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Exhibit 4.7
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of July 22, 1998 (this "Trust
Agreement"), between (i) American Coin Merchandising, Inc., a Delaware
corporation (the "Depositor"), and (ii) WILMINGTON TRUST COMPANY, a Delaware
banking corporation (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby (the "Trust") shall be known
as "American Coin Merchandising Trust III" in which name the Trustee, 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 Trustee the sum of $10. The Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustee hereby declares that it 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 Trustee is 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 Trustee 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 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Capital Securities (the
"Securities") referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Trustee 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 Depositor and the Trustee 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, (a) the Registration Statement on an appropriate form
(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
Securities 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 Securities 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 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
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necessary or desirable to register the 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 on behalf of the Trust that
certain Underwriting Agreement relating to the Securities, among the Trust, the
Depositor and the several Underwriters named therein, substantially in the form
included as an exhibit to the 1933 Act Registration Statement. In connection
with the filings referred to above, the Depositor hereby constitutes and
appoints Xxxxxx X. Xxxxx and W. Xxxx Xxxx, and each of them, as its true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or in the Depositor'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 Exchange 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 the Depositor might or could
to 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 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 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 of principles).
8. To the fullest extent permitted by applicable law,
the Depositor shall indemnify and hold harmless the Trustee from and against
any loss, damage or claim incurred by the Trustee by reason of any act or
omission performed or omitted by the Trustee in good faith on behalf of the
Trust and in a matter the Trustee reasonably believed to be within the scope of
authority conferred on the Trustee by this Trust Agreement, except that the
Trustee shall not be entitled to be indemnified in respect of any loss, damage
or claim incurred by the Trustee by reason of gross negligence or willful
misconduct with respect to such acts or omissions.
[SIGNATURE PAGE FOLLOWS]
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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.
AMERICAN COIN MERCHANDISING, INC.
as Depositor
By:/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Trustee
By:/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
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