EXHIBIT 4.4
DECLARATION OF TRUST
OF
TELEBANC CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of June 2, 1997 (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 Xxxxxx
Xxxxx Xxxx, Xxxxx Xxxxxx, and Xxxxxxxx Xxxxxx, 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 I" (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. ss. 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
Capital Securities and 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 agent of the Trustees (collectively, including
the Delaware 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 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 Sponsor, 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 Sponsor, 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, papers and 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 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]
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/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: President
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Delaware
Trustee of the Trust
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Administrative Account
Manager
Xxxxxx Xxxxx Xxxx, not in her
individual capacity but solely as
Administrative Trustee of the Trust
/s/ Xxxxxx Xxxxx Xxxx
-----------------------
Xxxxx Xxxxxx, not in his individual
capacity but solely as Administrative
Trustee of the Trust
/s/ Xxxxx Xxxxxx
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Xxxxxxxx Xxxxxx, not in his
individual capacity but solely as
Administrative Trustee of the Trust
/s/ Xxxxxxxx Xxxxxx
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