EXHIBIT 4.13
DECLARATION OF TRUST
This DECLARATION OF TRUST, dated as of May 23, 2002 (this "Declaration of
Trust") between Forest City Enterprises, Inc., an Ohio corporation (the
"Sponsor"), and The Bank of New York (Delaware), a Delaware banking corporation
with its principal office in the State of Delaware, as Delaware trustee (the
"Delaware Trustee"), and Xxxxxxx X. Xxxxxx, an individual, as trustee (the
"Administrative Trustee", and, together with the Delaware Trustee, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Forest City
Enterprises Capital Trust II" in which name the Trustees, or the Sponsor to the
extent provided herein, may engage in the transactions contemplated hereby, make
and execute contracts, and xxx and be sued. The Trust is hereby established by
the Sponsor and the Trustees for the purpose of (i) issuing preferred securities
("Preferred Securities") representing undivided beneficial interests in the
assets of the Trust in exchange for cash and investing the proceeds thereof in
debentures of the Sponsor, (ii) issuing common securities representing undivided
beneficial interests in the assets of the Trust to the Sponsor in exchange for
cash and investing the proceeds thereof in additional debentures of the Sponsor
and (iii) engaging in such other activities as are necessary, convenient or
incidental thereto.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $100. The Administrative Trustee hereby acknowledges receipt
of such amount in trust from the Sponsor, which amount shall constitute the
initial trust estate. The Administrative Trustee hereby declares that it will
hold the trust estate in trust for the Sponsor. It is the intention of the
parties hereto that the Trust created hereby constitutes a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq.
(the "Business Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Secretary of State of the State
of Delaware in accordance with the provisions of the Business Trust Act.
3. The Sponsor and the Trustees will enter into an Amended and Restated
Declaration of Trust, satisfactory to each such party and substantially in the
form included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities referred to therein. Prior to the
execution and delivery of such Amended and Restated Declaration of Trust, (i)
the Delaware Trustee shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law, and
(ii) the Administrative Trustee and the Sponsor shall take any action as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Sponsor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts), (ii) indemnify, defend and hold harmless the Trustees and any of the
officers, directors, employees and agent of the Trustees (collectively,
including the Trustees in their individual capacities, the "Indemnified
Persons") from and against any and all losses, damages, liabilities, claims,
actions, suits, costs,
expenses, disbursements (including the reasonable fees and expenses of counsel),
taxes and penalties of any kind and nature whatsoever (collectively,
"Expenses"), to the extent that such Expenses arise out of or are imposed upon
or asserted at any time against such Indemnified Persons with respect to the
performance of this Declaration, the creation, operation, administration or
termination of the Trust, or the transactions contemplated hereby; provided,
however, that the Sponsor shall not be required to indemnify any Indemnified
Person for Expenses to the extent such Expenses result from the willful
misconduct, bad faith or negligence of such Indemnified Person, and (iii)
advance to such Indemnified Person Expenses (including reasonable legal fees)
incurred by such Indemnified Person in defending any claim, demand, action, suit
or proceeding prior to the final disposition of such claim, demand, action, suit
or proceeding upon receipt by the Sponsor of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified therefor under this Section
4.
5. The Sponsor, as the sponsor of the Trust, is hereby authorized, in its
discretion (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, (a) a
registration statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments thereto (including the
prospectus, prospectus supplements and the exhibits contained therein), and any
registration statement filed pursuant to Rule 462 under the Securities Act of
1933, as amended (the "1933 Act"), relating to the registration under the 1933
Act of the Preferred Securities of the Trust and certain other securities and
(b) a Registration Statement on Form 8-A (the "1934 Act Registration
Statement"), including any pre-effective and post-effective amendments thereto,
relating to the registration of the Preferred Securities of the Trust under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended; (ii)
to file with the New York Stock Exchange or any other national stock exchange or
The Nasdaq National Market (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Sponsor on behalf of the Trust, may deem
necessary or desirable; and (iv) to execute, deliver and perform on behalf of
the Trust that certain Underwriting Agreement relating to the Preferred
Securities, among the Trust, the Sponsor and the several Underwriters named
therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In the event that any filing referred to in clauses (i),
(ii) and (iii) above is required by the rules and regulations of the Commission,
an Exchange or state securities or blue sky laws, to be executed on behalf of
the Trust by any of the Trustees, each of the Trustees, in its capacity as a
trustee of the Trust, is hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing. In
connection with the filings referred to above, the Sponsor hereby constitutes
and appoints Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx, and each
of them, as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Sponsor or in the Sponsor's name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement (and any
registration statement filed pursuant to Rule 462 promulgated pursuant to the
0000 Xxx) and the 1934 Act Registration Statement and to file the
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same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, any Exchange and administrators of state securities or blue
sky laws, granting unto said attorney-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as the
Sponsor might or could do in person, thereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their respective substitute
or substitutes, shall do or cause to be done by virtue hereof.
6. The Delaware Trustee shall take such action or refrain from taking
such action under this Declaration as it may be directed in writing by the
Sponsor from time to time; provided, however, that the Delaware Trustee shall
not be required to take or refrain from taking any such action if it shall have
determined, or shall have been advised by counsel, that such performance is
likely to involve the Delaware Trustee in personal liability or is contrary to
the terms of this Declaration or of any document contemplated hereby to which
the Trust or the Delaware Trustee is a party or is otherwise contrary to law. If
at any time the Delaware Trustee determines that it requires or desires guidance
regarding the application of any provision of this Declaration or any other
document, then the Delaware Trustee may deliver a notice to the Sponsor
requesting written instructions as to the course of action desired by the
Sponsor, and such instructions shall constitute full and complete authorization
and protection for actions taken by the Delaware Trustee in reliance thereon. If
the Delaware Trustee does not receive such instructions it may refrain from
taking any action with respect to the matters described in such notice to the
Sponsor.
7. This Declaration of Trust may be executed in one or more counterparts.
8. The number of Trustees initially shall be two (2) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
A Trustee may resign upon thirty (30) days' prior notice to the Sponsor.
9. This Declaration of Trust shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware.
10. The Trust may terminate without issuing any Preferred Securities at
the election of the Sponsor.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
FOREST CITY ENTERPRISES, INC.,
as Sponsor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
THE BANK OF NEW YORK (DELAWARE), as Delaware
Trustee
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, as Administrative Trustee
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