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EXHIBIT 4.17
DECLARATION OF TRUST
This Declaration of Trust, dated as of May 20, 1999 (this "Declaration"),
among (i) Xxxxx Xxxxxxx Natural Gas Corp., an Oklahoma corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking corporation,
as trustee, and (iii) Xxxxxxx X. Xxxxxx, an individual, as trustee (each of
such trustees in (ii) and (iii) a "Trustee" and collectively, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Xxxxx
Xxxxxxx Natural Gas Trust II" in which name the Trustees, 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 Trustees the sum of $10. The 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. Section 3801, et seq. (the "Business Trust
Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust in the form of Exhibit A attached hereto with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred 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.
4. The Depositor and the Trustees hereby authorize the Depositor, as
the sponsor of the Trust, (i) to file with the Securities and Exchange
Commission (the "Commission") and execute, in each case on behalf of the
Trust, (a) the Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to the
1933 Act Registration Statement, relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the Trust
and possibly certain other securities and (b) a Registration Statement on Form
8-A (the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934,
as amended; (ii) to file with the New York Stock Exchange or any other
national stock exchange or The Nasdaq National Market (each, an "Exchange")
and execute on behalf of the Trust one or more listing applications 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 any of the Exchanges; (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
as shall be necessary or desirable to register the Preferred Securities under
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the securities or blue sky laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; (iv) to negotiate the
terms of and execute on behalf of the Trust an underwriting agreement among
the Trust, the Depositor and any underwriter(s), dealer(s) or agent(s)
relating to the Preferred Securities, as the Depositor, on behalf of the
Trust, may deem necessary or desirable; and (v) to execute and deliver on
behalf of the Trust letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities. In the event that any
filing referred to in clauses (i), (ii) and (iii) above is required by the
rules and regulations of the Commission, an Exchange or state securities or
blue sky laws, to be executed on behalf of the Trust by one or more of the
Trustees, each of the Trustees, in its or his capacity as a Trustee of the
Trust, is hereby authorized and, to the extent so required, 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 Wilmington Trust Company in its 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 required by the rules
and regulations of the Commission, the Exchange or state securities or blue
sky laws. In connection with the filings referred to above, the Depositor and
Xxxxxxx X. Xxxxxx, as a Trustee and not in his individual capacity, hereby
constitutes and appoints Xxxx X. Xxxxxx and Xxxxx X. Xxxxx, and each of them,
as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, the Exchange and
administrators of state securities or blue sky laws, 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 Depositor 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 respective
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) 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, 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 Delaware law. Subject to the foregoing,
the Depositor is entitled to appoint or remove without cause any Trustee at
any time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Declaration shall be governed by, and construed in accordance
with, the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to be
duly executed as of the day and year first above written.
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XXXXX XXXXXXX NATURAL GAS CORP.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, as Trustee
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EXHIBIT A
CERTIFICATE OF TRUST OF XXXXX XXXXXXX NATURAL GAS TRUST II
THIS Certificate of Trust of Xxxxx Xxxxxxx Natural Gas Trust II (the
"Trust") is being duly executed and filed by Wilmington Trust Company, a
Delaware banking corporation, and Xxxxxxx X. Xxxxxx, as trustees, to form a
business trust under the Delaware Business Trust Act (12 DEL. C. Section 3801
et seq.) (the "Act").
1. NAME. The name of the business trust formed hereby is Xxxxx Xxxxxxx
Natural Gas Trust II.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned have executed this Certificate in
accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY
By:
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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Name: Xxxxxxx X. Xxxxxx
