DECLARATION OF TRUST
This Declaration of Trust, dated as of November 6, 2001, by and
among American Equity Investment Life Holding Company, an Iowa corporation, as
"Sponsor," Xxxxx X. Xxxxxxxxxx, Xxxxx X. Xxxxxxx, and First Union Trust Company,
National Association, not in their individual capacities but solely as
"Trustees." The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"American Equity Capital Trust III" 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 Trust the sum of $10. 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. Sections3801 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 with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party, to provide for
the contemplated operation of the Trust created hereby and the issuance of the
Trust Preferred Securities and Trust 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 of any
licenses, consents or approvals required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, to prepare, execute and file with the
Securities and Exchange Commission a registration statement on Form S-1,
including any and all amendments thereto (the "Registration Statement") under
the Securities Act of 1933, as amended, in forms prepared by the Sponsor, in
relation to the offering and sale of Trust Preferred Securities to the public,
as contemplated by the prospectus included as a part of the Registration
Statement, as such prospectus may be amended or supplemented from time to time,
(b) a registration statement on Form 8-A or other appropriate form, including
any and all amendments thereto, and (c) to do all things necessary, convenient
or advisable in connection with the offering and sale of Trust Preferred
Securities to the public. In connection with the foregoing, the Sponsor and each
Trustee, solely in its capacity as Trustee of the Trust, hereby constitutes and
appoints Xxxxx X. Xxxxxxxxxx and Xxxxx X. Xxxxxxx each of them, as his or its,
as the case may be, true and lawful attorneys-in-fact and agents, with full
power of substitution, for the Sponsor or in the Sponsor's name, place and
stead, in any and all capacities, 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 Sponsor 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 three (3) 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, 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
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
A Trustee may resign upon 30 days' prior notice to the Sponsor.
7. First Union Trust Company, National Association, in its
capacity as Trustee, shall not have the powers or the duties of the Trustees set
forth herein (except as may be required under the Business Trust Act) and shall
be a Trustee hereunder for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act.
2
8. This Declaration of Trust shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
3
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be executed as of the day and year first above written.
AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY,
as Sponsor
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer and
General Counsel
XXXXX X. XXXXXXXXXX, not in her
individual capacity but solely as Trustee
/s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------
XXXXX X. XXXXXXX, not in her individual
capacity but solely as Trustee
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
4
