EXHIBIT 4.5
TRUST AGREEMENT
OF
XXXXXXXXXX INDUSTRIES TRUST I
THIS TRUST AGREEMENT is made as of August 7, 1998 (this "Trust
Agreement"), by and among Xxxxxxxxxx Industries, Inc., as depositor (the
"Depositor"), and Wilmington Trust Company, as trustee (the "Delaware Trustee"),
and Xxxxxxx X. Xxxxxxxx, as trustee (the "Administrative Trustee" and jointly
with the Delaware Trustee, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "Xxxxxxxxxx Industries Trust
I" (the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. 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.
xx.xx. 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 such form as the Trustees may approve.
3. An amended and restated Trust Agreement satisfactory to each party to it
and substantially in the form to be included as an exhibit to the 1933 Act
Registration Statement (as herein defined), or in such other 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 Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect of 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 Depositor, as the depositor of the Trust, is hereby authorized (i)
to 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 Capital or Preferred
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) to file with the American Stock Exchange or other exchange, or the National
Association of
Securities Dealers ("NASD"), and execute 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 or
Capital Securities of the Trust to be listed on the American 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 as shall be necessary or desirable to register the
Preferred or Capital Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (iv) 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 clauses (i), (ii) or (iii) above is required by the rules and
regulations of the Commission, the American 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 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
Trustees, 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 American
Stock Exchange or other exchange, NASD, or state securities or blue sky laws. In
connection with all of the foregoing, the Trustees, solely in their capacities
as trustees of the Trust, and the Depositor hereby constitute and appoint
Xxxxxxx Xxxxxxx as his, her or its, as the case may be, true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for the Trustees and the Depositor or in the Trustees' or the Depositor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including all pre-effective and 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 any other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
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 Trustees or the Depositor might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his respective substitute or substitutes, shall do or cause to be done by
virtue hereof.
5. This Trust Agreement 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 Depositor 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 Depositor 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 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).
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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.
XXXXXXXXXX INDUSTRIES, INC.,
as Depositor
By: XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxx Xxxxx
Title: Chief Financial Officer
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Delaware Trustee
By: XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX X. XXXXX,
not in his individual capacity, but
solely as Administrative Trustee
XXXXXXX X. XXXXX
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