EXHIBIT 4.28
DECLARATION OF TRUST
OF
XXXXXX BROTHERS HOLDINGS CAPITAL TRUST IV
DECLARATION OF TRUST, dated as of March 31, 1999, between Xxxxxx
Brothers Holdings Inc., a Delaware corporation, as Sponsor, Chase Manhattan Bank
Delaware, as the initial Delaware Trustee, The Chase Manhattan Bank, as the
initial Property Trustee, and Xxxxx X. Xxxxxx, Xxxxxxxx Xxxxx, and Xxxxxx Xxxxx,
as Regular Trustees (collectively with the Delaware Trustee and the Property
Trustee, the "Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Xxxxxx
Brothers Holdings Capital Trust IV", 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 sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of Ten Dollars ($10.00). 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 (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 preferred securities (the "Preferred Securities") and common
securities by the Trust as such securities will be described 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 and licenses, consents
or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a 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 negotiate
and execute an underwriting agreement among the Trust, the Sponsor and the
underwriter(s) thereto relating to the offer and sale of the Preferred
Securities, substantially in the form included or to be incorporated as an
exhibit to the 1993 Act Registration Statement and (iv) to execute and file such
applications, reports, surety bonds, irrevocable consents, appointments of
attorneys 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.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) 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, the Exchanges or state securities or blue sky laws, and in such case
only to the extent so required. In connection with all of the foregoing, each
Regular Trustee, solely in such Regular Trustee's capacity as Trustee of the
Trust, hereby constitutes and appoints Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxx and
Xxxxxxxx Xxxxx and each of them, as such Regular Trustee's true and lawful
attorneys-in-fact and agent, with full power of substitution and resubstitution,
for such Regular Trustee, in such Regular 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 Exchanges 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 such Regular 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 of Trust may be executed in one or more
counterparts.
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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 that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that 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 at any time. The Trustees may resign
upon thirty days prior notice to the Sponsor.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be Xxxx executed as of the day and year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Sponsor
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Vice President
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Authorized Officer
THE CHASE MANHATTAN BANK,
as Property Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Assistant Vice President
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, as Regular Trustee
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx, as Regular Trustee
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, as Regular Trustee
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