Exhibit 10.4
DECLARATION OF TRUST
This DECLARATION OF TRUST is made this 26th day of January, 2001 (this
"Declaration of Trust"), by and among (i) Xxxxxx Financial Corporation, a
Minnesota corporation (the "Depositor"), (ii) State Street Bank and Trust
Company of Connecticut, National Association, a national banking association, as
trustee ("the Trustee"), and (iii) Xxxxxx X. Xxxx and Xxxxxx X. Xxxxx, each an
individual, as administrators (each an "Administrator" and collectively, the
"Administrators"). The Depositor, the Trustee and the Administrators hereby
agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Bremer
Statutory Trust I," in which name the Trustee, the Administrators or the
Depositor, to the extent provided herein, may engage in the transactions
contemplated hereby, 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 $10.00. 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 constitutes a statutory trust under Chapter 615 of Title 34
of the Connecticut General Statutes, Section 500, et seq. (the "Statutory Trust
Act"), and that this document constitutes the governing instrument of the Trust.
The Trustee is hereby authorized and directed to execute and file a certificate
of trust (the "Certificate of Trust") with the Connecticut Secretary of the
State in accordance with the provisions of the Statutory Trust Act.
3. The Depositor, the Trustee and the Administrators 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 of the Capital Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Declaration of
Trust, other than (i) the filing of the Certificate of Trust in accordance with
Section 2 herein and as further contemplated in Section 4 herein and (ii)
entering into a Placement Agreement among the placement agents, the Depositor
and the Trust, neither the Trustee nor the Administrators shall have any duty or
liability with respect to the administration of the trust estate, 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 or
the Administrators.
(i) The Trustee and the Administrators accept the trusts
hereby created and agree to perform their duties hereunder with respect to the
same but only upon the terms of this Declaration of Trust. Neither the Trustee
nor the Administrators shall be personally liable under any circumstances,
except for their own willful misconduct or gross negligence. In particular, but
not by way of limitation:
(A) No provision of this Declaration of Trust shall
require the Trustee or the Administrators to expend or risk their personal funds
or otherwise incur any financial liability in the performance of their rights or
duties hereunder, if the Trustee or any Administrator 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;
(B) Under no circumstance shall the Trustee or the
Administrators be personally liable for any representation, warranty, covenant
or indebtedness of the Trust;
(C) Neither the Trustee nor the Administrators shall
have liability for their action or inaction taken in good faith;
(D) 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; and
(E) To the extent that, at law or in equity, the
Trustee or the Administrators have duties and liabilities relating thereto to
the Trust, such duties and liabilities are replaced by the terms of this
Declaration of Trust.
(ii) Notwithstanding anything contained herein to the
contrary, the Trustee shall not be required to take any action in any
jurisdiction other than the State of Connecticut 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, in the case of the Trustee, the State of Connecticut,
(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 State Street Bank and Trust Company of Connecticut, National Association, or
(iii) subject State Street Bank and Trust Company of Connecticut, National
Association to personal jurisdiction in any jurisdiction other than the State of
Connecticut, as the case may be, for causes of action arising from acts
unrelated to the consummation of the transactions by the Trustee, as the case
may be, contemplated hereby.
(iii) Except as expressly provided in this Section 3, 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.
(iv) The Trustee may resign without cause at any time so long
as Trustee provides the Depositor and the Administrators at least thirty days'
prior written notice of such resignation. 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.
4. The Depositor, the Administrators and the Trustee hereby authorize
and direct the Depositor, as the sponsor of the Trust, 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 Capital Securities
under the securities or blue sky laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable. In the event that any
filing referred to above is required by the rules and regulations of the state
securities or blue sky laws to be executed on behalf of the Trust by one or more
of the Administrators, each of the Administrators, in its or his capacity as an
Administrator of the Trust, 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 State Street Bank and Trust
Company of Connecticut, National Association 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 documents unless required by the rules and regulations of the
state securities or blue sky laws. In connection with the filings referred to
above, the Depositor and Xxxxxx X. Xxxx and Xxxxxx X. Xxxxx, each as
Administrator and not in their individual capacities, hereby constitutes and
appoints Xxxxxx X. Xxxx and Xxxxxx X. Xxxxx, and each of them, as its true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Administrator or in the Depositor's or
such Administrator's name, place and stead, in any and all capacities, to sign
any and all documents with the administrators of the state securities or blue
sky laws, 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
Depositor or such Administrator might or could do in person, hereby ratifying
and
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confirming all that said attorneys-in-fact and agents or any of them, or their
respective 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 Administrators initially shall be two, and thereafter
the number of Administrators 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 Administrators. Subject to the foregoing, the Depositor
is entitled to appoint or remove without cause any Administrator or the Trustee
at any time. The Trustee or any Administrator may resign upon 30 days' prior
notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Connecticut (without regard to
conflict of laws principles).
SIGNATURES APPEAR ON THE FOLLOWING PAGE
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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.
XXXXXX FINANCIAL CORPORATION, as Depositor
By: /s/ Xxxxxx X. Xxxx
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Print Name: Xxxxxx X. Xxxx
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Title: Chief Financial Officer
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STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxx Xxxxxxx
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Print Name: Xxxxxx Xxxxxxx
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Title: Vice President
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BREMER STATUTORY TRUST I
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, as Administrator
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, as Administrator
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