DECLARATION OF TRUST
Exhibit
4.1
This
DECLARATION OF TRUST is made this ____ day of ______________, 2007 (this
“Declaration of Trust”), by and among (i) Community Banks, Inc., a
Pennsylvania corporation (the “Depositor”), (ii) Wilmington Trust Company,
a Delaware banking corporation, as trustee (“the Trustee”), and
(iii) Xxxxxx X. Xxxx and V. Xxxxxxx Xxxxxx, 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 “CMTY Capital Statutory
Trust V,” 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 38 of Title 12 of the
Delaware Code, 12 Del. C. §§ 3801, 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
Delaware 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
Fixed/Floating Rate Capital Securities and Fixed/Floating Rate Common Securities
referred to therein (the “Securities”). 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 Delaware 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 Delaware, (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 Wilmington Trust Company, or (iii) subject
Wilmington Trust Company to personal jurisdiction in any jurisdiction other
than
the State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by the Trustee 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 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 Wilmington Trust Company
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 V. Xxxxxxx Xxxxxx, each as Administrator and not in their
individual capacities, hereby constitute and appoint Xxxxxx X. Xxxx and
V. Xxxxxxx Xxxxxx 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 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.
2
5. The
Administrators hereby authorize and direct the Depositor to negotiate the
placement agreement, to be entered into among the Trust, the Depositor and
the
placement agents therein relating to the sale and issuance of the Securities,
on
behalf of the Trust.
6. This
Declaration of Trust may be executed in one or more counterparts.
7. 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 written notice
to the Depositor.
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).
Signatures
appear on the following page
3
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.
WILMINGTON
TRUST COMPANY,
as
Trustee
By:_______________________________
Print
Name:_________________________
Title:______________________________
COMMUNITY
BANKS, INC.,
as Depositor
By:________________________________
Print
Name:__________________________
Title:_______________________________
ADMINISTRATORS
OF CMTY
CAPITAL STATUTORY TRUST V
By:________________________________
XXXXXX
X. XXXX, as Administrator
By:_________________________________
V.
XXXXXXX XXXXXX, as Administrator
4
