Exhibit 4.10
DECLARATION OF TRUST
OF
COMMERCE CAPITAL TRUST V
THIS DECLARATION OF TRUST is made as of August 5, 2003 (this
"Declaration"), by and among Commerce Bancorp, Inc., a New Jersey corporation,
as sponsor (the "Sponsor"), The Bank of New York (Delaware), a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee"), The Bank of New York,
a New York banking corporation, as property trustee (the "Property Trustee") and
Xxxxxxx X. Xxxxx, C. Xxxxxx Xxxxxx, Xx. and Xxxxxx X. Xxxxxx, Xx., each as
administrative trustee (collectively, the "Administrative Trustees"). The
Delaware Trustee, the Property Trustee and the Administrative Trustees are
referred to herein collectively as the "Trustees" and each individually as a
"Trustee." The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Commerce Capital Trust
V" (the "Trust"), in which name the Trustees 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 Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute
the initial trust estate. The Trustees hereby declare that they 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 business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C.(S).3801, et seq. (the "Delaware Statutory
Trust Act"), and that this Declaration constitute the governing
instrument of the Trust. The Trustees are 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 Trustees 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 Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery
of such amended and restated Declaration of Trust (i) a Trustee
shall not have any duty or obligation hereunder or with respect to
the trust estate, except for the filing of the Certificate of Trust
with the Secretary of State of the State of Delaware and 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, a Trustee may take all actions which the Sponsor
deems necessary, convenient or incidental to effect the transactions
contemplated herein. The Trustees 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 Trustees. The right
of a Trustee to perform any discretionary act enumerated herein
shall not be construed as a duty.
4. The Delaware Trustee, in its capacity as trustee of the Trust, shall
not have any of the powers or duties of the Trustees set forth
herein (except as may be required under the Delaware Statutory Trust
Act) and shall be a trustee of the Trust for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
5. The Sponsor hereby agrees to (i) reimburse the Delaware Trustee for
all reasonable expenses (including reasonable fees and expenses of
counsel and other experts), (ii) indemnify, defend and hold harmless
the Delaware Trustee and the officers, directors, employees and
agents of the Delaware Trustee (collectively, including the Delaware
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 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 (including reasonable fees and
expenses of counsel) 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 5. The obligations of the
Sponsor under this Section 5 shall survive the resignation or
removal of the Delaware Trustee.
6. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and distribute one or more offering
memoranda in preliminary and final form, including any necessary or
desirable amendments, relating to the offering and sale of Preferred
Securities of the Trust in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended
(the "1933 Act"), and such forms or filings as may be required by
the 1933 Act, the Securities Exchange Act of 1934, as amended, or
the Trust Indenture Act of 1939, as amended, in each case relating
to the Preferred Securities of the Trust; (ii) 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 Preferred 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; (iii) to prepare,
execute and file an application, and all other applications,
statements, certificates, agreements and other instruments that
shall be necessary or desirable, to have the Preferred Securities
listed on the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market and, if and at such time as
determined by the Sponsor, with the New York Stock Exchange or any
other
national stock exchange or the Nasdaq National Market for
listing or quotation of the Preferred Securities of the Trust; (iv)
to prepare, execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred
Securities of the Trust; (v) to negotiate, execute, deliver and
perform on behalf of the Trust one or more dealer/manager
agreements, escrow agreements, subscription agreements and other
similar or related agreements providing for or relating to the sale
and issuance of the Preferred Securities of the Trust and/or any
other interests in the Trust; and (vi) 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. In the event that any filing
referred to in this Section 6 is required by the rules and
regulations of Securities and Exchange Commission (the
"Commission"), PORTAL or state securities or Blue Sky laws to be
executed on behalf of the Trust by a trustee, the Delaware Trustee,
in its capacity as a trustee of the Trust, or the Administrative
Trustees of the Trust, so required to execute such filings is or are
hereby authorized and 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 any 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, PORTAL or
applicable state securities or Blue Sky laws.
7. Each 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 Delaware Trustee shall not be required to take or refrain from
taking any such action if it shall have determined, or shall have
been advised by counsel, that such performance is likely to involve
the Delaware 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 Delaware Trustee is a party or is otherwise
contrary to law. If at any time the Delaware Trustee determines that
it requires or desires guidance regarding the application of any
provision of this Declaration or any other document, or regarding
compliance with any direction it receives hereunder, then the
Delaware 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 Delaware Trustee in reliance thereon. Until the Delaware
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.
8. The number of trustees of the Trust initially shall be five (5) 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
Delaware Statutory Trust Act, there shall at all times be one
trustee of the Trust that shall be either 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 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 days' prior notice to
the Sponsor.
9. This Declaration may be executed in one or more counterparts.
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).
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.
COMMERCE BANCORP, INC., as Sponsor
By:/s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
THE BANK OF NEW YORK (Delaware), as Delaware Trustee
By:/s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
THE BANK OF NEW YORK, as Property Trustee
By:/s/Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
/s/Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, as Administrative Trustee
/s/C. Xxxxxx Xxxxxx, Xx.
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C. Xxxxxx Xxxxxx, Xx., as Administrative
Trustee
/s/Xxxxxx X Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx., as Administrative Trustee
