EXHIBIT 4.8
DECLARATION OF TRUST
OF
XXXX XXXXXXX CAPITAL TRUST I
June 7, 2001
THIS DECLARATION OF TRUST, dated as of June 7, 2001 (this
"Declaration"), is entered into by and among Xxxx Xxxxxxx Financial Services,
Inc., a Delaware corporation, as depositor (the "Depositor"), The Chase
Manhattan Bank, as trustee (the "Property Trustee"), Chase Manhattan Bank USA,
National Association, as trustee (the "Delaware Trustee"), and Xxxxxx X.
Xxxxxxx, an individual, as trustee (the "Administrative Trustee," and together
with the Property Trustee and 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 "Xxxx
Xxxxxxx Capital Trust I", 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 Trust the sum of ten dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Depositor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitutes a business trust under Chapter 38 of Title 12
of the Delaware Code (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
Secretary of State of the State of Delaware.
(3) The Depositor and the Trustees will enter into an amended and
restated declaration of trust (the "Amended and Restated Declaration of Trust")
satisfactory to the Depositor and the Trustees to provide for the contemplated
operation of the Trust created hereby and the issuance of preferred securities
representing undivided beneficial interests in the assets of the Trust (the
"Preferred Securities") and common securities representing undivided beneficial
interests in the assets of the Trust (the "Common Securities," and together with
the Preferred Securities, the "Securities"). Prior to the execution and
delivery of the 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 contemplated by this Declaration, 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
or as are necessary to effect the transactions contemplated herein.
(4) The Depositor shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred 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 Preferred Securities
to:
(i) execute and file with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3, including any
amendments thereto, in relation to the Preferred Securities;
(ii) execute and file any documents, or take any acts as
determined to be necessary, in order to qualify or register all or part of the
Preferred Securities in any state in which the Depositor has determined to
qualify or register such Preferred Securities for sale;
(iii) execute and file an application to the New York Stock
Exchange or any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) execute and file with the SEC a registration statement on
Form 8-A, including any amendments thereto relating to the registration of the
Preferred Securities under Section 12(b) of the Securities Exchange Act of 1934;
and
(v) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred 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 which are necessary, appropriate, convenient or
incidental to carry out any of the purposes of this Declaration; 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, appropriate, convenient or incidental to the foregoing.
(5) 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 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 Depositor is
entitled to appoint or remove without cause any Trustee at any time upon thirty
days' prior written notice. Any Trustee may resign upon thirty days' prior
notice to the Depositor.
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(6) The Depositor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against any and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of, or
are imposed upon, or asserted at any time against, such Indemnified Persons with
respect to the performance of this Declaration, the creation, operation or
termination of the Trust or the transactions contemplated hereby; provided,
however, that the Depositor shall not be required to indemnify any Indemnified
Person for any Expenses which are a result of the willful misconduct, bad faith
or gross negligence of such Indemnified Person.
(7) The Trust may be dissolved and terminated before the issuance of the
securities of the Trust at the election of the Depositor.
(8) This Declaration shall be governed by and construed in accordance with
the laws of the State of Delaware (without regard to conflict of laws
principles).
(9) This Declaration may be executed in one or more counterparts.
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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.
XXXX XXXXXXX FINANCIAL
SERVICES, INC., as Depositor
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely as trustee
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as trustee
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
Xxxxxx X. Xxxxxxx, as trustee
/s/ Xxxxxx X. Xxxxxxx
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