DECLARATION OF TRUST OF NPB Capital Trust VI
Exhibit
4.1
DECLARATION
OF TRUST OF
NPB
Capital Trust VI
THIS
DECLARATION OF TRUST is made as of January 13, 2006 (this "Declaration"),
by and
among National Penn Bancshares, Inc., a Pennsylvania corporation, as sponsor
(the "Sponsor"), and Christiana Bank & Trust Company, with its principal
place of business in the State of Delaware, as Delaware trustee (the "Trustee").
The Sponsor and the Trustee hereby agree as follows:
1. The
trust
created hereby shall be known as NPB Capital Trust VI (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 statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del.
C.
§ 3801, et seq. (the "Statutory Trust Act"), and that 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
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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 to indemnify an Indemnified Person for
Expenses to the extent such Expenses result from the willful misconduct,
bad
faith or negligence of such Indemnified Person, and (iii) advance to each
such Indemnified Person Expenses 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, 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 Sponsor, on behalf of the Trust, may deem necessary or desirable; (ii)
to
negotiate, execute, deliver and perform on behalf of the Trust one or more
placement agent 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; (iii) 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;
(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
as it
deems necessary or desirable; and (v) to appoint one or more administrators
of
the Trust and cause such person or persons to execute and deliver on behalf
of
the Trust any and all of the foregoing, including, without limitation, any
placement agreements.
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") or state
securities or Blue Sky laws to be executed on behalf of the Trust by a trustee,
the Trustee, in its capacity as a trustee of the Trust, so required to execute
such filings is hereby authorized and, to the extent so required, 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 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 required to take or refrain from taking any such
action
if the Trustee 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
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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 two 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,
to the
extent required by the Statutory 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 Delaware 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 (30) days prior notice
to
the Sponsor.
9. The
Sponsor is hereby authorized, in its discretion, to appoint one or more
administrators for the Trust, and each administrator so appointed shall have
the
full power and authority, and is hereby authorized, to execute and deliver
on
behalf of the trust agreements, documents, certificates, papers, instruments
and
other writings (including, without limitation, a capital securities purchase
agreement and a placement agreement), in each case as determined or directed
by
the Sponsor in its discretion.
10. 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).
[SIGNATURE
PAGE FOLLOWS]
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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.
NATIONAL
PENN BANCSHARES, INC.,
as
Sponsor
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By:
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Name:
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Title:
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CHRISTIANA
BANK & TRUST COMPANY,
As
Trustee
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By:
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Name:
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Title:
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