Exhibit 4.4
Declaration of Trust
CONFORMED COPY
DECLARATION OF TRUST, dated as of October 31, 1997, among
Irvine Apartment Communities, Inc., a Maryland corporation, as Sponsor, Irvine
Apartment Communities, L.P., a Delaware limited partnership (the
"Partnership), the sole general partner of which is the Sponsor, Xxxxx X.
Xxxx, The Bank of New York, a New York banking corporation, and The Bank of
New York (Delaware), a Delaware banking corporation, not in their individual
capacities but solely as Trustees (collectively the "Trustees"). The Sponsor,
the Partnership and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "IAC Capital
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 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 constitutes 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 constitutes 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 the form attached hereto.
3. The Sponsor, the Partnership and the Trustees will enter
into an Amended and Restated Declaration of Trust, satisfactory to each such
party and substantially in the form included as an exhibit to the 1933 Act
Registration Statement referred to below, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
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 of 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.
4. The Sponsor, the Partnership and the Trustees hereby
authorize and direct the Sponsor, as the sponsor of the Trust, (i) to file
with the Securities and Exchange Commission (the "Commission") and execute, in
each case on behalf of the Trust, (a) a Registration Statement on Form S-11
(the "1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and (b) a Registration Statement on Form 8-A or
other appropriate form (the "1934 Act Registration Statement") (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under Section 12(b)
of the Securities Exchange Act of 1934, as amended; (ii) to file with the
New York Stock Exchange and execute on behalf of the Trust a listing
application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to
cause the Preferred Securities to be listed on the New York Stock Exchange;
(iii) to file and execute 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 shall be necessary or
desirable to register the Preferred Securities under the securities or
"Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the
Trust, may deem necessary or desirable; (iv) to prepare and execute
letters or documents to or instruments with, The Depository Trust Company
relating to the Preferred Securities; (v) to execute on behalf of the
Trust an underwriting agreement among the Trust, the Partnership and any
underwriter, dealer or agent relating to the Preferred Securities,
substantially in the form included as Exhibit 1.1 to the 1933 Act
Registration Statement and (vi) to incur (or cause the Partnership to
incur) expenses, execute documents and to take any other actions as shall
be necessary or desirable in offering the Preferred Securities. In the
event that any filing referred to in clauses (i)-(iii) above is required by
the rules and regulations of the Commission, the New York Stock Exchange or
state securities or Blue Sky laws, to be executed on behalf of the Trust by
the Trustees, Xxxxx X. Xxxx, in his capacity as Trustee of the Trust, 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 Bank of New York and The Bank of New York (Delaware), 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 the rules and regulations of the Commission, the New York Stock
Exchange or state securities or blue sky laws. In connection with all of
the foregoing, the Sponsor and each Trustee, solely in its capacity as
Trustee of the Trust, hereby constitutes and appoints Xxxxx X. Xxxx, Xxxxx
Xxxxx, Xxxxxxx Xxxxx and Xxxxx X. Xxxxx, and each of them, as his, her or
its, as the case may be, true and lawful attorneys-in-fact, and agents,
with full power of substitution and resubstitution, for the Sponsor or such
Trustee or in the Sponsor's or such Trustee's name, place and stead, in any
and all capacities, to sign any and all amendments (including post-
effective amendments) to the 1933 Act Registration Statement, the 1934 Act
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Sponsor
or such Trustee might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees 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; provided, however, that the number of
Trustees shall in no event be less than three (3); and provided, further that
to the extent required by the Business Trust Act, one Trustee 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 at any time, upon written notice
delivered to the Trustee. The Trustees may resign upon thirty days prior
notice to the Sponsor.
7. This Declaration of Trust may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
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.
Irvine Apartment Communities Inc.,
as Sponsor
By: /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
Irvine Apartment Communities., L.P.
By: Irvine Apartment Communities, Inc. its sole general partner
By: /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
The Bank of New York,
not in its individual capacity
but solely as Trustee
By: /s/ Van X. Xxxxx
-------------------------
Name: Van X. Xxxxx
Title: Assistant Vice President
The Bank of New York (Delaware),
not in its individual capacity
but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
/s/ Xxxxx X. Xxxx
-----------------------------
Xxxxx X. Xxxx,
not in his individual capacity
but solely as Trustee
CONFORMED COPY
CERTIFICATE OF TRUST OF IAC CAPITAL TRUST
This CERTIFICATE OF TRUST of IAC Capital Trust (the "Trust"),
dated as of October 31, 1997, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby
is IAC Capital Trust.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware is The Bank of New York (Delaware), a Delaware banking corporation,
Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of
the Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware),
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
The Bank of New York,
as Trustee
By: /s/ Van X. Xxxxx
---------------------------
Name: Van X. Xxxxx
Title: Assistant Vice President
/s/ Xxxxx X. Xxxx
-------------------------------
Xxxxx X. Xxxx,
as Trustee
