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Exhibit 4.4
DECLARATION OF TRUST
OF
BFD PREFERRED CAPITAL TRUST II
THIS DECLARATION OF TRUST is made as of August 18, 2000 (this
"Declaration"), by and among BostonFed Bancorp, Inc., a Delaware corporation, as
sponsor (the "Sponsor"), Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee"), and Xxxx X. Xxxxx, as
administrative trustee (the "Administrative Trustee"). The Delaware Trustee and
the Administrative Trustee are referred to herein collectively as the "Trustees"
and each individually as a "Trustee". The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "BFD Preferred 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
xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the Trust
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. ss. 3801, ET SEQ. (the "Business Trust Act"), and that this
Declaration constitute 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 the form attached to this
Declaration.
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 by the Trust
of the Capital Securities and Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Declaration of Trust (i)
a 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
Sponsor shall take or cause to be taken 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, a
Trustee may take all actions which the Sponsor deems necessary, convenient or
incidental to effect the transactions contemplated herein. The Trustees shall
not have any duty or obligation under or in connection with this Declaration or
any document contemplated hereby, except as expressly provided by the terms of
this Declaration, and no implied duties or obligations shall be read into this
Declaration against the Trustees. The right of a Trustee to perform any
discretionary act enumerated herein shall not be construed as a duty.
4. The Sponsor hereby agrees to (i) reimburse the Delaware Trustee for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts), (ii) indemnify, defend and hold harmless the Delaware Trustee and the
officers, directors, employees and agents of the Delaware Trustee (collectively,
including the Delaware Trustee in its individual capacity, the "Indemnified
Persons") from and against any and all losses, damages, liabilities,
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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 bad faith or negligence of such Indemnified Person, and (iii)
advance to each such Indemnified Person Expenses (including reasonable fees and
expenses of counsel) 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 such Indemnified Person, to repay such amount if
it shall be determined that such Indemnified Person is not entitled to be
indemnified therefor under this Section 4. The obligations of the Sponsor under
this Section 4 shall survive the resignation or removal of the Delaware Trustee.
5. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and distribute one or more offering memoranda in
preliminary and final form, including any necessary or desirable amendments,
relating to the offering and sale of Capital Securities of the Trust in a
transaction exempt from the registration requirements of 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 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 Capital Securities of the Trust under the securities or
"Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable; (iii) 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 Capital
Securities listed on the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market and, if and at such time as determined by
the Depositor, with the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing or quotation of the 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
Capital Securities of the Trust; (v) to negotiate, execute, deliver and perform
on behalf of the Trust one or more purchase agreements, registration rights
agreements, dealer/manager agreements, escrow agreements, subscription
agreements and other similar or related agreements providing for or relating to
the sale and issuance of the 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, certificates, papers, instruments and other
writings as it deems desirable in connection with any of the foregoing.
6. 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 a trustee, the Delaware 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
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all of the foregoing, it being understood that any 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.
7. Each Trustee is authorized to 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, or regarding compliance with any direction it received hereunder, 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 and other performance by the Delaware Trustee in reliance thereon.
Until the Delaware Trustee has received such instructions after delivering such
notice, it may refrain from taking any action with respect to the matters
described in such notice.
8. The number of trustees of the Trust initially shall be two (2) 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, to
the extent required by the Business Trust Act, there shall at all times be one
trustee of the Trust that 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 the Trust may resign upon thirty days' prior notice to the
Sponsor.
9. This Declaration may be executed in one or more counterparts.
10. 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.
BOSTONFED BANCORP, INC.,
as Sponsor
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President & CFO
WILMINGTON TRUST COMPANY, as
Delaware Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
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Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, as Administrative Trustee
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