EXHIBIT 4.11
DECLARATION OF TRUST OF Fund American Trust II
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 Reid T. Campbell and Dennis R. Smith,
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 II", 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
sue 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
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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.
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4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, 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 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 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 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 Reid T. Campbell and
Dennis R. Smith, 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,
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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).
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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.
FUND AMERICAN COMPANIES, INC.,
as Depositor
By: /s/ Jim Ritchie
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Name: Jim Ritchie
Title: Managing Director and
Chief Financial Officer
Bank One Delaware, Inc.,
as Delaware Trustee
By: /s/ Melissa G. Weisman
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Name: Melissa G. Weisman
Title:
/s/ Reid T. Campbell
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as Regular Trustee
Name: Reid T. Campbell
Title:
/s/ Dennis R. Smith
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as Regular Trustee
Name: Dennis R. Smith
Title: