Exhibit 4.8
UNIT AGREEMENT
among
NEW YORK COMMUNITY BANCORP, INC.
NEW YORK COMMUNITY CAPITAL TRUST V
and
Wilmington Trust Company,
as Warrant Agent
Wilmington Trust Company,
as Property Trustee
Wilmington Trust Company,
as Unit Agent
Dated as of November 4, 2002
TABLE OF CONTENTS
Page
----
Article I Definitions and Other Provisions of General Applications................................. 1
Section 1.1. Definitions........................................................................ 1
Section 1.2. Compliance Certificates and Opinions............................................... 8
Section 1.3. Form of Documents Delivered to Unit Agent.......................................... 8
Section 1.4. Acts of Holders; Record Dates...................................................... 9
Section 1.5. Notices............................................................................ 10
Section 1.6. Notice to Holders; Waiver.......................................................... 11
Section 1.7. Effect of Headings and Table of Contents........................................... 11
Section 1.8. Successors and Assigns............................................................. 12
Section 1.9. Separability Clause................................................................ 12
Section 1.10. Benefits of Agreement.............................................................. 12
Section 1.11. Governing Law...................................................................... 12
Section 1.12. Legal Holidays..................................................................... 12
Section 1.13. Counterparts....................................................................... 12
Section 1.14. Inspection of Agreement............................................................ 12
Article II Certificate Forms........................................................................ 13
Section 2.1. Forms of Certificates Generally; Legends........................................... 13
Section 2.2. Form of Unit Agent's Certificate of Authentication................................. 13
Article III The Units................................................................................ 14
Section 3.1. Amount; Form and Denominations..................................................... 14
Section 3.2. Rights and Obligations Evidenced by the Certificates............................... 14
Section 3.3. Execution, Authentication, Delivery and Dating..................................... 14
Section 3.4. Temporary Certificates............................................................. 15
Section 3.5. Registration; Registration of Transfer and Exchange................................ 16
Section 3.6. Separation and Rejoining of Units.................................................. 17
Section 3.7. Book-Entry Interests............................................................... 18
Section 3.8. Notices to Holders................................................................. 18
Section 3.9. Appointment of Successor Clearing Agency........................................... 19
Section 3.10. Definitive Certificates............................................................ 19
Section 3.11. Mutilated, Destroyed, Lost and Stolen Certificates................................. 19
Section 3.12. Persons Deemed Owners.............................................................. 20
Section 3.13. Cancellation....................................................................... 20
Section 3.14. CUSIP Numbers...................................................................... 21
Article IV The Preferred Securities................................................................. 21
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TABLE OF CONTENTS
(continued)
Section 4.1. Payment of Distribution; Rights to Distributions Preserved; Distribution Rate Reset... 21
Section 4.2. Notice and Voting..................................................................... 21
Section 4.3. Distribution of Debentures............................................................ 22
Article V Remarketing and Redemption; Early Exercise................................................ 22
Section 5.1. Remarketing and Redemption............................................................ 22
Section 5.3. Change of Control..................................................................... 25
Section 5.4. Certain Rights Following a Remarketing................................................ 25
Article VI Remedies.................................................................................. 26
Section 6.1. Unconditional Right of Holders to Receive Payments and to Purchase Common Stock....... 26
Section 6.2. Restoration of Rights and Remedies.................................................... 26
Section 6.3. Rights and Remedies Cumulative........................................................ 26
Section 6.4. Delay or Omission Not Waiver.......................................................... 26
Section 6.5. Undertaking for Costs................................................................. 26
Section 6.6. Waiver of Stay or Extension Laws...................................................... 27
Article VII The Unit Agent............................................................................ 27
Section 7.1. Certain Duties and Responsibilities................................................... 27
Section 7.2. Notice of Default..................................................................... 28
Section 7.3. Certain Rights of Unit Agent.......................................................... 28
Section 7.4. Not Responsible for Recitals or Issuance of Units..................................... 29
Section 7.5. May Hold Units........................................................................ 30
Section 7.6. Money Held in Custody................................................................. 30
Section 7.7. Compensation and Reimbursement........................................................ 30
Section 7.8. Unit Agent Required; Eligibility...................................................... 30
Section 7.9. Resignation and Removal; Appointment of Successor..................................... 31
Section 7.10. Acceptance of Appointment by Successor................................................ 32
Section 7.11. Merger, Conversion, Consolidation or Succession to Business........................... 32
Section 7.12. Preservation of Information; Communications to Holders................................ 32
Section 7.13. No Obligations of Unit Agent.......................................................... 33
Section 7.14. Tax Compliance........................................................................ 33
Article VIII Supplemental Agreements................................................................... 33
Section 8.1. Supplemental Agreements Without Consent of Holders.................................... 33
Section 8.2. Supplemental Agreements With Consent of Holders; Other Fiduciaries.................... 34
Section 8.3. Execution of Supplemental Agreements.................................................. 35
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TABLE OF CONTENTS
(continued)
Section 8.4. Effect of Supplemental Agreements..................................................... 35
Section 8.5. Reference to Supplemental Agreements.................................................. 35
Article IX Consolidation, Merger, Sale or Conveyance................................................. 35
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain
Conditions............................................................................ 35
Section 9.2. Rights and Duties of Successor Corporation............................................ 36
Section 9.3. Opinion of Counsel Given to Agent..................................................... 36
Article X Covenants................................................................................. 36
Section 10.1. Performance Under Agreements.......................................................... 36
Section 10.2. Maintenance of Office or Agency....................................................... 36
Section 10.3. Statements of Officers of the Company as to Compliance................................ 37
Section 10.4. ERISA................................................................................. 37
Section 10.5. Statement by Officers as to Default................................................... 37
Section 10.6. Calculation of Original Issue Discount................................................ 37
Article XI Representations of the Unit Agent......................................................... 38
Section 11.1. Representations and Warranties of the Unit Agent...................................... 38
Article XII The Warrant Agent and The Property Trustee................................................ 38
Section 12.1. Certain Duties and Responsibilities................................................... 38
EXHIBIT A
Form of Certificate
EXHIBIT B Instruction to Disregard Remarketing
EXHIBIT C Notice of Electing Remarketing Holder
EXHIBIT D Notice of Change of Control Redemption Election
EXHIBIT E Notice of Change of Control Exchange and Repurchase
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UNIT AGREEMENT, dated as of November 4, 2002 among New York Community
Bancorp, Inc., a Delaware corporation (the "Company"), New York Community
Capital Trust V, a Delaware statutory trust (the "Trust"), Wilmington Trust
Company, as Property Trustee for the Trust, Wilmington Trust Company, as Warrant
Agent, and Wilmington Trust Company, acting as unit agent for the Holders of the
Units from time to time (the "Unit Agent").
WHEREAS, the Issuers desire to issue Bifurcated Option Note Unit
SecuritiES(SM) (BONUSES(SM)) consisting of:
(i) Preferred Securities (stated liquidation amount $50.00 per
preferred security) issued by the Trust pursuant to the Declaration and
guaranteed (such guarantee, the "Guarantee" and, together with the
Preferred Securities, the "Trust Securities") by the Company, to the extent
set forth in the Guarantee Agreement; and
(ii) Warrants issued by the Company pursuant to the Warrant
Agreement;
WHEREAS, concurrently with the issuance of the Trust Securities, the Trust
will invest the proceeds thereof (together with the proceeds of the issuance to
the Company of the common securities of the Trust) in Debentures;
WHEREAS the Issuers have duly authorized the execution and delivery of this
Unit Agreement and the Certificates evidencing the Units;
WHEREAS, all things necessary to make the Preferred Securities, when the
Certificates are executed by the Trust and authenticated and delivered by the
Unit Agent, as provided in this Unit Agreement, the valid obligations of the
Trust, and to constitute these presents a valid agreement of the Trust, in
accordance with its terms, have been done; and
WHEREAS, all things necessary to make the Warrants and the Debentures, when
the Certificates are executed by the Company and authenticated and delivered by
the Unit Agent, as provided in this Unit Agreement, the valid obligations of the
Company, and to constitute these presents a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the purchase
of the Units by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1. Definitions.
For all purposes of this Unit Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) capitalized terms used in this Unit Agreement but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Unit Agreement has the same meaning
throughout;
(c) all references to "this Unit Agreement" are to this Unit Agreement as
modified, supplemented or amended from time to time;
(d) all references in this Unit Agreement to Articles, Sections and
Exhibits are to Articles and Sections of and Exhibits to this Unit Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Unit Agreement unless otherwise defined in this Unit Agreement; 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.
"Accreted Value" has the meaning set forth in the Declaration.
"Act," when used with respect to any Holder, has the meaning set forth
in Section 1.4.
"Action Expiration Date" has the meaning set forth in Section 1.4(e).
"Affiliate" has the meaning set forth in the Declaration.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for the beneficial interests in the Global Units, the rules
and procedures of the Depositary that apply to such transfer or exchange.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Global Unit, 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).
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Unit Agent.
"Book-Entry Interest" means a beneficial interest in a Global Unit,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 3.7.
"Business Day" means any day other than a Saturday or 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 Agent" means Wilmington Trust Company, solely as
calculation agent under the Calculation Agreement, and any successor
thereto.
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"Calculation Agreement" means the Calculation Agency Agreement dated
as of November 4, 2002 between the Company and the Calculation Agent, as
amended, supplemented or replaced from time to time in accordance with its
terms.
"Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Units specified on such
Certificate, substantially in the form of Exhibit A hereto.
"Change of Control" has the meaning set forth in the Declaration.
"Change of Control Notice Date" has the meaning set forth in Section
5.3.
"Change of Control Redemption Right" has the meaning set forth in
Section 5.3.
"Change of Control Repurchase Right" has the meaning set forth in
Section 5.3.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Units and in whose name, or in the name of a nominee of
that organization, shall be registered a Global Unit and which shall
undertake to effect book-entry transfers and pledges of the Units.
"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.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock of the Company.
"Company" means New York Community Bancorp, Inc., a Delaware
corporation, until there shall be a successor thereto pursuant to the
applicable provision of this Unit Agreement, and thereafter "Company" shall
mean such successor.
"Corporate Trust Office" means the principal corporate trust office of
the Unit Agent at which, at any particular time, its corporate trust
business shall be administered, which office at the date of execution of
this Unit Agreement is located at Wilmington Trust Company, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration.
"Coupon Rate" means the percentage rate per annum at which each
Debenture will bear interest initially which rate, on and after the
Remarketing Date, will be the Reset Rate established in the Remarketing on
the Remarketing Date.
"Debentures" means the 6.000% Junior Subordinated Deferrable Interest
Debentures due November 1, 2051 to be issued by the Company pursuant to the
Indenture.
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated as of November 4, 2002, among the Company, as sponsor and
the trustees named therein, as the same may be amended or supplemented from
time to time in accordance with its terms.
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"Definitive Certificates" means definitive, physical fully registered
Certificates delivered in accordance with Section 3.10.
"Depositary" means DTC until another Clearing Agency becomes its
successor.
"Distributions" has the meaning set forth in the Declaration.
"Distribution Date" has the meaning set forth in the Declaration.
"Distribution Rate" has the meaning set forth in Section 5.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency,
and any successor thereto.
"Electing Remarketing Holder" has the meaning set forth in Section
5.1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor legislation thereto, and the
rules and regulations promulgated thereunder.
"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" has the meaning set forth in the Declaration.
"Exercise Price" has the meaning set forth in the Warrant Agreement.
"Expiration Date" has the meaning set forth in the Warrant Agreement.
"Global Unit" means a Certificate that evidences all or part of the
Units and is registered in the name of a Clearing Agency or a nominee
thereof.
"Guarantee" has the meaning assigned to it in the Recitals hereto.
"Guarantee Agreement" means the Guarantee Agreement, dated as of
November 4, 2002, between the Company, as guarantor in respect of the
Units, and the Guarantee Trustee, as amended or supplemented from time to
time in accordance with its terms.
"Guarantee Trustee" means Wilmington Trust Company, solely as trustee
under the Guarantee Agreement, or any successor thereto.
"Holder," when used with respect to a Unit, means the Person in whose
name the Unit evidenced by a Certificate is registered in the Register;
provided, however, that in determining whether the Holders of the requisite
number of Units have voted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the
Security remains in the form of one or more Global Units and if the
Clearing Agency which is the holder of such Global Unit has sent an omnibus
proxy assigning voting rights to the Clearing Agency Participants to whose
accounts the Units are credited on the record date, the term "Holder" shall
mean such Clearing Agency Participant identified to the Unit Agent in
writing as such, acting at the direction of the Beneficial Owners.
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"Indenture" means the Indenture, dated as of November 4, 2002, between
the Company and the Indenture Trustee, as amended by the First Supplemental
Indenture, dated as of November 4, 2002, as may be further amended and
supplemented in accordance with its terms (including any provisions of the
TIA that are deemed incorporated therein), pursuant to which the Debentures
are to be issued.
"Indenture Event of Default" has the meaning set forth in the
Declaration.
"Indenture Trustee" means Wilmington Trust Company, solely as trustee
under the Indenture, or any successor thereto.
"Issuer Order" or "Issuer Request" means a written request or order
signed in the name of the Company or the Trust by its President or a Vice
Chair or a Senior Executive Vice President and by its Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Unit Agent.
"Issuers" is a collective reference to the Company and the Trust.
"Legal Cause Remarketing Event" has the meaning set forth in the
Declaration.
"Maturity Remarketing Date" has the meaning set forth in the
Declaration.
"Notice of Remarketing" means a notice of a Remarketing delivered
pursuant to the Declaration.
"Officers' Certificate" means, with respect to the Trust, a
certificate signed by any Administrative Trustee and, with respect to 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, and delivered to the
Unit Agent.
"Opinion of Counsel" means a written opinion of counsel, rendered by
an independent law firm which shall be reasonably acceptable to the Unit
Agent. An opinion of counsel may rely on certificates as to matters of
fact.
"Optional Redemption Remarketing Event" has the meaning set forth in
the Declaration.
"Outstanding Units," with respect to any Unit means, as of the date of
determination, all Units evidenced by Certificates theretofore
authenticated, executed and delivered under this Unit Agreement, except:
(i) Units evidenced by Certificates theretofore cancelled by
the Unit Agent or delivered to the Unit Agent for cancellation or
deemed cancelled pursuant to the provisions of this Unit Agreement;
and
(ii) Units evidenced by Certificates in exchange for or in
lieu of which other Certificates have been authenticated, executed on
behalf of the Issuers and delivered pursuant to this Unit Agreement,
other than any such Certificate in respect of which there shall have
been presented to the Unit Agent proof satisfactory to it that such
Certificate is held by a protected purchaser in whose hands the Unit
evidenced by such Certificate are valid obligations of the Issuers;
5
provided, however, that in determining whether the Holders of the requisite
number of the Units have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Units owned by the Company
or any Affiliate of the Company shall be disregarded and deemed not to be
Outstanding Units, except that, in determining whether the Unit Agent shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Units which a Responsible
Officer of the Unit Agent actually knows to be so owned shall be so
disregarded. Units so owned which have been pledged in good faith may be
regarded as Outstanding Units if the pledgee establishes to the
satisfaction of the Unit Agent the pledgee's right so to act with respect
to such Units and that the pledgee is not the Company or any Affiliate of
the Company.
"Party" or "Parties" have the respective meanings given to them in
Section 12.1.
"Payment Date" means each February 1, May 1, August 1 and November 1,
commencing February 1, 2003.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company,
limited liability company, trust, unincorporated organization or government
or any agency or political subdivision thereof or any other entity of
whatever nature.
"Plan" means an employee benefit plan that is subject to ERISA, a plan
or individual retirement account that is subject to Section 4975 of the
Code or any entity whose assets are considered assets of any such plan.
"Predecessor Certificate" of any particular Certificate means every
previous Certificate evidencing all or a portion of the rights and
obligations of the Issuers and the Holder under the Units evidenced
thereby; and, for the purposes of this definition, any Certificate
authenticated and delivered under Section 3.11 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Certificate shall be deemed to
evidence the same rights and obligations of the Issuers and the Holder as
the mutilated, destroyed, lost or stolen Certificate.
"Preferred Securities" means the Preferred Securities of the Trust,
each having a stated liquidation amount of $50.00, representing preferred
undivided beneficial ownership interests in the assets of the Trust.
"Property Trustee" means Wilmington Trust Company, solely as property
trustee under the Declaration, or any successor thereto.
"Record Date" with respect to any Payment Date, means the Business Day
immediately preceding such Payment Date.
"Register" and "Registrar" have the respective meanings given to them
in Section 3.5.
"Remarketing" has the meaning set forth in the Declaration.
"Remarketing Agent" means the remarketing agent (or any successor
remarketing agent) selected by the Company, which will initially be Xxxxxxx
Xxxxx Xxxxxx Inc.
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"Remarketing Agreement" means 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 execution thereof.
"Remarketing Date" has the meaning set forth in the Declaration.
"Remarketing Event" has the meaning set forth in the Declaration.
"Remarketing Settlement Date" has the meaning set forth in the
Declaration.
"Required Repurchase Date" has the meaning set forth in the
Declaration.
"Reset Rate" has the meaning set forth in the Declaration.
"Responsible Officer," means, with respect to the Unit Agent, any
officer within the Corporate Trust Office of the Unit Agent who shall have
direct responsibility for the administration of this Unit Agreement, and
also means, with respect to a particular matter hereunder, any other
officer within the Corporate Trust Office of the Unit Agent to whom such
corporate trust matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Special Distribution Date" has the meaning set forth in the
Declaration.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trust" means New York Community Capital Trust V, a statutory trust
formed under the laws of the State of Delaware, or any successor thereto.
"Trust Enforcement Event" has the meaning set forth in the
Declaration.
"Trust Securities" has the meaning set forth in the Recitals hereto.
"Unit" or "Units" means the collective rights and obligations of a
Holder of a Certificate in respect of a Preferred Security (and the related
Debenture) and a Warrant.
"Unit Agent" or "Agent" means the Person named as the "Unit Agent" in
the first paragraph of this instrument, solely in such Unit Agent capacity,
until a successor Unit Agent shall have become such pursuant to the
applicable provisions of this Unit Agreement, and thereafter "Unit Agent"
shall mean such Person.
"Unit Agreement" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Vice President" means any vice president, whether or not designated
by a number or a word or words added before or after the title "vice
president."
"Warrant" or "Warrants" means the Warrants issued by the Company
pursuant to the Warrant Agreement representing the right to purchase Common
Stock.
"Warrant Agent" means Wilmington Trust Company, solely as warrant
agent under the Warrant Agreement, and any successor thereto.
7
"Warrant Agreement" means the Warrant Agreement, dated as of November
4, 2002, between the Company and the Warrant Agent, as amended or
supplemented from time to time in accordance with its terms.
"Warrant Value" has the meaning set forth in the Warrant Agreement.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Unit Agreement, upon any
application or request by the Company or the Trust, as applicable, to the Unit
Agent to take any action in accordance with any provision of this Unit
Agreement, the Company or the Trust, as applicable, shall furnish to the Unit
Agent an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Unit Agreement relating to the proposed action have been
complied with and, if requested by the Unit Agent, an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Unit Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Unit Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Unit Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of an Issuer may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of an Issuer stating that the
information with respect to such factual matters is in the possession of an
Issuer unless such counsel knows, or in the exercise of
8
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Unit Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Unit Agreement to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders personally or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Unit
Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Unit Agreement and (subject to Section 7.1) conclusive in favor of the Unit
Agent and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Unit Agent deems
sufficient.
(c) The Holders of Units shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Certificate shall bind every future Holder of
the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Unit Agent or
the Company in reliance thereon, whether or not notation of such action is made
upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Units entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Unit Agreement to be given, made or taken
by Holders of Units. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Units as proved by the Register, on such record date,
and no other Holders, shall be entitled to take the relevant action with respect
to the Units , whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Action Expiration Date by Holders of the requisite
number of Outstanding Units on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and be of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite number of Outstanding Units on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Action Expiration Date to be given to the Unit
Agent in writing and to each Holder of Units in the manner set forth in Section
1.6.
With respect to any record date set pursuant to this Section, the Company
may designate any date as the "Action Expiration Date" and from time to time may
change the Action Expiration Date to any
9
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Action Expiration Date is given to the Unit Agent in
writing, and to each Holder of Units in the manner set forth in Section 1.6, on
or prior to the existing Action Expiration Date. If an Action Expiration Date is
not designated with respect to any record date set pursuant to this Section, the
Company shall be deemed to have initially designated the 180th day after such
record date as the Action Expiration Date with respect thereto, subject to its
right to change the Action Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Action Expiration Date shall be later than the
180th day after the applicable record date.
Section 1.5. Notices.
Any notice or communication is duly given if in writing and delivered in
Person or mailed by first class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight air courier
guaranteeing next day delivery, to the others' address; provided that notice
shall be deemed given to the Unit Agent only upon receipt thereof:
If to the Unit Agent:
Wilmington Trust Company, as Agent
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
If to the Company:
New York Community Bancorp, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Executive Officer
If to the Trust:
New York Community Capital Trust V, c/o New York Community Bancorp. Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Administrative Trustee, c/o Chief
Executive Officer of New York Community Bancorp, Inc.
If to the Warrant Agent:
Wilmington Trust Company, as Warrant Agent
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
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If to the Property Trustee:
Wilmington Trust Company, as Property Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
If to the Indenture Trustee:
Wilmington Trust Company, as Indenture Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
Section 1.6. Notice to Holders; Waiver.
Where this Unit Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Unit Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Unit Agent,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Unit Agent shall
constitute a sufficient notification for every purpose hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Unit Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.9. Separability Clause.
In case any provision in this Unit Agreement or in the Units shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
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Section 1.10. Benefits of Agreement.
Nothing in this Unit Agreement or in the Units, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and, to the extent provided hereby, the Holders, any benefits or any legal or
equitable right, remedy or claim under this Unit Agreement. The Holders from
time to time shall be beneficiaries of this Unit Agreement and shall be bound by
all of the terms and conditions hereof and of the Units evidenced by their
Certificates by their acceptance of delivery of such Certificates.
Section 1.11. Governing Law.
This Agreement and the Units shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day, then
(notwithstanding any other provision of this Unit Agreement or the Certificates)
payment of any amounts otherwise payable on such date shall not be made on such
date, but such payments shall be made on the next succeeding Business Day with
the same force and effect as if made on such Payment Date, provided that no
interest shall accrue or be payable for the period from and after any such
Payment Date, except that, if such next succeeding Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on such Payment
Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by the parties
hereto on separate counterparts, each of which, when so executed and delivered,
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Unit Agreement shall be available at all reasonable times,
upon written request and reasonable advance notice to the Unit Agent, during
normal business hours at the Corporate Trust Office for inspection by any Holder
or Beneficial Owner identified to the Unit Agent in writing as such.
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally; Legends.
(a) Each Unit will consist of one Preferred Security and one Warrant. The
Certificates shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by the
officers of the Company executing the Units evidenced by such Certificates,
consistent with the provisions of this Unit Agreement, as evidenced by their
execution thereof.
(b) Every Global Unit authenticated, executed and delivered hereunder shall
bear a legend in substantially the following form:
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"THIS CERTIFICATE IS A GLOBAL UNIT WITHIN THE MEANING OF THE UNIT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE OF THE
DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF THIS
CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY, ANOTHER
NOMINEE OF THE DEPOSITARY OR A SUCCESSOR OF THE DEPOSITARY 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 DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY, ANOTHER NOMINEE OF THE DEPOSITARY
OR A SUCCESSOR OF SUCH DEPOSITARY 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 UNIT AGREEMENT."
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY OR ITS NOMINEE TO NEW YORK COMMUNITY BANCORP, INC., NEW YORK
COMMUNITY CAPITAL TRUST V OR THEIR RESPECTIVE AGENTS 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 DEPOSITARY 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 DEPOSITARY OR ITS NOMINEE), AND EXCEPT AS OTHERWISE
PROVIDED IN THE UNIT AGREEMENT ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
Every Certificate (whether a Global Unit or a Definitive Certificate)
representing a Unit shall bear a legend to the following effect:
"THE CONSTITUENT COMPONENTS OF THIS UNIT MUST BE SEPARATED PRIOR TO
TRANSFER (EXCEPT AS PART OF A UNIT) AS PROVIDED IN THE UNIT AGREEMENT.."
Finally, the Warrants and Preferred Securities which constitute components
of the Units shall bear additional legends as described in the Warrant Agreement
and Declaration, respectively.
Section 2.2. Form of Unit Agent's Certificate of Authentication.
The form of the Unit Agent's certificate of authentication of the Units
shall be in substantially the form set forth on Exhibit A.
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ARTICLE III
The Units
Section 3.1. Amount; Form and Denominations.
The aggregate number of Units evidenced by Certificates authenticated,
executed and delivered hereunder is limited to 5,500,000 except for Certificates
authenticated, executed and delivered upon registration of transfer of, in
exchange for, or in lieu of, other Certificates pursuant to Section 3.4, 3.5,
3.10, 3.13 or 8.5.
The Certificates shall be issuable only in registered form and only in
denominations of a single Security and any integral multiple thereof.
On the date of issuance of the Global Units, the Company shall allocate
$33.18 of the purchase price thereof to the Preferred Securities and $16.82 of
the purchase price to the Warrants.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Certificate shall evidence the number of Units specified therein, with
each such Security representing the ownership by the Holder thereof of a
beneficial interest in a Preferred Security (or Debenture upon a liquidation of
the Trust) and a Warrant and shall be entitled to the benefits of the
Declaration, the Indenture, the Warrant Agreement and all agreements ancillary
thereto.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Section 3.6 hereof, upon the execution and
delivery of this Unit Agreement, and at any time and from time to time
thereafter, the Company and the Trust may deliver Certificates executed by the
Company and an administrative trustee on behalf of the Trust to the Unit Agent
for authentication and delivery, together with an Issuer Order for
authentication of such Certificates, and the Unit Agent in accordance with such
Issuer Order shall authenticate and deliver such Certificates, provided, that
prior to authenticating such Units, and accepting responsibilities under this
Unit Agreement in relation to such Units, the Unit Agent shall be entitled to
receive, and, shall be fully protected in relying upon:
(a) copy of the resolution or resolutions of the Board of
Directors in or pursuant to which the terms and form of the Units were
established, certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to
be in full force and effect as of the date of such certificate, and if
the terms and form of such Units are established by an Officers'
Certificate pursuant to general authorization of the Board of
Directors, such Officers' Certificate;
(b) an Officers' Certificate delivered in accordance with
Sections 1.2 and 1.3; and
(c) an Opinion of Counsel which shall state:
(1) that the terms of such Units have been established in
accordance with Section 2.1 and in conformity with the other
provisions of this Unit Agreement;
(2) that such Units, when authenticated and delivered by the
Unit Agent and issued by the Company and the Trust in the manner
and subject to any conditions
14
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company and the Trust, enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles; and
(3) that all laws and requirements in respect of the execution
and delivery by the Company and the Trust with respect to such Units
have been complied with.
The Unit Agent shall have the right to decline to authenticate and deliver
any Units under this Section if the Unit Agent, being advised by counsel,
determines that such action may not lawfully be taken or if the Unit Agent in
good faith shall determine that such action would expose the Unit Agent to
personal liability.
The Certificates shall be executed on behalf of the Company (in respect of
the Warrants) by its President, a Vice Chair or a Senior Executive Vice
President, and shall be executed on behalf of the Trust (in respect of the
Preferred Securities) by an Administrative Trustee. The signature of any of
these signatories on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. Certificates bearing the
manual or facsimile signatures of individuals who were at any time
Administrative Trustees of the Trust shall bind the Trust, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Unit Agreement
or be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized signatory of the Unit Agent by manual
signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, the Issuers shall
execute and deliver to the Unit Agent, and, upon an Issuer Order and subject to
Section 1.2, the Unit Agent shall authenticate and deliver, in lieu of such
Definitive Certificates, temporary Certificates which are in substantially the
form set forth in Exhibit A hereto, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Units are listed, or as may, consistently
herewith, be determined by the officers of the Company executing such
Certificates, as evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Company will cause Definitive
Certificates to be prepared without unreasonable delay. After the preparation of
Definitive Certificates, the temporary Certificates shall be exchangeable for
Definitive Certificates upon surrender of the temporary Certificates at the
Corporate Trust Office, at the expense of the Company and without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Issuers shall execute and deliver to the Unit Agent, and, upon
Issuer Order and subjection to Section 1.2, the Unit Agent shall authenticate
15
and deliver in exchange therefor, one or more Definitive Certificates of like
tenor and denominations and evidencing a like number of Units as the temporary
Certificate or Certificates so surrendered. Until so exchanged, the temporary
Certificates shall in all respects evidence the same benefits and the same
obligations with respect to the Units evidenced thereby as Definitive
Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
(a) The Unit Agent shall keep at the Corporate Trust Office a register (the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Unit Agent shall record the registration of Certificates and
transfers and exchanges of Certificates (the Unit Agent, in such capacity, the
"Registrar").
No beneficial interest in a Warrant or a Preferred Security that is a
component of a Unit represented by a Certificate may be transferred or exchanged
(except by a transfer or exchange of such Unit) until such components have been
separated in accordance with Section 3.6 hereof, and each Certificate shall bear
a legend to that effect.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company and the Trust shall execute and deliver to
the Unit Agent, and the Unit Agent shall authenticate and deliver, in the name,
upon Issuer Order and receipt of an Officers' Certificate and Opinion of Counsel
as required under Section 1.2, of the designated transferee or transferees, one
or more new Certificates of any authorized denominations, like tenor, and
evidencing a like number of Units.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
Securities upon surrender of the Certificates to be exchanged at the Corporate
Trust Office. Whenever any Certificates are so surrendered for exchange, the
Company and the Trust shall execute and deliver to the Unit Agent, and the Unit
Agent, upon Issuer Order and receipt of an Officers' Certificate and Opinion of
Counsel as required under Section 1.2, shall authenticate and deliver the
Certificates which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange of a
Certificate shall evidence the ownership of the same number of Securities, and
be entitled to the same benefits and subject to the same obligations, under this
Unit Agreement as the Securities evidenced by the Certificate surrendered upon
such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer or
for exchange shall be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trust and the Unit Agent
duly executed, by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but Company and the Unit Agent may require payment
from the Holder 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 Certificates, other than any exchanges pursuant to Sections 3.6, 3.7
and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company and the Trust shall not be
obligated to execute and deliver to the Unit Agent, and the Unit Agent shall not
be obligated to authenticate and deliver any Certificate in exchange for any
other Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the Expiration Date.
In lieu of delivery of a new Certificate, upon satisfaction of the applicable
conditions specified above in this Section and
16
receipt of appropriate registration or transfer instructions from such Holder,
the Unit Agent shall deliver the consideration received on such Expiration Date
(which may be shares of Common Stock issuable in respect of the exercise of
Warrants forming a part of the Securities evidenced by such other Certificate,
Warrant Value receivable upon a redemption of such Warrants or Remarketing
Proceeds receivable upon a contemporaneous remarketing of the Preferred
Securities forming a part of the Securities evidenced by such other
Certificate), subject to the applicable conditions and in accordance with the
applicable provisions of Article V hereof.
Section 3.6. Separation and Rejoining of Units.
Each Global Unit shall represent such of the outstanding Units as shall be
specified in the "Schedule of Increases or Decreases in Global Certificate"
attached thereto or otherwise in accordance with the Applicable Procedures. At
any time after issuance, the Preferred Security and Warrant components of any
Security may be separated by the Holder and thereafter transferred separately
and, (i) in the event of an election to exercise the Warrant component prior to
the Remarketing Settlement Date (as provided in Section 5.2), (ii) in the event
of an election to have Warrants redeemed or Preferred Securities repurchased
upon a Change of Control (in each case, pursuant to Section 5.3) or (iii) in the
event of a Remarketing, the Preferred Security and Warrant components of any
Security shall be separated. In the event of any separation of the components of
a Security, (i) if such Security 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 Registrar and shall return
the Preferred Security and Warrant components of such Security to the Property
Trustee and Warrant Agent, respectively, with an instruction for them to
authenticate and deliver to, or upon the instruction of, such Holder a separated
Preferred Security and a separated Warrant, bearing the separate "CUSIP" number
assigned to the Preferred Security and the Warrant, respectively, and (ii) if
such Security is represented by the Global Unit, the Unit Agent shall make the
necessary adjustment to the "Schedule of Increases or Decreases in Global
Certificate" attached to the Global Unit or otherwise comply with the Applicable
Procedures to reduce the amount of Units represented thereby and shall instruct
the Property Trustee and the Warrant Agent to effect a corresponding increase in
the Preferred Securities and the Warrants, respectively, represented by global
certificates bearing separate CUSIP numbers. The Unit Agent shall make such
other necessary adjustments to the Global Unit actually known to the Unit Agent
consistent with the terms of this Unit Agreement to reflect the appropriate
number of Units represented thereby.
Following a Remarketing of the Preferred Securities component of a
Security, (i) if such Security 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 Registrar and shall return
the Preferred Security and Warrant components of such Security to the Property
Trustee and Warrant Agent, respectively, with an instruction for the Property
Trustee to authenticate and deliver to, or upon the written instruction of the
Remarketing Agent a Preferred Security bearing the separate "CUSIP" number
assigned to the Preferred Security and (ii) if such Security is represented by
the Global Unit, the Unit Agent shall, in accordance with the written
instructions of the Remarketing Agent, make the necessary adjustment to the
"Schedule of Increases or Decreases in Global Certificate" attached to the
Global Unit or otherwise comply with the Applicable 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
global certificates bearing the separate CUSIP number. The Unit Agent shall make
such other necessary adjustments to the Global Unit consistent with the terms of
this agreement to reflect the appropriate number of Units represented thereby.
Once separated in accordance with Section 5.2, a Preferred Security and a
Warrant may be rejoined to form a Security, whether or not such securities were
at one time components of the same Security. In the event a holder of a
Preferred Security and a Warrant desires to rejoin a Security, (i) if the
17
constituent components are represented by definitive certificates, the holder
shall present (x) the Preferred Security to the Property Trustee and (y) 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 in writing, who
shall in turn so notify the Registrar and shall, upon Issuer Order and receipt
of an Officers' Certificate and Opinion of Counsel as required under Section
1.2, authenticate and deliver to, or upon the written instruction of, such
holder a Security 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
Applicable Procedures to reduce the amount of Preferred Securities and Warrants,
respectively, represented thereby and shall instruct Unit Agent in writing to
effect a corresponding increase in the Units represented by the Global Unit
bearing separate CUSIP number. The Unit Agent, the Property Trustee, and the
Warrant Agent shall make such other necessary adjustments to their respective
global certificates actually known to them consistent with the terms of this
Unit Agreement to reflect the appropriate number of Units, Preferred Securities
and Warrants, as appropriate, represented thereby.
The Unit Agent is authorized and empowered to deliver such further
directions to the Property Trustee, the Warrant Agent, the Exchange Agent and
others, and to take such further actions as shall be necessary to effect the
exchanges, separations, transfers and recreations contemplated by Section 3.5
and 3.6.
Section 3.7. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form of one
or more fully registered Global Units, to be delivered to the Depositary by, or
on behalf of, the Company. Such Global Unit shall initially be registered on the
books and records of the Company and the Trust in the name of Cede & Co., the
nominee of the Depositary, and no Beneficial Owner will receive a Definitive
Certificate representing such Beneficial Owner's interest in such Global Unit,
except as provided in Section 3.10. The Unit Agent is hereby authorized to enter
into an agreement with the Depositary if so requested by the Company, and in
doing so the Unit Agent shall be entitled to all of the benefits and protections
of this Agreement and, unless otherwise directed in writing by the Depository,
the Unit Agent is hereby authorized to hold the Certificates evidencing Global
Units as custodian for the Depository. Unless and until Definitive Certificates
have been issued to Beneficial Owners pursuant to Section 3.10:
(a) the provisions of this Section 3.7 shall be in full force and
effect;
(b) the Issuers, the Unit Agent, the Property Trustee and the Warrant
Agent shall be entitled to deal with the Clearing Agency for all purposes
of this Unit Agreement as the Holder of the Units and the sole holder of
the Global Unit(s) and shall have no obligation to the Beneficial Owners;
(c) to the extent that the provisions of this Section 3.7 conflict
with any other provisions of this Unit Agreement, the provisions of this
Section 3.7 shall control; and
(d) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants.
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Section 3.8. Notices to Holders.
Whenever a notice or other communication to the Holders is required to be
given under this Unit Agreement, such notices and communications shall be given
to the Holders and, with respect to any Units registered in the name of a
Clearing Agency or the nominee of a Clearing Agency, the Issuers, the Unit
Agent, the Property Trustee and the Warrant Agent shall have no obligations to
the Beneficial Owners.
Section 3.9. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Units, the Company may, in its sole discretion,
appoint a successor Clearing Agency with respect to the Units.
Section 3.10. Definitive Certificates.
If (i) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Units and a successor Clearing Agency is not
appointed within 90 days after such discontinuance pursuant to Section 3.9 or
(ii) there shall have occurred and be continuing a default by the Company in
respect of its obligations under the Warrant Agreement, the Indenture, the
Declaration or this Unit Agreement, upon surrender of the Global Units
representing the Units by the Clearing Agency, accompanied by registration
instructions, the Company and the Trust shall cause Definitive Certificates to
be delivered to Beneficial Owners in accordance with the instructions of the
Clearing Agency. The Company shall not be liable for any delay in delivery of
such instructions and may conclusively rely on and shall be protected in relying
on, such instructions.
Section 3.11. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Unit Agent, the Issuers
shall execute and deliver to the Unit Agent, and the Unit Agent, upon Issuer
Order and subject to Section 1.2, shall authenticate and deliver in exchange
therefor, a new Certificate, evidencing the same number of Units and bearing a
Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Unit Agent (i) evidence
to their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) such security or indemnity as may be required by them to hold each of them
and any agent of any of them harmless, then, in the absence of notice to the
Company and the Trust or the Unit Agent that such Certificate has been acquired
by a protected purchaser, the Company and the Trust shall execute and deliver to
the Unit Agent, and the Unit Agent, upon Issuer Order and subject to Section
1.2, shall authenticate and deliver to the Holder, in lieu of any such
destroyed, lost or stolen Certificate, a new Certificate, evidencing the same
number of Units and bearing a Certificate number not contemporaneously
outstanding.
Notwithstanding the foregoing, the Issuers shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate and deliver to the Holder, a Certificate on or after the
Business Day immediately preceding the Expiration Date. In lieu of delivery of a
new Certificate, upon satisfaction of the applicable conditions specified above
in this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Unit Agent shall deliver (subject to its actual receipt
thereof) the consideration received by the Unit Agent on such Expiration Date
(which may be (i) shares of Common Stock issuable in respect of the exercise of
Warrants pursuant to the Warrant Agreement, (ii) the Warrant Value receivable
upon a redemption of such Warrants pursuant to the Warrant Agreement or (iii)
proceeds of a Remarketing receivable upon a contemporaneous
19
remarketing of the Preferred Securities forming a part of the Units evidenced by
such other Certificate as provided in the Declaration).
Upon the issuance of any new Certificate under this Section, the Company,
the Trust, and the Unit Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Unit Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of the Issuers and of the Holder in respect of the
Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Units evidenced thereby) shall be at any time enforceable
by anyone, and shall be entitled to all the benefits and be subject to all the
obligations of this Unit Agreement equally and proportionately with any and all
other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.12. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of transfer, the
Company, the Trust, the Unit Agent, the Property Trustee, and the Warrant Agent
and any agent of any of them may treat the Holder in whose name such Certificate
is registered as the owner of the Security evidenced thereby, for the purpose of
receiving payments on the Preferred Securities, the Debentures, or the Warrants
and for all other purposes whatsoever, whether or not any payments on the
Preferred Securities, the Debentures or the Warrants shall be overdue and
notwithstanding any notice to the contrary, and none of the Company, the Trust,
the Unit Agent, the Property Trustee, and the Warrant Agent, nor any agent of
any of them, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Unit, nothing
herein shall prevent the Company, the Trust, the Unit Agent or any agent of the
Company, the Trust or the Unit Agent, from giving effect to any written
certification, proxy or other authorization furnished by any Clearing Agency (or
its nominee), as a Holder, with respect to such Global Unit or impair, as
between such Clearing Agency and owners of beneficial interests in such Global
Unit, the operation of customary practices governing the exercise of rights of
such Clearing Agency (or its nominee) as Holder of such Global Unit.
Section 3.13. Cancellation.
All Certificates surrendered (i) for separation as provided in Section 3.6
hereof, (ii) in connection with a remarketing and redemption as provided in the
Declaration, the Warrant Agreement and Article V hereof or (iii) upon the
transfer of Preferred Securities, Debentures (as applicable) or Warrants upon
the registration of a transfer or exchange of a Security or any of its
components shall, if surrendered to any Person other than the Unit Agent, be
delivered to the Unit Agent and, if not already cancelled, shall be promptly
cancelled by it upon such surrender. The Company and the Trust may at any time
deliver to the Unit Agent for cancellation any Certificates previously
authenticated, executed and delivered hereunder which the Company and the Trust
may have acquired in any manner whatsoever, and all Certificates so delivered
shall, upon Issuer Order, be promptly cancelled by the Unit Agent. No
Certificates shall be authenticated, executed and delivered in lieu of or in
exchange for any Certificates cancelled as provided in this Section, except as
expressly permitted by this Unit Agreement. All cancelled Certificates held by
the Unit Agent shall be held by the Unit Agent or returned to the Company
pursuant to an Issuer Order.
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If the Company, the Trust or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Unit Agent for
cancellation together with an Issuer Order therefor.
Section 3.14. CUSIP Numbers.
The Company, in issuing the Units, may use CUSIP numbers (if then
generally in use), and, if so, the Unit Agent shall use CUSIP numbers actually
known to it in notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Units or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Units, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the
Unit Agent in writing of any change in the CUSIP numbers.
ARTICLE IV
The Preferred Securities
Section 4.1. Payment of Distribution; Rights to Distributions Preserved;
Distribution Rate Reset.
Distributions on the Preferred Securities which are made on any Payment
Date shall, subject to receipt thereof by the Unit Agent, be payable to the
Holders as they appear on the Register at the close of business on the relevant
Record Dates. Distributions on the Preferred Securities which are made on any
Remarketing Settlement Date shall, subject to receipt thereof by the Unit Agent,
be payable to (or, in the case of Section 5.1, for the account of) the Holders
as they appear on the Register at the close of business on the Remarketing Date.
If the Units are represented by one or more Global Units, the relevant Record
Dates shall be the close of business on the Business Day preceding the
corresponding Payment Date, unless a different Record Date is established or
provided for the corresponding distributions on the Preferred Securities. If the
Units are not represented by one or more Global Units, the relevant Record Dates
shall be at least one Business Day prior to the corresponding Payment Dates, or
such other dates as may be selected by the Issuers.
Each Certificate evidencing Preferred Securities (including rights to
receive Debentures) delivered under this Unit Agreement upon registration of
transfer of or in exchange for or in lieu of any other Certificate shall carry
the rights to distributions accumulated and unpaid, and to accumulate
distributions, which were carried by the Preferred Securities (or such
Debentures) underlying such other Certificate.
The applicable Coupon Rate on the Debentures on and after the Remarketing
Date shall be equal to the Reset Rate established in the Remarketing on such
date.
Section 4.2. Notice and Voting.
The Unit Agent will be entitled to exercise the voting and any other
consensual rights pertaining to the Preferred Securities, Debentures (as
applicable) and Warrants, as the case may be, but only to the extent instructed
in writing by the Holders as described below and in Article V. Upon receipt of
written notice of any meeting at which holders of Preferred Securities,
Debentures or Warrants are entitled to vote or upon any solicitation of
consents, waivers or proxies of holders of Preferred Securities, Debentures or
Warrants, the Unit Agent shall, as soon as practicable thereafter, mail to the
Holders of Units a notice (a) containing such information as is contained in the
notice or solicitation, (b) stating that
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each Holder on the record date set by the Unit Agent therefor (which, to the
extent possible, shall be the same date as the record date for determining the
holders of Preferred Securities, Debentures or Warrants, as the case may be,
entitled to vote) shall be entitled to instruct the Unit Agent in writing as to
the exercise of the voting rights pertaining to such Preferred Securities,
Debentures or Warrants underlying their Security and (c) stating the manner in
which such written instructions may be given. Upon the written request of the
Holders of Units as of such record date received by the Unit Agent at least six
days prior to such meeting, the Unit Agent shall endeavor insofar as practicable
to vote or cause to be voted, in accordance with the instructions set forth in
such requests, the maximum number of Preferred Securities, Debentures or
Warrants, as the case may be, as to which any particular voting instructions are
received. In the absence of specific instructions from the Holder of a Security,
the Unit Agent shall abstain from voting the Preferred Securities, Debentures or
Warrants underlying such Security. The Company hereby agrees to solicit Holders
of Units to timely instruct the Unit Agent in order to enable the Unit Agent to
vote such Preferred Securities, Debentures or Warrants and the Trust shall
covenant to such effect in the Declaration.
Section 4.3. Distribution of Debentures.
Upon the liquidation of the Trust in accordance with the Declaration, a
principal amount at maturity of Debentures constituting the assets of the Trust
and underlying the Preferred Securities equal to the aggregate stated
liquidation amount of the Preferred Securities shall be delivered to the Unit
Agent in exchange for, and for delivery against surrender of, the Preferred
Securities. Thereafter, the Debentures will be substituted for the Preferred
Securities as a component of the Units. Following the liquidation of the Trust,
the Holders shall have such rights and obligations with respect to the
Debentures as the Holders had in respect of the Preferred Securities. The
Company may cause to be made in any Certificates thereafter to be issued such
change in phraseology and form (but not in substance) as may be appropriate to
reflect the liquidation of the Trust and the substitution of Debentures for
Preferred Securities.
ARTICLE V
Remarketing and Redemption; Early Exercise
Section 5.1. Remarketing and Redemption.
Pursuant to a Remarketing Agreement to be entered into, the Company will
engage a Remarketing Agent to sell the Preferred Securities (or, if the
Debentures have been distributed upon liquidation of the Trust, the Debentures)
upon the occurrence of a Remarketing Event. In connection with a Remarketing of
the Preferred Securities:
(i) upon a 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 Preferred 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) on the Remarketing Date, the rate of interest per annum on the
Accreted Value of the Debentures shall become the Reset Rate established in
the Remarketing of the Preferred Securities, and, as a result, the
"Distribution Rate" per annum on the Accreted Value of the Preferred
Securities shall become the Reset Rate established in the Remarketing;
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(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, and, as a result, Distributions
accumulated and unpaid on the Units from and including the immediately
preceding Distribution Date to, but excluding, the Remarketing Settlement
Date shall be payable to the Holders of the Units;
(iv) in connection with a Remarketing upon a 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.
Upon receipt from the Company of a written Notice of Remarketing as
provided in the Declaration and of a written notice of a Redemption as provided
in the Warrant Agreement, the Unit Agent shall, as soon as practicable
thereafter, mail to the Holders of Units a notice of such receipt, together with
a copy of each such notice.
IN THE ABSENCE OF AN AFFIRMATIVE ELECTION NOT TO PARTICIPATE IN THE
REMARKETING, EACH HOLDER WILL BE DEEMED TO HAVE ELECTED TO PARTICIPATE IN
SUCH REMARKETING AND, IF APPLICABLE, TO HAVE ITS WARRANTS REDEEMED ON THE
RELATED REMARKETING SETTLEMENT DATE AT THE WARRANT VALUE.
Each Holder of a Security who desires NOT to participate in the Remarketing
shall notify the Unit Agent of such intention by use of a written notice in
substantially the form of Exhibit B hereto. Such notice shall be given to the
Unit Agent prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Remarketing Date specified in the Notice of
Remarketing. A Holder of Security must affirmatively elect NOT to participate in
a Remarketing on or prior to 5:00 p.m. New York City time on the Business Day
immediately preceding the Remarketing Date. Subject to the next paragraph, an
election by a Holder NOT to participate in the Remarketing will not alter the
deemed election by such Holder to have its Warrants redeemed on the Remarketing
Settlement Date. Any such notice shall be irrevocable and may not be conditioned
upon the level at which the Reset Rate is established in the Remarketing. The
Unit Agent, based on such notices received by it, shall notify the Remarketing
Agent, promptly after 5:00 p.m., New York City time, on the Business Day
immediately preceding the Remarketing Date, of the aggregate number of Preferred
Securities (or, if the Debentures have been distributed in connection with a
liquidation of the Trust, the Debentures) that are a component of Units to be
remarketed. Upon receipt of such notice from the Unit Agent, the Remarketing
Agent shall, on the Remarketing Date, use commercially reasonable efforts to
remarket such Preferred Securities (or Debentures) on such date at a price equal
to: (i) in connection with a Remarketing upon a Optional Redemption Remarketing
Event or a Legal Cause Remarketing Event, 100% of the aggregate Accreted Value
of such Preferred Securities (or Debentures) as of the end of the day on the day
next preceding the Remarketing Date; and (ii) on the Maturity Remarketing Date,
100% of the stated liquidation amount (or principal amount).
Each Holder of a Security who desires to exercise its Warrants on the
Remarketing Settlement Date at the Exercise Price per Warrant described in
clause (v) above in this Section 5.1, instead of having such Warrants redeemed
on such date, shall notify the Unit Agent and the Warrant Agent of such
intention by use of a written notice in substantially the form of Exhibit C
hereto. Such notice shall be
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given to the Unit Agent and the Warrant Agent prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the Remarketing Settlement Date
specified in the related Notice of Remarketing. As provided above, any Holder
who does not notify the Unit Agent and the Warrant Agent of an election to
exercise its Warrants on the Warrant Settlement Date shall be deemed to have
elected to have such Warrants redeemed. Upon receipt of the foregoing notices
the Unit Agent shall provide notice to the Warrant Agent, promptly after 5:00
p.m., New York City time, on the Business Day immediately preceding the related
Remarketing Settlement Date specified in the related Notice of Remarketing, of
the number of Warrants to be exercised and shall, no later than 5:00 p.m., New
York City time, on the Remarketing Settlement Date, deliver to the Warrant Agent
a duly completed form of election to purchase set forth on the reverse side of
the Warrant Certificate, a form of which is attached to the Global Unit, and
shall instruct the Remarketing Agent to deliver to the Warrant Agent the
proceeds of the Remarketing referred to in the following paragraph. Upon receipt
of the Common Stock deliverable upon exercise of the Warrants, the Warrant Agent
shall deliver such shares to or upon the order of the Holder.
Each Holder who elects to participate in the Remarketing and to exercise
its Warrants on the related Remarketing Settlement Date is referred to as an
"Electing Remarketing Holder." The Unit Agent shall instruct the Remarketing
Agent to deliver the proceeds from the Remarketing of Preferred Securities of
each Electing Remarketing Holder to the Warrant Agent, and the Warrant Agent
shall apply such amounts to satisfy in full such Holders' obligation to pay the
Exercise Price for the Common Stock under the related Warrants on the
Remarketing Settlement Date. Any Holder (other than an Electing Remarketing
Holder) of a Security affirmatively electing to exercise Warrants on the
Remarketing Settlement Date may do so by following the procedures set forth in
Section 5.2 and in the Warrant Agreement. The proceeds from a redemption of the
Warrants which form a part of the Units shall be paid to the Holders of such
Units.
The Declaration provides that if, by 4:00 p.m. New York City time, on a
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 the Clearing Agency, the Property Trustee, the Warrant Agent, the
Indenture Trustee, the Administrative Trustees on behalf of the Trust and the
Company. The Company shall then give notice of the Failed Remarketing to the
Unit Agent no later than 12:00 noon, New York City time, on the Business Day
following the Failed Remarketing and the Unit Agent will, in turn, give notice
to the Holders of the Preferred Securities prior to the close of business on the
Business Day following the Failed Remarketing. Notice of a Failed Remarketing
shall be deemed to constitute a withdrawal of each previously delivered election
to exercise Warrants on the related Remarketing Settlement Date. Following any
such withdrawal a holder may still elect to exercise its Warrants in accordance
with the procedures specified in Section 3.6 hereof and in the Warrant
Agreement.
Upon the occurrence of a Optional Redemption Remarketing Event or a Legal
Cause Remarketing Event and the election by the Company to cause a Remarketing
of the Preferred Securities, and on the Maturity Remarketing Date, as long as
the Units are evidenced by one or more Global Units, deposited with the Clearing
Agency, the Company shall request, not less than four nor more than 20 days
prior to the Remarketing Date, that the Clearing Agency notify the Holders of
the Units of the Remarketing of the Preferred Securities and of the procedures
that must be followed if such Holder of Units wishes to elect not to participate
in the Remarketing of the Preferred Securities.
Section 5.2. Early Exercise of Warrants; Exchange of Preferred Securities
and Repurchase of Debentures.
A Holder of a Security may elect to exercise the Warrants which form a part
of such Security at any time in accordance with the terms of the Warrant
Agreement. Each Holder, other than an Electing
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Remarketing Holder, who desires to exercise its Warrants shall, prior to any
such exercise, separate the Warrant and the Preferred Security components of the
Security in accordance with Section 3.6. In no event may a Holder satisfy its
obligation to pay the Exercise Price by tendering Preferred Securities.
Following the exercise of a Warrant on a day other than the Remarketing
Settlement Date, the Holder of the Security of which such Warrant formed a part
may require the Trust to exchange the Preferred Securities which formed the
other part of such Security for Debentures having an Accreted Value equal to the
Accreted Value of the Preferred Securities being exchanged and to require the
Company to repurchase such Debentures on the applicable Special Distribution
Date which is no less than 180 days from such exercise date, as specified in the
Declaration.
Section 5.3. Change of Control.
Following a Change of Control, each Holder will have the right to (i)
require the Trust to distribute to such Holder, Debentures having an Accreted
Value equal to Accreted Value of the Preferred Securities components of such
Holder's Units in exchange for its Preferred Securities and (ii) cause the
Company to repurchase (a "Change of Control Repurchase Right") such Holder's
Debentures and redeem (a "Change of Control Redemption Right") such Holder's
Warrants at the amounts and on the dates specified in the Warrant Agreement, the
Declaration and the Indenture, as applicable.
Upon receipt from the Company of written notice of a Change of Control (as
provided in the Declaration and the Warrant Agreement), the Unit Agent shall, as
soon as practicable thereafter, mail to the Holders of Units a notice of such
receipt, together with a copy of such notice of Change of Control. The date
specified in the notice from the Company will be the "Change of Control Notice
Date."
(a) Warrants. To exercise the Change of Control Redemption Right, a
Holder must deliver to the Unit Agent, prior to the 30th day following the
Change of Control Notice Date, irrevocable written notice substantially in
the form of Exhibit D hereto, of such Holder's election to have Warrants
redeemed on the date specified in the Warrant Agreement. The Unit Agent,
based on such notices received by it, shall notify the Warrant Agent no
later than the 30th day following the Change of Control Notice Date of the
aggregate number of Warrants to be redeemed. An election to have Warrants
redeemed shall also constitute an election to separate the related Units
into their component parts and the Unit Agent, the Property Trustee and the
Warrant Agent shall follow the procedures specified in Section 3.6.
(b) Preferred Securities. To exercise the Change of Control Repurchase
Right, a Holder who has not separated its Units pursuant to clause (a)
above must deliver to the Unit Agent, no earlier than the 180th and no
later than the 210th day following the Change of Control Notice Date,
irrevocable written notice substantially in the form of Exhibit E hereto,
of such Holder's election to have Preferred Securities components of its
Units exchanged for an equivalent Accreted Value of Debentures and to have
such Debentures repurchased on the date specified in the Indenture. The
Unit Agent, based on such notices received by it, shall notify the Trust,
the Company, the Property Trustee and the Exchange Agent, no later than the
211th day following the Change of Control Notice Date of the aggregate
number of Preferred Securities to be exchanged for Debentures by the Trust
and to be repurchased by the Company. An election to exchange Preferred
Securities for Debentures and to have such Debentures repurchased by the
Company shall also constitute an election to separate the related Units
into their component parts and the Unit Agent, the Exchange Agent and the
Property Trustee shall follow the procedures specified in Section 3.6
hereof (and Section 6.8 of the Declaration).
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Section 5.4. Certain Rights Following a Remarketing.
Following a Remarketing Settlement Date and a Redemption or exercise of the
Warrants (including the delivery of all shares of Common Stock pursuant to the
exercise of a Warrant or the payment of the Warrant Value payable upon the
related Redemption and the payment of any amounts payable upon the related
Remarketing), a Unit shall thereafter represent the right to receive any excess
proceeds from the Remarketing, if any; provided, however, that in the case of a
"Failed Remarketing" under the Declaration, a Unit shall thereafter represent
the right to receive the Preferred Securities forming a part of such Unit,
containing the terms as provided in the Declaration (or if the Debentures have
been distributed upon liquidation of the Trust, the Debentures).
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Payments and to
Purchase Common Stock.
The Holder of any Security shall have all the rights provided to a holder
of Preferred Securities under the Declaration and to a holder of Warrants under
the Warrant Agreement, including the right to institute suit for the enforcement
of any such payments or obligations thereunder, and such rights shall not be
impaired except as provided in the Declaration and the Warrant Agreement.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right or remedy
under this Unit Agreement and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company
and such Holder shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of such Holder shall
continue as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Certificates in the last paragraph of
Section 3.11, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy upon a
default shall impair any such right or remedy or constitute a waiver of any such
right. Every right and remedy given by this Article or by law to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by such
Holders.
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Section 6.5. Undertaking for Costs.
All parties to this Unit Agreement agree, and each Holder of a Security, by
its acceptance of such Security shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Unit Agreement, or in any suit against the Unit Agent for any
action taken, suffered or omitted by it as Unit Agent, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Unit Agent, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the Outstanding Units, or to any suit instituted by any Holder for
the enforcement of distributions on any Preferred Securities on or after the
respective Payment Date therefor in respect of any Security held by such Holder,
or for enforcement of the right to purchase shares of Common Stock under the
Warrants constituting part of any Security held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Unit Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Unit Agent or the Holders, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
The Unit Agent
Section 7.1. Certain Duties and Responsibilities.
(a) The Unit Agent undertakes to perform, with respect to the Units, such
duties and only such duties as are specifically required to be performed by the
Unit Agent under this Unit Agreement, and no implied covenants or obligations
shall be read into this Unit Agreement against the Unit Agent; and
(1) in the absence of bad faith on its part, the Unit Agent may
conclusively rely and be fully protected in so relying, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Unit Agent and
conforming to the requirements of this Unit Agreement but in the case
of any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Unit Agent, the Unit
Agent shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Unit Agreement (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(b) No provision of this Unit Agreement shall be construed to relieve the
Unit Agent from liability for its own grossly negligent action, its own grossly
negligent failure to act, or its own willful misconduct, except that
27
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Unit Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer;
(3) no provision of this Unit Agreement shall require the Unit
Agent to expend or risk its own funds or otherwise incur any personal
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if adequate
indemnity is not provided to it; and
(4) no provision of this Unit Agreement shall require the Unit
Agent to expend or risk its own funds or otherwise incur any personal
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Whether or not therein expressly so provided, every provision of this
Unit Agreement relating to the conduct or affecting the liability of or
affording protection to the Unit Agent shall be subject to the provisions of
this Section.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the Company hereunder
of which a Responsible Officer of the Unit Agent has actual knowledge, the Unit
Agent shall transmit by mail to the Company and the Holders of Units, as their
names and addresses appear in the Register, notice of such default hereunder,
unless such default shall have been cured or waived. Section 7.3. Certain Rights
of Unit Agent.
Subject to the provisions of Section 7.1:
(a) the Unit Agent may 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 or presented
by an appropriate Person;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Unit Agreement the Unit
Agent shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Unit Agent
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, require and rely upon an Officers'
Certificate of the Company;
(d) the Unit Agent may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel 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 reliance thereon;
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(e) the Unit Agent 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 Unit Agent, in its sole discretion, may make reasonable
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Unit Agent shall determine to make such further inquiry or
investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company, and shall incur no personal
liability or additional liability of any kind by reason of such inquiry or
investigation;
(f) the Unit Agent may execute any of the powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys
or an Affiliate and the Unit Agent shall not be personally responsible for
any misconduct or negligence on the part of any agent or attorney or an
Affiliate appointed with due care by it hereunder;
(g) with respect to the calculation of the Accreted Value and the
Warrant Value, the Unit Agent may conclusively rely upon the calculations
thereof determined by the Calculation Agent;
(h) the Unit Agent shall not be personally liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Unit Agreement;
(i) the Unit Agent shall not be deemed to or have notice of any Trust
Enforcement Event or an Indenture Event of Default unless a Responsible
Officer of the Unit Agent has actual knowledge thereof or has received a
written notice thereof that references the Units and this Unit Agreement;
(j) in the event that the Unit Agent is unable to decide between
alternative courses of action permitted or required under this Unit
Agreement or any other document, or is unsure as to the application of any
provision of this Unit Agreement or any other document, or any such
provision may be ambiguous as to its application or in conflict with any
other applicable provision, permits any determination by the Unit Agent, or
is silent or incomplete as to the course of action that the Unit Agent is
required to take with respect to a particular set of facts, the Unit Agent
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 Unit Agent acts or refrains
from acting in good faith in accordance with any such instruction received,
the Unit Agent shall not be personally liable, on account of such action or
inaction, to any Person, and if the Unit Agent 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; and
(k) the rights, privileges, protections, immunities and benefits given
to the Unit Agent, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Unit Agent
in each of its capacities hereunder, the Warrant Agent, the Property
Trustee, the Guarantee Trustee, the Indenture Trustee, and to each agent,
custodian and other Person employed to act hereunder.
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Section 7.4. Not Responsible for Recitals or Issuance of Units.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Company, and the Unit Agent assumes no responsibility for
their accuracy. The Unit Agent makes no representations as to the validity or
sufficiency of either this Unit Agreement or of the Units.
The Unit Agent shall not be accountable for the use or application by the
Company of Units or the proceeds thereof.
Section 7.5. May Hold Units.
Any Registrar or any other agent of the Company, or the Unit Agent and its
Affiliates, in their individual or any other capacity, may become the owner or
pledgee of Units and may otherwise deal with the Company or any other Person
with the same rights it would have if it were not Registrar or such other agent,
or the Unit Agent.
Section 7.6. Money Held in Custody.
Money held by the Unit Agent in custody hereunder need not be
segregated from the other funds except to the extent required by law or provided
herein. The Unit Agent shall be under no obligation to invest or pay interest on
any money received by it hereunder except as otherwise agreed in writing with
the Company.
Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Unit Agent in its individual capacity from
time to time such compensation as shall from time to time be agreed to
in writing by the Company and the Unit Agent for all services rendered
by it hereunder;
(2) except as otherwise expressly provided for herein, to
reimburse the Unit Agent in its individual capacity upon its request
for all reasonable expenses, disbursements and advances incurred or
made by the Unit Agent (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its gross
negligence or bad faith; and
(3) to indemnify the Unit Agent in its individual capacity and
any predecessor Unit Agent for, and to defend and hold it harmless
against, any loss, liability, claim, or expense (including reasonable
fees of counsel), including taxes (other than taxes based upon,
measured by or determined by the income of the Unit Agent) incurred
without gross negligence or bad faith on its part, arising out of or
in connection with this Agreement, the Securities, or the acceptance
or administration of its duties hereunder, including the costs and
expenses (including reasonable fees of counsel) of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Unit Agent shall have a lien prior to the Units as to all property and
funds held by it hereunder for any amount owing it or any predecessor Unit Agent
pursuant to this Section 7.7, except with respect to funds held in trust for the
benefit of the Holders of particular Units.
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The provisions of this Section shall survive the termination of this Unit
Agreement and the resignation or removal of the Unit Agent.
Section 7.8. Unit Agent Required; Eligibility.
There shall at all times be a Unit Agent hereunder which shall be an entity
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having (or being a member of a bank holding
company having) a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by Federal or State authority and having a
Corporate Trust Office in Wilmington, Delaware or in the Borough of Manhattan,
The City of New York, if there be such an entity in Wilmington, Delaware or the
Borough of Manhattan, The City of New York, qualified and eligible under this
Article and willing to act on reasonable terms. If such entity publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such entity shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Unit Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Unit Agent and no appointment of a
successor Unit Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Unit Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Unit Agent may resign at any time by giving written notice thereof
to the Company 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Unit Agent required by Section 7.10
shall not have been delivered to the Unit Agent within 30 days after the giving
of such notice of resignation, the resigning Unit Agent (at the expense of the
Company) may petition any court of competent jurisdiction for the appointment of
a successor Unit Agent.
(c) The Unit Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Units delivered to the Unit Agent and the
Company.
(d) If at any time
(1) the Unit Agent fails to comply with Section 310(b) of the
TIA, as if the Unit Agent were an indenture trustee under an indenture
qualified under the TIA, after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Unit Agent shall cease to be eligible under Section 7.8
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Unit Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Unit Agent or of
its property shall be appointed or any public officer shall take
charge or control of the Unit Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Unit Agent, or (ii) any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself
31
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Unit Agent and the appointment of a successor Unit Agent.
(e) If the Unit Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Unit Agent for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Unit
Agent and shall comply with the applicable requirements of Section 7.10. If no
successor Unit Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 7.10, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of itself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Unit Agent.
(f) the Company shall give, or shall cause such successor Unit Agent to
give, notice of each resignation and each removal of the Unit Agent and each
appointment of a successor Unit Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders as their names and addresses
appear in the applicable Register. Each notice shall include the name of the
successor Unit Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Unit Agent, every
such successor Unit Agent so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Unit Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Unit Agent
shall become effective and such successor Unit Agent, without any further act,
deed or conveyance, shall become vested with all the rights, powers, agencies
and duties of the retiring Unit Agent; but, on the written request of the
Company or the successor Unit Agent, such retiring Unit Agent shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Unit Agent all the rights, powers and trusts of the retiring Unit
Agent and shall duly assign, transfer and deliver to such successor Unit Agent
all property and money held by such retiring Unit Agent hereunder. If an
instrument of acceptance by a successor Unit Agent shall not have been delivered
to the Unit Agent within 30 days after the giving of notice of removal, the Unit
Agent being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Unit Agent.
(b) Upon request of any such successor Unit Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Unit Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Unit Agent shall accept its appointment unless at the time
of such acceptance such successor Unit Agent shall be qualified and eligible
under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Unit Agent may be merged or converted or
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Unit Agent shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of the Unit Agent,
shall be the successor of the Unit Agent hereunder, provided such Person shall
be otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Certificates shall have been authenticated, but not delivered, by
the Unit Agent then in office, any successor by merger, conversion or
consolidation or otherwise to such Unit Agent may adopt such authentication and
deliver the Certificates so authenticated with the same effect as if such
successor Unit Agent had itself authenticated such Units.
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Section 7.12. Preservation of Information; Communications to Holders.
(a) The Unit Agent in its capacity as Registrar shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders
received by the Unit Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Unit Agent, and furnish to the Unit Agent reasonable proof that
each such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Unit Agreement or under the Units and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Unit Agent shall mail to all the Holders copies of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Unit Agent of the materials to be mailed and of
payment, or provision for the payment, of the reasonable expenses of such
mailing.
Section 7.13. No Obligations of Unit Agent.
The Unit Agent assumes no obligations and shall not be subject to any
personal liability under this Unit Agreement in respect of the obligations of
the Holder of any Security hereunder. Each Issuer agrees, and each Holder of a
Certificate, by his acceptance thereof, shall be deemed to have agreed that the
Unit Agent shall have no personal liability in respect of its authentication of
Certificates. Anything in this Unit Agreement to the contrary notwithstanding,
in no event shall the Unit Agent or its officers, employees or agents be liable
under this Unit Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Unit
Agent, incurred without any act or deed that is found to be attributable to
gross negligence or willful misconduct on the part of the Unit Agent.
Section 7.14. Tax Compliance.
(a) The Company will comply with all applicable certification, information
reporting and withholding (including "backup" withholding) requirements imposed
by applicable tax laws, regulations or administrative practice with respect to
(i) any payments made with respect to the Units or (ii) the issuance, delivery,
holding, transfer, redemption or exercise of rights under the Units. Such
compliance shall include, without limitation, the preparation and timely filing
of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
(b) The Unit Agent shall comply in accordance with the terms hereof with
any written direction received from the Company with respect to the execution or
certification of any required documentation and the application of such
requirements described in Section 7.14(a) to particular payments or Holders or
in other particular circumstances, and may for purposes of this Unit Agreement
conclusively rely on any such direction in accordance with the provisions of
Section 7.3(a) hereof.
(c) The Unit Agent upon specific written direction from the Company shall
maintain records documenting compliance with such requirements described in
Section 7.14(a), and shall make such records available, on written request, to
the Company or its authorized representative within a reasonable period of time
after receipt of such request.
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ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders or any other party hereto, the Company
and the Unit Agent, at any time and from time to time, may enter into one or
more agreements supplemental hereto, in form satisfactory to the Company and the
Unit Agent, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Certificates; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Unit Agent; or
(4) to cure any ambiguity, to correct or supplement any
provision in this Unit Agreement that may be defective or inconsistent
with any other provision of this Unit Agreement, or to make any other
provisions with respect to matters or questions arising under this
Unit Agreement that shall not be inconsistent with the other
provisions of this Unit Agreement; provided that such action shall not
adversely affect in any material respect the interests of the Holders.
Section 8.2. Supplemental Agreements With Consent of Holders; Other
Fiduciaries.
With the consent of the Holders of not less than a majority in number of
the Outstanding Units voting together as one class, by Act of said Holders
delivered to the Company and the Unit Agent, the Company, when authorized by a
Board Resolution, the Trust and the Unit Agent may enter into an agreement or
agreements supplemental hereto for the purpose of modifying in any manner the
provisions of this Unit Agreement or the rights of the Holders in respect of the
Units; provided, however, that, except as contemplated herein, no such
supplemental agreement shall, without the unanimous consent of the Holders of
each Outstanding Security affected thereby,
(1) materially and adversely affect such Holder's rights under
a Security; or
(2) reduce the percentage of the Outstanding Units the consent
of whose Holders is required for any such supplemental agreement;
provided, that any modification of the Declaration or Warrant Agreement in
accordance with the terms thereof shall be binding on the rights of the Holders
under this Unit Agreement without the need for any further consent.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
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No agreement supplemental hereto shall modify in any way any of the rights
or obligations of the Unit Agent, the Property Trustee, the Indenture Trustee,
the Warrant Agent or the Remarketing Agent without such Person's consent.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Unit Agreement, the Unit Agent shall be entitled to
receive, and (subject to Section 7.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental agreement
is authorized or permitted by this Unit Agreement. The Agent may, but shall not
be obligated to, enter into any such supplemental agreement which affects the
Unit Agent's own rights, duties or immunities under this Unit Agreement or
otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article, this
Unit Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Unit Agreement for all purposes; and every
Holder of Certificates theretofore or thereafter authenticated, executed on
behalf of the Holders and delivered hereunder, shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated and delivered after the execution of any
supplemental agreement pursuant to this Article may, and shall if required by
the Unit Agent, bear a notation in form approved by the Unit Agent as to any
matter provided for in such supplemental agreement. If the Company shall so
determine, new Certificates so modified as to conform, in the opinion of the
Unit Agent and the Company, to any such supplemental agreement may be prepared
and executed by the Company and, upon Issuer Order and subject to Section 1.2,
authenticated and delivered by the Unit Agent in exchange for Certificates
representing Outstanding Units.
ARTICLE IX
Consolidation, Merger, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.
The Company covenants that it will not merge or consolidate with any other
Person or sell, assign, transfer, lease or convey all or substantially all of
its properties and assets to any Person or group of affiliated Persons in one
transaction or a series of related transactions, unless (i) either the Company
shall be the continuing corporation, or the successor (if other than the
Company) shall be a corporation
35
organized and existing under the laws of the United States of America or a State
thereof or the District of Columbia and such corporation shall expressly assume
all the obligations of the Company under this Unit Agreement by one or more
supplemental agreements in form reasonably satisfactory to the Unit Agent,
executed and delivered to the Unit Agent by such corporation, and (ii) the
Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, assignment,
transfer, lease or conveyance, be in default in the performance of any covenant
or condition hereunder or under any of the Units (including the component parts
thereof).
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance and upon any such assumption by a successor corporation in
accordance with Section 9.1, such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Certificates evidencing Units issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Unit Agent; and, upon the
Issuer Order of such successor corporation, instead of the Company, and subject
to all the terms, conditions and limitations in this Unit Agreement prescribed,
the Unit Agent shall authenticate and deliver any Certificates which previously
shall have been signed and delivered by the officers of the Company to the Unit
Agent for authentication, and any Certificate evidencing Units which such
successor corporation thereafter shall cause to be signed and delivered to the
Unit Agent for that purpose. All the Certificates issued shall in all respects
have the same legal rank and benefit under this Unit Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Unit Agreement as though all of such Certificates had been issued at the
date of the execution hereof.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Units thereafter to be issued as may
be appropriate.
Section 9.3. Opinion of Counsel Given to Agent.
The Agent, subject to Sections 7.1 and 7.3, shall be entitled to receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, assignment, transfer, lease or conveyance, and any such assumption,
complies with the provisions of this Article and that all conditions precedent
to the consummation of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance and assumption have been met.
ARTICLE X
Covenants
Section 10.1. Performance Under Agreements.
The Company covenants and agrees for the benefit of the Holders from time
to time of the Units that it will duly and punctually perform its obligations
under the Warrant Agreement and the Declaration, as applicable, in accordance
with the terms thereof and this Unit Agreement.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New York
an office or agency where Certificates may be presented or surrendered for
registration of transfer or exchange,
36
separation or re-establishment of a Security and where notices and demands to or
upon the Company in respect of the Units and this Unit Agreement may be served.
The Company will give prompt written notice to the Unit Agent of the location,
and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Unit Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Unit Agent as its agent to receive
all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where Certificates may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Unit Agent of any such designation or rescission and of
any change in the location of any such other office or agency. The Company
hereby designates as the place of payment for the Units the Corporate Trust
Office and appoints the Unit Agent at its Corporate Trust Office as paying agent
in such city.
Section 10.3. Statements of Officers of the Company as to Compliance.
The Company will deliver to the Unit Agent, within 120 days after the end
of each fiscal year of the Company (which as of the date hereof is December 31)
ending after the date hereof, an Officers' Certificate (one of the signers of
which shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company), stating whether or not to the best
knowledge of the signers thereof either Issuer is in default in the performance
and observance of any of the terms, provisions and conditions hereof, and if
either Issuer shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.
Section 10.4. ERISA.
Each Holder from time to time of a Unit which is a Plan hereby and by its
acceptance of such Unit represents that its acquisition of the Unit and the
holding of the same satisfies the applicable fiduciary requirements of ERISA and
that it is entitled to exemption relief from the prohibited transaction
provisions of ERISA and the Code in accordance with one or more prohibited
transaction exemptions or otherwise will not result in a nonexempt prohibited
transaction.
Section 10.5. Statement by Officers as to Default.
The Company shall deliver to the Unit Agent, as soon as possible and in any
event within five days after the Company becomes aware of the occurrence of any
Trust Enforcement Event or Indenture Event of Default or an event which, with
notice or the lapse of time or both, would constitute a Trust Enforcement Event
or Indenture Event of Default, an Officers' Certificate setting forth the
details of such Trust Enforcement Event or Indenture Event of Default or default
and the action which the Company proposes to take with respect thereto.
Section 10.6. Calculation of Original Issue Discount.
The Company shall provide to the Unit Agent on a timely basis such
information as the Unit Agent requires to enable the Unit Agent to prepare and
file any form that the Company in writing requests the Unit Agent to prepare and
file and that is required to be submitted by the Company with the Internal
Revenue Service and Holders of Units relating to original discount, including,
without limitation, Form 1099-OID or any successor form.
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ARTICLE XI
Representations of the Unit Agent
Section 11.1. Representations and Warranties of the Unit Agent.
The initial Agent represents and warrants to the Trust and to the Company
at the date of this Unit Agreement, and each successor Unit Agent represents and
warrants to the Trust and the Company at the time of the successor Unit Agent's
acceptance of its appointment as Agent, that:
(a) the Unit Agent 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 Unit
Agreement;
(b) the Unit Agent satisfies the requirements set forth in Section
7.8;
(c) the execution, delivery and performance by the Unit Agent of this
Unit Agreement has been duly authorized by all necessary corporate action
on the part of the Unit Agent; this Unit Agreement has been duly executed
and delivered by the Unit Agent and constitutes a legal, valid and binding
obligation of the Unit Agent 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 Unit Agreement by
the Unit Agent does not conflict with, or constitute a breach of, the
charter or by-laws of the Unit Agent; and
(e) no consent, approval or authorization of, or registration with or
notice to, any State of Delaware or federal banking authority that has not
been obtained, made, or given is required for the execution, delivery or
performance by the Unit Agent of this Unit Agreement.
ARTICLE XII
The Warrant Agent and The Property Trustee
Section 12.1. Certain Duties and Responsibilities.
(a) (1) The Warrant Agent and the Property Trustee (each, a "Party",
together, the "Parties") each undertakes to perform, with respect to this Unit
Agreement, such duties and only such duties as are specifically required to be
performed by it in this Unit Agreement, and no implied covenants or obligations
shall be read into this Unit Agreement against any Party. The provisions
regarding the appointment, removal, resignation, vacancies, meetings, delegation
of power and merger, conversion, consolidation or succession to business
applicable to such Party and rights, benefits, privileges, indemnities and
immunities of such Party under the Declaration or Warrant Agreement, as to which
such Person is a party, shall apply to the performance of such Person's duties
and obligations hereunder.
Without limiting the foregoing,
38
(a) In the absence of bad faith or negligence on its part, any Party
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to such Party and conforming to the requirements of this
Unit Agreement but in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to a Party, such
Party shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Unit Agreement.
(b) No provision of this Unit Agreement shall be construed to relieve
any Party from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) no Party shall be liable for any error of judgment made in
good faith it; and
(3) no provision of this Unit Agreement shall require any Party
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if adequate indemnity is not
provided to it.
(c) Whether or not therein expressly so provided, every provision of
this Unit Agreement relating to the conduct or affecting the liability of
or affording protection to the Parties shall be subject to the provisions
of this Section.
(d) Any Party may 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 or presented
by an appropriate Person;
(e) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(f) Whenever in the administration of this Unit Agreement any Party
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such Party (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, require and rely upon an Officers' Certificate of
the Company;
(g) Any Party may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel 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 reliance thereon;
(h) No Party shall 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 any Party, in its sole discretion, may make reasonable further inquiry
or investigation into such facts or matters as it may see fit, and, if such
Party shall determine to make such further
39
inquiry or investigation, it shall be given a reasonable opportunity to
examine the books, records and premises of the Company, personally or by
agent or attorney at the sole cost of the Company and shall incur no
personal liability or additional liability of any kind by reason of such
inquiry or investigation; and
(i) Any Party may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys or an
Affiliate and no Party shall be personally responsible for any misconduct
or negligence on the part of any agent or attorney or an Affiliate
appointed with due care by it hereunder.
(j) No Party shall be personally liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Unit Agreement;
(k) No Party shall be deemed to or have notice of any default or event
of default unless an officer in the corporate trust department of such
Party has actual knowledge thereof or has received a written notice thereof
that references the Units and this Unit Agreement.
(l) The rights, privileges, protections, immunities and benefits given
to each Party, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, such Party in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
(m) The recitals contained herein and in the Certificates shall be
taken as the statements of the Company, and no Party assumes any
responsibility for their accuracy. No Party makes any representations as to
the validity or sufficiency of either this Unit Agreement or of the Units.
(n) Any Party in its individual or any other capacity, may become the
owner or pledgee of Units and may otherwise deal with the Company or any
other Person with the same rights it would have if it were not a Party.
(o) The Company agrees to pay each Party such compensation, and to
reimburse each Party for such expenses, as shall be provided from time to
time in the Declaration and the Warrant Agreement to which such Party is a
signatory.
(p) The provisions of this Section shall survive the termination of
this Unit Agreement and the resignation or removal of a Party.
(q) No Party shall be accountable for the use or application by the
Company of Units or the proceeds thereof.
(r) In the event that a Party is unable to decide between alternative
courses of action permitted or required under this Unit Agreement or any
other document, or is unsure as to the application of any provision of this
Unit Agreement or any other document, or any such provision may be
ambiguous as to its application or in conflict with any other applicable
provision, permits any determination by a Party, or is silent or incomplete
as to the course of action that a Party is required to take with respect to
a particular set of facts, a Party 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 a
Party acts or refrains from acting in good faith in accordance with any
such instruction received, a Party shall not be personally liable, on
40
account of such action or inaction, to any Person, and if a Party 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.
41
IN WITNESS WHEREOF, the parties hereto have caused this Unit Agreement to
be duly executed as of the day and year first above written.
NEW YORK COMMUNITY BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Executive Vice President
WILMINGTON TRUST COMPANY, not in its individual
capacity, but solely as Agent
By: /s/ W. Xxxxx Xxxxxxxxxx
------------------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY, not in its individual
capacity, but solely as Warrant Agent
By: /s/ W. Xxxxx Xxxxxxxxxx
------------------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY, not in its individual
capacity, but solely as Property Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
------------------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Vice President
NEW YORK COMMUNITY CAPITAL TRUST V
By: /s/ Xxxxxx Xxxx
------------------------------------------------
Name: Xxxxxx Xxxx, as
Administrative Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx, as
Administrative Trustee
42
EXHIBIT A
FACE OF CERTIFICATE
THIS CERTIFICATE IS A GLOBAL UNIT WITHIN THE MEANING OF THE UNIT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE OF THE
DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF THIS
CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY, ANOTHER
NOMINEE OF THE DEPOSITARY OR A SUCCESSOR OF THE DEPOSITARY 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 DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY, ANOTHER NOMINEE OF THE DEPOSITARY
OR A SUCCESSOR OF SUCH DEPOSITARY 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 UNIT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY OR ITS NOMINEE TO NEW YORK COMMUNITY BANCORP, INC., NEW YORK
COMMUNITY CAPITAL TRUST V OR THEIR RESPECTIVE AGENTS 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 DEPOSITARY 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 DEPOSITARY OR ITS NOMINEE), AND EXCEPT AS OTHERWISE
PROVIDED IN THE UNIT AGREEMENT ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE CONSTITUENT COMPONENTS OF THIS UNIT MUST BE SEPARATED PRIOR TO TRANSFER
(EXCEPT AS PART OF A UNIT) AS PROVIDED IN THE UNIT AGREEMENT.
A-1
Certificate No.: CUSIP No.:64944P 30 7
Number of Units: 5,500,000
NEW YORK COMMUNITY BANCORP, INC.
NEW YORK COMMUNITY CAPITAL TRUST V
Unit Certificate
This Certificate certifies that Cede & Co. is the registered Holder of the
number of Units set forth above. Each Unit consists of (i) beneficial ownership
by the Holder of one Preferred Security (the "Preferred Security") of New York
Community Capital Trust V, a Delaware statutory trust (the "Trust"), having a
stated liquidation amount of $50, attached as Annex A hereto and (ii) the rights
and obligations of the Holder under one Warrant to purchase shares of common
stock of New York Community Bancorp Inc., a Delaware corporation (the
"Company"), attached as Annex B hereto. All capitalized terms used herein which
are defined in the Unit Agreement (as defined on the reverse hereof) have the
meanings set forth therein.
Distributions on any Preferred Security forming part of a Unit evidenced
hereby, which are payable quarterly in arrears on February 1, May 1, August 1,
and November 1 of each year, commencing on February 1, 2003 (a "Payment Date"),
shall, subject to receipt thereof by the Unit Agent, be paid to the Person in
whose name this Certificate (or a Predecessor Certificate) is registered at the
close of business on the Record Date for such Payment Date, except that the
proceeds of a Remarketing will be paid to the Warrant Agent in satisfaction of
each Electing Remarketing Holder's obligations to pay the Exercise Price of
Warrants constituting a part of this Unit.
Distributions on the Preferred Securities will be payable at an office of
the Unit Agent or, at the option of the Company, by check mailed to the address
of the Person entitled thereto as such address appears on the Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Unit Agent by manual signature, this Certificate shall not be entitled to any
benefit under the Unit Agreement, the Warrant Agreement or the Declaration or be
valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the undersigned have caused this Unit Certificate to be
duly executed.
NEW YORK COMMUNITY BANCORP, INC.
By:
________________________________________
Name:
Title:
NEW YORK COMMUNITY CAPITAL TRUST V
By:
________________________________________
Name:
Title: Administrative Trustee
A-3
UNIT AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned Unit
Agreement.
Dated: WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Unit Agent
By:
________________________________________
Authorized Signatory
A-4
(FORM OF REVERSE OF CERTIFICATE)
Each Unit evidenced hereby is governed by a Unit Agreement, dated as of
November 4, 2002 (as may be amended or supplemented from time to time, the "Unit
Agreement"), among New York Community Bancorp, Inc. (the "Company"), New York
Community Capital Trust V (the "Trust") Wilmington Trust Company, as unit agent
(including its successors thereunder, the "Unit Agent"), Wilmington Trust
Company, as Warrant Agent, and Wilmington Trust Company, as Property Trustee, to
which Agreement reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Unit Agent, the Company, and the Holders and of the terms upon which the
Certificates are, and are to be, executed and delivered. Pursuant to the Unit
Agreement, the rights, limitations or rights, obligations, duties and immunities
of the Unit Agent, the Company, and the Holders, and the Certificates include
the rights, obligations, duties and immunities set forth in the Warrant
Agreement and the Declaration, to which reference is further made for a
description thereof.
The Company may, under the circumstances described in the Declaration,
cause a Remarketing of the outstanding Preferred Securities which form a part of
this Unit. In connection therewith, the Company will, as described in the
Warrant Agreement, redeem all Warrants which form a part of this Unit.
In no event may a Holder pay the Exercise Price of a Warrant by tendering a
Preferred Security. In accordance with the terms of the Declaration and the Unit
Agreement, the Holder of this Certificate may pay the Exercise Price for the
shares of Common Stock purchased pursuant to each Warrant constituting a part of
this Unit by applying the proceeds of a remarketing of the related Preferred
Securities.
A Holder of a Unit who does not affirmatively elect NOT to participate in a
Remarketing on or prior to 5:00 p.m. New York City time on the Business Day
immediately preceding the Remarketing Date, will be deemed to have consented to
participation in such Remarketing. A Holder of a Unit who does not affirmatively
elect on or prior to 5:00 p.m. on the Business Day preceding a Remarketing
Settlement Date to exercise the Warrants related to such Unit will be deemed to
have consented to a redemption of such Warrants on the Remarketing Settlement
Date. A Remarketing sale will be made by the Remarketing Agent pursuant to the
terms of the Remarketing Agreement on the Remarketing Date.
A holder may exercise the Warrants which form a part of the Units evidenced
by this Certificate at any time upon compliance with the procedures specified in
the Warrant Agreement. A Holder of a Unit evidenced by this Certificate who
elects to exercise Warrants prior to the Remarketing Settlement Date shall have
the right to require the Trust to exchange the related Preferred Securities for
Debentures having an Accreted Value equal to the Accreted Value of such
Preferred Securities and to require the Company to repurchase such Debentures on
the next Special Distribution Date which is no less than 180 days after the
applicable exercise date.
Upon receipt of written notice of any meeting at which holders of Preferred
Securities are entitled to vote or upon the solicitation of consents, waivers or
proxies of holders of Preferred Securities, the Unit Agent shall, as soon as
practicable thereafter, mail to the Holders a notice (a) containing such
information as is contained in the notice or solicitation, (b) stating that each
Holder on the record date set by the Unit Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the holders
of Preferred Securities entitled to vote) shall be entitled to instruct the Unit
Agent in writing as to the exercise of the voting rights pertaining to the
Preferred Securities constituting a part of such Holder's Unit and (c) stating
the manner in which such written instructions may be given. Upon the written
request of the Holders as of such record date, the Unit Agent shall endeavor
insofar as practicable to vote
A-5
or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of Preferred Securities as to which any particular
written voting instructions are received. In the absence of specific written
instructions from the Holder of a Unit, the Unit Agent shall abstain from voting
the Preferred Security evidenced by such Unit.
Upon the liquidation of the Trust, a principal amount of the Debentures
constituting the assets of the Trust and underlying the Preferred Securities
equal to the aggregate Accreted Value of the Preferred Securities shall be
delivered to the Unit Agent in exchange for, and for delivery against surrender
of, the Preferred Securities. Thereafter, the Holders shall have such rights and
obligations with respect to the Debentures as the Holders had in respect of the
Preferred Securities and any reference herein to the Preferred Securities shall
be deemed to be a reference to the Debentures.
The Certificates are issuable only in registered form and only in
denominations of a single Unit and any integral multiple thereof. The transfer
of any Certificate will be registered and Certificates may be exchanged as
provided in the Unit Agreement. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents under the
Unit Agreement. No service charge shall be required for any such registration of
transfer or exchange, but the Company and the Unit Agent may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. A Unit shall be separable into its components, and Units
may be recreated as provided in the Unit Agreement; provided, however, this
Certificate shall not represent more than 5,500,000 Units. All such adjustments
to the equivalent aggregate amount of this Certificate shall be duly recorded by
placing an appropriate notation on the Schedule attached hereto.
The Holder of this Certificate, by its acceptance hereof, expressly
withholds any consent to the assumption (i.e., affirmance) of the Warrant
Agreement or the Warrants by the Company or its trustee in the event that the
Company becomes the subject of a case under the Bankruptcy Code.
The Holder of this Certificate, by its acceptance hereof, expressly agrees
to be bound by the terms and provisions of the Unit Agreement, the Warrant
Agreement and the Declaration.
Subject to certain exceptions, the provisions of the Unit Agreement may be
amended with the consent of the Holders of a majority in number of the Units.
The Company, the Unit Agent and its Affiliates and any agent of the Company
or the Unit Agent may treat the Holder in whose name this Certificate is
registered as the owner of the Unit evidenced hereby for the purpose of
receiving payments of distributions payable quarterly on the Preferred
Securities and for all other purposes whatsoever, whether or not any payments in
respect thereof be overdue and notwithstanding any notice to the contrary, and
neither the Company, the Unit Agent nor any such agent shall be affected by
notice to the contrary.
The Warrants shall not, prior to the exercise thereof, entitle the Holder
to any of the rights of a holder of shares of Common Stock.
A copy of the Unit Agreement, the Warrant Agreement, the Declaration and
all exhibits to each such agreement is available for inspection upon written
request and reasonable advance notice to the Unit Agent at an office of the Unit
Agent.
This Unit shall be governed by the laws of the State of New York, without
regard to principles of conflicts of law.
A-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM- As tenants in common
UNIF GIFT MIN ACT- Uniform Gifts to Minors Act
-------------------------------------------
TEN ENT- As tenants by the entireties
JT TEN- As joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney to transfer said Certificates on the books
of [Name of Company] with full power of substitution in the premises.
Dated: _____________________________ Signature: _____________________________
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within
Certificates in every particular,
without alteration or enlargement or any
change whatsoever.
Signature Guarantee:
____________________________________
A-7
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
This Global Certificate shall represent 5,500,000 Units unless otherwise
indicated below.
The following increases or decreases in this Global Certificate have been made:
Number of Units
evidenced by this
Amount of decrease in Amount of increase in Global Certificate
Number of Units Number of Units following Signature of
evidenced by the evidenced by the such authorized officer of
Date Global Certificate Global Certificate decrease or increase Agent
------------ --------------------- --------------------- -------------------- ---------------------
A-8
ANNEX A
[TO BE INSERTED]
A-9
ANNEX B
[TO BE INSERTED]
A-10
EXHIBIT B
INSTRUCTION TO DISREGARD REMARKETING
Wilmington Trust Company, as Agent
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Re: __________ Bifurcated Option Note Unit SecuritiES(SM) (BONUSES(SM))
("Units") of New York Community Bancorp, Inc. and New York Community
Capital Trust V
The undersigned Holder hereby advises you that it has elected NOT to
participate in the Remarketing set forth below with respect to the corresponding
number of Preferred Securities that are a component of Units of which the
undersigned is the beneficial owner:
Remarketing Settlement
Date: __________________________
Number of Preferred Securities
NOT to Remarket: _________________________
The notification to the Remarketing Agent to be sent by you on the
Business Day immediately preceding the above Remarketing Date shall NOT include
the aggregate number of Preferred Securities set forth above. Unless otherwise
defined herein, terms defined in the Unit Agreement dated November 4, 2002 with
New York Community Bancorp, Inc. and New York Community Capital Trust V are used
herein as defined therein. This notice is being delivered pursuant to Section
5.1 of the Unit Agreement relating to the Units.
Date:
_______________________________________ ___________________________________
Signature
Signature Guarantee:
________________________________________
Please print name and address of
Registered Holder:
_______________________________________ ________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
_______________________________________
_______________________________________
_______________________________________
B-1
EXHIBIT C
NOTICE OF ELECTING REMARKETING HOLDER
Wilmington Trust Company, as Agent
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
XXXXXXX XXXXX XXXXXX INC.
[Address]
Attention:
Re: _______ Bifurcated Option Note Unit SecuritiES(SM) (BONUSES(SM))
("Units") of New York Community Bancorp, Inc. and New York
Community Capital Trust V
Reference is made to New York Community Bancorp, Inc.'s notice of
Redemption dated . , 20 notifying Holders of the Units of the redemption of the
Warrants on . , 20 . This notice constitutes an election by the undersigned NOT
to redeem the Warrants identified below. The undersigned hereby advises you of
its election to exercise the following number of Warrants which constitute
component parts of Units beneficially owned by the undersigned:
Number of Warrants to Be Exercised: ________________________________________
Unless otherwise defined herein, terms defined in the Unit Agreement
dated November 4, 2002 with New York Community Bancorp, Inc. and New York
Community Capital Trust V are used herein as defined therein. This notice is
being delivered pursuant to Section 5.1 of the Unit Agreement.
Date:
_____________________________________ _________________________________________
Signature
Signature Guarantee:
_________________________________________
Please print name and address of
Registered Holder:
_____________________________________ _________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
_____________________________________
_____________________________________
_____________________________________
C-1
EXHIBIT D
NOTICE OF CHANGE OF CONTROL REDEMPTION ELECTION
Wilmington Trust Company, as Agent
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Re: _______ Bifurcated Option Note Unit SecuritiES(SM) (BONUSES(SM))
("Units") of New York Community Bancorp, Inc. and New York Community
Capital Trust V
Reference is made to New York Community Bancorp, Inc.'s notice of a
Change of Control dated ., 20 . The undersigned hereby advises you of its
election to have the following number of Warrants which constitute component
parts of Units beneficially owned by the undersigned redeemed as aforesaid:
Number of Warrants to Be Redeemed: ________________________________________
Unless otherwise defined herein, terms defined in the Unit Agreement
dated November 4, 2002 with New York Community Bancorp, Inc. and New York
Community Capital Trust V are used herein as defined therein. This notice is
being delivered pursuant to Section 5.3 of the Unit Agreement.
Date:
_____________________________________ ________________________________________
Signature
Signature Guarantee:
________________________________________
Please print name and address of
Registered Holder:
_____________________________________ ________________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
_____________________________________
_____________________________________
_____________________________________
D-1
EXHIBIT E
NOTICE OF CHANGE OF CONTROL EXCHANGE AND REPURCHASE
Wilmington Trust Company, as Agent
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Re: _______ Bifurcated Option Note Unit Units(SM) (BONUSES(SM)) ("Units") of
New York Community Bancorp, Inc. and New York Community Capital Trust V
Reference is made to New York Community Bancorp, Inc.'s notice of a
Change of Control dated ., 20 . The undersigned Holder hereby advises you that
it has elected (i) to have the number of Preferred Securities set forth below
exchanged for an equivalent Accreted Value of Debentures and (ii) to have such
Debentures repurchased by New York Community Bancorp, Inc., or its successor, as
provided in the Unit Agreement, the Declaration and the Indenture:
Number of Preferred Securities to Exchange: ____________________________________
Number of Debentures to Repurchase: ____________________________________
Unless otherwise defined herein, terms defined in the Unit Agreement
dated November 4, 2002 with New York Community Bancorp, Inc. and New York
Community Capital Trust V (the "Unit Agreement") are used herein as defined
therein. This notice is being delivered pursuant to Section 5.3 of the Unit
Agreement.
Date:
________________________________________ ____________________________________
Signature
Signature Guarantee:
____________________________________
Please print name and address of
Registered Holder:
________________________________________ ____________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
________________________________________
________________________________________
________________________________________
E-1
