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DECLARATION OF TRUST
OF
XXX TRUST II
THIS DECLARATION OF TRUST is made as of July 21, 1999 (this
"Declaration of Trust"), by and among Xxx Communications, Inc., a Delaware
corporation, as sponsor (the "Sponsor"), The Bank of New York, as trustee (the
"Property Trustee"), and The Bank of New York (Delaware), as trustee (the
"Delaware Trustee") (the Property Trustee and the Delaware Trustee being
hereinafter jointly referred to as the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as Xxx Trust II (the
"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 Trust the sum of $10. 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
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. An amended and restated Declaration of Trust satisfactory to
each party to it, in such form as the parties thereto may approve, will be
entered into to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred or Capital Securities and Common
Securities referred to therein. 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 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. Notwithstanding the foregoing, the Trustees 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 file with the Securities and Exchange
Commission (the "Commission") and to execute, in the case of the 1933 Act
Registration Statement and 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 Preferred or Capital Securities of
the Trust, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the Preferred or Capital Securities of the Trust required to be
filed pursuant to the 1933 Act, and (c) 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 Preferred or Capital Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) if and at such time as
determined by the Sponsor, to file with the New York Stock Exchange or other
exchange, or the National Association of Securities Dealers ("NASD"), and
execute on behalf of the Trust a listing
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application and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the Preferred
or Capital Securities of the Trust to be listed on the New York Stock Exchange
or such other exchange, or the NASD's Nasdaq National Market; (iii) 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
Preferred or 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; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred or Capital
Securities of the Trust; and (v) to execute, deliver and perform on behalf of
the Trust an underwriting agreement with one or more underwriters relating to
the offering of the Preferred or Capital Securities of the Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, NASD, or state securities or "Blue Sky" laws to be
executed on behalf of the Trust by the Trustees, the Trustees, 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 the Trustees, in their capacity as trustees 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, the New York Stock Exchange or other exchange, NASD, or state
securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be two 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 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 Declaration of Trust shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
8. The Sponsor hereby agrees to indemnify the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") for, and to hold each Indemnified Person harmless against, any
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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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.
XXX COMMUNICATIONS, INC.,
as Sponsor
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President,
Finance and Administration
and Chief Financial Officer
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
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