EXHIBIT 4.4
DECLARATION OF TRUST
OF
ASTORIA CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of October 18, 1999 (this
"Declaration"), by and among Astoria Financial Corporation, a Delaware
corporation, as sponsor (the "Sponsor"), and Wilmington Trust Company, a
Delaware banking corporation, as Delaware trustee (the "Trustee"). The Sponsor
and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Astoria Capital Trust
I" (the "Trust"), in which name the Trustee 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 Trustee hereby acknowledges receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The 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 constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
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this Declaration constitute the governing instrument of the Trust. The Trustee
is 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 Trustee 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)
the 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, the
Trustee may take all actions which the Sponsor deems necessary, convenient or
incidental to effect the transactions contemplated herein. The Trustee 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 Trustee. The right of the Trustee to perform any
discretionary act enumerated herein shall not be construed as a duty.
4. The Sponsor hereby agrees to (i) reimburse the Trustee for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts), (ii) indemnify, defend and hold harmless the Trustee and the officers,
directors, employees and agents of the Trustee (collectively, including the
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
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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 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
Trustee, shall survive the termination, amendment, supplement, and/or
restatement of this Declaration, and shall survive the transfer by the Sponsor
of any or all of its interest in the Trust pursuant to Section 5 below or
otherwise.
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.
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 Trustee, in its
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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 the
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 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 Trustee shall not be
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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 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 Trustee is a party or is otherwise contrary to law. If at any time the
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 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 Trustee in reliance thereon. Until the 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.
7. This Declaration may be executed in one or more counterparts.
8. The number of trustees of the Trust initially shall be one (1)
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,
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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 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 of
Trust to be duly executed as of the day and year first above written.
ASTORIA FINANCIAL CORPORATION,
as Sponsor
By:/s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President &
General Counsel
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
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Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
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