EXHIBIT 4.2
DECLARATION OF TRUST
Declaration of Trust, dated as of November 15, 2000, between
Commonwealth Bankshares Inc., a Virginia corporation, as Depositor (the
"Depositor") and Wilmington Trust Company ("Wilmington Trust"), a Delaware
banking corporation, not in its individual capacity but solely as Trustee (the
"Trustee"). The Depositor and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as Commonwealth
Bankshares Capital Trust I, in which name the Trustee may conduct the business
of the Trust, make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trustee the sum of $1. The Trustee hereby acknowledges receipt of
such amount in trust from the Depositor, which amount shall constitute the
initial trust estate. The Trustee hereby declares that it will hold the trust
estate in trust for the Depositor. 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. and that this
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document constitute the governing instrument of the Trust. The Trustee is 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 Depositor 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. Prior to the
execution and delivery of such amended and restated Declaration of Trust, the
Trustee 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.
4. (a) Except as otherwise expressly required in Section 2 of
this Declaration of Trust, the Trustee shall not have any duty or liability with
respect to the administration of the Trust, the investment of the Trust's
property or the payment of dividends or other distributions of income or
principal to the Trust's beneficiaries, and no implied obligations shall be
inferred from this Declaration of Trust on the part of the Trustee. The Trustee
shall not be liable for the acts or omissions of the Depositor or any other
person who acts on behalf of the Trust nor shall the Trustee be liable for any
act or omission by it in good faith in accordance with the directions of the
Depositor.
(b) The Trustee accepts the trusts hereby created and
agrees to perform its duties hereunder with respect to the same but only upon
the terms of this Declaration of Trust. The Trustee shall not be personally
liable under any circumstances, except for its own willful misconduct or gross
negligence. In particular, but not by way of limitation:
(i) The Trustee shall not be personally liable for
any error of judgment made in good faith by an officer or employee of the
Trustee;
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(ii) No provision of this Declaration of Trust shall
require the Trustee to expend or risk its personal funds or otherwise incur any
financial liability in the performance of its rights or duties hereunder, if the
Trustee shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
or provided to it;
(iii) Under no circumstance shall the Trustee be
personally liable for any representation, warranty, covenant or indebtedness of
the Trust;
(iv) The Trustee shall not be personally responsible
for or in respect of the genuineness, form or value of the Trust property, the
validity or sufficiency of this Declaration of Trust or for the due execution
hereof by the Depositor;
(v) In the event that the Trustee is unsure as to the
course of action to be taken by it hereunder, the Trustee may request
instructions from the Depositor and to the extent the Trustee follows such
instructions in good faith it shall not be liable to any person. In the event
that no instructions are provided within the time requested by the Trustee, it
shall have no duty or liability for its failure to take any action or for any
action it takes in good faith;
(vi) All funds deposited with the Trustee hereunder
may be held in a non-interest bearing trust account and the Trustee shall not be
liable for any interest thereon or for any loss as a result of the investment
thereof at the direction of the Depositor;
(vii) To the extent that, at law or in equity, the
Trustee has duties and liabilities relating thereto to the Depositor or the
Trust, the Depositor agrees that such duties and liabilities are replaced by the
terms of this Declaration of Trust.
(c) The Trustee shall incur no liability to anyone in
acting upon any document believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Trustee may accept a certified copy
of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the manner of ascertainment is not specifically prescribed
herein, the Trustee may for all purposes hereof rely on a certificate, signed by
the Depositor, as to such fact or matter, and such certificate shall constitute
full protection to the Trustee for any action taken or omitted to be taken by it
in good faith in reliance thereon.
(d) In the exercise or administration of the trusts
hereunder, the Trustee (i) may act directly or, at the expense of the Depositor,
through agents or attorneys, and the Trustee shall not be liable for the default
or misconduct of such attorneys or agents if such agents and attorneys shall
have been selected by the Trustee in good faith, and (ii) may, at the expense of
the Depositor, consult with counsel, accountants and other experts, and it shall
not be liable for anything done, suffered or omitted in good faith by it in
accordance with the advice or opinion of any such counsel, accountants or other
experts.
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(e) Notwithstanding anything contained herein to the
contrary, neither Wilmington Trust, nor the Trustee shall be required to take
any action in any jurisdiction other than the State of Delaware if the taking of
such action will (i) require the consent or approval or authorization or order
of or the giving of notice to, or the registration with or the taking of any
other action in respect of, any state or other governmental authority or agency
of any jurisdiction other than the State of Delaware, (ii) result in any fee,
tax or other governmental charge under the laws of any jurisdiction or any
political subdivision thereof in existence becoming payable by Wilmington Trust,
or (iii) subject Wilmington Trust to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by Wilmington Trust or the
Trustee, as the case may be, contemplated hereby.
(f) Except as expressly provided in this Section 4, in
accepting and performing the trusts hereby created, the Trustee acts solely as
trustee hereunder and not in its individual capacity, and all persons having any
claim against the Trustee by reason of the transactions contemplated by this
Declaration of Trust shall look only to the Trust's property for payment or
satisfaction thereof.
5. The Depositor hereby agrees to (i) compensate the Trustee
for its services hereunder in an amount separately agreed to by the Depositor
and the Trustee, (ii) reimburse the Trustee for all reasonable expenses
(including reasonable fees and expenses of counsel and other experts) and (iii)
indemnify, defend and hold harmless the Trustee and any of the officers,
directors, employees and agents of the Trustee (the "Indemnified Persons") from
and against any and all losses, damages, liabilities, claims, actions, suits,
costs, expenses, disbursements (including reasonable fees and expenses of its
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 Person with respect to the
performance of this Declaration of Trust, the creation, operation or termination
of the Trust or the transactions contemplated hereby; provided, however, that
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the Depositor shall not be required to indemnify any Indemnified Person for any
Expenses which are a result of the willful misconduct, bad faith or gross
negligence of such Indemnified Person. The obligations of the Depositor under
this Section 5 shall survive the termination of this Declaration of Trust.
6. The Trustee may resign upon thirty days prior notice to the
Depositor. If no successor has been appointed within such thirty day period, the
Trustee may, at the expense of the Trust, petition a court of competent
jurisdiction to appoint a successor trustee.
7. This Declaration of Trust constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreement and understandings between the parties.
8. This Declaration of Trust shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to is conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
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9. This Declaration of Trust may be executed in one or more
counterparts, each of which when so executed shall be an original and all of
which when taken together shall constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
COMMONWEALTH BANKSHARES, INC., as
Depositor
By: /s/ Commonwealth Bankshares, Inc.
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Name:
Title:
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Wilmington Trust Company
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Name:
Title:
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