trustee" has the meaning set forth in Section 5.3(a).
"Pro Rata" means pro rata to each Holder according to the aggregate stated
liquidation amount of the Securities held by such Holder in relation to the
aggregate stated liquidation amount of all Securities outstanding unless, in
relation to a payment, a Trust Enforcement Event 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
stated liquidation amount of Preferred Securities held by the relevant Holder
relative to the aggregate stated liquidation amount of all Preferred Securities
outstanding, and 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 stated liquidation amount of Common Securities held by the
relevant Holder relative to the aggregate stated liquidation amount of all
Common Securities outstanding.
"Quorum" means a majority of the Administrative Trustees or, if there are
only two Administrative Trustees, both of them.
"Redemption Date" has the meaning set forth in Section 6.9(a).
"Redemption Notice" has the meaning set forth in Section 6.9(c).
"Redemption Price" has the meaning set forth in Section 6.9(a).
"Registrar" has the meaning set forth in Section 6.14.
"Regular Record Date" means the date on which determination is made as to
which Holders' Distributions are payable.
"Regulatory Capital Event" means that the Companyis, or pursuant to law or
regulation will become within 180 days, subject to capital requirements under
which, in the written Opinion of Counsel, rendered by an independent bank
regulatory law firm experienced in such matters, the Preferred Securities would
not constitute Tier 1 Capital applied as if the Company (or its successor) were
a bank holding company (as that concept is used in the guidelines or regulations
issued by the Board of Governors of the Federal Reserve System as of the date
hereof (or its then equivalent)).
"Remarketing" means the operation of the procedures for remarketing set
forth in Section 6.6.
"Remarketing Agent" means the remarketing agent (or any successor
remarketing agent) selected by the Company, which will initially be Salomon
Smith Barney Inc.
"Remarketing Agreement" means the a remarketing agreement to be entered
into among the Company, the Trust and the Remarketing Agent, with customary and
typical terms and conditions at the time of the execution thereof.
9
"Remarketing Date" means:
(1) with respect to an Optional Redemption Remarketing Event or a
Legal Cause Remarketing Event, two Business Days prior to the
Warrant Redemption Date; and
(2) with respect to the expiration of the Warrants, the Maturity
Remarketing Date.
"Remarketing Event" means the occurrence of an Optional Redemption
Remarketing Event, a Legal Cause Remarketing Event or the Maturity Remarketing
Date.
"Remarketing Settlement Date" means (i) with respect to a Remarketing upon
expiration of the Warrants, the Expiration Date and (ii) with respect to a
Remarketing upon an Optional Redemption Remarketing Event or a Legal Cause
Remarketing Event, the Warrant Redemption Date.
"Repurchase Price" means the principal amount at maturity of the Debentures
that are received in exchange for Preferred Securities upon the exercise of the
Repurchase Right plus accrued and unpaid interest (including deferred interest)
on such Debentures to, but excluding, the applicable Special Distribution Date.
"Repurchase Right" has the meaning set forth in Section 6.7(a).
"Reset Rate" means the interest rate per annum on the Debentures (and, as a
result, the Distribution rate per annum on the Securities), that is determined
pursuant to the Remarketing of the Preferred Securities; provided, however, that
if a Failed Remarketing occurs, the Reset Rate shall equal (.)% per annum.
"Responsible Officer" means, with respect to the Property Trustee, any
officer within the Corporate Trust Office of the Property Trustee who shall have
direct responsibility for the administration of this Declaration, and also
means, with respect to a particular corporate trust matter, any other officer
within the Corporate Trust Office of the Property Trustee to whom such corporate
trust 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 thereunder, and the rules and regulations
promulgated thereunder.
"Security" or "Securities" mean 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, and the rules and regulations promulgated
thereunder.
"66 2/3% in Liquidation Amount" means, except as provided in the Preferred
Securities or by the Trust Indenture Act, Holders of outstanding 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, who are the record owners of 66 2/3% or more of
the aggregate liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the
10
date upon which the voting percentages are determined) of all outstanding
Securities or all outstanding Securities of the relevant class, as the case may
be.
"Special Distribution Date" means the fifteenth day of each calendar month
on which the Repurchase Price shall be payable if a Holder of a Preferred
Security elects to exercise its Repurchase Right.
"Special Event" has the meaning set forth in Section 6.10(a).
"Special Record Date" means the Remarketing Date.
"Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 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(c).
"Successor Entity" has the meaning set forth in Section 3.14(b)(i).
"Successor Property Trustee" has the meaning set forth in Section 5.6(b).
"Successor Securities" has the meaning set forth in Section 3.14(b)(i)(B).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" means the receipt by the Trust of an Opinion of Counsel,
rendered by an independent law firm having a recognized national tax practice,
to the effect that, as a result of:
(1) any amendment to, change in or announced proposed change in, the
laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein; or
(2) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations,
which amendment or change is effective or proposed change, administrative
pronouncement or judicial decision is announced on or after the Closing Date,
there is more than an insubstantial risk that:
(a) 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 interest
received or accrued on the Debentures; or
(b) 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 United States federal income tax purposes; or
(c) 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.
11
"10% in Liquidation Amount" means, except as provided in the terms of the
Preferred Securities or by the Trust Indenture Act, Holders of outstanding
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, who are the record owners of 10% or
more of the aggregate liquidation amount (including the stated 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 or all outstanding Securities of the relevant class,
as the case may be.
"Trading Day" means any day on which shares of Common Stock or other
capital stock of the Company then issuable upon exercise of the Warrants:
(1) are not suspended from trading on any national securities
association or exchange or over-the-counter market at the close
of business; and
(2) have traded at least once on the national securities association
or exchange or over-the-counter market that is the primary market
for the trading of Common Stock.
"Transfer Agent" has the meaning set forth in Section 6.14.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust" has the meaning set forth in the Recitals hereto.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office 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.
"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 and the rules and regulations
promulgated thereunder.
"Underwriting Agreement" means the underwriting agreement, dated (.), (.),
between the Company, the Trust and the Underwriters with respect to the initial
offering and sale of the Units, Preferred Securities and Warrants.
"Underwriter" means (.).
"Unit" means the collective rights and obligations of a holder of a unit
certificate issued under the Unit Agreement in respect of a Preferred Security
(and the related Debenture) and a Warrant.
12
"Unit Agent" means Wilmington Trust Company, solely as initial Unit Agent
under the Unit Agreement, and any successor thereto.
"Unit Agreement" means the Unit Agreement, dated (.), (.), among the
Company, the Trust, the Unit Agent, the Property Trustee and the Warrant Agent,
as amended or supplemented from time to time in accordance with its terms.
"Warrant" or "Warrants" has the meaning set forth in the Warrant Agreement.
"Warrant Agent" means Wilmington Trust Company, solely as initial Warrant
Agent under the Warrant Agreement, and any successor thereto.
"Warrant Agreement" means the Warrant Agreement, dated (.), (.),between the
Company and the Warrant Agent, as amended or supplemented from time to time in
accordance with its terms.
"Warrant Redemption Date" means the date on which the Warrants are redeemed
pursuant to the Warrant Agreement.
"Warrant Requirements" mean:
(1) a registration statement covering the issuance and sale or resale
of Common Stock to the holders of Warrants upon exercise of such
Warrants shall be effective under the Securities Act, or such
issuance and sale shall be exempt from the registration
requirements of the Securities Act;
(2) the shares of Common Stock shall be registered, qualified or
deemed to be exempt under the securities laws of the state of
residence of such holder of Warrants; and
(3) a then current prospectus shall be available for delivery to
exercising holders of the Warrants.
"Warrant Value" has the meaning set forth in the Warrant Agreement.
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 be governed,
to the extent applicable, by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
13
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Sections 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 purposes 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.
(a) Except when the Property Trustee is the Registrar, each of the
Company and the Administrative Trustees on behalf of the Trust shall provide the
Property Trustee a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders"):
(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 by one
or more Global Preferred Securities, and
(ii) at any other time, within 30 days of receipt by the Trust of
a written request from the Property Trustee for a List of
Holders as of a date no more than fifteen days before such
List of Holders is given to the Property Trustee.
If at any time the List of Holders does not differ from the most recent List of
Holders provided to the Property Trustee by the Company and the Administrative
Trustees on behalf of the Trust, then neither the Company nor the Administrative
Trustees shall be obligated to deliver such List of Holders. 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, and
shall be entitled to the benefits of, Sections 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 Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee also shall comply with the requirements of Section 313(d) of the Trust
Indenture Act.
14
Section 2.4. Periodic Reports to the Property Trustee.
Each of the Company and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act, if any,
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 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 annually such evidence of compliance
with any conditions precedent provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
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 the Preferred
Securities may waive, by vote or written consent, on behalf of the Holders of
all of the Preferred Securities, any past Trust Enforcement Events in respect of
the Preferred Securities and its consequences; provided, however, that if the
underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the related Trust
Enforcement Event under this Declaration also shall not be
waivable; or
(ii) requires the vote or consent of the holders of greater than
a majority in aggregate principal amount of the Debentures
(a "Super Majority") to be waived under the Indenture, the
related Trust Enforcement Event under this Declaration only
may be waived by the vote or written consent 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
Section 316(a)(1)(B) of the Trust Indenture Act and Section 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 in respect of 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 also shall 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.
15
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may waive, by vote or written consent, on behalf of the Holders of
all of the Common Securities, any past Trust Enforcement Event in respect of 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 as provided below in this Section 2.6(b), the related Trust
Enforcement Event under this Declaration also shall not be waivable. The Holders
of Common Securities shall be deemed to have waived any and all Trust
Enforcement Events 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 shall be deemed to
be acting solely on behalf of the Holders of the Preferred Securities and only
the Holders of the Preferred Securities shall 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
Section 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act, and Sections
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 cure, waiver or other elimination, any such default shall cease to exist
and any Trust Enforcement Event with respect to the 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 default
or 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 related Trust Enforcement Event under this Declaration. The foregoing
provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act, and Section 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. Trust Enforcement Events; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence of
a Trust Enforcement Event actually known to a Responsible Officer, transmit by
mail, first class postage prepaid, to the Holders, notice of such Trust
Enforcement Event unless such Trust Enforcement Event has been cured before the
giving of such notice; provided, however, that except for a default in the
payment of principal of (or premium, if any) or interest 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 for:
(i) a default under Sections 2.4(a) and 2.4(b) of the First
Supplemental Indenture; or
16
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer
charged with the administration of this Declaration shall
have actual knowledge.
ARTICLE III
ORGANIZATION
Section 3.1. Name.
The Trust is named "New York Community Capital (.)" as such name may
be modified from time to time by the Administrative Trustees following written
notice to the Holders. The Trust's activities may be conducted under the name of
the Trust.
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' written notice to the Holders, 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) to 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 and to the issuance of the
Units.
By acceptance of this Trust, none of the Trustees, the Company, the
Holders or the Preferred Security Beneficial Owners will take any position that
is contrary to the classification of the Trust as a grantor trust for United
States federal income tax purposes.
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 authority to carry out the purposes of the Trust. Any action taken by
the Administrative Trustees in accordance with their powers shall constitute the
act of and shall serve to bind the Trust, and any action taken by the Property
Trustee on behalf of the Trust in accordance with its powers shall constitute
the act of and shall 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.
17
(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.
(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 3.7.
(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 Unit Agreement, the Underwriting
Agreement, the Common Securities Subscription Agreement, the Debenture
Subscription Agreement, the Units 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 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. Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, the Trustees 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. In particular, the Trust shall not,
the Trustees shall not, and the Administrative Trustees shall cause the Trust
not to:
(i) invest any proceeds received by the Trust in connection with
its ownership of Debentures, but the Trust shall distribute
all such proceeds to Holders pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess any power or otherwise act in such a way as to vary
the Trust assets;
(iv) possess property for any purpose other than a Trust purpose;
(v) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(vi) mortgage or pledge any of the Trust's assets;
(vii) possess any power or otherwise act in such a way as to vary
the terms of the Securities in any way whatsoever (except to
the
18
extent expressly authorized in this Declaration or by the
terms of the Securities);
(viii) issue any securities or other evidences of ownership of,
or beneficial interest in, the Trust other than the
Securities;
(ix) other than as provided in this Declaration or by the terms
of the Securities:
(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 Indenture Event of Default that is
waivable under the Indenture;
(C) exercise any right to rescind or annul any declaration
that the principal of all the Debentures shall be due
and payable; or
(D) 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 a nationally recognized 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;
(x) take any action inconsistent (in the case of the Property
Trustee or the Delaware Trustee, to the actual knowledge of
a Responsible Officer thereof) with the status of the Trust
as a grantor trust for United States federal income tax
purposes; or
(xi) revoke any action previously authorized or approved by vote
of the Holders of the Preferred Securities.
Section 3.7. Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities to:
(a) establish the terms and forms of the Securities in the manner
specified in Section 6.1 and to issue and sell the Securities in accordance with
this Declaration; provided, however, that:
19
(i) the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
(ii) there shall be no interests in the Trust other than the
Securities; and
(iii) the issuance of Securities shall be limited to a
simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date;
(b) acquire the Debentures with the proceeds of the sale of the
Securities; provided, however, that the Administrative Trustees shall cause
legal title to the Debentures to be beneficially held in the name of the
Property Trustee for the benefit of the Holders;
(c) give the Company and the Property Trustee prompt written notice of
the occurrence of a Special Event;
(d) 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 as to such actions and applicable record dates;
(e) take all actions and perform such duties as may be required of the
Administrative Trustees or the Trust pursuant to the terms of this Declaration,
the Unit Agreement, the Underwriting Agreement, the Common Securities
Subscription Agreement, the Debenture Subscription Agreement, the Units and the
Securities;
(f) 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;
(g) employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Administrative Trustees have
authority to conduct directly, and to pay reasonable compensation for such
services;
(h) cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(i) give to the Property Trustee the certificate required by Section
314(a)(4) of the Trust Indenture Act, which certificate may be executed by any
Administrative Trustee;
(j) incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust;
(k) act as, or appoint another Person to act as, Registrar and
Transfer Agent for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 6.14;
20
(l) give prompt written notice to the Property Trustee and to 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;
(m) 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;
(n) 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 purposes and functions of the
Trust as set forth in Section 3.3 or the activities of the Trust as set out in
this Section 3.7, as long as such action does not materially adversely affect
the interests of the Holders, 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 as a grantor trust for
United States federal income tax purposes; 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;
(o) 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;
(p) execute and deliver all documents or instruments, including the
Unit Agreement, the Underwriting Agreement, the Common Securities Subscription
Agreement, the Debenture Subscription Agreement, the Units and the Securities,
perform all duties and powers, and do all things for and on behalf of the Trust
in all matters necessary or incidental to the foregoing; and
(q) 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 Company, as sponsor.
The Administrative Trustees shall exercise the powers set forth in
this Section 3.7 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 have
no power to, and 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 3.7, the Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
21
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.7 shall be reimbursed by the Company.
Unless otherwise required by the Statutory Trust Act or other
applicable law, such Administrative Trustee, acting alone, is authorized to
execute and deliver on behalf of the Trust, any documents, instruments or
certificates that the Administrative Trustees have the power and authority to
execute pursuant to this Section 3.7.
Section 3.8. Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
beneficially held 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 the Property 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, deposit such funds
into the Property Account and make payments or (cause the
Paying Agent to make payments) to the Holders from the
Property Account in accordance with Section 6.5. Funds in
the Property Account shall be held uninvested until
disbursed in accordance with this Declaration;
(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 direction by the Company to dissolve the
Trust, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the
Debentures to the Holders in exchange for the Securities.
(d) The Property Trustee is hereby authorized to take all actions and
perform such duties as may be specifically required of the Property Trustee
pursuant to the terms of this Declaration, the Unit Agreement and the
Securities.
(e) Subject to Section 3.9(a), the Property Trustee is hereby
authorized to take any Legal Action which arises out of or in connection with:
22
(i) a Trust Enforcement Event of which a Responsible Officer has
actual knowledge; or
(ii) 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 Trust Enforcement Event is attributable to the failure of
the Company to pay the principal of or premium, if any, or interest on the
Debentures on the date such principal, premium, if any, or interest is otherwise
payable (or in connection with a distribution of Debentures in exchange for
Preferred Securities and repurchase of Debentures under Sections 6.7 and 6.8), a
Holder of Preferred Securities may institute, to the fullest extent permitted by
law, a proceeding directly against the Company to enforce payment to such Holder
of the principal of or premium, if any, or interest on the Debentures having an
aggregate 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 rights of 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; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6.
(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 enforce, for the benefit of
Holders, its rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of such Securities.
(h) The Property Trustee shall be authorized to undertake any actions
set forth in Section 317(a) of the Trust Indenture Act.
(i) 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 Section 317(b) of the Trust Indenture
Act. Any such additional Paying Agent may be removed by the Property Trustee at
any time, and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee.
(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 3.7.
23
The Property Trustee shall 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 the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
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 shall use the same degree of care and
skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of his 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 and
after the cure or waiver 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 to be performed by it as 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 on their face to the requirements of this
Declaration; provided, 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 such certificates or opinions to
determine whether or not on their face they conform to
the requirements of this Declaration (but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein);
(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
24
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
without negligence, in good faith in accordance with the
direction of the Holders of not less than 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, safe keeping and physical preservation of the
Debentures and the Property 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 personal
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, and money held
by the Property Trustee need not be segregated from other
funds held by it except in relation to the Property 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 personally 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 any such provision may be
ambiguous as to its application or in conflict with any
other applicable provision,
25
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 the Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may request and 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 shall 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 request, in
the absence of bad faith on its part, 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
26
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. 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 that nothing contained in this Section 3.10(a)(vi)
shall be taken to relieve the Property Trustee, upon the
occurrence of an Indenture Event of Default (of which the
Property Trustee is deemed to have knowledge as provided in
Section 2.7(b) hereof), 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 sole
discretion, may make such further inquiry or investigation
into such facts or matters as it sees 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 personally
responsible for any misconduct or negligence on the part of
any agent 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;
27
(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:
(A) 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;
(B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are
received; and
(C) shall be fully 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;
(xii) with respect to the calculation of the Accreted Value, the
Property Trustee may conclusively rely upon the calculation
thereof determined by the Calculation Agent; and
(xiii) the Property Trustee shall not be personally liable for
any action taken, suffered, or omitted to be taken by it
without negligence, in good faith and reasonably believed by
it to be authorized or within the discretion, 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. Powers and Duties of the 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 of, nor shall the Delaware Trustee have any of the duties and
responsibilities of, the Administrative Trustees or the Property Trustee
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
Section 3807 of the Statutory Trust Act. In the event the Delaware Trustee is
required to take any action or perform any duty hereunder, the Delaware
28
Trustee shall be entitled to the benefits of Sections 3.9(b)(ii) to (ix),
inclusive, and Section 3.10. No implied covenants or obligations shall be read
into this Declaration against the Delaware Trustee.
Section 3.12. 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 property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
Section 3.13. Duration of the Trust.
The Trust, unless earlier dissolved or terminated pursuant to the
provisions of Article VIII, shall have existence up to (.), (.).
Section 3.14. Mergers, Consolidations, Conversions, Amalgamations or
Replacements of the Trust.
(a) The Trust may not merge with or into, consolidate with, convert
into, amalgamate with, 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 3.14(b) and 3.14(c) and except with
respect to the distribution of Debentures to Holders pursuant to Article 6 or
Article 8 of this Declaration.
(b) At the request of the Company and 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, the Trust may merge with or into, consolidate
with, convert into, amalgamate with, 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
with respect to 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
as the holder of the Debentures;
29
(iii) the Successor Securities are, or upon notification of
issuance will be, listed (or eligible for trading) on any
national securities exchange or with any other organization
on which the Preferred Securities were listed or quoted (or
otherwise eligible for trading) prior to such merger,
consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease;
(iv) if the Preferred Securities (including any Successor
Securities) are rated by any nationally recognized
statistical rating organization prior to such transaction,
such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not cause
the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of
the Holders (including any Successor Securities) in any
material respect (other than with respect to any dilution of
such Holders' interests in the new entity);
(vi) such Successor Entity, if not the Trust, has a purpose
identical in all material respects to that of the Trust;
(vii) prior to such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease,
the Company has received an Opinion of Counsel to the Trust,
rendered by an independent law firm experienced in such
matters, to the effect that:
(A) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges
of the Holders of the Securities (including any
Successor Securities) in any material respect (other
than with respect to any dilution of the Holders'
interest in the new entity);
(B) following such merger, consolidation, conversion,
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, conversion,
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;
30
(viii) if the Trust is not the successor entity, the Company or
any permitted successor or assignee owns all of the common
securities of such Successor Entity and guarantees the
obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the Guarantee;
(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 to the
effect that all conditions precedent in this Declaration to
such transaction have been satisfied.
(c) Notwithstanding Section 3.14(b), the Trust shall not, except with
the consent of Holders of 100% in aggregate liquidation amount of the
Securities, merge with or into, consolidate with, convert into, amalgamate with,
be replaced by, or convey, transfer or acquire by conveyance, 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 merge with or into, consolidate with,
convert into, amalgamate with, replace it, acquire by conveyance, transfer or
lease its properties and assets as an entirety or substantially as an entirety,
if such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease would cause the Trust or the Successor Entity to
be classified as other than a grantor trust for United States federal income tax
purposes or would cause each Holder of Securities not to be treated as owning an
undivided beneficial interest in the Debentures.
Section 3.15. 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
31
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.
ARTICLE IV
SPONSOR
Section 4.1. 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 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 the Preferred Securities are separately traded from the Units
and the applicable exchange listing requirements are met, to prepare for
execution and filing by the Trust an application to permit the Preferred
Securities to trade or be quoted or listed in or on the New York Stock Exchange
or any other national securities exchange, quotation system or the Nasdaq
National Market for listing or quotation upon notice of issuance of the
Preferred Securities; and
(d) 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.
Section 4.2. Indemnification and Expenses of the Trustees.
The Company, in its capacity as issuer of the Debentures, agrees to
indemnify the Property Trustee and the Delaware Trustee (including in their
respective individual capacities) for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Property Trustee or the Delaware Trustee, as the case may be,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending either
of them against any claim or liability in connection with the exercise or
performance of any of their respective powers or duties hereunder. The
provisions of this Section 4.2 shall survive the resignation or removal of the
Delaware Trustee or the Property Trustee and the termination of this
Declaration.
32
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
interest or principal on the Debentures, to institute a Direct Action against
the Company for enforcement of its payment obligations on the Debentures.
ARTICLE V
TRUSTEES
Section 5.1. Number of Trustees.
The number of Trustees initially shall be five, 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 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; and provided,
further, that:
(i) one Trustee shall be the Delaware Trustee;
(ii) one Trustee shall be the Property Trustee, which, for so
long as this Declaration is required to qualify as an
indenture under the Trust Indenture Act, shall meet the
requirements of applicable law; provided that the Property
Trustee also may serve as Delaware Trustee if it meets the
applicable requirements; and
(iii) at least one Trustee shall be an Administrative Trustee who
shall be an employee or officer of, or shall be affiliated
with, the Company.
Section 5.2. Delaware Trustee; Eligibility.
(a) If required by the Statutory Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(i) a natural person who is a resident of the State of Delaware;
or
(ii) 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 that if the Property Trustee has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable law, the
Property Trustee also shall be the Delaware Trustee and Section 3.11 shall have
no application.
33
(b) The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Section 5.3. Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee (the "Property Trustee"). The Property Trustee 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
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$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.
(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(b).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holders of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall comply
in all respects with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first provision contained in
Section 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, DE 19890
34
Attention: Corporate Trust Administration
Section 5.4. Qualifications of Administrative Trustees Generally.
Each Administrative Trustee (each, an "Administrative 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. Initial Administrative Trustees.
The initial Administrative Trustees shall be Messrs. Joseph R.
Ficalora, Robert Wann and Thomas R. Cangemi, the business address of each of
whom is c/o New York Community Bancorp, Inc., 615 Merrick Avenue, Westbury, New
York 11590.
Section 5.6. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), the 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 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 at a meeting of Holders of the
Preferred Securities or by written consent in lieu of such
meeting.
(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 Administrative Trustees and
the Company.
(c) The Delaware Trustee shall not be removed in accordance with
Section 5.6(a) until a successor Trustee possessing the qualifications to act as
Delaware Trustee under Section 5.2(a) (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 Administrative Trustees and
the Company.
(d) A Trustee appointed to office shall hold office until a successor
shall have been appointed or until death, dissolution, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by a written instrument signed by
35
such Trustee and delivered to the Company, the Trust and the other Trustees,
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 Property Trustee shall be
effective:
(A) until 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 Trust, the Administrative Trustees,
the Company 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 written
instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Administrative Trustees, 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, as
the case may be, 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 at the expense of the Company petition any
court of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and prescribe, appoint a
Successor Property Trustee or Successor Delaware Trustee, as the case may be.
(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 9.4.
(i) Any successor Delaware Trustee is authorized to 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.
36
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 5.1, 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, terminate or annul the Trust or 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 or 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 such meeting unless such notice is waived by all of the
Administrative Trustees. 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 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 by the Administrative Trustees.
(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
power for the purpose of executing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.7.
(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
37
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
the Trust, as set forth herein.
Section 5.11. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee, 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 such Trustee may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which such
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Trustee, shall be the successor of such
Trustee under this Declaration without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided that such
Person shall be otherwise qualified and eligible under this Article V; 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(i).
ARTICLE VI
THE SECURITIES
Section 6.1. General Provisions Regarding the Securities.
(a) The Administrative Trustees shall issue on behalf of the Trust one
class of preferred securities representing undivided preferred beneficial
interests in the assets of the Trust (the "Preferred Securities") and one class
of common securities representing undivided common beneficial interests in the
assets of the Trust (the "Common Securities").
(i) The Preferred Securities of the Trust shall number o and
shall have an aggregate stated liquidation amount with
respect to the assets of the Trust of $o, a stated
liquidation amount with respect to the assets of the Trust
of $o per Preferred Security and an accreted value at any
time equal to the Accreted Value. The Preferred Securities
are hereby designated for the purposes of identification
only as the Preferred Securities. The Preferred Securities
Certificates evidencing the Preferred Securities shall be
substantially in the form of Exhibit A, with such changes
and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
(ii) The Common Securities of the Trust shall number o and shall
have an aggregate liquidation amount with respect to the
assets of the Trust of $o, a stated liquidation amount with
respect to the assets of the Trust of $o per Common Security
and an accreted value at any time equal to the Accreted
Value. The Common Securities are hereby designated for the
purposes of identification only as the Common Securities.
The Common Securities Certificates evidencing the Common
Securities shall be substantially in the form of Exhibit B,
with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or
practice.
38
(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, fully paid and
nonassessable beneficial interests in the assets of the Trust.
(d) Each 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, the Guarantee, the Indenture and the Debentures.
(e) Payment of Distributions on, and any payment of the Redemption
Price upon a redemption of, the Securities shall be made on a Pro Rata basis
based on the liquidation amount of such Securities; provided that if, on any
date on which payment of a Distribution or the Redemption Price is to be made,
an Indenture Event of Default has occurred and is continuing, then such payment
shall not be made on any of the Common Securities, and no other payment on
account of the redemption, liquidation or other acquisition of such Common
Securities shall be made, until all accumulated and unpaid Distributions or
payments of the Redemption Price, as the case may be, on all of the outstanding
Preferred Securities for which Distributions are to be paid or that have been
called for redemption, as the case may be, are fully paid. All funds available
to the Property Trustee shall first be applied to the payment in full in cash of
all Distributions on, or the Redemption Price of, the Preferred Securities then
due and payable.
(f) Neither the issuance of Preferred Securities nor the issuance of
Common Securities is subject to preemptive or other similar rights to subscribe
for any additional securities. The Holders of the Securities shall not have any
preemptive or similar rights to subscribe for any additional securities.
Section 6.2. Execution and Authentication.
(a) Each Certificate shall be signed on behalf of the Trust by an
Administrative Trustee by manual or facsimile signature. If 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 such an Administrative
Trustee.
(b) A Preferred Securities Certificate 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 such Preferred
Securities Certificate has been authenticated under this Declaration.
(c) Upon receipt of a written order of the Trust signed by one
Administrative Trustee, the Property Trustee is authorized to authenticate the
Preferred Securities for original
39
issue. The aggregate number of Preferred Securities outstanding at any time
shall not exceed the aggregate stated liquidation amount set forth in Section
6.1(a)(i).
(d) The Property Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the Property
Trustee, being advised by counsel, determines that such action may not lawfully
be taken or if the Property Trustee in good faith shall determine that such
action would expose the Property Trustee to personal liability to existing
Holders.
(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 to deal with the Company or an Affiliate.
Section 6.3. Form and Dating.
The Preferred Securities shall be evidenced by one or more
certificates substantially in the form of Exhibit A and the Common Securities
shall be evidenced by one or more certificates substantially in the form of
Exhibit B. The Property Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit A.
The terms and provisions of the Securities set forth in Exhibits A and
B 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.
The Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by their execution thereof. The Certificates may have
letters, CUSIP or other numbers, notations or other marks of identification or
designation and such legends or endorsements as the Administrative Trustees may
deem appropriate, or as may be 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 Trust.
Each Preferred Security shall be dated the date of its authentication.
Upon the execution and delivery of this Declaration, the Preferred
Securities shall be issued as a component of a Unit, in fully registered form
without Distribution coupons (the "Global Unit Certificate"), substantially in
the form set forth in Exhibit A of the Unit Agreement. The Preferred Securities
also initially shall be issued in the form of one or more global Certificates in
fully registered form without Distribution coupons and with the global legends
specified in Exhibit A (each, a "Global Preferred Security"), substantially in
the form of Exhibit A. The Global Preferred Securities shall be 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, and deposited
on behalf of the purchasers of the Preferred Securities represented thereby with
the Property Trustee, at the Corporate Trust Office, as custodian for the
Clearing Agency. The Global Preferred Securities shall represent such of the
outstanding Preferred Securities as shall be specified in the "Schedule of
Increases or Decreases in Global Preferred Security" attached thereto (or on the
books and records of the Property Trustee and the
40
Clearing Agency or its nominee). Initially the number of Preferred Securities
evidenced by a Global Preferred Security shall be zero. Thereafter, the number
of Preferred Securities represented by the Global Preferred Securities may from
time to time be increased or decreased by adjustments made on the "Schedule of
Increases or Decreases in Global Preferred Security" attached thereto (or books
and records of the Property Trustee and the Clearing Agency or its nominee) as
hereinafter provided.
Except as provided in Sections 6.22(f) and 6.22(g), Preferred Security
Beneficial Owners shall not be entitled to receive physical delivery of
definitive, fully registered Preferred Securities Certificates ("Definitive
Preferred Securities").
Section 6.4. The Company's Purchase of the Common Securities.
(a) On the Closing Date, the Company shall purchase all of the Common
Securities then issued by the Trust, in an aggregate liquidation amount equal to
at least 3% of the total capital of the Trust, at such time as the Preferred
Securities are sold and issued. The aggregate stated liquidation amount of the
Common Securities outstanding at any time shall not be less than 3% of the total
capital of the Trust.
(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;
(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.
41
Section 6.5. Distributions.
(a) Holders shall be entitled to receive Distributions that shall be
payable at a rate per annum of (.)% (the "Coupon Rate") of the liquidation
preference of $(.) per Security from and including (.), (.) to, but excluding,
the Remarketing Date, and at the Reset Rate of the Accreted Value of the
Security on the Remarketing Date to, but excluding, the date of redemption. At
all times, the Distribution rate shall correspond to the interest rate on the
Debentures. The amount of a Distribution payable shall be computed:
(i) for any full 90-day quarterly Distribution period, on the
basis of a 360-day year consisting of twelve 30-day months;
(ii) for any period shorter than a full 90-day quarterly
Distribution period, on the basis of a 30-day month; and
(iii) for any period shorter than a 30-day month, on the basis of
the actual number of days elapsed in the 30-day month.
Subject to Section 6.1(e), Distributions shall be made on the Securities on a
Pro Rata basis. Distributions shall be payable on the Distribution Dates only to
the extent that payments are made to the Trust in respect of the Debentures held
by the Property Trustee and to the extent the Trust has funds available for the
payment of such Distributions in the Property Account.
(b) Distributions on the Securities shall accumulate from the date of
original issue, shall be cumulative and shall be payable quarterly in arrears on
o, o, o, and o of each year (each, a "Distribution Date"), commencing on o, o,
when, as and if available for payment, except as otherwise provided in this
Declaration. Interest not paid on the Debentures on the scheduled Interest
Payment Dates shall accrue and compound quarterly at the Coupon Rate of the
aggregate principal amount or the Reset Rate of the Accreted Value of the
Debentures on the Remarketing Date, as applicable, and, as a result,
Distributions not paid on the scheduled Distribution Dates shall accumulate and
compound quarterly at the Coupon Rate of the aggregate stated liquidation amount
or the Reset Rate of the Accreted Value of the Preferred Securities on the
Remarketing Date, as applicable ("Compounded Distributions"). The term
"Distribution" means ordinary quarterly distributions together with any
Compounded Distributions.
(c) As long as no Indenture Event of Default has occurred and is
continuing and as long as a Failed Remarketing has not occurred, the Company has
the right under the Indenture to defer payments of interest on the Debentures by
extending the interest payment period, at any time and 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 end on a date
other than an Interest Payment Date or extend beyond the stated maturity of the
Debentures. Upon the occurrence of a Failed Remarketing, any such Extension
Period shall terminate and interest shall be payable in cash on the next
Interest Payment Date. As a consequence of such deferral, Distributions also
shall be deferred. Despite such deferral, interest on the Debentures shall
continue to accrue with additional interest thereon (to the extent permitted by
applicable law) and, as a result, Distributions shall continue to accumulate
with additional Distributions thereon (to the extent permitted by applicable
law) at the Coupon Rate of the aggregate principal amount or at the Reset Rate
of the Accreted Value on the Remarketing Date, as the case may be, compounded
quarterly during any such Extension Period. Prior to the termination of any such
42
Extension Period, the Company may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions of such Extension Period, may not
exceed 20 consecutive quarters or extend beyond the stated maturity date of the
Debentures. 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.
(d) Distributions on the Securities shall be payable to the Holders
thereof as their names appear in the books and records of the Trust at the close
of business on the relevant Regular Record Dates; provided that Distributions
payable on the Remarketing Settlement Date shall be payable to the Holders
thereof as their names appear in the books and records of the Trust at the close
of business on the Special Record Date. If the Preferred Securities are
represented by one or more Global Preferred Securities, the relevant Regular
Record Dates shall be the close of business on the Business Day preceding the
corresponding Distribution Date, unless a different Regular Record Date is
established or provided for the corresponding Interest Payment Date on the
Debentures. If the Preferred Securities are not represented by one or more
Global Preferred Securities, the relevant Regular Record Dates for the Preferred
Securities shall be at least one Business Day prior to the corresponding
Distribution Dates, or such other dates as may be selected by the Administrative
Trustees. The record dates for the Common Securities shall be the same as the
record dates for the Preferred Securities. At all times, the Distribution Dates
shall correspond to the Interest 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 a
payment under the Debentures, shall cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution instead shall be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture for payment of the corresponding
defaulted interest on the Debentures.
(e) If any date on which a Distribution is payable on the Securities
is not a Business Day, payment of the Distribution payable on such date will be
made on the next day that is a Business Day (and without any additional
Distribution or other payment in respect of any such delay), except that if such
Business Day is in the next calendar year, such payment shall be made on the
immediately preceding Business Day with the same force and effect as if made on
the date such payment was originally payable.
(f) If and to the extent that the Company makes a payment of principal
of and premium, if any, and interest 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 of the Payment Amount to the Holders on a Pro
Rata basis, subject to Section 6.1(e).
(g) 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 on a Pro Rata basis among the Holders subject to 6.1(e).
Section 6.6. Remarketing.
(a) In connection with a Remarketing of the Preferred Securities:
43
(i) in connection with a Remarketing upon an Optional Redemption
Remarketing Event or a Legal Cause Remarketing Event, the
Accreted Value of the Debentures as of the end of the day on
the day next preceding the Remarketing Date shall become due
on the date which is 180 days following the Remarketing
Date, and, as a result, the Accreted Value of the Securities
as of the end of the day on the day next preceding the
Remarketing Date shall be redeemed on the date which is 180
days following the Remarketing Date;
(ii) beginning on the Remarketing Date, the rate of interest per
annum on the Accreted Value of the Debentures shall become
the Reset Rate on the Accreted Value of the Securities
established in the Remarketing of the Preferred Securities,
and, as a result, the Distribution rate per annum on the
Accreted Value of the Securities shall become the Reset Rate
established in the Remarketing of the Preferred Securities;
(iii) on the Remarketing Settlement Date, interest accrued and
unpaid on the Debentures from and including the immediately
preceding Interest Payment Date to, but excluding, the
Remarketing Settlement Date shall be payable to the holders
of the Debentures on the Special Record Date, and, as a
result, Distributions accumulated and unpaid on the
Securities from and including the immediately preceding
Distribution Date to, but excluding, the Remarketing
Settlement Date shall be payable to the Holders of the
Securities on the Special Record Date;
(iv) in connection with a Remarketing upon an Optional Redemption
Remarketing Event or a Legal Cause Remarketing Event, the
Company shall be obligated to redeem the Warrants on the
Remarketing Settlement Date at a redemption price per
Warrant equal to the Warrant Value as of the end of the day
on the day next preceding the Remarketing Date; and
(v) on and after the Remarketing Date, the Warrants shall be
exercisable at the Exercise Price.
(b) The proceeds from the Remarketing of the Preferred Securities
shall be paid to the selling Holders; provided that upon an Optional Redemption
Remarketing Event or a Legal Cause Remarketing Event, the proceeds from the
Remarketing of the Preferred Securities that are held pursuant to the Unit
Agreement for which the holders of such Units have elected to exercise their
Warrants shall be paid directly to the Warrant Agent to satisfy in full the
Exercise Price of the Warrants held by such holders with any excess proceeds
being paid to the selling holders.
(c) In connection with a Remarketing of the Preferred Securities and
at any time thereafter, a purchaser may exchange its Preferred Securities for
its Pro Rata share of Debentures. In such event, the Administrative Trustees
shall cause Debentures held by the Property Trustee, having an aggregate
Accreted Value equal to the aggregate Accreted Value of
44
the Preferred Securities purchased by such purchaser and with accrued and unpaid
interest equal to the accumulated and unpaid Distributions on the Preferred
Securities purchased by such purchaser and having the same record date for
payment as the Preferred Securities, to be distributed to such purchaser in
exchange for such Holders' pro rata interest in the Trust. In such event, the
Debentures held by the Trust shall decrease by the amount of Debentures
delivered to the purchaser of Preferred Securities.
(d) Upon the occurrence of an Optional Redemption Remarketing Event,
the Company shall cause a Remarketing of the Preferred Securities and select a
Remarketing Date; provided, however, that the following conditions precedent are
satisfied:
(i) as of the date on which the Company elects to cause a
Remarketing of the Preferred Securities and on the
Remarketing Date, no Trust Enforcement Event or deferral of
Distributions to Holders of the Preferred Securities shall
have occurred and be continuing;
(ii) as of the date on which the Company elects to cause a
Remarketing of the Preferred Securities and on the
Remarketing Date, the Warrant Requirements shall have been
satisfied; and
(iii) on the Remarketing Date, the Legal Requirements shall have
been satisfied.
The settlement of the Remarketing shall occur on the Remarketing Settlement
Date; provided, however, that the following conditions precedent are satisfied
on the Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
(B) pursuant to the Warrant Agreement, a redemption of the
Warrants of those holders who have not elected to
exercise their Warrants prior to or on such date shall
have been consummated.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
of the Preferred Securities cannot occur and the contemporaneous redemption of
Warrants shall be canceled; provided, however, that if:
(x) the Remarketing cannot occur because of a failure to satisfy
either the Warrant Requirements or the Legal Requirements as
of or on the relevant date or dates; and
(y) the Company is using its best efforts to satisfy such
Requirements;
the Company shall have the right to cause a Remarketing of the Preferred
Securities on a subsequent date which is no later than the Expiration Date;
provided, however, that all applicable requirements and conditions precedents
(including the timely occurrence of an Optional Redemption Remarketing Event)
are satisfied.
45
(e) Upon the occurrence of a Legal Cause Remarketing Event, the
Company shall cause a Remarketing of the Preferred Securities and select a
Remarketing Date; provided, however, that the following conditions precedent are
satisfied:
(i) as of the date on which the Company elects to cause a
Remarketing of the Preferred Securities and on the
Remarketing Date, no Trust Enforcement Event shall have
occurred and be continuing;
(ii) as of the date on which the Company elects to cause a
Remarketing of the Preferred Securities and on the
Remarketing Date, the Warrant Requirements shall have been
satisfied; and
(iii) on the Remarketing Date, the Legal Requirements shall have
been satisfied.
The settlement of the Remarketing shall occur on the Remarketing Settlement
Date; provided, however, that the following conditions precedent are satisfied
on the Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
(B) a redemption of the Warrants of those holders who have
not elected to exercise their Warrants prior to or on
such date shall have been consummated pursuant to the
Warrant Agreement.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
cannot occur and the contemporaneous redemption of Warrants shall be canceled;
provided, however, that if:
(x) the Remarketing cannot occur because of a failure to satisfy
either the Warrant Requirements or the Legal Requirements as of
or on the relevant date or dates; and
(y) the Company is using its best efforts to satisfy such
Requirements;
the Company shall have the right to cause a Remarketing of the Preferred
Securities on a subsequent date which is no later than the Expiration Date;
provided, however, that all applicable requirements and conditions precedents
(including the timely occurrence of a Legal Cause Remarketing Event) are
satisfied.
(f) On the Maturity Remarketing Date, a Remarketing of the Preferred
Securities shall occur; provided, however, that on such date, the Legal
Requirements (to the extent applicable) shall have been satisfied.
(g) If, for any reason, a Remarketing of the Preferred Securities does
not occur on the Maturity Remarketing Date, the Administrative Trustees shall
give notice thereof to all Holders of Preferred Securities (whether or not held
pursuant to the Unit Agreement) prior to the close of business on the Business
Day following the Maturity Remarketing Date. In such event:
46
(i) the rate of interest per annum on the Accreted Value of the
Debentures (which, on the Maturity Remarketing Date, shall
be equal to the principal amount of the Debentures) shall
become (.)%, and, as a result, the rate of Distribution per
annum on the Accreted Value of the Securities (which, on the
Maturity Remarketing Date, shall be equal to the liquidation
preference of the Securities) shall become (.)%;
(ii) the Accreted Value of the Debentures (and, as a result, the
Accreted Value of the Securities) shall be due and payable
on the day which is 180 days after the Maturity Remarketing
Date; and
(iii) pursuant to the Indenture, the Company no longer shall have
the option to defer payments of interest on the Debentures.
(h) Upon the occurrence of an Optional Redemption Remarketing Event or
a Legal Cause Remarketing Event, or upon the Maturity Remarketing Date, as long
as the Preferred Securities are evidenced by Global Preferred Securities
deposited with the Clearing Agency, the Company shall request, no fewer than
three nor more than 18 Business Days prior to the Remarketing Date, that the
Clearing Agency notify the Holders of the Preferred Securities of the
Remarketing of the Preferred Securities and of the procedures that must be
followed if such Holder of Preferred Securities wishes to elect not to
participate in the Remarketing of the Preferred Securities.
(i) Upon the occurrence of a Remarketing Event, all of the Preferred
Securities (excluding the Preferred Securities as to which the Holders thereof
have elected not to participate in the Remarketing) shall be remarketed by the
Remarketing Agent. Not later than 5:00 p.m. (New York City time) on the Business
Day preceding the Remarketing Date, each Holder of Preferred Securities may
elect not to have the Preferred Securities held by such Holder remarketed in the
Remarketing. Holders of Preferred Securities that are not held pursuant to the
Unit Agreement shall give such notice to the Property Trustee, and Holders of
Preferred Securities that are held pursuant to the Unit Agreement shall give
such notice to the Unit Agent. Holders of Preferred Securities that do not give
notice of their intention not to participate in the Remarketing shall be deemed
to have consented to the disposition of their Preferred Securities in the
Remarketing. Any such notice shall be irrevocable and may not be conditioned
upon the level at which the Reset Rate is established in the Remarketing.
Not later than 5:00 p.m. (New York City time) on the Business Day preceding
the Remarketing Date, the Property Trustee and the Unit Agent, as applicable,
based on the notices received by it prior to such time, shall notify the Trust,
the Company and the Remarketing Agent of the number of Preferred Securities to
be tendered for purchase in the Remarketing.
(j) The right of each Holder to have Preferred Securities tendered for
purchase shall be limited to the extent that:
(i) the Remarketing Agent conducts a Remarketing pursuant to the
terms of the Remarketing Agreement;
(ii) the Remarketing Agent is able to find a purchaser or
purchasers for the Preferred Securities deemed tendered; and
47
(iii) such purchaser or purchasers deliver the purchase price
therefor to the Remarketing Agent.
(k) On the Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket the Preferred Securities deemed
tendered for purchase at a price no less than 100% of the aggregate Accreted
Value as of the end of the day on the day next preceding the Remarketing Date.
(l) If, as a result of the efforts described in 6.6(k), the
Remarketing Agent determines that it will be able to remarket all of the
Preferred Securities deemed tendered for purchase at the purchase price set
forth in Section 6.6(k) prior to 4:00 p.m. (New York City time) on the
Remarketing Date, the Remarketing Agent shall determine the Reset Rate, which
shall be the rate per annum (rounded to the nearest one-thousandth (0.001) of 1%
per annum) that the Remarketing Agent determines, in its sole judgment, to be
the lowest rate per annum that will enable it to remarket all of the Preferred
Securities deemed tendered for Remarketing.
(m) If none of the Holders of the Preferred Securities or the holders
of the Units elects to have their Preferred Securities remarketed in the
Remarketing, the Reset Rate shall equal the rate determined by the Remarketing
Agent, in its sole discretion, as the rate that would have been established had
a Remarketing been held on the Remarketing Date, and the related modifications
to the other terms of the Preferred Securities and to the terms of the
Debentures and the Warrants shall be effective as of the Remarketing Date.
(n) If, by 4:00 p.m. (New York City time) on the Remarketing Date, the
Remarketing Agent is unable to remarket all of the Preferred Securities deemed
tendered for purchase, a "Failed Remarketing" shall be deemed to have occurred
and the Remarketing Agent shall so advise by telephone (promptly confirmed in
writing) the Clearing Agency, the Property Trustee, the Indenture Trustee and
the Administrative Trustees on behalf of the Trust and the Company. The
Administrative Trustees shall then give notice of the Failed Remarketing to the
Company and the Holders of the Preferred Securities prior to the close of
business on the Business Day following the Failed Remarketing Date. In the event
of a Failed Remarketing:
(i) the Accreted Value of the Debentures as of the end of the
day on the day next preceding the Failed Remarketing Date
shall become due on the date which is 180 days following the
Failed Remarketing Date, and, as a result, the Accreted
Value of the Securities as of the end of the day on the day
next preceding the Failed Remarketing Date shall be redeemed
on the date which is 180 days following the Failed
Remarketing Date;
(ii) beginning on the Failed Remarketing Date, the rate of
interest per annum on the Accreted Value of the Debentures
shall become (.)%, and, as a result, the rate of
Distribution per annum on the Accreted Value of the
Securities shall become (.)%; and
(iii) pursuant to the Indenture, the Company no longer shall have
the option to defer payments of interest on the Debentures.
Notwithstanding a Failed Remarketing, subject to the satisfaction of the
Legal Requirements, the Warrants shall be redeemed at the Warrant Value and a
holder of Warrants
48
shall have the option to exercise its Warrants in lieu of such redemption, as
provided in the Unit Agreement and the Warrant Agreement.
(o) By approximately 4:30 p.m. (New York City time) on the Remarketing
Date, so long as there has not been a Failed Remarketing, the Remarketing Agent
shall advise, by telephone (promptly confirmed in writing):
(i) the Clearing Agency, the Property Trustee, the Indenture
Trustee, the Trust and the Company of the Reset Rate
determined in the Remarketing and the number of Preferred
Securities sold in the Remarketing;
(ii) each purchaser (or the Clearing Agency Participant thereof)
of the Reset Rate and the number of Preferred Securities
such purchaser is to purchase; and
(iii) each purchaser to give instructions to its Clearing Agency
Participant to pay the purchase price on the Remarketing
Settlement Date in same day funds against delivery of the
Preferred Securities purchased through the facilities of the
Clearing Agency.
(p) In accordance with the Clearing Agency's normal procedures, on the
Remarketing Settlement Date, the transactions described above with respect to
each Preferred Security deemed tendered for purchase and sold in the Remarketing
shall be executed through the Clearing Agency, and the accounts of the
respective Clearing Agency Participants shall be debited and credited and such
Preferred Securities delivered by book entry as necessary to effect purchases
and sales of such Preferred Securities. The Clearing Agency shall make payment
in accordance with its normal procedures.
(q) If any Holder of the Preferred Securities selling such Preferred
Securities (or any holder of Units selling the Preferred Securities that are
held pursuant to the Unit Agreement) in the Remarketing fails to deliver such
Preferred Securities, the Clearing Agency Participant of such selling holder and
of any other Person that was to have purchased Preferred Securities in the
Remarketing may deliver to any such other Person a number of Preferred
Securities that is less than the number of Preferred Securities that otherwise
was to be purchased by such Person. In such event, the number of Preferred
Securities to be so delivered shall be determined by such Clearing Agency
Participant, and delivery of such lesser number of Preferred Securities shall
constitute good delivery.
(r) The Remarketing Agent is not obligated to purchase any Preferred
Securities that otherwise would remain unsold in the Remarketing. Neither the
Trust, any Trustee, the Company nor the Remarketing Agent shall be obligated in
any case to provide funds to make payment upon tender of the Preferred
Securities for Remarketing.
(s) Under the Remarketing Agreement, the Company, in its capacity as
Company, shall be liable for, and shall pay, any and all costs and expenses
incurred in connection with the Remarketing, and the Trust shall not have any
liabilities for such costs and expenses.
49
(t) The tender and settlement procedures set in this Section 6.6,
including provisions for payment by purchasers of the Preferred Securities in
the Remarketing, shall be subject to modification to the extent required by the
Clearing Agency or if the book-entry system is no longer available for the
Preferred Securities at the time of the Remarketing, to facilitate the tendering
and remarketing of the Preferred Securities in definitive form. In addition, the
Remarketing Agent may modify the settlement procedures set forth herein in order
to facilitate the settlement process.
Section 6.7 Limited Right to Require Exchange of Preferred Securities and
Repurchase of Debentures.
(a) Upon the exercise of Warrants by a holder of Units on a date other
than a Remarketing Settlement Date, such Holder shall have the right (the
"Repurchase Right"), on the next Special Distribution Date that is no less than
180 days following the exercise date of such Warrants, to require the Trust to
exchange the Preferred Securities related to such exercised Warrants for
Debentures having a principal amount at maturity equal to the liquidation
preference of such Preferred Securities on such exchange date plus accumulated
and unpaid Distributions (including deferred Distributions) to such date, and to
require the Company to repurchase such Debentures on the applicable Special
Distribution Date.
(b) To exercise its Repurchase Right, a Unit holder shall:
(i) provide the Administrative Trustees, the Exchange Agent and
the Company with notice of its election to exercise its
Repurchase Right no less than 30 days prior to the Special
Distribution Date on which such repurchase is to be
effected;
(ii) specify in such notice the number of Preferred Securities to
be exchanged for Debentures by the Trust; and
(iii) certify to the Trust, the Administrative Trustees and the
Company that such holder (A) has exercised the Warrants that
are held pursuant to the Unit Agreement having an Exercise
Price no less than the liquidation preference of the
Preferred Security sought to be exchanged, and (B) is the
beneficial owner of the Preferred Securities to be
exchanged.
(c) No less than three Business Days prior to the applicable Special
Distribution Date:
(i) if the Preferred Securities to be exchanged are represented
by a Global Preferred Security, the Property Trustee shall
make, in accordance with the instructions of the Exchange
Agent, the necessary endorsement to the "Schedule of
Increases or Decreases in Global Preferred Security"
attached to the Global Preferred Security to reduce the
amount of Preferred Securities represented thereby and shall
instruct the Indenture Trustee to transfer to the Exchange
Agent a corresponding principal amount of Debentures; and
50
(ii) if the Preferred Securities to be exchanged are represented
by Definitive Preferred Securities, (x) the Holder of such
Preferred Securities shall present such Definitive Preferred
Securities to the Property Trustee for cancellation and the
Property Trustee shall so notify the Registrar and (y) the
Property Trustee shall instruct the Indenture Trustee to
deliver to such Holder, definitive Debentures having a
principal amount at maturity equal to the liquidation
preference of the cancelled Preferred Securities of such
Holder.
(d) On the applicable Special Distribution Date, the Company shall
repurchase, pursuant to the Indenture, the Debentures which were the subject of
an exchange notice received by the Company pursuant to Section 6.7(b) at the
Repurchase Price.
Section 6.8 Reserved.
Section 6.9. Redemption.
(a) Except as provided in Sections 6.7 and 6.8, if applicable, upon
the repayment of the Debentures held by the Trust, in whole or in part, whether
at stated maturity (as adjusted in connection with a Remarketing, if applicable)
or otherwise, the proceeds from such repayment shall be simultaneously applied
by the Property Trustee to redeem a Like Amount of the Securities at a
redemption price (i) in the absence of a Remarketing, equal to $(.), plus
accumulated and unpaid Distributions on the Securities through the date of
redemption or (ii) in the event of a successful Remarketing prior to maturity,
the Securities' Accreted Value (the "Redemption Price"). The Redemption Price
shall be payable on the date of redemption (the "Redemption Date") only to the
extent that the Trust has sufficient funds available for the payment of such
Redemption Price.
(b) If the Debentures are repaid in part, the Securities shall be
redeemed in part. Except as provided in Section 6.13, the proceeds from such
repayment of Debentures shall be allocated on a Pro Rata basis to the redemption
of the Securities.
(c) The procedure with respect to redemptions of Securities shall be
as follows:
(i) Notice of any redemption of Securities (a "Redemption
Notice"), which notice shall be irrevocable, shall be given
by the Trust by mail to each Holder of Securities within 5
Business Days of the Redemption Date, which shall be the
date fixed for repayment of the Debentures. A Redemption
Notice shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to
Holders. No defect in the Redemption Notice or in the
mailing of the redemption Notice with respect to any Holder
shall affect the validity of the redemption proceedings with
respect to any other Holder.
(ii) Each Redemption Notice shall be prepared by the
Administrative Trustees and delivered to the Property
Trustee, which will then send such Redemption Notice on
behalf of the Trust to:
51
(A) in respect of the Preferred Securities, the Clearing
Agency or its nominee (or any successor Clearing Agency
or its nominee) if the Global Preferred Securities have
been issued or, the Holders thereof if Definitive
Preferred Securities have been issued, and
(B) in respect of the Common Securities, the Holder (or
Holders) thereof.
(iii) Once the Trust gives a Redemption Notice:
(A) with respect to Preferred Securities issued in
book-entry form, by 12:00 noon (New York City time) on
the Redemption Date of such Preferred Securities;
provided that the Company has paid the Property Trustee
a sufficient amount of cash in connection with the
related repayment of the Debentures by 10:00 a.m. (New
York City time) on such Redemption Date, the Property
Trustee shall deposit irrevocably with the Clearing
Agency or its nominee (or successor Clearing Agency or
its nominee) funds sufficient to pay the applicable
Redemption Price with respect to such Global Preferred
Securities and shall 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
definitive form and Common Securities, by 12:00 noon
(New York City time) on the Redemption Date of such
Securities, provided that the Company has paid the
Property Trustee a sufficient amount of cash in
connection with the related repayment of the Debentures
by 10:00 a.m. (New York City time) on such Redemption
Date, the Property Trustee shall deposit irrevocably
with the Paying Agent such funds sufficient to pay the
applicable Redemption Price with respect to such
Definitive Preferred Securities and Common Securities
and shall give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price
to the relevant Holders upon surrender of their
Certificates evidencing their Securities.
(iv) If a Redemption Notice shall have been given and funds
deposited as required, then, immediately prior to the close
of business on the Redemption Date, Distributions shall
cease to accumulate on the Securities called for redemption
and all rights of Holders of Securities called for
redemption, except the right of such Holders to receive the
Redemption Price (but without interest on such Redemption
Price), shall cease, and such Securities shall cease to be
outstanding.
52
(v) Payment of accumulated and unpaid Distributions on the
Redemption Date of the Securities shall be subject to the
rights of Holders on the close of business on a Regular
Record Date in respect of a Distribution Date occurring
prior to or on such Redemption Date.
(vi) If any Redemption Date is not a Business Day, payment of the
Redemption Price payable on such Redemption Date shall be
made on the next day that is a Business Day (and without any
interest or other payment in respect of any such delay)
except that, if such next Business Day falls in the next
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 the date such payment was originally
payable.
(vii) If payment of the Redemption Price in respect of any
Securities called for redemption is improperly withheld or
refused and not paid either by the Property Trustee or by
the Company pursuant to the Guarantee, Distributions on such
Securities shall continue to accumulate from the redemption
date originally established by the Trust to the date such
Redemption Price is actually paid, in which case the actual
payment date shall be the Redemption Date for purposes of
calculating the Redemption Price.
(viii) 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.
Section 6.10 Distribution of Debentures in Exchange for Securities Upon the
Occurrence of a Special Event
(a) If at any time either a Tax Event or an Investment Company Event
occurs (each, a "Special Event") and certain conditions set forth in Section
6.10(b) are satisfied, the Administrative Trustees may dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, cause the Debentures held by the Property Trustee to be
distributed to the Holders in liquidation of such Holders' interests in the
Trust on a Pro Rata basis, upon not less than 30 nor more than 60 days notice,
within the 90 days following the occurrence of such Special Event (the "90-Day
Period"), and, simultaneous with such distribution, to cause a Like Amount of
the Securities to be exchanged by the Trust on a Pro Rata basis.
(b) The dissolution of the Trust and distribution of the Debentures
pursuant to Section 6.10(a) shall be permitted only upon satisfaction of the
following three conditions:
(i) the receipt by the Administrative Trustees of an Opinion of
Counsel, rendered by an independent law firm having a
recognized national tax practice, to the effect that the
Holder shall not recognize any gain or loss for United
States federal
53
income tax purposes as a result of the dissolution of the
Trust and the distribution of the Debentures (a "No
Recognition Opinion"); provided that if a Special Event
occurs and the Administrative Trustees are informed by an
independent counsel that such counsel cannot deliver a No
Recognition Opinion to the Trust, and thus a dissolution of
the Trust and distribution of the Debentures shall not be
permitted, the Company shall have the right to cause a
Remarketing of the Preferred Securities as set forth in
Section 6.6 within the 90-Day Period;
(ii) neither the Trust nor the Company being able to eliminate,
which elimination shall be complete within the 90-Day
Period, such Special Event by taking some ministerial action
(such as filing a form, making an election or pursuing some
other reasonable measure) that:
(A) has no material adverse effect on the Trust, the
Company or the Holders; or
(B) does not subject any of them to more than de minimis
regulatory requirements; and
(iii) the receipt by the Administrative Trustees of the prior
written consent of the Company.
(c) Notice of any distribution of Debentures in exchange for the
Securities (a "Debenture Distribution Notice"), which notice shall be
irrevocable, shall be given by the Trust by mail to each Holder of Securities
not fewer than 30 nor more than 60 days before the date of distribution of the
Debentures. 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. No defect in the Debenture Distribution Notice or in the mailing of the
Debenture Distribution Notice with respect to any Holder shall affect the
validity of the exchange proceedings with respect to any other Holder.
Each Debenture Distribution Notice shall be prepared by the
Administrative Trustees and delivered to the Property Trustee, which will then
send such Debenture Distribution Notice on behalf of the Trust to:
(i) in respect of the Preferred Securities, the Clearing Agency
or its nominee (or any successor Clearing Agency or its
nominee) if the Global Preferred Securities have been issued
or, the Holders thereof if Definitive Preferred Securities
have been issued, and
(ii) in respect of the Common Securities, the Holder (or Holders)
thereof.
(d) On and from the date fixed by the Administrative Trustees for any
distribution of Debentures and liquidation of the Trust:
(i) the Securities no longer shall be deemed to be outstanding;
54
(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) shall be deemed to represent
Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of such Securities and bearing
accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Securities,
until such certificates are presented for cancellation, at
which time the Company shall issue, and the Indenture
Trustee shall authenticate, a certificate representing such
Debentures.
(e) In the event of a dissolution of the Trust and a distribution of
the Debentures, pursuant to the Indenture, the Company shall have the same
rights, and shall be subject to the same terms and conditions, to cause a
Remarketing of the Debentures as the Company has and is subject to under Section
6.6 to cause a Remarketing of the Preferred Securities.
Section 6.11 Voting Rights of the Preferred Securities.
(a) Except as provided under this Section 6.11 and 11.1 and as
otherwise required by the Statutory Trust Act, this Declaration and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 6.11(d), the Holders of a
Majority in Liquidation Amount of the Preferred Securities, voting separately as
a class, shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or to direct
the exercise of any trust or power conferred upon the Property Trustee under
this Declaration, including the right to direct the Property Trustee, as holder
of the Debentures, to:
(i) exercise the remedies available to it under the Indenture;
(ii) consent to any amendment or modification of the Indenture or
the Debentures where such consent is required; or
(iii) waive any past default and its consequences that are
waivable under Section 2.11 of the First Supplemental
Indenture;
provided, however, that if an Indenture Event of Default has occurred and is
continuing, the Holders of at least 25% of the aggregate liquidation amount of
the Preferred Securities may direct the Property Trustee to declare the
principal of and premium, if any, and interest on the Debentures due and
payable; provided, further, that where a consent or action under the Indenture
would require the consent or act of the Holders of a Super Majority of the
aggregate principal
55
amount of Debentures affected thereby, the Property Trustee may give such
consent or take such action only at the written direction of the Holders of the
percentage of the aggregate liquidation amount of the Preferred Securities which
is at least equal to the percentage required under the Indenture.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may institute, to the fullest extent
permitted by law, a legal proceeding directly against the Company to enforce the
Property Trustee's rights under the Indenture without first instituting any
legal proceeding against the Property Trustee or any other Person. In addition,
if a Trust Enforcement Event has occurred and is continuing and such event is
attributable to the failure of the Company to make any interest, principal or
other required payments when due under the Indenture, then a Holder of Preferred
Securities may institute a Direct Action against the Company on or after the
respective due date specified in the Debentures.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Company with respect to the Debentures. Such notice shall state that such
Indenture Event of Default also constitutes a Trust Enforcement Event. Except
with respect to directing the time, method and place of conducting a proceeding
for a remedy, the Property Trustee shall be under no obligation to take any of
the actions described in Section 6.10(b), unless the Property Trustee has
received an Opinion of Counsel, rendered by a nationally recognized independent
tax counsel, to the effect that the Trust will not fail to be classified as a
grantor trust for United States federal income tax purposes as a result of such
action, and that each Holder of Preferred Securities shall be treated as owning
an undivided beneficial interest in the Debentures.
(e) If the consent of the Property Trustee, as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture, the Property Trustee shall request
the written direction of the Holders with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in Liquidation Amount of
the Securities voting together as a single class; provided that where a consent
under the Indenture would require the consent of the Holders of a Super Majority
of the aggregate principal amount of the Debentures, the Property Trustee may
give such consent only at the direction of the Holders of the percentage of the
aggregate liquidation amount of the Securities which is at least equal to the
percentage required under the Indenture. The Property Trustee shall not take any
such action in accordance with the directions of the Holders of the Securities
unless the Property Trustee has received an Opinion of Counsel, rendered by a
nationally recognized independent tax counsel, to the effect that the Trust will
not fail to be classified as a grantor trust for United States federal income
tax purposes as a result of such action, and that each Holder of Securities will
be treated as owning an undivided beneficial interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures shall constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of the Holders of the Preferred
Securities may be given at a separate meeting of the Holders of the Preferred
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities or pursuant to written consent. The Administrative Trustees shall
cause a notice of any meeting at which Holders of the
56
Preferred Securities are entitled to vote to be mailed to each Holder of record
of Preferred Securities. Each such notice shall include a statement setting
forth:
(i) the date of such meeting or the date by which 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 the matter upon which written consent is sought; and
(iii) instructions for the delivery of proxies or consents.
(h) No vote or consent of the Holders of the Preferred Securities
shall be required for the Trust to redeem and cancel the Preferred Securities or
distribute the Debentures in accordance with this Declaration and the terms of
the Securities.
(i) Notwithstanding that the Holders of the Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned at such time by the Company, the
Trustees or any Affiliate of the Company or any Trustee shall not be entitled to
vote or consent and shall be treated, solely for purposes of such vote or
consent, as if such Preferred Securities were not outstanding.
(j) Except as provided under Section 6.11(k), the Holders of the
Preferred Securities shall have no rights to appoint or remove the Trustees, who
may be appointed, removed or replaced solely by the Holders of the Common
Securities.
(k) If an Indenture Event of Default has occurred and is continuing,
the Property Trustee and the Delaware Trustee may be removed and replaced by a
Majority in Liquidation Amount of the Preferred Securities.
Section 6.12 Voting Rights of the Common Securities.
(a) Except as provided in Section 5.1(b), this Section 6.12 and
Section 11.1 and as otherwise required by the Statutory Trust Act, the Trust
Indenture Act or other applicable law, the Holders of the Common Securities
shall have no voting rights.
(b) Subject to Section 6.11(k), the Holders of the Common Securities
shall be entitled to vote to appoint, remove or replace any Trustee or to
increase or decrease the number of Trustees in accordance with Article V.
(c) Subject to Section 2.6 and only after all Trust Enforcement Events
with respect to the Preferred Securities have been cured, waived or otherwise
eliminated and subject to the requirement of the Property Trustee receiving an
Opinion of Counsel, rendered by an independent law firm experienced in such
matters, in certain circumstances set forth in this Section 6.12(c), the Holders
of the Common Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee, or to direct the exercise of any trust or power conferred upon the
Property Trustee under this Declaration, including the right to direct the
Property Trustee, as the holder of the Debentures, to:
(i) exercise the remedies available to it under the Indenture;
57
(ii) consent to any amendment or modification of the Indenture
or the Debentures where such consent is required; or
(iii) waive any past default and its consequences that are
waivable under Section 2.11 of the First Supplemental
Indenture;
provided that where a consent or action under the Indenture would require the
consent or act of the Holders of a Super Majority of the aggregate principal
amount of Debentures affected thereby, only the Holders of the percentage of the
aggregate liquidation amount of the Common Securities which is at least equal to
the percentage required under the Indenture may direct the Property Trustee to
give such consent or take such action.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clauses (i) and (ii) of this Section
6.12(c) unless the Property Trustee has received an Opinion of Counsel, rendered
by a nationally recognized independent tax counsel, to the effect that the Trust
will not fail to be classified as a grantor trust for United States federal
income tax purposes as a result of such action, and each Holder will be treated
as owning an undivided beneficial interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after the Holders of the Common Securities have made a written
request pursuant to Section 6.11(c), the Holders of the Common Securities may
institute, to the fullest extent permitted by law, a legal proceeding directly
against the Company to enforce the Property Trustee's rights under the
Debentures without first instituting any legal proceeding against the Property
Trustee or any other Person.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures shall constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of the Holders of the Common
Securities may be given at a separate meeting of the Holders of the Common
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities or pursuant to written consent. The Administrative Trustees shall
cause a notice of any meeting at which the Holders of the Common Securities are
entitled to vote to be mailed to the Holders of the Common Securities. Such
notice shall include a statement setting forth:
(i) the date of such meeting or the date by which the action is
to be taken;
(ii) a description of any resolution proposed for adoption at
such meeting on which the Holders of the Common Securities
are entitled to vote or of the matter upon which written
consent is sought; and
(iii) instructions for the delivery of proxies or consents.
(g) No vote or consent of the Holders of the Common Securities shall
be required for the Trust to redeem and cancel the Common Securities or to
distribute the Debentures in accordance with this Declaration and the terms of
the Securities.
58
Section 6.13 Ranking.
The Preferred Securities rank pari passu with the Common Securities
and payment thereon shall be made on a Pro Rata basis with the Common
Securities, except that, if a Trust Enforcement Event 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 other payments to
which they are entitled at such time.
Section 6.14 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 Definitive Preferred Securities
may be presented for payment, if any Preferred Securities
are not represented by one or more Global Preferred
Securities ("Paying Agent"); and
(iii) an office or agency where Securities may be presented for
transfer and exchange ("Transfer Agent").
The Registrar shall keep a register of the Preferred Securities and of
their transfer. The term "Registrar" includes any additional registrar, "Paying
Agent" includes any additional paying agent and the term "Transfer Agent"
includes any additional transfer agent. The Administrative Trustees on behalf of
the Trust may appoint the Registrar, the Paying Agent and the Transfer Agent. If
the Administrative Trustees fail 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 Administrative Trustees on behalf of the Trust may change
any Registrar, Paying Agent 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 Administrative Trustees. The Administrative Trustees
on behalf of the Trust shall notify the Property Trustee and the Holders of any
change in the location of the office or agency of any 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 6.15 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 Distributions, Redemption Price
59
or Liquidation Amounts, 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 any 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.
Section 6.16 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, the Trust shall issue and the Property Trustee shall, upon
written order of the Trust signed by one Administrative Trustee, authenticate a
replacement Security if the Property Trustee's and the Trust's requirements, as
the case may be, 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 6.17 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the Preferred
Securities authenticated by the Property Trustee and, in the case of the Global
Preferred Securities, specified in the "Schedule of Increases or Decreases in
Global Preferred Security" attached thereto (or on the books and records of the
Property Trustee and the Clearing Agency or its nominee), except for those
canceled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
A Preferred Security does not cease to be outstanding because the
Company, one of the Trustees or any Affiliate of the Company or any of the
Trustees owns the Security.
Section 6.18 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 Company, the Trustees or any Affiliate of the Company or
any Trustees, 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 a Responsible Officer of the Property Trustee
actually knows are so owned shall be so disregarded.
Section 6.19 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 of such
Security for purposes of receiving Distributions and for all other purposes
whatsoever. Accordingly, the Trustees shall not be bound
60
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 6.20 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 cancelled Preferred Securities as the Trust directs in writing,
provided that the Property Trustee shall not be obligated to destroy Preferred
Securities. 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.
Section 6.21 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 Redemption Notices, Distribution Notices and notices of Remarketing
or 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.
Section 6.22 Global Preferred Securities; Legends
(a) Every Global Preferred Security authenticated, executed on behalf
of the Trust and delivered hereunder shall bear a legend in the form set forth
in Exhibit A.
(b) An Administrative Trustee shall execute, and, upon its receipt of
a written order of the Trust signed by one Administrative Trustee, the Property
Trustee is authorized to authenticate and deliver, one or more Global Preferred
Securities that:
(i) shall be registered in the name of the Clearing Agency or
the 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 instructions
or, if no such instructions are received by the Property
Trustee, shall be held by the Property Trustee as custodian
for such Clearing Agency.
(c) The Global Preferred Securities shall represent such of the
outstanding Preferred Securities as shall be specified in the "Schedule of
Increases or Decreases in Global Preferred Security" attached thereto (or on the
books and records of the Property Trustee and the Clearing Agency or its
nominee). Initially the number of Preferred Securities evidenced by the
61
Global Preferred Securities shall be zero and shall not, at any time, represent
more than (.) Preferred Securities with a maximum liquidation value of $(.).
(d) Preferred Securities not represented by a Global Preferred
Security issued in exchange for all or a part of a Global Preferred Security
pursuant to this Section 6.22 shall be registered in such names and in such
authorized denominations as the Clearing Agency, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Property
Trustee. Upon execution and authentication, the Property Trustee shall deliver
any Preferred Securities not represented by a Global Preferred Security to the
Persons in whose names such Definitive Preferred Securities are so registered.
(e) At such time as all interests in Global Preferred Securities have
been redeemed, repurchased or canceled, such Global Preferred Securities shall
be canceled, upon receipt thereof, by the Property Trustee in accordance with
standing procedures of the Clearing Agency. At any time prior to such
cancellation, if any interest in a Global Preferred Security is exchanged for
Preferred Securities not represented by a Global Preferred Security, redeemed,
canceled or transferred to a transferee who receives Preferred Securities not
represented by a Global Preferred Security, or if any Preferred Security not
represented by a Global Preferred Security is exchanged or transferred for part
of a Global Preferred Security, then, in accordance with the standing procedures
of the Clearing Agency, the aggregate stated liquidation amount of such Global
Preferred Security shall be reduced or increased, as the case may be, and an
endorsement shall be made on such Global Preferred Security by the Property
Trustee to reflect such reduction or increase in the "Schedule of Increases or
Decreases in Global Preferred Security" attached thereto.
(f) The Trust and the Property Trustee, as the authorized
representative of the Holders of the Preferred Securities, may deal with the
Clearing Agency for all purposes of this Declaration, including the making of
payments due on the Preferred Securities and exercising the rights of Holders of
the Preferred Securities hereunder. The rights of any Preferred Security
Beneficial Owners shall be limited to those established by law and agreements
between such owners and Clearing Agency Participants; provided that no such
agreement shall give to any Person any rights against the Trust or the Property
Trustee. Multiple requests and directions from and votes of the Clearing Agency
as the Holder of the Preferred Securities represented by Global Preferred
Securities with respect to any particular matter shall not be deemed
inconsistent to the extent they do not represent an amount of Preferred
Securities in excess of those held in the name of the Clearing Agency or its
nominee.
(g) If at any time the Clearing Agency notifies the Trust that it is
unwilling or unable to continue as Clearing Agency for the Preferred Securities
or if at any time the Clearing Agency no longer is eligible to serve as Clearing
Agency, the Administrative Trustees shall appoint a successor Clearing Agency
with respect to the Preferred Securities. If a successor Clearing Agency is not
appointed by the Trust within 90 days after the Trust receives such notice or
becomes aware of such ineligibility, the Trust's election that the Preferred
Securities be represented by one or more Global Preferred Securities shall no
longer be effective, and an Administrative Trustee shall execute, and upon its
receipt of a written order of the Trust signed by one Administrative Trustee,
the Property Trustee is authorized to authenticate and deliver, Definitive
Preferred Securities, in any authorized denominations, in an aggregate stated
liquidation amount equal to the aggregate stated liquidation amount of the
Global Preferred Securities representing the Preferred Securities, in exchange
for such Global Preferred Securities.
62
An Administrative Trustee also shall execute, and upon its receipt of a written
order of the Trust signed by one Administrative Trustee, the Property Trustee
also is authorized to authenticate and deliver, Definitive Preferred Securities,
in any authorized denominations, in an aggregate stated liquidation amount equal
to the aggregate stated liquidation amount of the Global Preferred Securities
representing the Preferred Securities, in exchange for such Global Preferred
Securities, if (1) the Company in its sole discretion elects to cause the
issuance of the Preferred Securities in definitive form or (2) there shall have
occurred and be continuing any event which after notice or lapse of time or both
would be a Trust Enforcement Event.
(h) The Administrative Trustees at any time and in their sole
discretion may determine that the Preferred Securities issued in the form of one
or more Global Preferred Securities shall no longer be represented by Global
Preferred Securities. In such event an Administrative Trustee on behalf of the
Trust shall execute, and, upon its receipt of a written order of the Trust
signed by one Administrative Trustee, the Property Trustee is authorized to
authenticate and deliver, Definitive Preferred Securities, in any authorized
denominations, in an aggregate stated liquidation amount equal to the aggregate
stated liquidation amount of the Global Preferred Securities representing the
Preferred Securities, in exchange for such Global Preferred Securities.
(i) Notwithstanding any other provisions of this Declaration (other
than the provisions set forth in Section 7.1), Global Preferred Securities may
not be transferred as a whole except by the Clearing Agency to a nominee of the
Clearing Agency or by a nominee of the Clearing Agency to 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.
(j) Interests of Preferred Security Beneficial Owners in a Global
Preferred Security may be transferred or exchanged for Preferred Securities not
represented by a Global Preferred Security, and Preferred Securities not
represented by a Global Preferred Security may be transferred or exchanged for a
Global Preferred Security or Securities, in accordance with rules of the
Clearing Agency and the provisions of Section 7.1.
ARTICLE VII
TRANSFER OF SECURITIES
Section 7.1. Transfer of Securities.
(a) The Preferred Securities may be transferred, in whole or in part,
only in accordance with the terms and conditions set forth in this Declaration
and in the terms of the Preferred Securities. To the fullest extent permitted by
law, any transfer or purported transfer of any Preferred Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Section 7.1 and Section 6.22, the Preferred
Securities shall be freely transferrable.
(c) The Common Securities shall not be transferrable except as
provided in the Indenture.
63
(d) The Trust shall cause to be kept at the Corporate Trust Office the
books and records in which, subject to such reasonable regulations as it may
prescribe, the Trust shall provide for the registration of Preferred Securities
and of transfers of Preferred Securities.
(e) Upon surrender for registration of transfer of any Preferred
Securities at an office or agency of the Trust designated for such purpose, an
Administrative Trustee shall execute, and upon its receipt of a written order of
the Trust signed by one Administrative Trustee, the Property Trustee is
authorized to authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Preferred Securities of any authorized
denominations and of a like aggregate principal amount.
(f) At the option of the Holder, Preferred Securities may be exchanged
for other Preferred Securities of any authorized denominations and of a like
aggregate stated liquidation amount, upon surrender of the Preferred Securities
to be exchanged at such office or agency. Whenever any Preferred Securities are
so surrendered for exchange, an Administrative Trustee shall execute, and upon
its receipt of a written order of the Trust signed by one Administrative
Trustee, the Property Trustee is authorized to authenticate and deliver, the
Preferred Securities that the Holder making the exchange is entitled to receive.
(g) If so required by the Property Trustee, every Preferred Security
presented or surrendered for registration of transfer or for exchange shall be
duly endorsed, or accompanied by a duly executed written instrument of transfer
in form satisfactory to the Property Trustee and the Registrar, by the Holder
thereof or his attorney duly authorized in writing.
(h) No service charge shall be made for any registration of transfer
or exchange of Preferred Securities, but the Trust may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Preferred
Securities.
(i) 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 Redemption Notice or any
notice of selection of Securities for redemption; or
(ii) so selected for redemption, except the unredeemed portion of
any such Preferred Securities being redeemed in part.
Section 7.2 Separation and Rejoining of Units.
At any time after issuance, the Preferred Security and Warrant
components of any Unit may be separated by the holder and thereafter transferred
separately. In the event of any separation of the components of a Unit:
(a) if such Unit is represented by a definitive certificate, the
holder shall present such definitive certificate to the Unit Agent for
cancellation and the Unit Agent shall so notify the Unit registrar and shall
return the Preferred Security component of such Unit to the
64
Property Trustee with an instruction to authenticate and deliver to, or upon
the instruction of, such holder a separated Preferred Security bearing the
separate CUSIP number assigned to the Preferred Security; and
(b) if such Unit is represented by a global certificate, the Unit
Agent shall make the necessary adjustment to the "Schedule of Exchanges of
Increases or Decreases in Global Certificate" attached to the global unit
certificate or otherwise comply with the Depositary's procedures to reduce the
amount of Units represented thereby and shall instruct the Property Trustee to
effect a corresponding increase in the Preferred Securities represented by the
Global Preferred Securities bearing a separate CUSIP number.
Once separated, a Preferred Security and Warrant may be rejoined to
form a Unit. In the event a holder of a Preferred Security and a Warrant desires
to rejoin a Unit:
(i) if the constituent components are represented by definitive
certificates, the holder shall present (A) the Preferred
Security to the Property Trustee and (B) the Warrant to the
Warrant Agent, in each case for cancellation and the
Property Trustee and the Warrant Agent shall so notify the
Unit Agent, who shall in turn so notify the registrar under
the Unit Agreement and shall, upon an Issuer Order (as
defined in the Unit Agreement) and subject to Section 1.2 of
the Unit Agreement, authenticate and deliver to, or upon the
written instruction of, such holder a Unit certificate
bearing the separate CUSIP number assigned to the Units; and
(ii) if the constituent components are represented by global
certificates, each of the Property Trustee and the Warrant
Agent shall make the necessary adjustment to their
respective global certificates or otherwise comply with the
Depositary's procedures to reduce the amount of Preferred
Securities and Warrants, respectively, represented thereby
and shall instruct the Unit Agent in writing to effect a
corresponding increase in the Units represented by the
global unit certificate bearing a separate CUSIP number. The
Property Trustee shall make such other necessary adjustments
to the Global Preferred Securities, as directed in writing
by the Administrative Trustees, to reflect the appropriate
number of Units and Preferred Securities, as appropriate,
represented thereby.
Section 7.3. Book-Entry Interests.
Global Preferred Securities 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 a Definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Preferred Securities, except as provided in
Section 6.22. Unless Definitive Preferred Securities have been issued to the
Preferred Security Beneficial Owners pursuant to Sections 6.22(f) and 6.22(g):
(a) the provisions of this Section 7.3 shall be in full force and
effect;
65
(b) to the extent that the provisions of this Section 7.3 conflict
with any other provisions of this Declaration, the provisions of this Section
7.3 shall control;
(c) the Trust, the Company 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 Securities and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the absolute owner of the Global Preferred Securities for all
purposes whatsoever and shall have no obligation to the Preferred Security
Beneficial Owners; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through 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. The
Clearing Agency shall make book-entry transfers among the Clearing Agency
Participants and shall receive and transmit payments of Distributions on the
Global Preferred Securities to such Clearing Agency Participants; provided that
solely for the purposes of determining whether the Holders of the requisite
liquidation amount of Preferred Securities have voted on any matter provided for
in this Declaration, so long as Definitive Preferred Securities have not been
issued and the Preferred Securities remain in the form of one or more Global
Preferred Securities, the Trustees may rely conclusively 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 votes of the Preferred
Security Beneficial Owners or assigning the right to vote on any matter to any
other Persons either in whole or in part.
Section 7.4. Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, the Trustees shall give all such
notices and communications specified herein to be given to the Holders of Global
Preferred Securities to the Clearing Agency, and shall have no notice
obligations to the Preferred Security Beneficial Owners.
Section 7.5. 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 VIII
DISSOLUTION AND TERMINATION OF THE TRUST
Section 8.1 Dissolution and Termination of the Trust.
(a) The Trust shall automatically dissolve upon the earliest to occur
of:
(i) the bankruptcy of the Company;
(ii) the filing of a certificate of dissolution or its equivalent
with respect to the Company, or the revocation of the
Company's
66
charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Company or the Trust by a court of competent jurisdiction;
(iv) the time 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;
(v) the written notice from the Company directing the Property
Trustee to distribute the Debentures to the Holders in
exchange for all of the Securities; provided that the
Company has provided to the Property Trustee an Opinion of
a Counsel experienced in such matters to the effect that
the Holders will not recognize any gain or loss for United
States federal income tax purposes as a result of the
distribution of Debentures and the dissolution of the
Trust;
(vi) the time when all of the Administrative Trustees and the
Company have consented to the dissolution of the Trust;
provided that such action is taken before the issuance of
any Securities; and
(vii) the expiration of the term of the Trust provided in Section
3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), and after satisfaction of liabilities to
creditors of the Trust, if any, as provided by applicable law, the
Administrative Trustees shall terminate the Trust by executing and filing in
accordance with the Statutory Trust Act a certificate of cancellation with the
Secretary of State of the State of Delaware.
(c) The provisions of Section 4.2 and Article IX shall survive the
termination of the Trust.
Section 8.2. Liquidation Distribution Upon Dissolution or Termination of the
Trust.
(a) In the event of any voluntary or involuntary dissolution,
liquidation, winding-up or termination of the Trust pursuant to Section 8.1
(each a "Liquidation"), 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, if any, as provided by applicable law, Debentures in an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Distribution rate of, and accrued and
unpaid interest equal to accumulated and unpaid Distributions on, such
Securities in exchange for such Securities.
(b) If, notwithstanding the other provisions of this Section 8.2,
distribution of the Debentures in the manner set forth in Section 8.2(a) is
determined by the Administrative
67
Trustees not to be practical, the assets of the Trust shall be liquidated, and
the Trust shall be wound-up by the Administrative Trustees in such manner as the
Administrative Trustees determine. In such event, the Holders shall be entitled
to receive out of the assets of the Trust available for distribution to the
Holders, after satisfaction of liabilities to creditors of the Trust, if any, as
provided by applicable law, an amount equal to the Accreted Value of the
Securities plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
Liquidation, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay the aggregate Liquidation
Distribution in full, then the amounts payable directly by the Trust on the
Securities shall be paid on a Pro Rata basis; provided that if an Indenture
Event of Default has occurred and is continuing, then the Preferred Securities
shall have a preference over the Common Securities with regard to the
Liquidation Distribution.
(c) Notice of any distribution of Debentures in exchange for the
Securities pursuant to Section 8.2(a) (an "Exchange Notice"), which notice shall
be irrevocable, shall be given by the Administrative Trustees on behalf of the
Trust by mail to each Holder at least 30 but no more than 60 days before the
date fixed for such distribution. For purposes of the calculation of the date of
distribution and the dates on which notices are given pursuant to this Section
8.2(c), an Exchange Notice shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to the Holders. Each Exchange
Notice shall be addressed to the Holders at the address of each such Holder
appearing on the books and records of the Trust. No defect in the Exchange
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the distribution proceedings with respect to any other
Holder.
(d) On and from the date fixed for any distribution of Debentures upon
dissolution of the Trust:
(i) the Securities no longer shall 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) shall be deemed to represent
Debentures having an aggregate principal amount equal to
the aggregate liquidation amount of such Securities and
bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on such
Securities, until such certificates are presented for
cancellation, at which time the Company shall issue, and
the Indenture Trustee shall authenticate, a certificate
representing such Debentures.
68
ARTICLE IX
LIMITATION OF LIABILITY OF THE HOLDERS, THE TRUSTEES OR OTHERS
Section 9.1. Liability.
(a) Except as expressly set forth in this Declaration, the Guarantee
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.
(c) Pursuant to Section 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 9.2. 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 such
Indemnified Person reasonably believes to be within such other Person's
professional or expert competence and, if selected by such Indemnified Person,
who has been selected with reasonable care, 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 9.3. 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.
69
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between a
Covered Person and an 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, 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 9.4 Indemnification of Company Indemnified Persons.
(a) The Company shall indemnify, to the fullest 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
70
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 fullest 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 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 (a) and (b)
of this Section 9.4, or in defense of any claim, issue or matter therein, he
shall be indemnified, to the fullest extent permitted by law, against expenses
(including attorneys' fees and expenses) actually and reasonably incurred by him
in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this Section
9.4 (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 has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made:
(i) 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;
(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 Holder of the Common Securities.
71
(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 (a) and (b)
of this Section 9.4 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 9.4. 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 consisting of such Administrative Trustees who were
not parties to such action, suit or proceeding;
(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 Holder of the Common Securities
that, based upon the facts known to the Administrative Trustees, independent
legal counsel or the Holder of the Common Securities at the time such
determination is made, such Company Indemnified Person acted in bad faith or in
a manner that the Holder of the Common Securities 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 Holder of Common
Securities reasonably determine that a Company Indemnified Person deliberately
breached his or her duty to the Trust or Holders of Common Securities or
Preferred Securities.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 9.4 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 of the Holders of
Preferred Securities 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 9.4 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 9.4 is in
effect. Any repeal or modification of this Section 9.4 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 and incurred by him 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 9.4.
72
(h) For purposes of this Section 9.4, 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
9.4 with respect to the resulting or surviving entity as he 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 9.4 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.
Section 9.5. Indemnification of Trustees.
(a) The Company shall indemnify:
(i) the Property Trustee acting in any capacity hereunder
(including, without limitation, as Exchange Agent,
Registrar, Paying Agent and Transfer Agent);
(ii) the Delaware Trustee;
(iii) any Affiliate of the Property Trustee and 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, 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 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 Person is
not entitled to be indemnified as authorized in this section. The obligations as
set forth in this Section 9.5 shall survive the resignation or removal of the
Property Trustee or
73
the Delaware Trustee, the termination of the Trust and the satisfaction and
discharge of this Declaration.
(b) 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 (including in their respective individual capacities) 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 9.6. Outside Businesses.
Any Covered Person, the Company, the Delaware Trustee and the Property
Trustee 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.
ARTICLE X
ACCOUNTING
Section 10.1 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 10.2. 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 books of account and the records of the Trust
74
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 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.
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each Holder, an 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.
(d) 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 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 on behalf of the Trust with any state or local taxing authority.
Section 10.3. 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 Account and no other funds of the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Administrative Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
Section 10.4. Withholding.
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Administrative Trustees 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 Administrative Trustees to assist them
in determining the extent of, and in fulfilling, the Trust's withholding
obligations. The Administrative Trustees shall file 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 such Holder. In the event of
any claimed over-withholding, the Holder 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.
75
ARTICLE XI
AMENDMENTS AND MEETINGS
Section 11.1. Amendments.
(a) Except as otherwise provided in this Declaration 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;
(ii) the Administrative Trustees (or if there are more than two
Administrative Trustees a majority of the Administrative
Trustees);
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the
Property Trustee; and
(iv) 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:
(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, if any, in this Declaration to
the execution and delivery of such amendment have been
satisfied; and
(ii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified other than as a
grantor trust for purposes of United States federal
income taxation;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust
Indenture Act; or
76
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment
Company Act.
(c) This Declaration may be amended without the consent of the Holders
to:
(i) cure any ambiguity;
(ii) correct or supplement any provision contained herein that
may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to
matters or questions arising under this Declaration that
shall not be inconsistent with the other provisions of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Company or grant any additional rights to the Holders of
Preferred Securities;
(iv) conform to 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;
(v) modify, eliminate or add to any provisions of this
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;
(vi) facilitate the tendering, remarketing and settlement of the
Preferred Securities as contemplated by Section 6.6(s); or
(vii) make any other provision in regard to matters or questions
arising hereunder that the Company and the Trustees may
deem necessary or desirable and that should not adversely
affect in any material respect the interests of the
Holders.
(d) This Declaration may be amended with 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. Such an amendment may not, without the
consent of each Holder of any Security affected thereby:
(i) change the Distribution rate (or manner of calculation of
the Distribution rate), amount, timing or currency or
otherwise adversely affect the method of any required
payment,
(ii) change the purposes of the Trust,
77
(iii) authorize the issuance of any additional beneficial
interests in the Trust,
(vi) change the redemption provisions,
(v) change the conditions precedent for the Sponsor to elect
to dissolve the Trust and distribute the Debentures to the
Holders of the Securities,
(vi) change the Liquidiation Distribution or other provisions
relating to the distribution of amounts payable upon the
dissolution and liquidation of the Trust,
(vii) affect the limited liability of any Holder of the
Securities,
(viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment
on or after the due date therefore (or in the case of
redemption, on the Redemption Date), or
(ix) amend Section 11.1 hereof
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.
It shall not be necessary for the consent of the Holders of Preferred or Common
Securities under this Section to approve the particular form of any proposed
amendment. It shall be sufficient if such consent approves the substance
thereof.
(e) Neither Article IV nor 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 be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) After an amendment or waiver under this Section becomes effective,
the Company shall mail to each Holder a notice briefly describing the
amendment or waiver. Any failure of the Company to mail any such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of such amendment or waiver.
Section 11.2. 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
78
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 Holder or Holders calling a meeting
shall specify in writing the Securities held by the Holder or 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. The Administrative Trustees may
specify that any written ballot submitted to the Holders
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 any and all matters in which such Holder is entitled to
participate, including waiving notice of any meeting, or
voting 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
such proxy. 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.
79
(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 XII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
Section 12.1. Representations and Warranties of the Property Trustee.
The 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 duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, with trust powers 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; 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 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.
80
Section 12.2. Representations and Warranties of the 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, if not a natural person, a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with trust 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(a);
(c) the execution, delivery and performance by the Delaware Trustee of
this Declaration has been duly authorized, if the Delaware Trustee is not a
natural person, by all necessary corporate action on the part of the Delaware
Trustee; this Declaration has been duly executed and delivered by the Delaware
Trustee and under Delaware law (excluding 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, if not a natural person, does not conflict with, or constitute
a breach of, the charter or by-laws of the Delaware 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 Delaware
Trustee is required for the execution, delivery or performance by the Delaware
Trustee of this Declaration.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. 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, as follows:
(a) if given to the Trust or 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 VI
c/o New York Community Bancorp, Inc.
81
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
Administrative Trustees, the Property Trustee and 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 Administrative Trustees, the Delaware Trustee and the
Holders):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Facsimile No.: (302) 636-4145
(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 Property Trustee, the Delaware
Trustee and 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 Holder of Preferred Securities, to the Clearing
Agency, and if Definitive Preferred Securities have been issued, at such
Holder's 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.
82
Section 13.2. 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 13.3. Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
as a grantor trust for United States federal income tax purposes. The provisions
of this Declaration shall be interpreted to further this intention of the
parties.
Section 13.4. 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.
Section 13.5. 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 so expressed.
Section 13.6. 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 13.7 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 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.
Section 13.8. The Exchange Agent.
The Exchange Agent undertakes to perform, with respect to the
Preferred Securities, such duties and only such duties as are specifically set
forth in this Declaration, and no implied covenants or obligations shall be read
into this Declaration against the Exchange Agent. In the performance of such
duties, the Exchange Agent shall be entitled to the same rights and powers as
are granted to the Property Trustee, except that the Exchange Agent shall act as
agent solely for the Holders of the Preferred Securities who seek to exchange
such Preferred Securities pursuant to Sections 6.7 and 6.8.
83
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
New York Community Bancorp, Inc., as
Company
By:
---------------------------------
Name:
Title:
, as Administrative
------------------
Trustee
-------------------------------------
, as Administrative
------------------
Trustee
-------------------------------------
, as Administrative
------------------
Trustee
-------------------------------------
Wilmington Trust Company, as Property
Trustee
By:
---------------------------------
Name:
Title:
Wilmington Trust Company, as Delaware
Trustee
By:
---------------------------------
Name:
Title:
EXHIBIT A
[FORM OF PREFERRED SECURITIES CERTIFICATE]
[To be inserted in Global Securities only:
THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED
AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF A WARRANT TO PURCHASE
(.) SHARES (SUBJECT TO ANTI-DILUTION ADJUSTMENTS) OF COMMON STOCK OF NEW YORK
COMMUNITY BANCORP, INC. (THE "COMPANY") AT THE EXERCISE PRICE SET FORTH IN THE
WARRANT AGREEMENT, DATED AS OF (.), (.), BETWEEN THE COMPANY AND WILMINGTON
TRUST COMPANY, AS WARRANT AGENT, AND A PREFERRED SECURITY OF NEW YORK COMMUNITY
CAPITAL TRUST (.) (THE "TRUST"). THE WARRANTS AND THE PREFERRED SECURITIES MAY
BE SEPARATED AND TRANSFERRED SEPARATELY, AND RE-ATTACHED, IN ACCORDANCE WITH THE
PROVISIONS OF THE UNIT AGREEMENT, DATED AS OF (.), (.), AMONG THE COMPANY, THE
TRUST AND WILMINGTON TRUST COMPANY, AS UNIT AGENT, WARRANT AGENT AND PROPERTY
TRUSTEE (THE "UNIT AGREEMENT").
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE DECLARATION
REFERRED TO HEREIN AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "CLEARING AGENCY"), OR A NOMINEE OF THE
CLEARING AGENCY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS
CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE
CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING
AGENCY, ANOTHER NOMINEE OF THE CLEARING AGENCY OR A SUCCESSOR OF THE CLEARING
AGENCY OR SUCH NOMINEE) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF THE CLEARING AGENCY OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING
AGENCY, ANOTHER NOMINEE OF THE CLEARING AGENCY OR A SUCCESSOR OF SUCH CLEARING
AGENCY OR SUCH A NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL CERTIFICATE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE DECLARATION.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
CLEARING AGENCY OR ITS NOMINEE TO NEW YORK COMMUNITY CAPITAL TRUST (.) OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY OR ITS NOMINEE (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY
A-1
OR ITS NOMINEE), AND EXCEPT AS OTHERWISE PROVIDED IN THE DECLARATION, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-2
Certificate No.: CUSIP No.: (.)
Number of Preferred Securities set forth on Schedule A hereto.
NEW YORK COMMUNITY CAPITAL TRUST VI
PREFERRED SECURITIES CERTIFICATE
(.)% Preferred Securities
(stated liquidation amount $(.) per Preferred Security)
New York Community Capital Trust(.), a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (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 (stated 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 as provided in the Declaration (as defined below). 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 in accordance with its terms) (the "Declaration"),
among New York Community Bancorp, Inc., as Company, Messrs. (.), (.) and (.), as
Administrative Trustees, Wilmington Trust Company, as Property Trustee, and
Wilmington Trust Company, as Delaware Trustee. Capitalized terms used but not
defined herein shall have the meaning given them in the Declaration. The Holder
is entitled to the benefits of the Guarantee Agreement, dated as of (.), (.)
(the "Guarantee Agreement"), between New York Community Bancorp, Inc., as
Guarantor, and Wilmington Trust Company, as Guarantee Trustee, in respect of the
Preferred Securities. The Company will provide a copy of the Declaration, the
Guarantee Agreement and the Indenture (including any supplemental indenture
thereto) to a Holder without charge upon written request to the Company at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration, the Indenture, Guarantee Agreement and the Debenture and is
entitled to the benefits thereunder.
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 undivided beneficial interests in the Debentures.
A-3
IN WITNESS WHEREOF, the Trust has executed this certificate this (.)
day of [____] (.).
NEW YORK COMMUNITY CAPITAL TRUST (.)
By:
-------------------------------------------
Name:
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Declaration.
Dated: [_____] (.), (.)
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Property Trustee
By:
------------------------------
Authorized Signatory
A-4
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 and records of the Trust. The agent may substitute
another to act for him.
Date:
--------------
Signature:
---------------------------------------------------------------------
(Sign exactly as your name appears on the Preferred Security Certificate)
Date:
--------------
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.
A-5
Schedule A
SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL PREFERRED SECURITY/(2)/
This Global Preferred Security shall represent 0 (Zero) Preferred
Securities unless otherwise indicated below.
The following increases or decreases in this Global Preferred Security
have been made:
- -----------------------------------------------------------------------------------------------
Amount of decrease Amount of increase Number of Preferred
in number of in number of Securities evidenced
Preferred Securities Preferred Securities by this Global
evidenced evidenced Preferred Security Signature of
by this Global by this Global following such authorized officer
Date Preferred Security Preferred Security decrease or increase or Agent
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
- ----------
/(2)/ Insert in Global Preferred Securities only.
A-6
EXHIBIT B
[FORM OF COMMON SECURITY CERTIFICATE]
This certificate is not transferable except as provided in the declaration (as
defined below).
Certificate No.: (.)
Number of Common Securities:
NEW YORK COMMUNITY CAPITAL TRUST (.)
COMMON SECURITIES CERTIFICATE
(.)% Common Securities
(stated 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 (stated liquidation amount
$(.) per Common Security) (the "Common Securities"). Except as provided in the
Declaration (as defined below), the Common Securities are not transferable, and
any attempted transfer thereof shall be void. 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 Trust of
the Trust, dated as of (.), (.) (as the same may be amended from time to time in
accordance with its terms) (the "Declaration"), among New York Community
Bancorp, Inc., as Company, Messrs. (.), (.) and (.), as Administrative Trustees,
Wilmington Trust Company, as Property Trustee, and Wilmington Trust Company, as
Delaware Trustee. Capitalized terms used but not defined herein shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Guarantee Agreement, dated as of (.), (.) (the "Guarantee Agreement"),
between New York Community Bancorp, Inc., as Guarantor, and Wilmington Trust
Company, as Guarantee Trustee, in respect of the Common Securities. The Company
will provide a copy of the Declaration, the Guarantee Agreement and the
Indenture (including any supplemental indenture) to a Holder without charge upon
written request to the Company at its principal place of business.
B-1
Upon receipt of this certificate, the Holder is bound by the
Declaration and the Guarantee Agreement and is entitled to the benefits
thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of undivided beneficial interests in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this (.)
day of [____], (.).
NEW YORK COMMUNITY CAPITAL TRUST (.)
By:
-------------------------------------------
Name:
Administrative Trustee
B-2