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Exhibit 4.7
DECLARATION OF TRUST, dated as of November 9, 1998, between Xxxxx Xxxxxx
Group Inc., a Delaware corporation (the "Sponsor"), and The Chase Manhattan
Bank, a New York banking corporation, not in its individual capacity but solely
as trustee (the "Property Trustee"), Chase Manhattan Bank Delaware, a Delaware
banking corporation, not in its individual capacity but solely as trustee (the
"Delaware Trustee"), and Xxxxxx X. Xxxxx, F. Xxxxxx Xxxxxxx and Xxxxxxx X.
Xxxxx, each not in her or his individual capacity but solely as trustee (the
Property Trustee, the Delaware Trustee and each such individual as trustee,
collectively, the "Trustees"). The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "PWG Capital Trust V", 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. Code 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 in the office of the Secretary of State of the State of Delaware in the
form attached hereto. The Trust is hereby established by the Sponsor and the
Trustees for the purposes of (i) issuing preferred securities ("Preferred
Securities") representing undivided beneficial interests in the assets of the
Trust in exchange for cash and investing the proceeds thereof in junior
subordinated debentures of the Sponsor, (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") representing undivided beneficial interests in the assets of
the Trust to the Sponsor in exchange for cash and investing the proceeds thereof
in additional junior subordinated debentures of the Sponsor and (iii) engaging
in such other activities as are necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities by the Trust,
the Sponsor and the Trustees intend to enter into an amended and restated
Declaration of
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Trust, satisfactory to each such party and substantially in the form included as
an exhibit to the 1933 Act Registration Statement referred to below at the time
such registration statement becomes effective under the Securities Act of 1933,
as amended (the "Securities Act"), to provide for the contemplated operation of
the Trust created hereby and the issuance of the Preferred Securities and the
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.
4. The Sponsor and the Trustees hereby authorize and direct the Sponsor, as
the sponsor of the Trust, (i) to prepare and file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to such
Registration Statement, relating to the registration of the Preferred Securities
under the Securities Act and (b) a Registration Statement on Form 8-A (the "1934
Act Registration Statement") (including any pre-effective or post-effective
amendments thereto) relating to the registration of the Preferred Securities
under Section 12(b) of the Securities Exchange Act of 1934, as amended; (ii) to
prepare and file with the New York Stock Exchange and execute, in each case 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 Preferred Securities to be listed on the New York
Stock Exchange; (iii) to prepare and file and execute, in each case on behalf of
the Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "blue sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to negotiate the
terms of, and execute on behalf of the Trust, an underwriting agreement among
the Trust, the Sponsor and any underwriter, dealer or agent relating to the
Preferred Securities, substantially in the form included as an exhibit to the
1933 Act Registration Statement at the time it becomes effective
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under the Securities Act. In the event that any filing referred to in any of
clauses (i)-(iii) above is required by the rules and regulations of the
Commission or the New York Stock Exchange or state securities or blue sky laws,
to be executed on behalf of the Trust by the Trustees, Xxxxxx X. Xxxxx, Xxxxxx
X. Xxxxx and Xxxxxxx X. Xxxxx, in their capacities as Trustees of the Trust, are
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 The
Chase Manhattan Bank and Chase Manhattan Bank Delaware, in their capacities 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 or the New York Stock Exchange or state
securities or blue sky laws. In connection with all of the foregoing, the
Sponsor and each Trustee, solely in its capacity as Trustee of the Trust, hereby
constitutes and appoints Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx and
Xxxxxxx X. Xxxxx, and each of them, his, her or its, as the case may be, true
and lawful attorneys-in-fact, and agents, with full power of substitution and
resubstitution, for the Sponsor or such Trustee and in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign and file (i)
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement with all exhibits
thereto, and other documents in connection therewith, and (ii) a registration
statement and any and all amendments thereto filed pursuant to Rule 462(b) under
the Securities Act with the Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Sponsor or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his or her substitute or substitutes, shall do or cause
to be done by virtue hereof.
5. This Declaration of Trust may be executed in one or more counterparts.
6. 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
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number of Trustees shall in no event be less than five (5); and provided,
further, however, 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 meets any other requirements imposed by
applicable law. Subject to the foregoing, the Sponsor is entitled to appoint or
remove without cause any Trustee at any time. Any Trustee may resign upon 30
days prior notice to the Sponsor.
7. The Trust may terminate without issuing any Trust Securities at the
election of the Sponsor.
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.
XXXXX XXXXXX GROUP INC., as
Sponsor
by /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
THE CHASE MANHATTAN BANK, not
in its individual capacity but
solely as Property Trustee,
by /s/ X. X'Xxxxx
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Name: X. X'Xxxxx
Title: Senior Trust Officer
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CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as Delaware
Trustee,
by /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
/s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx,
not in her individual
capacity but solely as
Trustee
/s/ F. Xxxxxx Xxxxxxx
----------------------------
F. Xxxxxx Xxxxxxx,
not in his individual
capacity but solely as
Trustee
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx,
not in his individual
capacity but solely as
Trustee
