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EXHIBIT 4.4
DECLARATION OF TRUST
OF
TELEBANC CAPITAL TRUST II
THIS DECLARATION OF TRUST is made as of May 22, 1998 (this
"Declaration"), by and among TeleBanc Financial Corporation, a Delaware
corporation, as sponsor (the "Sponsor"), Wilmington Trust Company, a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee") and Aileen
Lopez Pugh, David Smilow, and Mitchell Caplan, as administrative trustees (the
"Administrative Trustees," and, together with the Delaware Trustee, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "TeleBanc Capital
Trust II" (the "Trust"), in which name the Trustees or the Sponsor, to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute 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 constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in such form as the Trustees may
approve.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Series A Capital Securities and Series A Common 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 Trustees 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 agents of the Trustees (collectively,
including the Delaware
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Trustee in its individual capacity, 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 an Indemnified
Person for Expenses to the extent such Expenses result from the willful
misconduct, bad faith or gross negligence of such Indemnified Person, and (iii)
advance to each 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 sponsor of the Trust, and each Administrative
Trustee is hereby authorized, in its discretion, (i) to prepare and distribute
one or more registration statements, including a prospectus and prospectus
supplements and any amendment thereto, in preliminary and final form, relating
to the offering and sale of the Series A Capital Securities of the Trust under
the Securities Act of 1933, as amended (the "1933 Act"), and such forms or
filings as may be required by the 1933 Act, the Securities Exchange Act of 1934,
as amended, or the Trust Indenture Act of 1939, as amended, in each case
relating to the Series A Capital Securities of the Trust; (ii) to prepare,
execute and file on behalf of the Trust, such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents that shall be necessary or desirable to register or
establish the exemption from registration of the Series A Capital Securities of
the Trust under the securities or "Blue Sky" laws of such jurisdictions as the
Sponsor, on behalf of the Trust, may deem necessary or desirable; (iii) if and
at such time as determined by the Sponsor, to prepare, execute and file an
application, and all other applications, statements, certificates, agreements
and other instruments that shall be necessary or desirable, to have the Series A
Capital Securities listed on the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market, with the New York Stock Exchange or any
other national stock exchange or the Nasdaq National Market for listing or
quotation of the Series A Capital Securities of the Trust; (iv) to prepare,
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Series A Capital Securities of the Trust; (v) to
negotiate, execute, deliver and perform on behalf of the Trust one or more
underwriting agreements, trust agreements, guarantee agreements, indentures and
other similar or related agreements providing for or relating to the sale and
issuance of the Series A Capital Securities of the Trust and/or any other
interests in the Trust; and (vi) to prepare, execute and deliver on behalf of
the Trust any and all documents, papers and
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instruments as may be desirable in connection with any of the foregoing. Any
power of the Administrative Trustees hereunder to execute any document or take
other action on behalf of the Trust may be exercised by one Administrative
Trustee acting alone or by two or more Administrative Trustees acting together.
In the event that any filing referred to in this Section 5 is
required by the rules and regulations of Securities and Exchange Commission (the
"Commission"), PORTAL or state securities or Blue Sky laws to be executed on
behalf of the Trust by one or more Trustees, each Trustee, in its capacity as a
trustee of the Trust, so required to execute such filings 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, it being understood that a Trustee, in its
capacity as a trustee of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required to do
so by the rules and regulations of the Commission, PORTAL or applicable state
securities or Blue Sky laws.
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 within five (5) business
days after it has delivered to the Sponsor such notice requesting instructions,
or such shorter period of time as may be set forth in such notice, it shall
refrain from taking any action with respect to the matters described in such
notice to the Sponsor.
7. This Declaration may be executed in one or more counterparts.
8. The number of trustees of the Trust initially shall be four (4)
and thereafter the number of trustees of the Trust 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 of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
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 law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of
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the Trust may resign upon thirty days' prior notice to the Sponsor.
9. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[SIGNATURE PAGE FOLLOWS]
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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.
TELEBANC FINANCIAL CORPORATION, as
Sponsor
By: /s/ Mitchell Caplan
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Name: Mitchell Caplan
Title: President
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Delaware
Trustee of the Trust
By: /s/ Wilmington Trust Company
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Name:
Title:
Aileen Lopez Pugh, not in her individual
capacity but solely as Administrative
Trustee of the Trust
/s/ Aileen Lopez Pugh
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David Smilow, not in his individual
capacity but solely as Administrative
Trustee of the Trust
/s/ David Smilow
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Mitchell Caplan, not in his individual
capacity but solely as Administrative
Trustee of the Trust
/s/ Mitchell Caplan
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