Exhibit 4.2
DECLARATION OF TRUST
OF
HAVEN CAPITAL TRUST II
THIS DECLARATION OF TRUST, dated as of March 26, 1999 (this
"Declaration"), is by and among Haven Bancorp, Inc., a Delaware corporation, as
sponsor (the "Sponsor"), The Chase Manhattan Bank, a New York banking
corporation, as trustee, Chase Manhattan Bank Delaware, a Delaware banking
corporation, as trustee, and Xxxxxxxxx Xxxxxxxx, Xxxxxx X. Xxxx and Xxxx X.
Xxxxx each as trustees (collectively, the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Haven 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. Such amount shall constitute the initial trust estate. 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.
X.xx. 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 and having substantially
the same terms described in the Registration Statement (as defined below), 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, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or 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, as the sponsor of the Trust, is hereby authorized (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 (each a "Registration Statement"), relating to the offering and
sale by the Trust of its Capital Securities under the Securities Act of 1933, as
amended (the "Securities Act") and such forms or filings as may be required by
the Securities 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 and the Common Securities of the Trust and certain other securities;
(ii) to 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 as the Sponsor, on behalf of the Trust,
may deem necessary or desirable to register the Capital Securities under, or
obtain for the Capital Securities and Common Securities and certain
other securities an exemption from, the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iii) to execute, deliver and perform on behalf of the Trust such
underwriting or purchase agreements with one or more underwriters, purchasers or
agents relating to the offering of the Capital Securities as the Sponsor, on
behalf of the Trust, may deem necessary or desirable; (iv) to execute and file
on behalf of the Trust with the Private Offering, Resales and Trading through
Automatic Linkages (PORTAL) Market ("PORTAL") or a national securities exchange
or an automated securities quotation system, a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Trust's
Capital Securities to be listed on PORTAL or such exchange or automated
securities quotation system; (v) to execute and deliver letters or documents to,
or instruments for filing with, a depository relating to the Capital Securities
and Common Securities of the Trust and certain other securities; and (vi) to
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. If any
filing referred to in clauses (i), (ii), (iv) or (v) above is required by law or
by the rules and regulations of any applicable governmental agency,
self-regulatory organization or other person or organization to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacities as
trustees of the Trust, are hereby authorized to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being understood
that the Trustees, in their capacities as trustees 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 by law or by the rules and regulations of any
applicable governmental agency, self-regulatory organization or other person or
organization.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be five, 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. 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 30 days' prior written notice to the
Sponsor.
7. 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).
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration to be
duly executed as of the day and year first above written.
HAVEN BANCORP, INC.
as Sponsor
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President, General Counsel
and Secretary
THE CHASE MANHATTAN BANK
not in its individual capacity
but solely as trustee of the Trust
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CHASE MANHATTAN BANK DELAWARE
not in its individual capacity
but solely as trustee of the Trust
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Trust Officer
/s/ Xxxxxxxxx Xxxxxxxx
-------------------------------------------------
Xxxxxxxxx Xxxxxxxx
not in her individual capacity
but solely as trustee of the Trust
/s/ Xxxxxx X. Xxxx
-------------------------------------------------
Xxxxxx X. Xxxx
not in his individual capacity
but solely as trustee of the Trust
/s/ Xxxx X. Xxxxx
-------------------------------------------------
Xxxx X. Xxxxx
not in his individual capacity
but solely as trustee of the Trust
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