EXHIBIT 4.11
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of April 10, 1997, by and between Provident
Companies, Inc., a Delaware corporation, as "Depositor," First Union Trust
Company, National Association, a national banking association, as trustee (the
"Delaware Trustee") and Xxxxx X. Xxxx, as trustee (the "Regular Trustee")
(together with the Delaware Trustee, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
Section 1. THE TRUST. The trust created hereby shall be known as
Provident Financing Trust I (the "Trust"), in which name the Trustees or the
Depositor, to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and xxx and be sued.
Section 2. THE TRUST ESTATE. The Depositor 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 Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby declare that they
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.
(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
accordance with the provisions of the Business Trust Act.
Section 3. AMENDED AND RESTATED TRUST AGREEMENT. The Depositor and the
Trustees will enter into an amended and restated Declaration of Trust,
satisfactory to each such party and substantially in the form to be included as
an exhibit to the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities (as defined below) and common securities of the Trust
to be referred to therein. Prior to the execution and delivery of such amended
and restated Declaration of Trust, 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 the Regular Trustee or the Depositor 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.
Section 4. INDEMNIFICATION. The Depositor hereby agrees to (i) reimburse
the Trustees for all reasonable expenses (including reasonable fees and expenses
of counsel and other skilled professionals) and (ii) indemnify, defend and hold
harmless the Trustees and their officers, directors, employees and agents
(collectively, 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 Trust
Agreement, the creation, operation or termination of the Trust or the
transactions contemplated hereby; provided, however, that the Depositor shall
not be required to indemnify an Indemnified Person for Expenses incurred by such
Indemnified Person to the extent such Expenses are incurred as a result of the
willful misconduct, bad faith or gross negligence of such Indemnified Person.
Section 5. CERTAIN AUTHORIZATIONS. The Depositor, as the sponsor of the
Trust, and the Regular Trustee are hereby authorized, in the discretion of the
Depositor (i)to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust (a)the
Registration Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to such 1933 Act
Registration Statement (including the prospectus and the exhibits contained
therein), relating to the registration under the Securities Act of 1933, as
amended, of the preferred securities of the Trust (the "Preferred Securities")
and certain other securities of the Depositor and (b)a Registration Statement on
Form 8-A (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 of the Securities Exchange
Act of 1934, as
amended; (ii)to file with one or more national securities exchanges (each, an
"Exchange") or the National Association of Securities Dealers ("NASD") and
execute on behalf of the Trust a listing application or applications 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 any such Exchange or the NASD's Nasdaq National Market ("NASDAQ");
(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 the Depositor, on behalf of the Trust,
may deem necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws; and (iv)to execute on behalf of the Trust such
Underwriting Agreements with one or more underwriters relating to the offering
of the Preferred Securities as the Depositor, on behalf of the Trust, may deem
necessary or desirable. In the event that any filing referred to in clauses (i),
(ii) and (iii) above is required by the rules and regulations of the Commission,
any Exchange, the NASD or state securities or "Blue Sky" laws, to be executed on
behalf of the Trust by a Trustee, the Depositor and the Trustees and any trustee
appointed pursuant to Section 7 hereof 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 Delaware 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 by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
Section 6. COUNTERPARTS. This Declaration of Trust may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 7. TRUSTEES. The number of Trustees initially shall be two (2)
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 Depositor, which may
increase or decrease the number of trustees; provided, however, 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 and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
trustee at any time. Any trustee may resign upon thirty days' prior notice to
the Depositor.
Section 8. GOVERNING LAW. This Declaration of Trust shall be governed by,
and construed in accordance with, the laws of the State of Delaware (without
regard to conflicts of law 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.
PROVIDENT COMPANIES, INC.,
as Depositor
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President, Secretary
and Counsel
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION,
not in its individual capacity,
but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Vice President
XXXXX X. XXXX,
not in her individual capacity,
but solely as Trustee
/s/ Xxxxx X. Xxxx
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