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EXHIBIT 4(d)
DECLARATION OF TRUST
OF
CULLEN/FROST CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of February 3, 1997 (this
"Declaration"), by and between, Cullen/Frost Bankers, Inc., as sponsor (the
"Sponsor"), and The Bank of New York (Delaware), a Delaware banking
corporation, as trustee (the "Trustee"). The Sponsor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "Cullen/Frost
Capital Trust I" (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 ▇▇▇ and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over
to the Trust the sum of $10. Such amount shall constitute the initial trust
estate. 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. Section 3801, et seq. (the "Business Trust Act"), and that
this document constitute 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 such form as the Trustee may approve.
3. The Sponsor and the Trustee will enter into an amended and
restated Trust Agreement or Declaration 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 Trust
Agreement or Declaration, the Trustee shall not have any duty or obligation
hereunder or with respect of 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. Notwithstanding the foregoing, the Trustee may take all actions
deemed proper as are necessary to effect the transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in
its discretion, (i) to prepare one or more offering memoranda in preliminary
and final form relating to the offering and sale of the Capital 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 other forms or
filings as may be required by the 1993 Act, the Securities Exchange Act of
1934, as amended, or the Trust Indenture Act of 1939, as amended, in each case
relating to the Capital Securities of the Trust; (ii) 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 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; (iii) to execute and file an
application, and all other applications, statements, certificates, agreements
and other instruments that shall be necessary or desirable, to the Private
Offerings, Resales and Trading through Automated Linkages ("PORTAL")
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Market and, if and at such time as determined by the Sponsor, to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing or quotation of the Capital Securities of the Trust; (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Capital Securities of the Trust; and (v) to execute,
deliver and perform on behalf of the Trust one or more purchase agreements,
registration rights agreements, dealer manager agreements, escrow agreements
and other related agreements providing for or relating to the sale of the
Capital Securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by the Trustee, the
Trustee, in its capacity as trustee of the Trust, is 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 the Trustee, in its capacity
as 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, PORTAL or state securities or Blue Sky laws.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one 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,
that to the extent required by the Business Trust Act, one trustee of the Trust
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. 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.
7. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to conflict of
laws principles).
8. In the event that this Declaration is not amended and restated
within three days after the date hereof, the Trust shall automatically
terminate.
9. To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless the Trustee from and against any loss, damage
or claim incurred by the Trustee by reason of any act or omission performed or
omitted by the Trustee in good faith on behalf of the Trust and in a matter the
Trustee reasonably believed to be within the scope of authority conferred on
the Trustee by this Declaration, except that the Trustee shall not be entitled
to be indemnified, in respect of any loss, damage or claim incurred by the
Trustee by reason of gross negligence or willful misconduct with respect to
such acts or omissions.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
CULLEN/FROST BANKERS, INC.
as Sponsor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as trustee of the Trust
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
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