Exhibit 4.5
DECLARATION OF TRUST
THIS DECLARATION OF TRUST is dated as of July 9, 2001, between
Xxxxxx Communications Corporation, an Oklahoma corporation, as sponsor (the
"Sponsor"), and Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xx., Xxxxxx X. Xxxxxx, The
Bank of New York, a New York banking corporation, and The Bank of New York
(Delaware), a Delaware banking corporation, not in their individual capacities
but solely as trustees (collectively the "Trustees" and each individually
"Trustee"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Xxxxxx Financing Trust," in which name the Trustees, 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 Trustees the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they 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 Trustees are 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 Trustees will enter into an Amended and
Restated Declaration of Trust, satisfactory to each such party, to provide
for the contemplated operation of the Trust created hereby and the issuance
of the preferred securities (the "Preferred Securities") and the common
securities (the "Common Securities") referred to herein. Prior to the
execution and delivery of such Amended and Restated Declaration of Trust, the
Trustees shall not have any duty or obligation hereunder or with respect of
the trust estate, except as otherwise contemplated by this Declaration of
Trust, 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.
The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the Sponsor of the Trust, (1) to prepare and file with the
Securities and Exchange Commission (the "Commission") and to execute, in the
case of the 1933 Act Registration Statement and the 1934 Act Registration
Statement (as herein defined), on behalf of the Trust, (a) a Registration
Statement (the "1933 Act Registration Statement"), including all pre-effective
and post-effective amendments thereto, relating to the registration under the
Securities Act of 1933, as amended (the "1933 Act"), of the trust preferred
securities of the Trust, (b) any preliminary prospectus or prospectus supplement
thereto relating to the trust preferred securities of the Trust required to be
filed pursuant to the 1933 Act, and (c) if and at such time as determined by the
Sponsor, 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 trust
preferred securities of the Trust under the Securities Exchange Act of
1934, as amended; (2) if and at such time as determined by the Sponsor, to file
with any stock exchange, or the National Association of Securities Dealers
("NASD"), 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 trust preferred securities of the
Trust to be listed on a stock exchange, or the NASD's Nasdaq National Market;
(3) 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 the trust preferred 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; (4) to execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
trust preferred securities of the Trust; and (5) to execute, deliver and
perform on behalf of the trust an underwriting agreement with one or more
underwriters relating to the offering of the trust preferred securities of the
Trust. In the event that any filing referred to in this Section 3 is required
by the rules and regulations of the Commission, any stock exchange, NASD, or
state securities or "blue sky" laws to be executed on behalf of the Trust by
the Trustees, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xx. and Xxxxxx X. Xxxxxx, in
their capacity as trustees of the Trust, are hereby authorized to join in any
such filing and to execute on behalf of the Trust any and all of the foregoing,
it being understood that each of such Trustees, in his capacity as a 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 such Trustee is required to do so
by the rules and regulations of the Commission, any stock exchange, NASD, or
state securities or "blue sky" laws.
4. This Declaration of Trust may be executed in one or more
counterparts.
5. The number of Trustees initially shall be five (5) 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, however, that the number of
Trustees shall in no event be less than five (5); and provided, further that
to the extent required by the Business Trust Act, one Trustee 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 and otherwise meets the requirements of applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove
without cause any Trustee at any time. The Trustees may resign upon thirty
days prior notice to the Sponsor.
IT 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 COMMUNICATIONS CORPORATION, an
Oklahoma corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
Chairman of the Board, President
and Chief Executive Officer
"SPONSOR"
-2-
THE BANK OF NEW YORK, a New York
banking corporation
/s/ Xxxx X. Xxxxxx
By:____________________________________
Xxxx X. Xxxxxx
Vice President
THE BANK OF NEW YORK (DELAWARE), a
Delaware banking corporation
/s/ Xxxxxxx Xxxxxxx
By:____________________________________
Xxxxxxx Xxxxxxx
Senior Vice President
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
"TRUSTEES"
-3-
CERTIFICATE OF TRUST
OF
XXXXXX FINANCING TRUST
1. The name of the business trust is:
XXXXXX FINANCING TRUST
2. The name and business address of the trustee having its
principal place of business in the State of Delaware are:
The Bank of New York (Delaware)
Xxxxx Xxxx Center
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
3. This Certificate shall be effective upon the filing hereof.
Executed this 9th day of July, 2001.
THE BANK OF NEW YORK, a New York
banking corporation
/s/ Xxxx X. Xxxxxx
By:____________________________________
Xxxx X. Xxxxxx
Vice President
THE BANK OF NEW YORK (DELAWARE), a
Delaware banking corporation
/s/ Xxxxxxx Xxxxxxx
By:____________________________________
Xxxxxxx Xxxxxxx
Senior Vice President
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
