EXHIBIT 3.3
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DECLARATION OF TRUST
EAGLE FINANCIAL CAPITAL TRUST I
DATED AS OF MARCH 26, 1997
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions..............................................1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name ................................................4
SECTION 2.2 Office ................................................4
SECTION 2.3 Purpose ................................................4
SECTION 2.4 Authority................................................5
SECTION 2.5 Title to Property of the Trust...........................5
SECTION 2.6 Powers of the Trustees...................................5
SECTION 2.7 Filing of Certificate of Trust...........................6
SECTION 2.8 Duration of Trust........................................6
SECTION 2.9 Responsibilities of the Sponsor..........................6
SECTION 2.10 Declaration Binding on Holders of Securities.............7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees 8
SECTION 3.2 Delaware Trustee.........................................8
SECTION 3.3 Execution of Documents...................................8
SECTION 3.4 Not Responsible for Recitals.............................9
or Sufficiency of Declaration.........10
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation..............................................9
SECTION 4.2 Fiduciary Duty..........................................10
SECTION 4.3 Indemnification.........................................11
SECTION 4.4 Outside Businesses......................................14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments..............................................14
SECTION 5.2 Termination of Trust....................................14
SECTION 5.3 Governing Law...........................................15
SECTION 5.4 Headings ...............................................15
SECTION 5.5 Successors and Assigns..................................15
SECTION 5.6 Partial Enforceability..................................15
SECTION 5.7 Counterparts............................................15
DECLARATION OF TRUST
OF
EAGLE FINANCIAL CAPITAL TRUST I
MARCH 26, 1997
DECLARATION OF TRUST ("Declaration") dated and effective as of
March 26, 1997 by the Trustees (as defined herein), the Sponsor (as defined
herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Business Trust Act (as defined herein) for
the sole purpose of (i) issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust (ii) holding certain
Debentures of the Debenture Issuer (each as defined herein) and (iii) engaging
in only those other activities necessary, advisable or incidental thereto; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and that
this Declaration constitutes the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration of Trust as
modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this
Declaration unless otherwise specified;
(e) a reference to the singular includes the plural and
vice versa;
(f) a reference to any Person shall include its successors
and assigns;
(g) a reference to any agreement or instrument shall mean
such agreement or instrument as supplemented,
modified, amended and restated and in effect from time
to time; and
(h) a reference to any statute, law, rule or regulation,
shall include any amendments thereto and any
successor, statute, law, rule or regulation.
"Administrative Trustee" means any Trustee other than the
Delaware Trustee and the Property Trustee.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York, Wilmington, Delaware or in Bristol,
Connecticut are authorized or required by any applicable law or executive order
to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C.ss.ss. 3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Capital Security" means a security representing an undivided
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration and designated as a Capital Security.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration and designated as a Common Security.
"Common Security Holder" means the Person (or Persons, as the
case may be) in whose name Common Securities are registered, such Person or
Persons being a beneficial owner (or beneficial owners, as the case may be)
within the meaning of the Business Trust Act.
"Company Indemnified Person" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, sharehold-
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ers, members, partners, employees, representatives or agents of any
Administrative Trustee; or (d) any employee or agent of the Trust or its
Affiliates.
"Covered Person" means any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or the Trust's
Affiliates.
"Debenture Issuer" means Eagle Financial, in its capacity as
the issuer of the Debentures under the Indenture.
"Debentures" means the Junior Subordinated Deferrable Interest
Debentures to be issued by the Debenture Issuer pursuant to the Indenture and
acquired by the Trust.
"Debenture Trustee" means the original trustee under the
Indenture until a successor is appointed thereunder, and thereafter means any
such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Eagle Financial" means Eagle Financial Corp., a Delaware
corporation, or any successor entity.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 4.3 (b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into between
Eagle Financial and the Debenture Trustee pursuant to which the Debentures are
to be issued.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Property Trustee" has the meaning set forth in Section 3.1.
"Securities" means collectively the Common Securities and the
Capital Securities.
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"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means Eagle Financial in its capacity as sponsor of
the Trust.
"Trust" means Eagle Financial Capital Trust I, a trust formed
under the laws of the State of Delaware.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and reference herein to a Trustee or the Trustees shall refer
to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name
The Trust created by this Declaration is named "Eagle
Financial Capital Trust I." The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Administrative
Trustees.
SECTION 2.2 Office
The address of the principal office of the Trust is Eagle
Financial Capital Trust I, c/o Eagle Financial Corp., 222 Main Street, Bristol,
Connecticut 06010, Attention: Robert J. Britton, Administrative Trustee. On ten
Business Days' written notice to the holders of Securities, the Administrative
Trustees may designate another principal office.
SECTION 2.3 Purpose
The exclusive purposes and functions of the Trust are to (a)
issue and sell Securities, (b) purchase and hold certain Debentures of the
Debenture Issuer and (c) engage in only those other activities necessary,
advisable or incidental thereto. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust.
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SECTION 2.4 Authority
Subject to the limitations provided in this Declaration, the
Administrative Trustees shall have exclusive and complete authority to carry out
the purposes of the Trust. An action taken by the Administrative Trustees in
accordance with their powers shall constitute the act of and serve to bind the
Trust. In dealing with the Administrative Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority of the
Administrative Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Administrative
Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust
Legal title to all assets of the Trust shall be vested in the
Trust.
SECTION 2.6 Powers of the Trustees
The Administrative Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than one series
of Capital Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other than the
Securities;
(b) in connection with the issue and sale of the Capital
Securities, at the direction of the Sponsor, to:
(i) execute, if necessary, an offering memorandum (the
"Offering Memorandum") in preliminary and final form prepared by the Sponsor, in
relation to the offering and sale of Capital Securities (i) to qualified
institutional buyers in reliance on Rule 144A under the Securities Act, and (ii)
to institutional "accredited investors" (as defined in Rule 501 (a) (1), (2),
(3) or (7) under the Securities Act);
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Capital Securities in any State or
foreign jurisdiction, if any, in which the Sponsor has determined to qualify or
register such Capital Securities for sale;
(iii) execute and deliver letters, documents, or
instruments with The Depository Trust Company relating to the Capital
Securities;
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(iv) execute and file an application, and all other
applications, statements, certificates, agreements and other instruments that
shall be necessary or desirable, for including the Capital Securities in the
Private Offering, Resales and Trading through Automated Linkages System;
(v) execute and enter into subscription agreements,
purchase agreements, registration rights agreements and other related agreements
providing for the sale of the Securities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses that are necessary or incidental to
carry out any of the purposes of this Declaration, which expenses shall be paid
for by the Sponsor in all respects; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust
On or after the date of execution of this Declaration, the
Trustees shall cause the filing of the Certificate of Trust for the Trust in the
form attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for thirty-one (31) years from the date
hereof.
SECTION 2.9 Responsibilities of the Sponsor
In connection with the issue and sale of the Capital
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare the Offering Memorandum, including any
amendments or supplements thereto;
(b) to determine the States and foreign jurisdictions, if any,
in which to take appropriate action to qualify or register for sale all or part
of the Capital Securities and to do any and all such acts, other than actions
which must be taken by the Trust, and advise the Trust of actions it must take,
and prepare for execution
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and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such States and foreign jurisdictions, if any; and
(c) to negotiate the terms of subscription agreements,
purchase agreements, registration rights and other related agreements providing
for the sale of the Securities.
SECTION 2.10 Declaration Binding on Holders of Securities
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees
The number of Trustees initially shall be four (4), 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 Sponsor. The Sponsor is
entitled to appoint or remove without cause any Trustee at any time; provided,
however that the number of Trustees shall in no event be less than two (2);
provided, further that (1) one Trustee, in the case of a natural person, shall
be a person who is a resident of the State of Delaware or which, if not a
natural person, is an entity which has its principal place of business in the
State of Delaware (the "Delaware Trustee") and (2) there shall be at least one
Administrative Trustee who is an employee or officer of, or is affiliated with,
the Sponsor.
Except as expressly set forth in this Declaration, (i) if
there are more than two Administrative Trustees, any power of such
Administrative Trustees may be exercised by, or with the consent of, a majority
of such Administrative Trustees, (ii) if there are two Administrative Trustees,
any power of such Administrative Trustees shall be exercised by both
Administrative Trustees and (iii) if there is only one Administrative Trustee,
all powers of the Administrative Trustees shall be exercised by such one
Administrative Trustee.
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The initial Administrative Trustees shall be:
Robert J. Britton
Mark J. Blum
The initial Delaware Trustee shall be:
Wilmington Trust Company
Prior to the issuance of the Securities, the Sponsor shall
appoint another trustee (the "Property Trustee") meeting the requirements of the
Trust Indenture Act of 1939, as amended, by the execution of an amendment to
this Declaration executed by the Administrative Trustees, the Sponsor, the
Property Trustee and the Delaware Trustee.
SECTION 3.2 Delaware Trustee
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the
Administrative Trustees described in this Declaration. The Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of ss. 3807 of the Business Trust Act. Notwithstanding anything
herein to the contrary, the Delaware Trustee shall not be liable for the acts or
omissions to act of the Trust or of the Administrative Trustees except such acts
as the Delaware Trustee is expressly obligated or authorized to undertake under
this Declaration or the Business Trust Act and except for the gross negligence
or willful misconduct of the Delaware Trustee.
SECTION 3.3 Execution of Documents
(a) Unless otherwise determined by the Administrative
Trustees, and except as otherwise required by the Business Trust Act, any
Administrative Trustee is, or if there are more than two Administrative
Trustees, any two Administrative Trustees are, authorized to execute on behalf
of the Trust any documents which the Administrative Trustees have the power and
authority to cause the Trust to execute pursuant to Section 2.6; and
(b) an Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purposes of signing any documents which the
Administrative Trustees have power and authority to cause the Trust to execute
pursuant to Section 2.6.
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SECTION 3.4 Not Responsible for Recitals or Sufficiency of Declaration
The recitals contained in this Declaration shall be taken as
the 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.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person 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 the
Indemnified Person 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 holders of Securities might properly be paid.
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SECTION 4.2 Fiduciary Duty
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities, the Indemnified Person shall resolve such conflict
of interest, take such action or provide such terms,
considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
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SECTION 4.3 Indemnification
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a party
to, or is threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Company Indemnified Person against expenses
(including attorneys, fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party to, or is
threatened to be made a party to, any threatened, pending or completed action,
suit or proceeding by or in the right of the Trust to procure a judgment in its
favor by reason of the fact that he is or was a Company Indemnified Person,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with the
defense or settlement of such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Trust, except that no such indemnification shall be made
in respect of any claim, issue or matter as to which such Company Indemnified
Person shall have been adjudged to be liable to the Trust, unless and only to
the extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 4.3(a), or in defense of any claim, issue or matter therein, he
shall be indemnified,
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to the full extent permitted by law, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture Issuer
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made (1) by the Administrative
Trustees by a majority vote of a quorum consisting of such Administrative
Trustees who were not parties to such action, suit or proceeding, (2) if such a
quorum is not obtainable, or, even if obtainable, if a quorum of disinterested
Administrative Trustees so directs, by independent legal counsel in a written
opinion, or (3) by the Common Security Holder.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 4.3(a) shall be paid by the Debenture Issuer in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer
if a determination is reasonably and promptly made (i) by the Administrative
Trustees by a majority vote of a quorum of disinterested Administrative
Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Administrative Trustees so directs, by independent legal
counsel in a written opinion or (iii) by the Common Security Holder that, based
upon the facts known to the Administrative Trustees, counsel or the Common
Security Holder at the time such determination is made, such Company Indemnified
Person acted in bad faith or in a manner that such person did not believe to be
in or not opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Administrative Trustees, independent
legal counsel or the Common Security Holder reasonably determine that such
person deliberately breached his duty to the Trust or the holders of Securities.
(vi) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 4.3(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the Debenture Issuer or
Capital Security Holders of the Trust or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. All rights to indemnification
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under this Section 4.3(a) shall be deemed to be provided by a contract between
the Debenture Issuer and each Company Indemnified Person who serves in such
capacity at any time while this Section 4.3(a) is in effect. Any repeal or
modification of this Section 4.3(a) shall not affect any rights or obligations
then existing.
(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified Person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Debenture
Issuer would have the power to indemnify him against such liability under the
provisions of this Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 4.3(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 4.3(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons in
(i) through (iii) being referred to as a "Fiduciary Indemnified Person") for,
and to hold each Fiduciary Indemnified Person harmless against, any loss,
liability or expense incurred without gross negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
Trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 4.3(b) shall survive the termination of
this Declaration.
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SECTION 4.4 Outside Businesses
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. None of the Covered Persons, the Sponsor nor the Delaware Trustee
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary, trustee or agent for,
or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by all
of the Administrative Trustees, the Delaware Trustee and the Sponsor.
SECTION 5.2 Termination of Trust
(a) The Trust shall terminate and be of no further force
or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution
or its equivalent with respect to the Sponsor or the
revocation of the Sponsor's charter or of the Trust's
certificate of trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor or the Trust; and
(iv) before the issuance of any Securities, with the
consent of all of the Administrative Trustees and the Sponsor.
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(c) As soon as is practicable upon completion of winding-up of
the Trust after the occurrence of an event referred to in Section 5.2(a), the
Trustees shall file a certificate of cancellation with the Secretary of State of
the State of Delaware.
SECTION 5.3 Governing Law
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT
REGARD TO ITS PRINCIPLES OF CONFLICT OF LAWS.
SECTION 5.4 Headings
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 5.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned have caused this
Declaration to be executed as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Donald G. MacKelcan
---------------------------------------
Name: Donald G. MacKelcan
ADMINISTRATIVE TRUSTEE
By: /s/ Robert J. Britton
---------------------------------------
Name: Robert J. Britton
ADMINISTRATIVE TRUSTEE
By: /s/ Mark J. Blum
---------------------------------------
Name: Mark J. Blum
EAGLE FINANCIAL CORP.,
as Sponsor
By: /s/ Robert J. Britton
---------------------------------------
Name: Robert J. Britton
Title: President & Chief Executive
Officer