EXHIBIT 4.10
DECLARATION OF TRUST OF Fund American Trust I
THIS DECLARATION OF TRUST, dated as of October 30, 2001, among Fund
American Companies, Inc., a Delaware corporation, as Depositor (the
"Depositor"), Bank One Delaware, Inc., not in its individual capacity but solely
as trustee (the "Delaware Trustee",) and Xxxx X. Xxxxxxxx and Xxxxxx X. Xxxxx,
as trustees (the "Regular Trustees" and collectively with the Delaware Trustee,
the "Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Fund American
Trust I", in which name the Trustees, or the Depositor to the extent provided
herein, 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
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they 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. Section 3801 ET SEQ. (the "Business Trust Act"),
and that this document constitutes 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 accordance with the provisions of
the Business Trust Act.
3. The Depositor and Trustees will enter into an Amended and Restated
Declaration of Trust, satisfactory to each such party and substantially in the
form to be included as an Exhibit to the 1933 Act Registration Statement
referred to below, to provide for the contemplated operation of the Trust
created hereby and the issuance by such 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, the Trustees 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. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to prepare, execute and file with
the Securities and Exchange Commission (the "Commission"), in each case on
behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post- effective
amendments to such 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and certain other securities and (b) a Registration Statement on Form 8-A
(the "1934 Act Registration Statement") (including all pre- effective and
post-effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities Exchange Act of
1934, as amended; (ii) to prepare, execute and file with the New York Stock
Exchange (the "Exchange") and execute on behalf of the Trust a listing
application and all other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the Exchange; (iii) 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 as shall be necessary or desirable to register the Preferred
Securities under the securities or blue sky laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable and (iv) to
execute on behalf of the Trust that certain Underwriting Agreement relating to
the Preferred Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form to be included as an
Exhibit to the 1933 Act Registration Statement. In the event that any filing
referred to in clauses (i) through (iii) above is required by the rules and
regulations of the Commission, the Exchange or any other national stock exchange
or state securities or blue sky laws, to be executed on behalf of the Trust by
the Trustees, any Regular Trustee, in his 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 Bank
One Delaware, Inc., 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, the
Exchange or any other national stock exchange or state securities or blue sky
laws. In connection with all of the foregoing, the Depositor hereby constitutes
and appoints Xxxx X. Xxxxxxxx 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 in the Depositor's name, place and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, 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 might or could do in
person, thereby ratifying and 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 Trustees initially shall be three and thereafter the
number of Trustees 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 Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee 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 Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. Any Trustee may resign upon 30 days' prior written notice to the
Depositor.
7. The Delaware Trustee shall be a Trustee hereunder for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the Business
Trust Act.
8. This Declaration of Trust 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.
FUND AMERICAN COMPANIES, INC.,
as Depositor
By: /s/ Xxx Xxxxxxx
----------------------
Name: Xxx Xxxxxxx
Title: Managing Director and
Chief Financial Officer
Bank One Delaware, Inc.,
as Delaware Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
/s/ Xxxx X. Xxxxxxxx
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as Regular Trustee
Name: Xxxx X. Xxxxxxxx
Title:
/s/ Xxxxxx X. Xxxxx
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as Regular Trustee
Name: Xxxxxx X. Xxxxx
Title:
