EXHIBIT 4.7
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of June 20, 2002 (this "Trust
Agreement"), by and among (i) Xxxxxx Capital Group, Inc., a Delaware corporation
(the "Depositor"), (ii) Wilmington Trust Company, a Delaware banking
corporation, as trustee, and (iii) Xxxxx X. Xxxxxx, J. Xxxxxxxxxxx Xxxxxxx and
Xxxxx Xxx Xxxxxx, each an individual, as trustees (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 "TAYC
Capital Trust I" 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 Five Hundred Dollars ($500.00). 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 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
accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1934 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of Preferred Securities and Common Securities to be
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 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 and direct 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, the Registration Statement on Form S-3 (the "1934 Act Registration
Statement") (including any pre-effective or post-effective amendments to the
1934 Act Registration Statement), relating to the registration under the
Securities Exchange Act of 1934, as amended, of the Preferred Securities of the
Trust and possibly certain other securities; (ii) to file with the Nasdaq
National Market or a national stock exchange (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 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 negotiate the terms of,
and execute on behalf of the Trust, an underwriting agreement with respect to
the 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 J. Xxxxxxxxxxx Xxxxxxx, Xxxxx X. Xxxxxx and Xxxxx Xxx Xxxxxx
each as Trustees and not in their individual capacities, hereby constitutes and
appoints Xxxxx X. Xxxxxx, J. Xxxxxxxxxxx Xxxxxxx and Xxxxx Xxx Xxxxxx, and each
of them, as their 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 Trustees' name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) to 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 the 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 Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be four (4) 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 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).
8. The Trustees (the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Trust's securities (the Trust, the
Depositor and any holder of the Trust's securities being a "Covered Person") for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by the Fiduciary Indemnified Persons in good faith on behalf of the
Trust and in a manner the Fiduciary Indemnified Persons reasonably believed to
be within
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the scope of authority conferred on the Fiduciary Indemnified Persons by this
Trust Agreement or by law, except that the Fiduciary Indemnified Persons shall
be liable for any such loss, damage or claim incurred by reason of the Fiduciary
Indemnified Persons' gross negligence or willful misconduct with respect to such
acts or omissions.
The Fiduciary Indemnified Persons shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any person as to matters the
Fiduciary Indemnified Persons reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to holders of the Trust's securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by applicable
law,
(a) to indemnify and hold harmless each Fiduciary Indemnified Person,
or any of its officers, directors, shareholders, employees, representatives or
agents, from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by the Fiduciary Indemnified
Persons by reason of the creation, operation or termination of the Trust in a
manner the Fiduciary Indemnified Persons reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Persons by this Trust
Agreement, except that no Fiduciary Indemnified Persons shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by the Fiduciary
Indemnified Persons by reason of gross negligence or willful misconduct with
respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a Fiduciary
Indemnified Person in defending any claim, demand, action, suit or proceeding,
from time to time, prior to the final disposition of such claim, demand, action,
suit or proceeding, upon receipt by the Trust of an undertaking by or on behalf
of such Fiduciary Indemnified Persons to repay such amount if it shall be
determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
10. The provisions of Section 9 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
11. The Trust may terminate without issuing any Securities at the
election of the Depositor. In the event that the Trust does not issue any
Securities within one year of the date hereof, the Trust shall automatically
dissolve and terminate. Thereupon, the Trustees shall file a certificate of
cancellation with the Delaware Secretary of State and the initial deposit
referred to in paragraph 2 above shall be used by the Trustees to pay the filing
fees and expenses in connection therewith.
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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.
XXXXXX CAPITAL GROUP, INC.,
as Depositor
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
WILMINGTON TRUST COMPANY
as Trustee
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, as Trustee
By: /s/ J. Xxxxxxxxxxx Xxxxxxx
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J. Xxxxxxxxxxx Xxxxxxx, as Trustee
By: /s/ Xxxxx Xxx Xxxxxx
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Xxxxx Xxx Xxxxxx, as Trustee
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