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EXHIBIT 4.6
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of May 8, 1998, between Xxxxxx
Xxxxxxx Corporation, a New York corporation, as Sponsor, and Wilmington Trust
Company, as the initial Delaware Trustee ("Trustee"). The Sponsor and the
Trustee hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"FW Preferred Capital Trust I", in which name the Trustee, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets
over to the Trustee the sum of Ten Dollars ($10.00). The Trustee hereby
acknowledges receipt of such amount in trust from the Sponsor, which amount
shall constitute the initial trust estate. The Trustee hereby declares that it
will hold the trust estate in trust for the Sponsor. 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 Trustee is hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State in
the form attached hereto.
3. The Sponsor and the Trustee 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 (as defined below)), to provide for the contemplated
operation of the Trust created hereby and the issuance of preferred securities
(the "Preferred Securities") and common securities by the Trust as such
securities will be described therein. Prior to the execution and delivery of
such amended and restated Declaration of Trust, the Trustee 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 and licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustee hereby authorize and direct the
Sponsor, in each case on behalf of the Trust, as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly 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 the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or The Nasdaq National Market (each, an "Exchange") and execute
on behalf of the Trust one or more listing applications 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 any of the Exchanges; (iii) to negotiate and execute an underwriting
agreement among the Trust, the Sponsor and the underwriter(s) party thereto
relating to the offer and sale of the Preferred Securities, substantially in the
form included or to be incorporated as an exhibit to the 1933 Act
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Registration Statement and (iv) to execute and file such applications, reports,
surety bonds, irrevocable consents, appointments of attorneys 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 Sponsor, on behalf of the Trust, may deem necessary or
desirable.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be one (1) 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 which may increase or
decrease the number of Trustees; provided that, to the extent required by the
Business Trust Act, one Trustee shall be an entity that has its principal place
of business in the State of Delaware. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any Trustee at any time. The Trustee
may resign upon thirty days prior notice to the Sponsor.
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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.
XXXXXX XXXXXXX CORPORATION,
as Sponsor
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President, Chairman
and Chief Executive
Officer
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
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