Exhibit 4.2
FIRST EMPIRE CAPITAL TRUST I
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of January ___, 1997, is by and among (i)
First Empire State Corporation, a New York corporation (the "Depositor"), (ii)
Bankers Trust Company, a New York banking corporation, as property trustee and
(iii) Bankers Trust (Delaware), a Delaware banking corporation, as Delaware
trustee (each of Bankers Trust Company and Bankers Trust (Delaware) a "Trustee,"
and collectively the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "First Empire
Capital Trust I."
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.
3. 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
constitutes the governing instrument of the Trust.
4. 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.
5. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially to the effect
set forth in the Registration Statement, to provide for the contemplated
operation of the Trust created hereby and the issuance of Capital Securities and
Common Securities referred to therein. Prior to the execution and delivery of
such amended and restated Trust Agreement, 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 of any licenses, consents or approvals required by
applicable law or otherwise.
6. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, to execute on behalf of the Trust that
certain Underwriting Agreement relating to the Capital Securities, among the
Trust, the Depositor and Xxxxxx Xxxxxxx & Co. Incorporated, as the
representative of the several Underwriters named therein.
7. This Trust Agreement may be executed in one or more counterparts.
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8. The number of Trustees initially shall be two (2) 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, who 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 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. The
Trustees may resign upon thirty (30) days' prior written notice to the
Depositor.
9. This Trust Agreement 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, intending to be legally bound,
have caused this Trust Agreement to be duly executed as of the date first
written above.
FIRST EMPIRE STATE CORPORATION,
as Depositor
By: _________________________________
Name:
Title:
BANKERS TRUST COMPANY,
as property trustee
By: _________________________________
Name:
Title:
BANKERS TRUST (DELAWARE),
as Delaware trustee
By: _________________________________
Name:
Title:
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