Exhibit 4.12
TRUST AGREEMENT
OF
XXXXXXXXX-XXXX FINANCING I
THIS TRUST AGREEMENT is made as of August 18, 1997 (this "Trust
Agreement"), by and among Xxxxxxxxx-Xxxx Company, as Depositor (the
"Depositor"), and Xxxx X. Xxxxxxxx, as trustee, Xxxxx Casablanca, as trustee,
Xxxxxx X. Xxxxxx, as trustee, and Xxxxxxxx Xxxxxxxxx, as trustee
(collectively, the "Trustees"). The Depositor and the Trustees hereby agree
as follows:
1. The trust created hereby shall be known as "Xxxxxxxxx-Xxxx
Financing I" (the "Trust"), 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 Trust the sum of $10. 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 constitute 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 such form as the
Trustees may approve.
3. An amended and restated Trust Agreement satisfactory to each party
to it and substantially in the form to be included as an exhibit to the
Registration Statement (the "1933 Act Registration Statement") referred to
below, or in such other form as the parties thereto may approve, will be
entered into to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred or 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 of 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. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Depositor, as the Depositor of the Trust, is hereby authorized
(i) to file with the Securities and Exchange Commission (the "Commission")
and to execute, in the case of the 1933 Act Registration Statement and 1934
Act Registration Statement (as herein defined), on behalf of the Trust, (a)
the 1933 Act Registration Statement, including pre-effective or post-
effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the Preferred or Capital Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating to the Capital or
Preferred Securities required to be filed pursuant to the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred or Capital
Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other 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 or Capital Securities
to be listed on the New York Stock Exchange or such other 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 or Capital 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, deliver and perform on behalf of
the Trust an underwriting agreement with the Depositor and the underwriter or
underwriters of the Preferred or Capital Securities of the Trust. In the
event that any filing referred to in clauses (i)-(iii) above is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, or state securities or Blue Sky laws to be executed on behalf
of the Trust by the Trustees, the Trustees, in their capacities as trustees
of the Trust, are 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 the Trustees, in their capacities as trustees 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 New York Stock Exchange or other exchange, or state
securities or Blue Sky laws. In connection with all of the foregoing, the
Trustees, solely in their capacities as trustees of the Trust, and the
Depositor hereby constitute and appoint Xxxxxx X. Xxxxxx as his, her or its,
as the case may be, true and lawful attorney-in-fact and agent 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 all pre-effective and 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 any other documents in
connection therewith, with the Commission, granting unto said attorney-in-
fact and agent 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, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four and
thereafter the number of trustees of the Trust 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 of the Trust; provided,
however, that to the extent required by the Business Trust Act, one trustee
of the Trust 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. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty days'
prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
XXXXXXXXX-XXXX COMPANY,
as Depositor
By: /s/ XXXXXXXX XXXXXXXXX
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President and
General Counsel
XXXXX CASABLANCA, as Trustee XXXX X. XXXXXXXX, as Trustee
/s/ XXXXX CASABLANCA /s/ XXXX X. XXXXXXXX
XXXXXX X. XXXXXX, as Trustee XXXXXXXX XXXXXXXXX, as Trustee
/s/ XXXXXX X. XXXXXX /s/ XXXXXXXX XXXXXXXXX
