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 document constitute
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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;
(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.
(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
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provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
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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