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EXHIBIT 4.4
TRUST AGREEMENT
THIS TRUST AGREEMENT (this "Agreement"), dated as of May 26, 1998, among
(i) Texas Industries, Inc., a Delaware corporation (the "Depositor"), (ii)
First Chicago Delaware Inc., a Delaware corporation, as Delaware trustee (the
"Delaware Trustee"), and (iii) Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx and Xxxxx X.
XxXxxx, each an individual, as trustees (each of such trustees described in
clauses (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 TXI 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
Trust the sum of $10.00. The Trustees hereby acknowledge receipt of such amount
in trust from the Depositor, which amount shall constitutes 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. Section 3801, 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 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 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred 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 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, (a) the 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 (the "1933 Act"), of
the Preferred Securities of the Trust (including any registration statement for
the same offering that is to be effective upon filing pursuant to Rule 462(b)
under the 1933 Act), 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, Inc. (the "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
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desirable to cause the Preferred Securities to be listed on the Exchange; (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 execute on behalf of the Trust an Underwriting Agreement
relating to the Preferred Securities, among the Trust, the Depositor and the
Underwriters named therein, substantially in the form included as an exhibit to
the 1933 Act registration Statement. 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, the 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, her 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 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 First Chicago Delaware Inc., the Delaware Trustee, and Xxxxxxx X. Xxxxx,
Xxxxx X. Xxxxx and Xxxxx X. XxXxxx, each as Trustees and not in their
individual capacities, hereby constitutes and appoints Xxxxxxx X. Xxxxx, Xxxxx
X. Xxxxx and Xxxxx X. XxXxxx, 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 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 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 he 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 and 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 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 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).
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8. The Delaware Trustee shall not have any powers or duties of the
Trustees set forth herein, except as required under the Business Trust Act. The
Delaware Trustee shall be a Trustee hereunder for the sole and limited purpose
of fulfilling the requirements of Section 3807 of the Business Trust Act.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
TEXAS INDUSTRIES, INC.
as Depositor
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President - Finance
FIRST CHICAGO DELAWARE INC.
as Delaware Trustee
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx, as trustee
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx, as trustee
/s/ XXXXX X. XXXXXX
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Xxxxx X. XxXxxx, as trustee
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