DECLARATION OF TRUST
OF
XXXXXX CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of December 30, 1996 (this "Trust
Agreement"), by and between Xxxxxx Corporation, a Virginia corporation, as
sponsor (the "Sponsor"), and Chase Manhattan Bank Delaware, a Delaware banking
corporation, as trustee (the "Trustee"). The Sponsor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "Xxxxxx Capital Trust I"
(the "Trust"), 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
Trust the sum of ten dollars ($10). Such amount shall constitute the initial
trust estate. 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 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 accordance with the provisions of the Business
Trust Act.
3. The Sponsor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party to provide for
the contemplated operation of the Trust created hereby and the issuance of the
Capital Securities (the "Capital Securities") and the Common Securities (the
"Common Securities") referred to in the Offering Memorandum (as hereinafter
defined). Prior to the execution and delivery of such amended and restated Trust
Agreement or Declaration, the Trustee 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 Trustee may take all actions
deemed proper as are necessary to effect the transactions contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and distribute one or more offering memoranda in
preliminary and final form, including any necessary or desirable amendments,
relating to the offering and sale of Capital Securities of the Trust in a
transaction exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and such other forms or filings as may be
required by the 1933 Act, the Securities Exchange Act of 1934, as amended, or
the Trust Indenture Act of 1939, as amended, in each case relating to the
Capital Securities of the Trust (the "Offering Memorandum"); (ii) 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 that shall be necessary or desirable to register or
establish the exemption from registration of the Capital Securities of the Trust
under the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable; (iii) to
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execute and file an application, and all other applications, statements,
certificates, agreements and other instruments that shall be necessary or
desirable to cause the Capital Securities to be listed on the Private Offerings,
Resales and Trading through Automated Linkages ("PORTAL") Market, with PORTAL,
and, if and at such time as determined by the Sponsor, with the New York Stock
Exchange or any other national stock exchange or the Nasdaq National Market for
listing or quotation of the Capital Securities of the Trust; (iv) to execute and
deliver letters or documents to, or instruments for filing with, a depository
relating to the Capital Securities of the Trust; (v) to execute, deliver and
perform on behalf of the Trust one or more underwriting or purchase agreements,
registration rights agreements, dealer manager agreements, escrow agreements,
subscription agreements and other similar or related agreements providing for or
relating to the sale of the Capital Securities of the Trust; and (vi) to execute
on behalf of the Trust any and all documents, papers and instruments as may be
desirable in connection with any of the foregoing.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities or
Blue Sky laws to be executed on behalf of the Trust by a Trustee, the Trustee or
any trustee of the Trust appointed pursuant to Section 6 hereof, in its capacity
as trustee of the Trust, is 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 any such trustee of the Trust, in its capacity as trustee
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, PORTAL or state securities or Blue Sky laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one 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 Sponsor which may
increase or decrease (but not below one) 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
Sponsor 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 Sponsor.
7. 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 have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
XXXXXX CORPORATION,
as Sponsor
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: EVP/CFO
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely
as trustee of the Trust
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
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