Exhibit 4(y)
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of January 16, 1998, 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 II", 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 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
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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 Xxxx X.
Xxxxxxxxx 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.
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.
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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.
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
--------------------------------
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
