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EXHIBIT 3.1
DECLARATION OF TRUST
OF
COAST FEDERAL LITIGATION CONTINGENT PAYMENT RIGHTS TRUST
THIS DECLARATION OF TRUST is made as of January 8, 1998 (this
"Declaration"), by and among Coast Savings Financial, Inc., a Delaware
corporation, as sponsor (the "Sponsor"), Bankers Trust (Delaware), a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee"), and Bankers
Trust Company, a New York banking corporation, as institutional trustee (the
"Institutional Trustee", and together with the Delaware Trustee, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Coast Federal
Litigation Contingent Payment Rights Trust" (the "Trust"), in which name the
Institutional 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 Institutional Trustee the sum of $10. The Institutional Trustee
hereby acknowledges receipt of such amount in trust from the Sponsor, which
amount shall constitute the initial trust estate. The Institutional Trustee
hereby declares that it will hold the trust estate in trust for the holders of
the beneficial interests in the Trust. 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. ss. 3801, et seq. (the "Business Trust
Act"), and that this document constitute the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in the form attached
hereto as Exhibit A.
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. Prior to the execution and
delivery of such amended and restated Declaration of Trust (i) the Delaware
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
Institutional Trustee, at the written direction of the Sponsor, and the Sponsor
shall take 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 Trustees may take all actions
deemed proper as are necessary to effect the transactions contemplated herein.
4. The Sponsor hereby agrees to (i) reimburse each Trustee for
all reasonable expenses (including reasonable fees and expenses of counsel and
other experts), (ii) indemnify, defend and hold harmless each Trustee and the
officers, directors, employees and agents of such Trustee (collectively,
including such 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, to
the extent that such expenses arise out of or are imposed upon or asserted at
any time against one (1) or more Indemnified Persons with respect to the
performance of
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this Declaration, the creation, operation, administration or
termination of the Trust, or the transactions contemplated hereby (all such
expenses as provided in clause (i) and (ii) herein, collectively, "Expenses"),
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 gross negligence of such Indemnified Person,
and (iii) advance to each Indemnified Person Expenses (including reasonable
legal fees) 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 a written
request therefor and of an undertaking by or on behalf of the Indemnified Person
to repay such amount if it shall ultimately be determined that the 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 termination of
the Trust or the earlier resignation or removal of either Trustee.
5. The Sponsor, as sponsor of the Trust, or the Institutional
Trustee, in accordance with Section 6, is hereby authorized, in the Sponsor's
discretion: (i) to prepare, execute and file on behalf of the Trust, such
applications, consents, appointments of attorney for service of process and
other papers and documents 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 agreements, instruments and other documents;
(iii) to establish one or more accounts in the name of the Trust with the
Institutional Trustee for the purpose of crediting from time to time amounts
representing contributions from the Sponsor to the Trust, for use in the
operation of the Trust in accordance with the terms of this Agreement; and (iv)
to prepare, execute and deliver on behalf of the Trust any and all documents,
papers and instruments as may be desirable in connection with any of the
foregoing. Any power of the Sponsor, as sponsor of the Trust, hereunder to
execute any document or take other action on behalf of the Trust may be
exercised by the Sponsor directly or through one or more of its agents,
employees, partners, or delegates. In taking any action pursuant to this Section
5, the Sponsor is acting as Sponsor for the Trust and not in its individual
capacity, and all persons having any claim against the Sponsor by reason of the
transactions contemplated hereby, other than claim made by any Trustee pursuant
to Section 4 hereof, shall look only to the property of the Trust for payment or
satisfaction thereof.
6. The Institutional Trustee shall 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 Institutional
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 Institutional 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 Institutional Trustee is a party or is
otherwise contrary to law. If at any time the Institutional Trustee determines
that it requires or desires guidance regarding the application of any provision
of this Declaration or any other document, then the Institutional 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 by the Trustee in
reliance thereon. If the Institutional Trustee does not receive such
instructions within five (5) business days after it has delivered to the Sponsor
such notice requesting instructions, or
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such shorter period of time as may be set forth in such notice, it shall refrain
from taking any action with respect to the matters described in such notice. The
Sponsor designates Xxxxxx X. Xxxx XX as its agent for the purpose of providing
written instructions to the Institutional Trustee as contemplated herein, and
the Institutional Trustee shall be entitled to rely on any such written
instructions.
7. This Declaration may be executed in one or more
counterparts.
8. The number of trustees of the Trust initially shall be two
(2) 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 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 shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
10. Any moneys held by the Institutional Trustee hereunder
shall be held as a special deposit account in trust for the purposes for which
held and the Institutional Trustee shall not have any liability for interest
upon any such moneys, and such moneys need not be segregated or invested.
11. The Institutional Trustee shall have no duties except as
are expressly provided herein and as otherwise required by applicable law. The
Trustees shall have no duty to confirm the completeness or accuracy of any
documentation provided to them by or on behalf of the Sponsor or to inspect or
confirm the acceptability of any property of the Trust. The Trustees shall not
be held responsible for the use of Trust property by the Sponsor or third
parties.
12. In executing the trust established hereby, the Trustees
act solely as trustees and not in their respective individual capacities and all
persons having any claim against the Trustees by reason of the transactions
contemplated hereby shall look only to the property of the Trust for payment or
satisfaction thereof.
13. No trustee, officer, shareholder, employee or agent of the
Sponsor shall be held to any personal liability, jointly or severally, for any
obligation of, or claim against, the Sponsor.
14. The recitals contained in this Declaration shall be taken
as statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
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15. (a) The Trustees shall not be liable, responsible or
accountable for damages or otherwise to the Trust, the Sponsor or any
beneficiary for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Trustee in good faith on behalf of the
Trust and in a manner such Trustee reasonably believed to be within the scope of
authority conferred on it by this Declaration or by law, except that such
Trustee shall be liable for any such loss, damage or claim incurred by reason of
its gross negligence or willful misconduct with respect to such acts or
omissions.
(b) The Trustees shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any person as to matters such
Trustee reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the Trust, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
beneficiaries might properly be paid.
16. The Trust may terminate without issuing any securities or
beneficial interests at the election of the Sponsor.
[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.
Coast Savings Financial, Inc., as Sponsor
By: /s/ XXXXXX X. XXXX XX
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Name: Xxxxxx X. Xxxx XX
Title: President, Director and
Chief Operating Officer
Bankers Trust Company, not in its
individual capacity but solely as
Institutional Trustee
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Assistant Vice President
Bankers Trust (Delaware), not in its
individual capacity but solely as
Delaware Trustee
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Assistant Secretary
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EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of Coast Federal Litigation Contingent
Payment Rights Trust, desiring to form a business trust pursuant to the Delaware
Business Trust Act, 12 Del. C. ss.3801, et seq., hereby certify as follows:
(a) The name of the business trust being formed hereby
(the "Trust") is Coast Federal Litigation Contingent
Payment Rights Trust.
(b) The name and business address of the trustee of the
Trust which has its principal place of business in
the State of Delaware is as follows:
Bankers Trust (Delaware)
E.A. Delle Donne Corporate Center
Xxxxxxxxxx Building
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
IN WITNESS WHEREOF, the undersigned have duly executed this
Certificate of Trust.
Bankers Trust (Delaware), not in its
individual capacity but solely as Trustee
By:____________________________________
Name: Xxxx Xxxxxxx
Title: Assistant Secretary
Bankers Trust Company, not in its
individual capacity but solely as Trustee
By:____________________________________
Name: Xxxxx Xxxxx
Title: Assistant Vice President
