ANNEX A
TRUST AGREEMENT
OF
XXXXX CAPITAL
This TRUST AGREEMENT, dated as of November 15, 1996, between Xxxxx
National Corporation, a Delaware corporation, as "Depositor" and Xxxxx X. Xxxxxx
and Xxxxxxx X. Xxxxxxxx as "Administrative Trustees" and The Bank of New York
(Delaware) as "Delaware Trustee" (the Delaware Trustee and the Administrative
Trustees together, the "Trustees"). The Depositor and the Trustee hereby agree
as follows:
1. The trust created hereby shall be known as Xxxxx Capital, in which
name the Trustee, or the Depositor to the extent provided herein, may engage in
the transactions contemplated hereby, make and execute contracts, and xxx and be
sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10. The Administrative Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will
hold the trust estate in trust for the Depositor. 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. (S) 3801 et seq. (the
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"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
accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees shall enter into an amended and
restated Trust Agreement, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities of the Trust. Prior to the execution
and delivery of such amended and restated Trust Agreement, the Trustee (or
Trustees, as may be applicable) 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 any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Administrative Trustees hereby
authorize the Depositor, as the sponsor of the Trust and at its sole
discretion, (i) to take such actions as each may deem necessary or
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appropriate to make the Preferred Securities eligible to be offered
pursuant to Rule 144A under the Securities Act of 1933, as amended; (ii) to
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file with The Depository Trust Company or with any other exchange or
trading facility located in the United States of America or abroad (each,
an "Exchange") and execute on behalf of the Trust a registration or listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be registered or listed on
any Exchange or trading facility; (iii) to file and execute on behalf of
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the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute on behalf of the Trust such Purchase Agreements
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with one or more underwriters relating to the offering of the Preferred
Securities as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (v) to take or cause to be taken any and all acts that the
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Depositor, in its sole discretion, may deem necessary or advisable to carry
out the purpose of the Trust. In the event that any filing referred to in
clauses (ii) and (iii) above is required, by the rules and regulations of
any trading facility or Exchange, state securities or Blue Sky laws, or any
applicable federal or state laws or regulations, to be executed on behalf
of the Trust by a Trustee, any administrative Trustee is hereby authorized
to join in any such filing and to execute on behalf of the Trust any and
all of the foregoing.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) 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, however, that to the
extent required by the Business Trust Act, the Delaware 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 Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any time. The
Trustee may resign upon thirty days' prior notice to the Depository
provided, however, such notice shall not be required if it is waived by the
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Depositor.
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).
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
XXXXX NATIONAL
CORPORATION,
as Depositor
By: __________________________
Name:
Title:
THE BANK OF NEW YORK
(DELAWARE)
as Delaware Trustee
By: __________________________
Name:
Title:
/s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx,
as Administrative
Trustee
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx,
as Administrative
Trustee
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
XXXXX NATIONAL
CORPORATION,
as Depositor
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK
(DELAWARE)
as Delaware Trustee
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assitance Vice President
_____________________________
Xxxxx X. Xxxxxx,
as Administrative
Trustee
_____________________________
Xxxxxxx X. Xxxxxxxx,
as Administrative
Trustee
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