Exhibit 10.1
AMENDED AND RESTATED DECLARATION
OF TRUST
by and among
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
WILMINGTON TRUST COMPANY,
as Institutional Trustee,
TEXAS CAPITAL BANCSHARES, INC.,
as Sponsor,
and
JOSEPH M. GRANT and DWAIN HOWARD,
as Administrators,
Dated as of April 28, 2006
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
TABLE OF CONTENTS
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Page
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ARTICLE I INTERPRETATION AND DEFINITIONS
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1
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Section 1.1.
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Definitions
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1
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ARTICLE II ORGANIZATION
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7
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Section 2.1.
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Name
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7
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Section 2.2.
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Office
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7
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Section 2.3.
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Purpose
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7
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Section 2.4.
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Authority
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8
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Section 2.5.
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Title to Property of the Trust
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8
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Section 2.6.
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Powers and Duties of the Trustees and the Administrators
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8
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Section 2.7.
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Prohibition of Actions by the Trust and the Institutional Trustee
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11
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Section 2.8.
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Powers and Duties of the Institutional Trustee
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12
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Section 2.9.
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Certain Duties and Responsibilities of the Trustees and Administrators
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13
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Section 2.10.
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Certain Rights of Institutional Trustee
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14
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Section 2.11.
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Delaware Trustee
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16
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Section 2.12.
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Execution of Documents
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17
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Section 2.13.
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Not Responsible for Recitals or Issuance of Securities
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17
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Section 2.14.
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Duration of Trust
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17
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Section 2.15.
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Mergers
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17
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ARTICLE III SPONSOR
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18
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Section 3.1.
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Sponsors Purchase of Common Securities
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18
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Section 3.2.
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Responsibilities of the Sponsor
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18
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Section 3.3.
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Expenses
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19
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Section 3.4.
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Right to Proceed
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19
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ARTICLE IV INSTITUTIONAL TRUSTEE AND ADMINISTRATORS
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19
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Section 4.1.
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Number of Trustees
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19
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Section 4.2.
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Delaware Trustee; Eligibility
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20
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Section 4.3.
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Institutional Trustee; Eligibility
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20
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Section 4.4.
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Administrators
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20
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Section 4.5.
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Appointment, Removal and Resignation of Trustees and Administrators
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21
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Section 4.6.
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Vacancies Among Trustees
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22
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Section 4.7.
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Effect of Vacancies
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22
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Section 4.8.
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Meetings of the Trustees and the Administrators
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22
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Section 4.9.
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Delegation of Power
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23
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Section 4.10.
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Conversion, Consolidation or Succession to Business
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23
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ARTICLE V DISTRIBUTIONS
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23
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Section 5.1.
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Distributions
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23
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ARTICLE VI ISSUANCE OF SECURITIES
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23
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Section 6.1.
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General Provisions Regarding Securities
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23
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Section 6.2.
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Paying Agent, Transfer Agent and Registrar
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24
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Section 6.3.
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Form and Dating
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25
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Section 6.4.
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Mutilated, Destroyed, Lost or Stolen Certificates
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25
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Section 6.5.
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Temporary Securities
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25
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Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
i
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Page
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Section 6.6.
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Cancellation
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25
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Section 6.7.
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Rights of Holders; Waivers of Past Defaults
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26
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ARTICLE VII DISSOLUTION AND TERMINATION OF TRUST
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27
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Section 7.1.
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Dissolution and Termination of Trust
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27
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ARTICLE VIII TRANSFER OF INTERESTS
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28
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Section 8.1.
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General
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28
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Section 8.2.
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Transfer Procedures and Restrictions
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29
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Section 8.3.
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Deemed Security Holders
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31
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ARTICLE IX LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS
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31
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Section 9.1.
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Liability
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31
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Section 9.2.
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Exculpation
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31
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Section 9.3.
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Fiduciary Duty
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32
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Section 9.4.
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Indemnification
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32
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Section 9.5.
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Outside Businesses
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34
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Section 9.6.
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Compensation; Fee
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34
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ARTICLE X ACCOUNTING
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35
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Section 10.1.
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Fiscal Year
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35
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Section 10.2.
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Certain Accounting Matters
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35
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Section 10.3.
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Banking
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36
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Section 10.4.
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Withholding
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36
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ARTICLE XI AMENDMENTS AND MEETINGS
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36
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Section 11.1.
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Amendments
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36
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Section 11.2.
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Meetings of the Holders of Securities; Action by Written Consent
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38
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ARTICLE XII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND THE DELAWARE TRUSTEE
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39
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Section 12.1.
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Representations and Warranties of Institutional Trustee
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39
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Section 12.2.
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Representations of the Delaware Trustee
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39
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ARTICLE XIII MISCELLANEOUS
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40
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Section 13.1.
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Notices
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40
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Section 13.2.
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Governing Law
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41
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Section 13.3.
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Intention of the Parties
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41
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Section 13.4.
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Headings
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41
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Section 13.5.
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Successors and Assigns
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41
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Section 13.6.
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Partial Enforceability
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41
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Section 13.7.
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Counterparts
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42
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Annex I
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Terms of Securities
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Exhibit A-1
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Form of Capital Security Certificate
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Exhibit A-2
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Form of Common Security Certificate
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Exhibit B
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Specimen of Initial Debenture
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Exhibit C
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Placement Agreement
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Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
ii
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
TEXAS CAPITAL STATUTORY TRUST IV
April 28, 2006
AMENDED AND RESTATED DECLARATION OF TRUST (
Declaration
) dated and effective as of
April 28, 2006, by the Trustees (as defined herein), the Administrators (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided beneficial
interests in the Trust (as defined herein) to be issued pursuant to this Declaration;
WHEREAS, the Trustees, the Administrators and the Sponsor established Texas Capital Statutory
Trust IV (the
Trust
), a statutory trust under the Statutory Trust Act (as defined herein)
pursuant to a Declaration of Trust dated as of April 25, 2006 (the
Original Declaration
),
and a Certificate of Trust filed with the Secretary of State of the State of Delaware on April 25,
2006, for the sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds thereof in certain
debentures of the Debenture Issuer (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been issued; and
WHEREAS, the Trustees, the Administrators and the Sponsor, by this Declaration, amend and
restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a
statutory trust under the Statutory Trust Act and that this Declaration constitutes the governing
instrument of such statutory trust, the Trustees declare that all assets contributed to the Trust
will be held in trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to
the provisions of this Declaration. The parties hereto hereby agree as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1.
Definitions
.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning throughout;
(c) all references to the Declaration or this Declaration are to this Declaration as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and Annexes and Exhibits are
to Articles and Sections of and Annexes and Exhibits to this Declaration unless otherwise
specified; and
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
1
(e) a reference to the singular includes the plural and vice versa.
Acceleration Event of Default
has the meaning set forth in the Indenture.
Additional Interest
has the meaning set forth in the Indenture.
Administrative Action
has the meaning set forth in paragraph 4(a) of Annex I.
Administrators
means each of Joseph M. Grant and Dwain Howard, solely in such
Persons capacity as Administrator of the Trust created and continued hereunder and not in such
Persons individual capacity, or such Administrators successor in interest in such capacity, or
any successor appointed as herein provided.
Affiliate
has the same meaning as given to that term in Rule 405 of the Securities
Act or any successor rule thereunder.
Authorized Officer
of a Person means any Person that is authorized to bind such
Person.
Bankruptcy Event
means, with respect to any Person:
(a) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of such Person in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any substantial part of its
property, or ordering the winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days; or
(b) such Person shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, shall consent to the entry of an order for relief in
an involuntary case under any such law, or shall consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official)
of such Person of any substantial part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they become due.
Business Day
means any day other than Saturday, Sunday or any other day on which
banking institutions in New York City or Wilmington, Delaware are permitted or required by any
applicable law or executive order to close.
Capital Securities
has the meaning set forth in paragraph 1(a) of Annex I.
Capital Security Certificate
means a definitive Certificate in fully registered form
representing a Capital Security substantially in the form of Exhibit A-1.
Capital Treatment Event
has the meaning set forth in paragraph 4(a) of Annex I.
Certificate
means any certificate evidencing Securities.
Closing Date
has the meaning set forth in the Placement Agreement.
Code
means the Internal Revenue Code of 1986, as amended from time to time, or any
successor legislation.
Common Securities
has the meaning set forth in paragraph 1(b) of Annex I.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
2
Common Security Certificate
means a definitive Certificate in fully registered form
representing a Common Security substantially in the form of Exhibit A-2.
Company Indemnified Person
means (a) any Administrator; (b) any Affiliate of any
Administrator; (c) any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Administrator; or (d) any officer, employee or agent of the Trust
or its Affiliates.
Corporate Trust Office
means the office of the Institutional Trustee at which the
corporate trust business of the Institutional Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Declaration is located at Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-1600, Attn: Corporate Trust
Administration.
Coupon Rate
has the meaning set forth in paragraph 2(a) of Annex I.
Covered Person
means: (a) any Administrator, officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) any of the Trusts
Affiliates; and (b) any Holder of Securities.
Creditor
has the meaning set forth in Section 3.3.
Debenture Issuer
means Texas Capital Bancshares, Inc., a Delaware corporation, in
its capacity as issuer of the Debentures under the Indenture.
Debenture Trustee
means Wilmington Trust Company, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor trustee.
Debentures
means the Floating Rate Junior Subordinated Deferrable Interest
Debentures due 2036 to be issued by the Debenture Issuer under the Indenture.
Defaulted Interest
has the meaning set forth in the Indenture.
Delaware Trustee
has the meaning set forth in Section 4.2.
Determination Date
has the meaning set forth in paragraph 4(a) of Annex I.
Direct Action
has the meaning set forth in Section 2.8(d).
Distribution
means a distribution payable to Holders of Securities in accordance
with Section 5.1.
Distribution Payment Date
has the meaning set forth in paragraph 2(b) of Annex I.
Distribution Period
means (i) with respect to the Distribution paid on the first
Distribution Payment Date, the period beginning on (and including) the date of original issuance
and ending on (but excluding) the Distribution Payment Date in June 2006 and (ii) thereafter, with
respect to a Distribution paid on each successive Distribution Payment Date, the period beginning
on (and including) the preceding Distribution Payment Date and ending on (but excluding) such
current Distribution Payment Date.
Distribution Rate
means, for the Distribution Period beginning on (and including)
the date of original issuance and ending on (but excluding) the Distribution Payment Date in June
2006, the rate per annum of 6.74875%, and for each Distribution Period beginning on or after the
Distribution Payment Date in June 2006, the Coupon Rate for such Distribution Period.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
3
Event of Default
means any one of the following events (whatever the reason for such
event and whether it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of an Indenture Event of Default; or
(b) default by the Trust in the payment of any Redemption Price or Special Redemption Price of
any Security when it becomes due and payable; or
(c) default in the performance, or breach, in any material respect, of any covenant or
warranty of the Institutional Trustee in this Declaration (other than those specified in clause (a)
or (b) above) and continuation of such default or breach for a period of 60 days after there has
been given, by registered or certified mail to the Institutional Trustee and to the Sponsor by the
Holders of at least 25% in aggregate liquidation amount of the outstanding Capital Securities, a
written notice specifying such default or breach and requiring it to be remedied and stating that
such notice is a Notice of Default hereunder; or
(d) the occurrence of a Bankruptcy Event with respect to the Institutional Trustee if a
successor Institutional Trustee has not been appointed within 90 days thereof.
Extension Period
has the meaning set forth in paragraph 2(b) of Annex I.
Federal Reserve
has the meaning set forth in paragraph 3 of Annex I.
Fiduciary Indemnified Person
shall mean each of the Institutional Trustee (including
in its individual capacity), the Delaware Trustee (including in its individual capacity), any
Affiliate of the Institutional Trustee or Delaware Trustee and any officers, directors,
shareholders, members, partners, employees, representatives, custodians, nominees or agents of the
Institutional Trustee or Delaware Trustee.
Fiscal Year
has the meaning set forth in Section 10.1.
Guarantee
means the guarantee agreement to be dated as of the Closing Date, of the
Sponsor in respect of the Capital Securities.
Holder
means a Person in whose name a Certificate representing a Security is
registered, such Person being a beneficial owner within the meaning of the Statutory Trust Act.
Indemnified Person
means a Company Indemnified Person or a Fiduciary Indemnified
Person.
Indenture
means the Indenture dated as of the Closing Date, between the Debenture
Issuer and the Debenture Trustee, and any indenture supplemental thereto pursuant to which the
Debentures are to be issued, as such Indenture and any supplemental indenture may be amended,
supplemented or otherwise modified from time to time.
Indenture Event of Default
means an Event of Default as defined in the Indenture.
Institutional Trustee
means the Trustee meeting the eligibility requirements set
forth in Section 4.3.
Interest
means any interest due on the Debentures including any Additional Interest
and Defaulted Interest.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
4
Investment Company
means an investment company as defined in the Investment Company
Act.
Investment Company Act
means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
Investment Company Event
has the meaning set forth in paragraph 4(a) of Annex I.
Liquidation
has the meaning set forth in paragraph 3 of Annex I.
Liquidation Distribution
has the meaning set forth in paragraph 3 of Annex I.
Majority in liquidation amount of the Securities
means Holder(s) of outstanding
Securities voting together as a single class or, as the context may require, Holders of outstanding
Capital Securities or Holders of outstanding Common Securities voting separately as a class, who
are the record owners of more than 50% of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
Maturity Date
has the meaning set forth in paragraph 4(a) of Annex I.
Officers Certificates
means, with respect to any Person, a certificate signed by
two Authorized Officers of such Person. Any Officers Certificate delivered with respect to
compliance with a condition or covenant providing for it in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read the covenant or condition
and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or investigation as, in such
officers opinion, is necessary to enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such condition or covenant
has been complied with.
OTS
has the meaning set forth in paragraph 3 of Annex I.
Paying Agent
has the meaning specified in Section 6.2.
Person
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision thereof, or any
other entity of whatever nature.
Placement Agreement
means the Placement Agreement relating to the offering and sale
of Capital Securities in the form of Exhibit C.
Property Account
has the meaning set forth in Section 2.8(c).
Pro Rata
has the meaning set forth in paragraph 8 of Annex I.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
5
Quorum
means a majority of the Administrators or, if there are only two
Administrators, both of them.
Redemption Date
has the meaning set forth in paragraph 4(a) of Annex I.
Redemption/Distribution Notice
has the meaning set forth in paragraph 4(e) of Annex
I.
Redemption Price
has the meaning set forth in paragraph 4(a) of Annex I.
Registrar
has the meaning set forth in Section 6.2.
Relevant Trustee
has the meaning set forth in Section 4.5(a).
Responsible Officer
means, with respect to the Institutional Trustee, any officer
within the Corporate Trust Office of the Institutional Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, the treasurer, any assistant treasurer, any
trust officer or other officer of the Corporate Trust Office of the Institutional Trustee
customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officers knowledge of and familiarity with the particular
subject.
Restricted Securities Legend
has the meaning set forth in Section 8.2(b).
Rule 3a-5
means Rule 3a-5 under the Investment Company Act.
Rule 3a-7
means Rule 3a-7 under the Investment Company Act.
Securities
means the Common Securities and the Capital Securities.
Securities Act
means the Securities Act of 1933, as amended from time to time, or
any successor legislation.
Special Event
has the meaning set forth in paragraph 4(a) of Annex I.
Special Redemption Date
has the meaning set forth in paragraph 4(a) of Annex I.
Special Redemption Price
has the meaning set forth in paragraph 4(a) of Annex I.
Sponsor
means Texas Capital Bancshares, Inc., a Delaware corporation, or any
successor entity in a merger, consolidation or amalgamation, in its capacity as sponsor of the
Trust.
Statutory Trust Act
means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. §§
3801,
et seq.
as may be amended from time to time.
Successor Entity
has the meaning set forth in Section 2.15(b).
Successor Delaware Trustee
has the meaning set forth in Section 4.5(e).
Successor Institutional Trustee
has the meaning set forth in Section 4.5(b).
Successor Securities
has the meaning set forth in Section 2.15(b).
Super Majority
has the meaning set forth in paragraph 5(b) of Annex I.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
6
Tax Event
has the meaning set forth in paragraph 4(a) of Annex I.
10% in liquidation amount of the Securities
means Holder(s) of outstanding
Securities voting together as a single class or, as the context may require, Holders of outstanding
Capital Securities or Holders of outstanding Common Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
3-Month LIBOR
has the meaning set forth in paragraph 4(a) of Annex I.
Transfer Agent
has the meaning set forth in Section 6.2.
Treasury Regulations
means the income tax regulations, including temporary and
proposed regulations, promulgated under the Code by the United States Treasury, as such regulations
may be amended from time to time (including corresponding provisions of succeeding regulations).
Trust Property
means (a) the Debentures, (b) any cash on deposit in, or owing to,
the Property Account and (c) all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held or deemed to be held by the Institutional Trustee
pursuant to the trusts of this Declaration.
Trustee
or
Trustees
means each Person who has signed this Declaration as a
trustee, so long as such Person shall continue in office in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
U.S. Person
means a United States Person as defined in Section 7701(a)(30) of the
Code.
ARTICLE II
ORGANIZATION
Section 2.1.
Name
.
The Trust is named Texas Capital Statutory Trust IV, as such
name may be modified from time to time by the Administrators following written notice to the
Holders of the Securities. The Trusts activities may be conducted under the name of the Trust or
any other name deemed advisable by the Administrators.
Section 2.2.
Office
.
The address of the principal office of the Trust is c/o
Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-1600. On at least 10 Business Days written notice to the Holders of the Securities, the
Administrators may designate another principal office, which shall be in a state of the United
States or in the District of Columbia.
Section 2.3.
Purpose
.
The exclusive purposes and functions of the Trust are (a) to
issue and sell the Securities representing undivided beneficial interests in the assets of the
Trust, (b) to invest the gross proceeds from such sale to acquire the Debentures, (c) to facilitate
direct investment in the assets of the Trust through issuance of the Common Securities and the
Capital Securities and (d) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be classified for United
States federal income tax purposes as a grantor trust.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
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Section 2.4.
Authority
.
Except as specifically provided in this Declaration, the
Institutional Trustee shall have exclusive and complete authority to carry out the purposes of the
Trust. An action taken by a Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no Person
shall be required to inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration. The Administrators shall have only those ministerial duties set forth
herein with respect to accomplishing the purposes of the Trust and are not intended to be trustees
or fiduciaries with respect to the Trust or the Holders. The Institutional Trustee shall have the
right, but shall not be obligated except as provided in Section 2.6, to perform those duties
assigned to the Administrators.
Section 2.5.
Title to Property of the Trust
.
Except as provided in Section 2.8 with
respect to the Debentures and the Property Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders shall not have
legal title to any part of the assets of the Trust, but shall have an undivided beneficial interest
in the assets of the Trust.
Section 2.6.
Powers and Duties of the Trustees and the Administrators.
(a) The Trustees and the Administrators shall conduct the affairs of the Trust in accordance
with the terms of this Declaration. Subject to the limitations set forth in paragraph (b) of this
Section, and in accordance with the following provisions (i) and (ii), the Trustees and the
Administrators shall have the authority to enter into all transactions and agreements determined by
the Institutional Trustee to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees or the Administrators, as the case may be, under this
Declaration, and to perform all acts in furtherance thereof, including without limitation, the
following:
(i) Each Administrator shall have the power and authority to act on behalf of the Trust
with respect to the following matters:
(A) the issuance and sale of the Securities;
(B) to cause the Trust to enter into, and to execute and deliver on behalf of
the Trust, such agreements as may be necessary or desirable in connection with the
purposes and function of the Trust, including agreements with the Paying Agent;
(C) ensuring compliance with the Securities Act, applicable state securities or
blue sky laws;
(D) the sending of notices (other than notices of default), and other
information regarding the Securities and the Debentures to the Holders in accordance
with this Declaration;
(E) the consent to the appointment of a Paying Agent, Transfer Agent and
Registrar in accordance with this Declaration, which consent shall not be
unreasonably withheld or delayed;
(F) execution and delivery of the Securities in accordance with this
Declaration;
(G) execution and delivery of closing certificates pursuant to the Placement
Agreement and the application for a taxpayer identification number;
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(H) unless otherwise determined by the Holders of a Majority in liquidation
amount of the Securities or as otherwise required by the Statutory Trust Act, to
execute on behalf of the Trust (either acting alone or together with any or all of
the Administrators) any documents that the Administrators have the power to execute
pursuant to this Declaration;
(I) the taking of any action incidental to the foregoing as the Institutional
Trustee may from time to time determine is necessary or advisable to give effect to
the terms of this Declaration for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
(J) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including Distributions, voting
rights, redemptions and exchanges, and to issue relevant notices to the Holders of
Capital Securities and Holders of Common Securities as to such actions and
applicable record dates; and
(K) to duly prepare and file all applicable tax returns and tax information
reports that are required to be filed with respect to the Trust on behalf of the
Trust.
(ii) As among the Trustees and the Administrators, the Institutional Trustee shall have
the power, duty and authority to act on behalf of the Trust with respect to the following
matters:
(A) the establishment of the Property Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments made in
respect of the Debentures in the Property Account;
(D) the distribution through the Paying Agent of amounts owed to the Holders in
respect of the Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of the
Debentures;
(F) the sending of notices of default and other information regarding the
Securities and the Debentures to the Holders in accordance with this Declaration;
(G) the distribution of the Trust Property in accordance with the terms of this
Declaration;
(H) to the extent provided in this Declaration, the winding up of the affairs of
and liquidation of the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the State of Delaware;
(I) after any Event of Default (
provided
that such Event of Default is
not by or with respect to the Institutional Trustee) the taking of any action
incidental to the foregoing as the Institutional Trustee may from time to time
determine is necessary or advisable to give effect to the terms of this Declaration
and protect and conserve the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular Holder); and
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(J) to take all action that may be necessary for the preservation and the
continuation of the Trusts valid existence, rights, franchises and privileges as a
statutory trust under the laws of the State of Delaware.
(iii) The Institutional Trustee shall have the power and authority to act on behalf of
the Trust with respect to any of the duties, liabilities, powers or the authority of the
Administrators set forth in Section 2.6(a)(i)(D), (E) and (F) herein but shall not have a
duty to do any such act unless specifically requested to do so in writing by the Sponsor,
and shall then be fully protected in acting pursuant to such written request; and in the
event of a conflict between the action of the Administrators and the action of the
Institutional Trustee, the action of the Institutional Trustee shall prevail.
(b) So long as this Declaration remains in effect, the Trust (or the Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby. In particular, neither the
Trustees nor the Administrators may cause the Trust to (i) acquire any investments or engage in any
activities not authorized by this Declaration, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including
to Holders, except as expressly provided herein, (iii) take any action that would reasonably be
expected (x) to cause the Trust to fail or cease to qualify as a grantor trust for United States
federal income tax purposes or (y) to require the trust to register as an Investment Company under
the Investment Company Act, (iv) incur any indebtedness for borrowed money or issue any other debt
or (v) take or consent to any action that would result in the placement of a lien on any of the
Trust Property. The Institutional Trustee shall, at the sole cost and expense of the Trust, defend
all claims and demands of all Persons at any time claiming any lien on any of the Trust Property
adverse to the interest of the Trust or the Holders in their capacity as Holders.
(c) In connection with the issuance and sale of the Capital Securities, the Sponsor shall have
the right and responsibility to assist the Trust with respect to, or effect on behalf of the Trust,
the following (and any actions taken by the Sponsor in furtherance of the following prior to the
date of this Declaration are hereby ratified and confirmed in all respects):
(i) the taking of any action necessary to obtain an exemption from the Securities Act;
(ii) the determination of the States in which to take appropriate action to qualify or
register for sale all or part of the Capital Securities and the determination of any and all
such acts, other than actions which must be taken by or on behalf of the Trust, and the
advice to the Administrators of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such States in connection with the sale of the Capital
Securities;
(iii) the negotiation of the terms of, and the execution and delivery of, the Placement
Agreement providing for the sale of the Capital Securities; and
(iv) the taking of any other actions necessary or desirable to carry out any of the
foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and the Holders of a
Majority in liquidation amount of the Common Securities are authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust will not (i) be deemed to be an
Investment
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
10
Company required to be registered under the Investment Company Act, and (ii) fail to be
classified as a grantor trust for United States federal income tax purposes. The Administrators
and the Holders of a Majority in liquidation amount of the Common Securities shall not take any
action inconsistent with the treatment of the Debentures as indebtedness of the Debenture Issuer
for United States federal income tax purposes. In this connection, the Administrators and the
Holders of a Majority in liquidation amount of the Common Securities are authorized to take any
action, not inconsistent with applicable laws, the Certificate of Trust or this Declaration, as
amended from time to time, that each of the Administrators and the Holders of a Majority in
liquidation amount of the Common Securities determines in their discretion to be necessary or
desirable for such purposes.
(e) All expenses incurred by the Administrators or the Trustees pursuant to this Section 2.6
shall be reimbursed by the Sponsor, and the Trustees and the Administrators shall have no
obligations with respect to such expenses (for purposes of clarification, this Section 2.6(e) does
not contemplate the payment by the Sponsor of acceptance or annual administration fees owing to the
Trustees under this Declaration or the fees and expenses of the Trustees counsel in connection
with the closing of the transactions contemplated by this Declaration).
(f) The assets of the Trust shall consist of the Trust Property.
(g) Legal title to all Trust Property shall be vested at all times in the Institutional Trustee
(in its capacity as such) and shall be held and administered by the Institutional Trustee and the
Administrators for the benefit of the Trust in accordance with this Declaration.
(h) If the Institutional Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Declaration and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Institutional Trustee or to such Holder, then
and in every such case the Sponsor, the Institutional Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Institutional Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 2.7.
Prohibition of Actions by the Trust and the Institutional Trustee.
(a) The Trust shall not, and the Institutional Trustee shall cause the Trust not to, engage in
any activity other than as required or authorized by this Declaration. In particular, the Trust
shall not and the Institutional Trustee shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the Debentures, but shall
distribute all such proceeds to Holders of the Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust Property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans represented by the
Debentures;
(v) possess any power or otherwise act in such a way as to vary the Trust assets or the
terms of the Securities in any way whatsoever other than as expressly provided herein;
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
11
(vi) issue any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Securities;
(vii) carry on any trade or business as that phrase is used in the Code; or
(viii) other than as provided in this Declaration (including Annex I), (A) direct the
time, method and place of exercising any trust or power conferred upon the Debenture Trustee
with respect to the Debentures, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration that the principal of
all the Debentures shall be due and payable, or (D) consent to any amendment, modification
or termination of the Indenture or the Debentures where such consent shall be required
unless the Trust shall have received a written opinion of counsel to the effect that such
modification will not cause the Trust to cease to be classified as a grantor trust for
United States federal income tax purposes.
Section 2.8.
Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of record in the name of the
Institutional Trustee in trust for the benefit of the Trust and the Holders of the Securities. The
right, title and interest of the Institutional Trustee to the Debentures shall vest automatically
in each Person who may hereafter be appointed as Institutional Trustee in accordance with Section
4.5. Such vesting and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and interest in the
Debentures to the Administrators or to the Delaware Trustee.
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust account (the
Property Account
) in the name of and under the exclusive control of the
Institutional Trustee, and maintained in the Institutional Trustees trust department, on
behalf of the Holders of the Securities and, upon the receipt of payments of funds made in
respect of the Debentures held by the Institutional Trustee, deposit such funds into the
Property Account and make payments, or cause the Paying Agent to make payments, to the
Holders of the Capital Securities and Holders of the Common Securities from the Property
Account in accordance with Section 5.1. Funds in the Property Account shall be held
uninvested until disbursed in accordance with this Declaration;
(ii) engage in such ministerial activities as shall be necessary or appropriate to
effect the redemption of the Capital Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Administrators in accordance with the
terms of the Securities, engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of Securities upon the
occurrence of certain circumstances pursuant to the terms of the Securities.
(d) The Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate, resort
to legal action with respect to, or otherwise adjust claims or demands of or against, the Trust
which arises out of or in connection with an Event of Default of which a Responsible Officer of the
Institutional Trustee has actual knowledge or arises out of the Institutional Trustees duties and
obligations under this Declaration;
provided
,
however
, that if an Event of Default
has occurred and is continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or principal on the Debentures on the
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date such interest or principal is
otherwise payable (or in the case of redemption, on the redemption date), then a Holder of the
Capital Securities may directly institute a proceeding for enforcement of payment to such Holder of
the principal of or interest on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Capital Securities of such Holder (a
Direct Action
) on or after
the respective due date specified in the Debentures. In connection with such Direct Action, the
rights of the Holders of the Common Securities will be subrogated to the rights of such Holder of
the Capital Securities to the extent of any payment made by the Debenture Issuer to such Holder of
the Capital Securities in such Direct Action;
provided
,
however
, that no Holder of
the Common Securities may exercise such right of subrogation so long as an Event of Default with
respect to the Capital Securities has occurred and is continuing.
(e) The Institutional Trustee shall continue to serve as a Trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the liquidation
distributed to the Holders of the Securities pursuant to the terms of the Securities and
this Declaration; or
(ii) a Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 4.5.
(f) The Institutional Trustee shall have the legal power to exercise all of the rights, powers
and privileges of a Holder of the Debentures under the Indenture and, if an Event of Default occurs
and is continuing, the Institutional Trustee may, for the benefit of Holders of the Securities,
enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to
this Declaration (including Annex I) and the terms of the Securities.
The Institutional Trustee must exercise the powers set forth in this Section 2.8 in a manner
that is consistent with the purposes and functions of the Trust set out in Section 2.3, and the
Institutional Trustee shall not take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 2.3.
Section 2.9.
Certain Duties and Responsibilities of the Trustees and Administrators.
(a) The Institutional Trustee, before the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Declaration and no implied covenants shall
be read into this Declaration against the Institutional Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 6.7), the Institutional Trustee
shall exercise such of the rights and powers vested in it by this Declaration, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) The duties and responsibilities of the Trustees and the Administrators shall be as
provided by this Declaration. Notwithstanding the foregoing, no provision of this Declaration
shall require any Trustee or Administrator to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in the exercise of any
of their rights or powers if it shall have reasonable grounds to believe that repayment of such
funds or adequate protection against such risk of liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Declaration relating to the
conduct or affecting the liability of or affording protection to the Trustees or Administrators
shall be subject to the provisions of this Article. Nothing in this Declaration shall be construed
to relieve an Administrator or a Trustee from liability for its own negligent act, its own
negligent failure to act, or its own willful misconduct. To the extent that, at law or in equity,
a Trustee or an Administrator has duties and liabilities relating to the Trust or to the Holders,
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
13
such Trustee or such Administrator shall not be liable to the Trust or to any Holder for such
Trustees or such Administrators good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and liabilities of the
Administrators or the Trustee otherwise existing at law or in equity, are agreed by the Sponsor and
the Holders to replace such other duties and liabilities of the Administrators or the Trustees.
(c) All payments made by the Institutional Trustee or a Paying Agent in respect of the
Securities shall be made only from the revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the
Institutional Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for distribution to it as herein
provided and that the Trustees and the Administrators are not personally liable to it for any
amount distributable in respect of any Security or for any other liability in respect of any
Security. This Section 2.9(c) does not limit the liability of the Trustees expressly set forth
elsewhere in this Declaration.
(d) The Institutional Trustee shall not be liable for its own acts or omissions hereunder
except as a result of its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) the Institutional Trustee shall not be liable for any error of judgment made in good
faith by an Authorized Officer of the Institutional Trustee, unless it shall be proved that
the Institutional Trustee was negligent in ascertaining the pertinent facts;
(ii) the Institutional Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Holders of
not less than a Majority in liquidation amount of the Capital Securities or the Common
Securities, as applicable, relating to the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or exercising any trust or
power conferred upon the Institutional Trustee under this Declaration;
(iii) the Institutional Trustees sole duty with respect to the custody, safekeeping
and physical preservation of the Debentures and the Property Account shall be to deal with
such property in a similar manner as the Institutional Trustee deals with similar property
for its fiduciary accounts generally, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this Declaration;
(iv) the Institutional Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree in writing with the Sponsor; and money held
by the Institutional Trustee need not be segregated from other funds held by it except in
relation to the Property Account maintained by the Institutional Trustee pursuant to Section
2.8(c)(i) and except to the extent otherwise required by law; and
(v) the Institutional Trustee shall not be responsible for monitoring the compliance by
the Administrators or the Sponsor with their respective duties under this Declaration, nor
shall the Institutional Trustee be liable for any default or misconduct of the
Administrators or the Sponsor.
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Section 2.10.
Certain Rights of Institutional Trustee
.
Subject to the provisions of
Section 2.9:
(a) the Institutional Trustee may conclusively rely and shall fully be protected in acting or
refraining from acting in good faith upon any resolution, opinion of counsel, certificate, written
representation of a Holder or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed, sent or presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration, the Institutional Trustee is
required to decide between alternative courses of action, (ii) in construing any of the provisions
of this Declaration, the Institutional Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein,
or (iii) the Institutional Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Holders of Capital Securities are
entitled to vote under the terms of this Declaration, the Institutional Trustee may deliver a
notice to the Sponsor requesting the Sponsors written instructions as to the course of action to
be taken and the Institutional Trustee shall take such action, or refrain from taking such action,
as the Institutional Trustee shall be instructed in writing, in which event the Institutional
Trustee shall have no liability except for its own negligence or willful misconduct;
(c) any direction or act of the Sponsor or the Administrators contemplated by this Declaration
shall be sufficiently evidenced by an Officers Certificate;
(d) whenever in the administration of this Declaration, the Institutional Trustee shall deem
it desirable that a matter be proved or established before undertaking, suffering or omitting any
action hereunder, the Institutional Trustee (unless other evidence is herein specifically
prescribed) may request and conclusively rely upon an Officers Certificate as to factual matters
which, upon receipt of such request, shall be promptly delivered by the Sponsor or the
Administrators;
(e) the Institutional Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation statement or any filing
under tax or securities laws) or any rerecording, refiling or reregistration thereof;
(f) the Institutional Trustee may consult with counsel of its selection (which counsel may be
counsel to the Sponsor or any of its Affiliates) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and in accordance with such advice; the
Institutional Trustee shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent jurisdiction;
(g) the Institutional Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Declaration at the request or direction of any of the Holders pursuant
to this Declaration, unless such Holders shall have offered to the Institutional Trustee security
or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
provided
, that nothing
contained in this Section 2.10(g) shall be taken to relieve the Institutional Trustee, subject to
Section 2.9(b), upon the occurrence of an Event of Default (that has not been cured or waived
pursuant to Section 6.7), to exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own affairs;
(h) the Institutional Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper or
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
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document,
unless requested in writing to do so by one or more Holders, but the Institutional Trustee may make
such further inquiry or investigation into such facts or matters as it may see fit;
(i) the Institutional Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through its agents or attorneys and the Institutional
Trustee shall not be responsible for any misconduct or negligence on the part of or for the
supervision of, any such agent or attorney appointed with due care by it hereunder;
(j) whenever in the administration of this Declaration the Institutional Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right or taking any other
action hereunder the Institutional Trustee (i) may request instructions from the Holders of the
Capital Securities which instructions may only be given by the Holders of the same proportion in
liquidation amount of the Capital Securities as would be entitled to direct the Institutional
Trustee under the terms of the Capital Securities in respect of such remedy, right or action, (ii)
may refrain from enforcing such remedy or right or taking such other action until such instructions
are received, and (iii) shall be fully protected in acting in accordance with such instructions;
(k) except as otherwise expressly provided in this Declaration, the Institutional Trustee
shall not be under any obligation to take any action that is discretionary under the provisions of
this Declaration;
(l) when the Institutional Trustee incurs expenses or renders services in connection with a
Bankruptcy Event, such expenses (including the fees and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors rights generally;
(m) the Institutional Trustee shall not be charged with knowledge of an Event of Default
unless a Responsible Officer of the Institutional Trustee obtains actual knowledge of such event or
the Institutional Trustee receives written notice of such event from any Holder, the Sponsor or the
Debenture Trustee;
(n) any action taken by the Institutional Trustee or its agents hereunder shall bind the Trust
and the Holders of the Securities, and the signature of the Institutional Trustee or its agents
alone shall be sufficient and effective to perform any such action and no third party shall be
required to inquire as to the authority of the Institutional Trustee to so act or as to its
compliance with any of the terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Institutional Trustees or its agents taking such action; and
(o) no provision of this Declaration shall be deemed to impose any duty or obligation on the
Institutional Trustee to perform any act or acts or exercise any right, power, duty or obligation
conferred
or imposed on it, in any jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Institutional Trustee shall be construed to be a
duty.
Section 2.11.
Delaware Trustee
. Notwithstanding any other provision of this
Declaration other than Section 4.1, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and responsibilities of any of the
Trustees or the Administrators described in this Declaration (except as may be required under the
Statutory Trust Act). Except as set forth in Section 4.1, the Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of § 3807 of the Statutory Trust
Act.
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Section 2.12.
Execution of Documents
.
Unless otherwise determined in writing by the
Institutional Trustee, and except as otherwise required by the Statutory Trust Act, the
Institutional Trustee, or any one or more of the Administrators, as the case may be, is authorized
to execute on behalf of the Trust any documents that the Trustees or the Administrators, as the
case may be, have the power and authority to execute pursuant to Section 2.6.
Section 2.13.
Not Responsible for Recitals or Issuance of Securities
.
The recitals
contained in this Declaration and the Securities shall be taken as the statements of the Sponsor,
and the Trustees do not assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this Declaration, the
Debentures or the Securities.
Section 2.14.
Duration of Trust
.
The Trust, unless earlier dissolved pursuant to the
provisions of Article VII hereof, shall be in existence for 35 years from the Closing Date.
Section 2.15.
Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety to any corporation
or other body, except as described in Section 2.15(b) and (c) and except in connection with the
liquidation of the Trust and the distribution of the Debentures to Holders of Securities pursuant
to Section 7.1(a)(iv) of the Declaration or Section 4 of Annex I.
(b) The Trust may, with the consent of the Institutional Trustee and without the consent of
the Holders of the Capital Securities, consolidate, amalgamate, merge with or into, or be replaced
by a trust organized as such under the laws of any state; provided that:
(i) if the Trust is not the surviving entity, such successor entity (the
Successor
Entity
) either:
(A) expressly assumes all of the obligations of the Trust under the Securities;
or
(B) substitutes for the Securities other securities having substantially the
same terms as the Securities (the
Successor Securities
) so that the
Successor Securities rank the same as the Securities rank with respect to
Distributions and payments upon Liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the Successor Entity that possesses
substantially the same powers and duties as the Institutional Trustee as the Holder of the
Debentures;
(iii) such merger, consolidation, amalgamation or replacement does not adversely affect
the rights, preferences and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect;
(iv) the Institutional Trustee receives written confirmation from Moodys Investor
Services, Inc. and any other nationally recognized statistical rating organization that
rates securities issued by the initial purchaser of the Capital Securities that it will not
reduce or withdraw the rating of any such securities because of such merger, conversion,
consolidation, amalgamation or replacement;
(v) such Successor Entity has a purpose substantially identical to that of the Trust;
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(vi) prior to such merger, consolidation, amalgamation or replacement, the Trust has
received an opinion of a nationally recognized independent counsel to the Trust experienced
in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Securities
(including any Successor Securities) in any material respect;
(B) following such merger, consolidation, amalgamation or replacement, neither the
Trust nor the Successor Entity will be required to register as an Investment
Company; and
(C) following such merger, consolidation, amalgamation or replacement, the
Trust (or the Successor Entity) will continue to be classified as a grantor trust
for United States federal income tax purposes;
(vii) the Sponsor guarantees the obligations of such Successor Entity under the
Successor Securities at least to the extent provided by the Guarantee;
(viii) the Sponsor owns 100% of the common securities of any Successor Entity; and
(ix) prior to such merger, consolidation, amalgamation or replacement, the
Institutional Trustee shall have received an Officers Certificate of the Administrators and
an opinion of counsel, each to the effect that all conditions precedent under this Section
2.15(b) to such transaction have been satisfied.
(c) Notwithstanding Section 2.15(b), the Trust shall not, except with the consent of Holders
of 100% in aggregate liquidation amount of the Securities, consolidate, amalgamate, merge with or
into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE III
SPONSOR
Section 3.1.
Sponsors Purchase of Common Securities
.
On the Closing Date, the
Sponsor will purchase all of the Common Securities issued by the Trust in an amount at least equal
to 3% of the capital of the Trust, at the same time as the Capital Securities are sold.
Section 3.2.
Responsibilities of the Sponsor
.
In connection with the issue and sale
of the Capital Securities, the Sponsor shall have the exclusive right and responsibility to engage
in, or direct the Administrators to engage in, the following activities:
(a) to determine the States in which to take appropriate action to qualify the Trust or to qualify
or register for sale all or part of the Capital Securities and to do any and all such acts, other
than actions which must be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the Trust, as the
Sponsor deems necessary or advisable in order to comply with the applicable laws of any such
States, to protect the limited liability of the Holders of the Capital Securities or to enable the
Trust to effect the purposes for which it was created; and
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(b) to negotiate the terms of and/or execute on behalf of the Trust, the Placement Agreement
and other related agreements providing for the sale of the Capital Securities.
Section 3.3.
Expenses
. In connection with the offering, sale and issuance of the
Debentures to the Trust and in connection with the sale of the Securities by the Trust, the
Sponsor, in its capacity as Debenture Issuer, shall:
(a) pay all reasonable costs and expenses owing to the Debenture Trustee pursuant to Section
6.6 of the Indenture;
(b) be responsible for and shall pay all debts and obligations (other than with respect to the
Securities) and all costs and expenses of the Trust, the offering, sale and issuance of the
Securities (including fees to the placement agents in connection therewith), the costs and expenses
(including reasonable counsel fees and expenses) of the Institutional Trustee and the
Administrators, the costs and expenses relating to the operation of the Trust, including, without
limitation, costs and expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment, Paying Agents,
Registrars, Transfer Agents, duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets and the enforcement by the Institutional Trustee of the rights of the
Holders (for purposes of clarification, this Section 3.3(b) does not contemplate the payment by the
Sponsor of acceptance or annual administration fees owing to the Trustees pursuant to the services
to be provided by the Trustees under this Declaration or the fees and expenses of the Trustees
counsel in connection with the closing of the transactions contemplated by this Declaration); and
(c) pay any and all taxes (other than United States withholding taxes attributable to the
Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the
Trust.
The Sponsors obligations under this Section 3.3 shall be for the benefit of, and shall be
enforceable by, any Person to whom such debts, obligations, costs, expenses and taxes are owed (a
Creditor
) whether or not such Creditor has received notice hereof. Any such Creditor may
enforce the Sponsors obligations under this Section 3.3 directly against the Sponsor and the
Sponsor irrevocably waives any right or remedy to require that any such Creditor take any action
against the Trust or any other Person before proceeding against the Sponsor. The Sponsor agrees to
execute such additional agreements as may be necessary or desirable in order to give full effect to
the provisions of this Section 3.3.
Section 3.4.
Right to Proceed
.
The Sponsor acknowledges the rights of Holders to institute a Direct Action as set forth in
Section 2.8(d) hereto.
ARTICLE IV
INSTITUTIONAL TRUSTEE AND ADMINISTRATORS
Section 4.1.
Number of Trustees
. The number of Trustees shall initially be two, and;
(a) at any time before the issuance of any Securities, the Sponsor may, by written instrument,
increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be increased or decreased
by vote of the Holder of a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holder of the Common Securities;
provided
,
however
, that
there shall be a Delaware Trustee if required by Section 4.2; and there shall always be one Trustee
who shall be the Institutional Trustee, and such Trustee may also serve as Delaware Trustee if it
meets the applicable
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requirements, in which case Section 2.11 shall have no application to such
entity in its capacity as Institutional Trustee.
Section 4.2.
Delaware Trustee; Eligibility
.
(a) If required by the Statutory Trust Act, one Trustee (the Delaware Trustee) shall be:
(i) a natural person at least 21 years of age who is a resident of the State of
Delaware; or
(ii) if not a natural person, an entity which is organized under the laws of the United
States or any state thereof or the District of Columbia, has its principal place of business
in the State of Delaware, and otherwise meets the requirements of applicable law, including
§ 3807 of the Statutory Trust Act.
(b) The initial Delaware Trustee shall be Wilmington Trust Company.
Section 4.3.
Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) not offer or provide credit or credit enhancement to the Trust; and
(iii) be a banking corporation or trust company organized and doing business under the
laws of the United States of America or any state thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000.00), and subject to supervision or
examination by Federal, state, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then for the purposes of this
Section 4.3(a)(iii), the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall cease to be eligible to so act under
Section 4.3(a), the Institutional Trustee shall immediately resign in the manner and with the
effect set forth in Section 4.5.
(c) If the Institutional Trustee has or shall acquire any conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act of 1939, as amended, the Institutional Trustee
shall either eliminate such interest or resign, to the extent and in the manner provided by, and
subject to this Declaration.
(d) The initial Institutional Trustee shall be Wilmington Trust Company.
Section 4.4.
Administrators
.
Each Administrator shall be a U.S. Person, 21 years of
age or older and authorized to bind the Sponsor. The initial Administrators shall be Joseph M.
Grant and Dwain Howard. There shall at all times be at least one Administrator. Except where a
requirement for action by a specific number of Administrators is expressly set forth in this
Declaration and except with respect to any action the taking of which is the subject of a meeting
of the Administrators, any action required or permitted to be taken by the Administrators may be
taken by, and any power of the Administrators may be exercised by, or with the consent of, any one
such Administrator.
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Section 4.5.
Appointment, Removal and Resignation of Trustees and Administrators
.
(a) No resignation or removal of any Trustee (the Relevant Trustee) and no appointment of a
successor Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable requirements of this Section
4.5.
(b) Subject to Section 4.5(a), a Relevant Trustee may resign at any time by giving written notice
thereof to the Holders of the Securities and by appointing a successor Relevant Trustee. Upon the
resignation of the Institutional Trustee, the Institutional Trustee shall appoint a successor by
requesting from at least three Persons meeting the eligibility requirements their expenses and
charges to serve as the successor Institutional Trustee on a form provided by the Administrators,
and selecting the Person who agrees to the lowest expense and charges (the Successor Institutional
Trustee). If the instrument of acceptance by the successor Relevant Trustee required by this
Section 4.5 shall not have been delivered to the Relevant Trustee within 60 days after the giving
of such notice of resignation or delivery of the instrument of removal, the Relevant Trustee may
petition, at the expense of the Trust, any federal, state or District of Columbia court of
competent jurisdiction for the appointment of a successor Relevant Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Relevant
Trustee. The Institutional Trustee shall have no liability for the selection of such successor
pursuant to this Section 4.5.
(c) Unless an Event of Default shall have occurred and be continuing, any Trustee may be
removed at any time by an act of the Holders of a Majority in liquidation amount of the Common
Securities. If any Trustee shall be so removed, the Holders of the Common Securities, by act of
the Holders of a Majority in liquidation amount of the Common Securities delivered to the Relevant
Trustee, shall promptly appoint a successor Relevant Trustee, and such successor Trustee shall
comply with the applicable requirements of this Section 4.5. If an Event of Default shall have
occurred and be continuing, the Institutional Trustee or the Delaware Trustee, or both of them, may
be removed by the act of the Holders of a Majority in liquidation amount of the Capital Securities,
delivered to the Relevant Trustee (in its individual capacity and on behalf of the Trust). If any
Trustee shall be so removed, the Holders of Capital Securities, by act of the Holders of a Majority
in liquidation amount of the Capital Securities then outstanding delivered to the Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and such successor Trustee shall
comply with the applicable requirements of this Section 4.5. If no successor Relevant Trustee
shall have been so appointed by the Holders of a Majority in liquidation amount of the Capital
Securities and accepted appointment in the manner required by this Section 4.5 within 30 days after
delivery of an instrument of removal, the Relevant Trustee or any Holder who has been a Holder of
the Securities for at least six months may, on behalf of himself and all others similarly situated,
petition any federal, state or District of Columbia court of competent jurisdiction for the
appointment of a successor Relevant Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a successor Relevant Trustee or Trustees.
(d) The Institutional Trustee shall give notice of each resignation and each removal of a
Trustee and each appointment of a successor Trustee to all Holders and to the Sponsor. Each notice
shall include the name of the successor Relevant Trustee and the address of its Corporate Trust
Office if it is the Institutional Trustee.
(e) Notwithstanding the foregoing or any other provision of this Declaration, in the event a
Delaware Trustee who is a natural person dies or is adjudged by a court to have become incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by
the Institutional Trustee following the procedures in this Section 4.5 (with the successor being a
Person who satisfies the eligibility requirement for a Delaware Trustee set forth in this
Declaration) (the Successor Delaware Trustee).
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(f) In case of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the Securities shall execute
and deliver an amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all the rights, powers,
trusts and duties of the retiring Relevant Trustee with respect to the Securities and the Trust and
(b) shall add to or change any of the provisions of this Declaration as shall be necessary to
provide for or facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees and upon the execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but, on request of the
Trust or any successor Relevant Trustee, such retiring Relevant Trustee shall duly assign, transfer
and deliver to such successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Securities and the Trust
subject to the payment of all unpaid fees, expenses and indemnities of such retiring Relevant
Trustee.
(g) No Institutional Trustee or Delaware Trustee shall be liable for the acts or omissions to
act of any Successor Institutional Trustee or Successor Delaware Trustee, as the case may be.
(h) The Holders of the Capital Securities will have no right to vote to appoint, remove or
replace the Administrators, which voting rights are vested exclusively in the Holders of the Common
Securities.
(i) Any successor Delaware Trustee shall file an amendment to the Certificate of Trust with
the Secretary of State of the State of Delaware identifying the name and principal place of
business of such Delaware Trustee in the State of Delaware.
Section 4.6.
Vacancies Among Trustees
. If a Trustee ceases to hold office for any
reason and the number of Trustees is not reduced pursuant to Section 4.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Trustees or, if there are more than two,
a majority of the Trustees, shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 4.5.
Section 4.7.
Effect of Vacancies
.
The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee
shall not operate to dissolve, terminate or annul the Trust or terminate this Declaration.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy is filled by the
appointment of a Trustee in accordance with Section 4.5, the Institutional Trustee shall have all
the powers granted to the Trustees and shall discharge all the duties imposed upon the Trustees by
this Declaration.
Section 4.8.
Meetings of the Trustees and the Administrators
.
Meetings of the
Administrators shall be held from time to time upon the call of an Administrator. Regular meetings
of the Administrators may be held in person in the United States or by telephone, at a place (if
applicable) and time fixed by resolution of the Administrators. Notice of any in-person meetings
of the Trustees with the Administrators or meetings of the Administrators shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier)
not less than 48 hours before such meeting. Notice of any telephonic meetings of the Trustees with
the Administrators or meetings of the Administrators or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the
time, place and anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Trustee or an Administrator, as the case may be, at a
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meeting shall constitute a
waiver of notice of such meeting except where the Trustee or an Administrator, as the case may be,
attends a meeting for the express purpose of objecting to the transaction of any activity on the
grounds that the meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Trustees or the Administrators, as the case may be, may be
taken at a meeting by vote of a majority of the Trustees or the Administrators present (whether in
person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is
present, or without a meeting by the unanimous written consent of the Trustees or the
Administrators. Meetings of the Trustees and the Administrators together shall be held from time
to time upon the call of any Trustee or an Administrator.
Section 4.9.
Delegation of Power.
(a) Any Administrator may, by power of attorney consistent with applicable law, delegate to
any other natural person over the age of 21 that is a U.S. Person his or her power for the purpose
of executing any documents contemplated in Section 2.6; and
(b) the Administrators shall have power to delegate from time to time to such of their number
the doing of such things and the execution of such instruments either in the name of the Trust or
the names of the Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the provisions of the
Trust, as set forth herein.
Section 4.10.
Conversion, Consolidation or Succession to Business
.
Any Person into
which the Institutional Trustee or the Delaware Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or consolidation to which
the Institutional Trustee or the Delaware Trustee shall be a party, or any Person succeeding to all
or substantially all the corporate trust business of the Institutional Trustee or the Delaware
Trustee shall be the successor of the Institutional Trustee or the Delaware Trustee hereunder,
provided such Person shall be otherwise qualified and eligible under this Article and,
provided
,
further
, that such Person shall file an amendment to the Certificate of
Trust with the Secretary of State of the State of Delaware as contemplated in Section 4.5(i).
ARTICLE V
DISTRIBUTIONS
Section 5.1.
Distributions
.
Holders shall receive Distributions in accordance with
the applicable terms of the relevant Holders Securities. Distributions shall be made on the
Capital Securities and the Common Securities in accordance with the preferences set forth in their
respective terms. If and to the extent that the Debenture Issuer makes a payment of Interest or
any principal on the Debentures held by the Institutional Trustee, the Institutional Trustee shall
and is directed, to the extent funds are available for that purpose,
to make a distribution
(a
Distribution
)
of such amounts to Holders.
ARTICLE VI
ISSUANCE OF SECURITIES
Section 6.1.
General Provisions Regarding Securities.
(a) The Administrators shall, on behalf of the Trust, issue one series of capital securities
substantially in the form of Exhibit A-1 representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Annex I and one series of common securities
representing
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undivided beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I. The Trust shall issue no securities or other interests in the assets of the
Trust other than the Capital Securities and the Common Securities. The Capital Securities rank
pari passu
to, and payment thereon shall be made Pro Rata with, the Common Securities except that,
where an Event of Default has occurred and is continuing, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights to payment of the Holders of the Capital Securities as set
forth in Annex I.
(b) The Certificates shall be signed on behalf of the Trust by one or more Administrators.
Such signature shall be the facsimile or manual signature of any Administrator. In case any
Administrator of the Trust who shall have signed any of the Securities shall cease to be such
Administrator before the Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates had not ceased to
be such Administrator, and any Certificate may be signed on behalf of the Trust by such persons
who, at the actual date of execution of such Security, shall be an Administrator of the Trust,
although at the date of the execution and delivery of the Declaration any such person was not such
an Administrator. A Capital Security shall not be valid until authenticated by the facsimile or
manual signature of an Authorized Officer of the Institutional Trustee. Such signature shall be
conclusive evidence that the Capital Security has been authenticated under this Declaration. Upon
written order of the Trust signed by one Administrator, the Institutional Trustee shall
authenticate the Capital Securities for original issue. The Institutional Trustee may appoint an
authenticating agent that is a U.S. Person acceptable to the Trust to authenticate the Capital
Securities. A Common Security need not be so authenticated.
(c) The consideration received by the Trust for the issuance of the Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration, the Securities so issued
shall be deemed to be validly issued, fully paid and, except as provided in Section 9.1(b) with
respect to the Common Securities, non-assessable.
(e) Every Person, by virtue of having become a Holder in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration and the Guarantee.
Section 6.2.
Paying Agent, Transfer Agent and Registrar
.
The Trust shall maintain in
Wilmington, Delaware, an office or agency where the Capital Securities may be presented for payment
(
Paying Agent
), and an office or agency where Securities may be presented for
registration of transfer or exchange (the
Transfer Agent
). The Trust shall keep or cause
to be kept at such office or agency a register for the purpose of registering Securities, transfers
and exchanges of Securities, such register to be held by a registrar (the
Registrar
).
The Administrators may appoint the Paying Agent, the Registrar and the Transfer Agent and may
appoint one or more additional Paying Agents or one or more co-Registrars, or one or more
co-Transfer Agents in such other locations as it shall determine. The term
Paying Agent
includes any additional paying agent, the term
Registrar
includes any additional
registrar or co-Registrar and the term
Transfer Agent
includes any additional transfer
agent. The Administrators may change any Paying Agent, Transfer Agent or Registrar at any time
without prior notice to any Holder. The Administrators shall notify the Institutional Trustee of
the name and address of any Paying Agent, Transfer Agent and Registrar not a party to this
Declaration. The Administrators hereby initially appoint the Institutional Trustee to act as
Paying Agent, Transfer Agent and Registrar for the Capital Securities and the Common Securities.
The Institutional Trustee or any of its Affiliates in the United States may act as Paying Agent,
Transfer Agent or Registrar.
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Section 6.3.
Form and Dating
.
The Capital Securities and the Institutional Trustees
certificate of authentication thereon shall be substantially in the form of Exhibit A-1, and the
Common Securities shall be substantially in the form of Exhibit A-2, each of which is hereby
incorporated in and expressly made a part of this Declaration. Certificates may be typed, printed,
lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the
Administrators, as conclusively evidenced by their execution thereof. The Securities may have
letters, numbers, notations or other marks of identification or designation and such legends or
endorsements required by law, stock exchange rule, agreements to which the Trust is subject if any,
or usage (provided that any such notation, legend or endorsement is in a form acceptable to the
Sponsor). The Trust at the direction of the Sponsor shall furnish any such legend not contained in
Exhibit A-1 to the Institutional Trustee in writing. Each Capital Security shall be dated on or
before the date of its authentication. The terms and provisions of the Securities set forth in
Annex I and the forms of Securities set forth in Exhibits A-1 and A-2 are part of the terms of this
Declaration and to the extent applicable, the Institutional Trustee, the Delaware Trustee, the
Administrators and the Sponsor, by their execution and delivery of this Declaration, expressly
agree to such terms and provisions and to be bound thereby. Capital Securities will be issued only
in blocks having a stated liquidation amount of not less than $100,000.00 and any multiple of
$1,000.00 in excess thereof.
The Capital Securities are being offered and sold by the Trust pursuant to the Placement
Agreement in definitive, registered form without coupons and with the Restricted Securities Legend.
Section 6.4.
Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Registrar, or if the Registrar
shall receive evidence to its satisfaction of the destruction, loss or theft of any Certificate;
and
(b) there shall be delivered to the Registrar, the Administrators and the Institutional
Trustee such security or indemnity as may be required by them to keep each of them harmless;
then, in the absence of notice that such Certificate shall have been acquired by a protected
purchaser, an Administrator on behalf of the Trust shall execute (and in the case of a Capital
Security Certificate, the Institutional Trustee shall authenticate) and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this Section 6.4, the
Registrar or the Administrators may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. Any duplicate Certificate
issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in
the relevant Securities, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 6.5.
Temporary Securities
.
Until definitive Securities are ready for
delivery, the Administrators may prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate, temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Administrators
consider appropriate for temporary Securities. Without unreasonable delay, the Administrators
shall prepare and, in the case of the Capital Securities, the Institutional Trustee shall
authenticate, definitive Securities in exchange for temporary Securities.
Section 6.6.
Cancellation
.
The Administrators at any time may deliver Securities to
the Institutional Trustee for cancellation. The Registrar shall forward to the Institutional
Trustee any Securities surrendered to it for registration of transfer, redemption or payment. The
Institutional Trustee shall promptly cancel all Securities surrendered for registration of
transfer, payment, replacement or
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
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cancellation and shall dispose of such canceled Securities as the
Administrators direct. The Administrators may not issue new Securities to replace Securities that
have been paid or that have been delivered to the Institutional Trustee for cancellation.
Section 6.7.
Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the Institutional Trustee
(in its capacity as such) in accordance with Section 2.5, and the Holders shall not have any right
or title therein other than the undivided beneficial interest in the assets of the Trust conferred
by their Securities and they
shall have no right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Securities shall be personal property giving only the
rights specifically set forth therein and in this Declaration. The Securities shall have no
preemptive or similar rights.
(b) For so long as any Capital Securities remain outstanding, if upon an Acceleration Event of
Default, the Debenture Trustee fails or the holders of not less than 25% in principal amount of the
outstanding Debentures fail to declare the principal of all of the Debentures to be immediately due
and payable, the Holders of a Majority in liquidation amount of the Capital Securities then
outstanding shall have the right to make such declaration by a notice in writing to the
Institutional Trustee, the Sponsor and the Debenture Trustee.
At any time after a declaration of acceleration with respect to the Debentures has been made
and before a judgment or decree for payment of the money due has been obtained by the Debenture
Trustee as provided in the Indenture, if the Institutional Trustee, subject to the provisions
hereof, fails to annul any such declaration and waive such default, the Holders of a Majority in
liquidation amount of the Capital Securities, by written notice to the Institutional Trustee, the
Sponsor and the Debenture Trustee, may rescind and annul such declaration and its consequences if:
(i) the Debenture Issuer has paid or deposited with the Debenture Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all of the Debentures,
(B) any accrued Additional Interest on all of the Debentures,
(C) the principal of (and premium, if any, on) any Debentures that have become
due otherwise than by such declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee under the Indenture and
the reasonable compensation, expenses, disbursements and advances of the Debenture
Trustee and the Institutional Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other than the non-payment
of the principal of the Debentures that has become due solely by such acceleration, have
been cured or waived as provided in Section 5.7 of the Indenture.
The Holders of at least a Majority in liquidation amount of the Capital Securities may, on
behalf of the Holders of all the Capital Securities, waive any past default under the Indenture or
any Indenture
Event of Default, except a default or Indenture Event of Default in the payment of principal
or interest on the Debentures (unless such default or Indenture Event of Default has been cured and
a sum sufficient to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default under the Indenture or an
Indenture Event of Default in
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respect of a covenant or provision that under the Indenture cannot be
modified or amended without the consent of the holder of each outstanding Debenture. No such
rescission shall affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Institutional Trustee of written notice declaring such an acceleration, or
rescission and annulment thereof, by Holders of any part of the Capital Securities, a record date
shall be established for determining Holders of outstanding Capital Securities entitled to join in
such notice, which record date shall be at the close of business on the day the Institutional
Trustee receives such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain
Holders after such record date;
provided,
that unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day that is 90 days after such
record date, such notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled and of no further
effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a written notice that
has been canceled pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 6.7.
(c) Except as otherwise provided in paragraphs (a) and (b) of this Section 6.7, the Holders of
at least a Majority in liquidation amount of the Capital Securities may, on behalf of the Holders
of all the Capital Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and any default or
Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
ARTICLE VII
DISSOLUTION AND TERMINATION OF TRUST
Section 7.1.
Dissolution and Termination of Trust.
(a) The Trust shall dissolve on the first to occur of:
(i) unless earlier dissolved, on June 15, 2041, the expiration of the term of the
Trust;
(ii) upon a Bankruptcy Event with respect to the Sponsor, the Trust or the Debenture
Issuer;
(iii) upon the filing of a certificate of dissolution or its equivalent with respect to the
Sponsor (other than in connection with a merger, consolidation or similar transaction not
prohibited by the Indenture, this Declaration or the Guarantee, as the case may be) or upon
the revocation of the charter of the Sponsor and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iv) upon the distribution of the Debentures to the Holders of the Securities, upon
exercise of the right of the Holder of all of the outstanding Common Securities to dissolve
the Trust as provided in Annex I hereto;
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(v) upon the entry of a decree of judicial dissolution of the Holder of the Common
Securities, the Sponsor, the Trust or the Debenture Issuer;
(vi) when all of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in accordance with the
terms of the Securities; or
(vii) before the issuance of any Securities, with the consent of all of the Trustees
and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to in Section 7.1(a),
and after satisfaction of liabilities to creditors of the Trust as required by applicable law,
including of the Statutory Trust Act, and subject to the terms set forth in Annex I, the
Institutional Trustee shall terminate the Trust by filing a certificate of cancellation with the
Secretary of State of the State of Delaware.
(c) The provisions of Section 2.9 and Article IX shall survive the termination of the Trust.
ARTICLE VIII
TRANSFER OF INTERESTS
Section 8.1.
General.
(a) Subject to Section 8.1(c), where Capital Securities are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an equal number of
Capital Securities represented by different certificates, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met. To permit registrations of
transfer and exchanges, the Trust shall issue and the Institutional Trustee shall authenticate
Capital Securities at the Registrars request.
(b) Upon issuance of the Common Securities, the Sponsor shall acquire and retain beneficial
and record ownership of the Common Securities and for so long as the Securities remain outstanding,
and to the fullest extent permitted by applicable law, the Sponsor shall maintain 100% ownership of
the Common Securities;
provided
,
however
, that any permitted successor of the
Sponsor, in its capacity as Debenture Issuer, under the Indenture that is a U.S. Person may succeed
to the Sponsors ownership of the Common Securities.
(c) Capital Securities may only be transferred, in whole or in part, in accordance with the
terms and conditions set forth in this Declaration and in the terms of the Securities. To the
fullest extent permitted by applicable law, any transfer or purported transfer of any Security not
made in accordance with this Declaration shall be null and void and will be deemed to be of no
legal effect whatsoever and any such transferee shall be deemed not to be the holder of such
Capital Securities for any purpose, including but not limited to the receipt of Distributions on
such Capital Securities, and such transferee shall be deemed to have no interest whatsoever in such
Capital Securities.
(d) The Registrar shall provide for the registration of Securities and of transfers of
Securities, which will be effected without charge but only upon payment (with such indemnity as the
Registrar may require) in respect of any tax or other governmental charges that may be imposed in
relation to it. Upon surrender for registration of transfer of any Securities, the Registrar shall
cause one or more new Securities of the same tenor to be issued in the name of the designated
transferee or transferees. Every Security surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the Registrar duly executed
by the Holder or such Holders attorney duly
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28
authorized in writing. Each Security surrendered for
registration of transfer shall be canceled by the Institutional Trustee pursuant to Section 6.6. A
transferee of a Security shall be entitled to the rights and subject to the obligations of a Holder
hereunder upon the receipt by such transferee of a Security. By acceptance of a Security, each
transferee shall be deemed to have agreed to be bound by this Declaration.
(e) The Trust shall not be required (i) to issue, register the transfer of, or exchange any
Securities during a period beginning at the opening of business fifteen days before the day of any
selection of Securities for redemption and ending at the close of business on the earliest date on
which the relevant notice of redemption is deemed to have been given to all Holders of the
Securities to be redeemed, or (ii) to register the transfer or exchange of any Security so selected
for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in
part.
Section 8.2.
Transfer Procedures and Restrictions.
(a) The Capital Securities shall bear the Restricted Securities Legend, which shall not be
removed unless there is delivered to the Trust such satisfactory evidence, which may include an
opinion of counsel satisfactory to the Institutional Trustee, as may be reasonably required by the
Trust, that neither the legend nor the restrictions on transfer set forth therein are required to
ensure that transfers thereof comply with the provisions of the Securities Act. Upon provision of
such satisfactory evidence, the Institutional
Trustee, at the written direction of the Trust, shall authenticate and deliver Capital
Securities that do not bear the legend.
(b) Except as permitted by Section 8.2(a), each Capital Security shall bear a legend (the
Restricted Securities Legend
) in substantially the following form and a Capital Security
shall not be transferred except in compliance with such legend, unless otherwise determined by the
Sponsor, upon the advice of counsel expert in securities law, in accordance with applicable law:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE SECURITIES ACT), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE
SPONSOR OR THE TRUST, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE
MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
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29
VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE SPONSORS AND THE
TRUSTS RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED
FROM THE SPONSOR OR THE TRUST. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS
AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (ERISA), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) (EACH A PLAN),
OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY PLANS
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING PLAN ASSETS OF ANY PLAN MAY
ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR
HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER
APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED
BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR
HOLDING. ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS
NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN
TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE
ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000.00 (100 SECURITIES) AND MULTIPLES OF
$1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING
A LIQUIDATION AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
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30
(c) To permit registrations of transfers and exchanges, the Trust shall execute and the
Institutional Trustee shall authenticate Capital Securities at the Registrars request.
(d) Registrations of transfers or exchanges will be effected without charge, but only upon
payment (with such indemnity as the Registrar or the Sponsor may require) in respect of any tax or
other governmental charge that may be imposed in relation to it.
(e) All Capital Securities issued upon any registration of transfer or exchange pursuant to
the terms of this Declaration shall evidence the same security and shall be entitled to the same
benefits under this Declaration as the Capital Securities surrendered upon such registration of
transfer or exchange.
Section 8.3.
Deemed Security Holders
.
The Trust, the Administrators, the Trustees, the Paying Agent, the Transfer Agent or the
Registrar may treat the Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the Securities represented by
such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of any Person, whether
or not the Trust, the Administrators, the Trustees, the Paying Agent, the Transfer Agent or the
Registrar shall have actual or other notice thereof.
ARTICLE IX
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS
Section 9.1.
Liability.
(a) Except as expressly set forth in this Declaration, the Guarantee and the terms of the
Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital contributions (or
any return thereon) of the Holders of the Securities which shall be made solely from assets
of the Trust; or
(ii) required to pay to the Trust or to any Holder of the Securities any deficit upon
dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the debts and obligations
of the Trust (other than with respect to the Securities) to the extent not satisfied out of the
Trusts assets.
(c) Pursuant to the Statutory Trust Act, the Holders of the Capital Securities shall be
entitled to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State of Delaware.
Section 9.2.
Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise
to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified
Person shall be
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
31
liable for any such loss, damage or claim incurred by reason of such Indemnified
Persons negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person 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 Indemnified Person reasonably believes are within such other Persons
professional or expert competence and, if selected by such Indemnified Person, has been selected by
such Indemnified Person 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 Securities might properly be paid.
Section 9.3.
Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such
other duties and liabilities of the Indemnified Person.
(b) Whenever in this Declaration an Indemnified Person is permitted or required to make a
decision:
(i) in its discretion or under a grant of similar authority, the Indemnified Person
shall be entitled to consider such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its good faith or under another express standard, the Indemnified Person
shall act under such express standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
Section 9.4.
Indemnification.
(a) The Sponsor shall indemnify, to the full extent permitted by law, any Indemnified Person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Trust) arising out of or in connection with the acceptance or
administration of this Declaration by reason of the fact that he is or was an Indemnified Person
against expenses (including reasonable attorneys fees and expenses), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of
nolo contendere
or its equivalent, shall not, of itself, create a presumption that
the Indemnified Person did not act in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
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(b) The Sponsor shall indemnify, to the full extent permitted by law, any Indemnified Person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in its favor arising out of or
in connection with the acceptance or administration of this Declaration by reason of the fact that
he is or was an Indemnified Person against expenses (including reasonable attorneys fees and
expenses) actually and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust;
provided
,
however
, that no such
indemnification shall be made in respect of any claim, issue or matter as to which such Indemnified
Person shall have been adjudged to be liable to the Trust unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall deem proper.
(c) To the extent that an Indemnified Person shall be successful on the merits or otherwise
(including dismissal of an action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding referred to in paragraphs (a)
and (b) of this Section 9.4, or in defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against expenses (including attorneys fees and
expenses) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification of an Administrator under paragraphs (a) and (b) of this Section 9.4
(unless ordered by a court) shall be made by the Sponsor only as authorized in the specific case
upon a determination that indemnification of the Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (i) by the Administrators by a majority vote of a Quorum consisting of
such Administrators who were not parties to such action, suit or proceeding, (ii) if such a Quorum
is not obtainable, or, even if obtainable, if a Quorum of disinterested Administrators so directs,
by independent legal counsel in a written opinion, or (iii) by the Common Security Holder of the
Trust.
(e) To the fullest extent permitted by law, expenses (including reasonable attorneys fees and
expenses) incurred by an Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (a) and (b) of this Section 9.4
shall be paid by the Sponsor in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Sponsor as
authorized in this Section 9.4. Notwithstanding the foregoing, no advance shall be made by the
Sponsor if a determination is reasonably and promptly made (i) by the Administrators by a majority
vote of a Quorum of disinterested Administrators, (ii) if such a Quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested
Administrators so directs, by independent legal counsel in a written opinion or (iii) by the
Common Security Holder of the Trust, that, based upon the facts known to the Administrators,
counsel or the Common Security Holder at the time such determination is made, such Indemnified
Person acted in bad faith or in a manner that such Indemnified Person did not believe to be in the
best interests of the Trust, or, with respect to any criminal proceeding, that such Indemnified
Person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Administrators, independent legal counsel or the Common
Security Holder reasonably determine that such Indemnified Person deliberately breached his duty to
the Trust or its Common or Capital Security Holders.
(f) The Trustees, at the sole cost and expense of the Sponsor, retain the right to
representation by counsel of their own choosing in any action, suit or any other proceeding for
which they
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33
are indemnified under paragraphs (a) and (b) of this Section 9.4, without affecting
their right to indemnification hereunder or waiving any rights afforded to it under this
Declaration or applicable law.
(g) The indemnification and advancement of expenses provided by, or granted pursuant to, the
other paragraphs of this Section 9.4 shall not be deemed exclusive of any other rights to which
those seeking indemnification and advancement of expenses may be entitled under any agreement, vote
of stockholders or disinterested directors of the Sponsor or Capital Security Holders of the Trust
or otherwise, both as to action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section 9.4 shall be deemed to be
provided by a contract between the Sponsor and each Indemnified Person who serves in such capacity
at any time while this Section 9.4 is in effect. Any repeal or modification of this Section 9.4
shall not affect any rights or obligations then existing.
(h) The Sponsor or the Trust may purchase and maintain insurance on behalf of any Person who
is or was an Indemnified Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the Sponsor would have the
power to indemnify him against such liability under the provisions of this Section 9.4.
(i) For purposes of this Section 9.4, references to the Trust shall include, in addition to
the resulting or surviving entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any Person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was serving at the request of
such constituent entity as a director, trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section 9.4 with respect to the resulting
or surviving entity as he would have with respect to such constituent entity if its separate
existence had continued.
(j) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Section 9.4 shall, unless otherwise provided when authorized or ratified, (i) continue as to a
Person who has ceased to be an Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a Person; and (ii) survive the termination or expiration of
this Declaration or the earlier removal or resignation of an Indemnified Person.
Section 9.5.
Outside Businesses
.
Any Covered Person, the Sponsor, the Delaware
Trustee and the Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders of Securities shall have no rights by virtue
of this Declaration in and to such independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the business of the Trust, shall not
be deemed wrongful or improper. None of any Covered Person, the Sponsor, the Delaware Trustee or
the Institutional Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and
the Institutional Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
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Section 9.6.
Compensation; Fee
.
The Sponsor agrees:
(a) to pay to the Trustees from time to time such compensation for all services rendered by
them hereunder as the parties shall agree from time to time (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an express trust);
and
(b) except as otherwise expressly provided herein, to reimburse the Trustees upon request for
all reasonable expenses, disbursements and advances incurred or made by the Trustees in accordance
with any provision of this Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence, bad faith or willful misconduct.
For purposes of clarification, this Section 9.6 does not contemplate the payment by the
Sponsor of acceptance or annual administration fees owing to the Trustees under this Declaration or
the fees and expenses of the Trustees counsel in connection with the closing of the transactions
contemplated by this Declaration.
The provisions of this Section 9.6 shall survive the dissolution of the Trust and the
termination of this Declaration and the removal or resignation of any Trustee.
No Trustee may claim any lien or charge on any property of the Trust as a result of any amount
due pursuant to this Section 9.6.
ARTICLE X
ACCOUNTING
Section 10.1.
Fiscal Year
.
The fiscal year (
Fiscal Year
) of the Trust shall be the calendar year, or such other
year as is required by the Code.
Section 10.2.
Certain Accounting Matters
.
(a) At all times during the existence of the Trust, the Administrators shall keep, or cause to
be kept at the principal office of the Trust in the United States, as defined for purposes of
Treasury Regulations section 301.7701-7, full books of account, records and supporting documents,
which shall reflect in reasonable detail each transaction of the Trust. The books of account shall
be maintained, at the Sponsors expense, in accordance with generally accepted accounting
principles, consistently applied. The books of account and the records of the Trust shall be
examined by and reported upon (either separately or as part of the Sponsors regularly prepared
consolidated financial report) as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Administrators.
(b) The Administrators shall cause to be duly prepared and delivered to each of the Holders of
Securities Form 1099 or such other annual United States federal income tax information statement
required by the Code, containing such information with regard to the Securities held by each Holder
as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrators shall endeavor to deliver all
such statements within 30 days after the end of each Fiscal Year of the Trust.
(c) The Administrators, at the Sponsors expense, shall cause to be duly prepared at the
principal office of the Sponsor in the United States, as United States is defined in Section
7701(a)(9) of the Code (or at the principal office of the Trust if the Sponsor has no such
principal office in the United States), and filed an annual United States federal income tax return
on a Form 1041 or such other form
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
35
required by United States federal income tax law, and any other
annual income tax returns required to be filed by the Administrators on behalf of the Trust with
any state or local taxing authority.
Section 10.3.
Banking
.
The Trust shall maintain in the United States, as defined for
purposes of Treasury Regulations section 301.7701-7, one or more bank accounts in the name and for
the sole benefit of the Trust;
provided
,
however
, that all payments of funds in
respect of the Debentures held by the Institutional Trustee shall be made directly to the Property
Account and no other funds of the Trust shall be deposited in the Property Account. The sole
signatories for such accounts (including the Property Account) shall be designated by the
Institutional Trustee.
Section 10.4.
Withholding
.
The Institutional Trustee or any Paying Agent and the
Administrators shall comply with all withholding requirements under United States federal, state
and local law. The Institutional Trustee or any Paying Agent shall request, and each Holder shall
provide to the Institutional Trustee or any Paying Agent, such forms or certificates as are
necessary to establish an exemption from withholding with respect to the Holder, and any
representations and forms as shall reasonably be requested by the Institutional Trustee or any
Paying Agent to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Administrators shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall
remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that
the Institutional Trustee or any Paying Agent is required to withhold and pay over any amounts to
any authority with respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a Distribution in the amount of the withholding to the Holder. In the event of any
claimed overwithholding, Holders shall be limited to an action against the applicable jurisdiction.
If the amount required to be withheld was not withheld from actual Distributions made, the
Institutional Trustee or any Paying Agent may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XI
AMENDMENTS AND MEETINGS
Section 11.1.
Amendments.
(a) Except as otherwise provided in this Declaration or by any applicable terms of the
Securities, this Declaration may only be amended by a written instrument approved and executed (i)
by the Institutional Trustee, or (ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, by the Delaware Trustee.
(b) Notwithstanding any other provision of this Article XI, an amendment may be made, and any
such purported amendment shall be valid and effective only if:
(i) the Institutional Trustee shall have first received
(A) an Officers Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this Declaration (including
the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor or the Trust) that
such amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(ii) the result of such amendment would not be to
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
36
(A) cause the Trust to cease to be classified for purposes of United States
federal income taxation as a grantor trust; or
(B) cause the Trust to be deemed to be an Investment Company required to be
registered under the Investment Company Act.
(c) Except as provided in Section 11.1(d), (e) or (h), no amendment shall be made, and any
such purported amendment shall be void and ineffective, unless the Holders of a Majority in
liquidation amount of the Capital Securities shall have consented to such amendment.
(d) In addition to and notwithstanding any other provision in this Declaration, without the
consent of each affected Holder, this Declaration may not be amended to (i) change the amount or
timing of any Distribution on the Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Securities as of a specified date or change any
conversion or exchange provisions or (ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after such date.
(e) Sections 9.1(b) and 9.1(c) and this Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.
(f) Article III shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities.
(g) The rights of the Holders of the Capital Securities under Article IV to appoint and remove
Trustees shall not be amended without the consent of the Holders of a Majority in liquidation
amount of the Capital Securities.
(h) This Declaration may be amended by the Institutional Trustee and the Holders of a Majority
in liquidation amount of the Common Securities without the consent of the Holders of the Capital
Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the Sponsor; or
(iv) modify, eliminate or add to any provision of this Declaration to such extent as
may be necessary to ensure that the Trust will be classified for United States federal
income tax purposes at all times as a grantor trust and will not be required to register as
an Investment Company (including without limitation to conform to any change in Rule 3a-5,
Rule 3a-7 or any other applicable rule under the Investment Company Act or written change in
interpretation or application thereof by any legislative body, court, government agency or
regulatory authority) which amendment does not have a material adverse effect on the rights,
preferences or privileges of the Holders of Securities;
provided
,
however
, that no such modification, elimination or addition referred
to in clauses (i), (ii), (iii) or (iv) shall adversely affect in any material respect the powers,
preferences or special rights of Holders of Capital Securities.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
37
Section 11.2.
Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called at any time by the
Administrators (or as provided in the terms of the Securities) to consider and act on any matter on
which Holders of such class of Securities are entitled to act under the terms of this Declaration
or the terms of the Securities. The Administrators shall call a meeting of the Holders of such
class if directed to do so by the Holders of at least 10% in liquidation amount of such class of
Securities. Such direction shall be given by delivering to the Administrators one or more calls in
a writing stating that the signing Holders of the Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any Holders of the
Securities calling a meeting shall specify in writing the Certificates held by the Holders of the
Securities exercising the right to call a meeting and only those Securities represented by such
Certificates shall be counted for purposes of determining whether the required percentage set forth
in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of the Securities:
(i) notice of any such meeting shall be given to all the Holders of the Securities
having a right to vote thereat at least 7 days and not more than 60 days before the date of
such meeting. Whenever a vote, consent or approval of the Holders of the Securities is
permitted or required under this Declaration, such vote, consent or approval may be given at
a meeting of the Holders of the Securities. Any action that may be taken at a meeting of
the Holders of the Securities may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of the Securities owning not less than
the minimum amount of Securities in liquidation amount that would be necessary to authorize
or take such action at a meeting at which all Holders of the Securities having a right to
vote thereon were present and voting. Prompt notice of the taking of action without a
meeting shall be given to the Holders of the Securities entitled to vote who have not
consented in writing. The Administrators may specify that any written ballot
submitted to the Holders of the Securities for the purpose of taking any action without
a meeting shall be returned to the Trust within the time specified by the Administrators;
(ii) each Holder of a Security may authorize any Person to act for it by proxy on all
matters in which a Holder of Securities is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the Holder of the Securities executing it.
Except as otherwise provided herein, all matters relating to the giving, voting or validity
of proxies shall be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities were stockholders of a Delaware
corporation; each meeting of the Holders of the Securities shall be conducted by the
Administrators or by such other Person that the Administrators may designate; and
(iii) unless the Statutory Trust Act, this Declaration, or the terms of the Securities
otherwise provides, the Administrators, in their sole discretion, shall establish all other
provisions relating to meetings of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on by any Holders of the
Securities, waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
38
such right to vote;
provided
,
however
, that each meeting shall be conducted in the United States (as that term is
defined in Treasury Regulations section 301.7701-7).
ARTICLE XII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND THE DELAWARE TRUSTEE
Section 12.1.
Representations and Warranties of Institutional Trustee
.
The initial
Institutional Trustee represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Institutional Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Institutional Trustees acceptance of its appointment as
Institutional Trustee, that:
(a) the Institutional Trustee is a Delaware banking corporation with trust powers, duly
organized and validly existing under the laws of the State of Delaware with trust power and
authority to execute and deliver, and to carry out and perform its obligations under the terms of,
this Declaration;
(b) the execution, delivery and performance by the Institutional Trustee of this Declaration
has been duly authorized by all necessary corporate action on the part of the Institutional
Trustee. This Declaration has been duly executed and delivered by the Institutional Trustee, and
it constitutes a legal, valid and binding obligation of the Institutional Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting
creditors rights generally and to general principles of equity (regardless of whether
considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Declaration by the Institutional Trustee
does not conflict with or constitute a breach of the charter or by-laws of the Institutional
Trustee; and
(d) no consent, approval or authorization of, or registration with or notice to, any state or
federal banking authority is required for the execution, delivery or performance by the
Institutional Trustee of this Declaration.
Section 12.2.
Representations of the Delaware Trustee
. The Trustee that acts as
initial Delaware Trustee represents and warrants to the Trust and to the Sponsor at the date of
this Declaration, and each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustees acceptance of its appointment as Delaware
Trustee that:
(a) if it is not a natural person, the Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) if it is not a natural person, the execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary corporate action on the part
of the Delaware Trustee. This Declaration has been duly executed and delivered by the Delaware
Trustee, and under Delaware law (excluding any securities laws) constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws
affecting creditors rights generally and to general principles of equity and the discretion of the
court (regardless of whether considered in a proceeding in equity or at law);
(c) if it is not a natural person, the execution, delivery and performance of this Declaration
by the Delaware Trustee does not conflict with or constitute a breach of the charter or by-laws of
the Delaware Trustee;
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
39
(d) it has trust power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(e) no consent, approval or authorization of, or registration with or notice to, any state or
federal banking authority governing the trust powers of the Delaware Trustee is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration; and
(f) the Delaware Trustee is a natural person who is a resident of the State of Delaware or, if
not a natural person, it is an entity which has its principal place of business in the State of
Delaware and, in either case, a Person that satisfies for the Trust the requirements of Section
3807 of the Statutory Trust Act.
ARTICLE XIII
MISCELLANEOUS
Section 13.1.
Notices
.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered, telecopied (which
telecopy shall be followed by notice delivered or mailed by first class mail) or mailed by first
class mail, as follows:
(a) if given to the Trust, in care of the Administrators at the Trusts mailing address set
forth below (or such other address as the Trust may give notice of to the Holders of the
Securities):
Texas Capital Statutory Trust IV
c/o Texas Capital Bancshares, Inc.
2100 McKinney Avenue, Suite 1250
Dallas, Texas 75201
Attention: Mark R. Frears
Telecopy: 214-932-6687
(b) if given to the Delaware Trustee, at the Delaware Trustees mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the Holders of the
Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1600
Attention: Corporate Trust Administration
Telecopy: 302-636-4140
(c) if given to the Institutional Trustee, at the Institutional Trustees mailing address set
forth below (or such other address as the Institutional Trustee may give notice of to the Holders
of the Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1600
Attention: Corporate Trust Administration
Telecopy: 302-636-4140
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
40
(d) if given to the Holder of the Common Securities, at the mailing address of the Sponsor set
forth below (or such other address as the Holder of the Common Securities may give notice of to the
Trust):
Texas Capital Bancshares, Inc.
2100 McKinney Avenue, Suite 1250
Dallas, Texas 75201
Attention: Mark R. Frears
Telecopy: 214-932-6687
(e) if given to any other Holder, at the address set forth on the books and records of the
Trust.
All such notices shall be deemed to have been given when received in person, telecopied with
receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
Section 13.2.
Governing Law
.
This Declaration and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the law of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to the principles of conflict of
laws of the State of Delaware or any other jurisdiction that would call for the application of the
law of any jurisdiction other than the State of Delaware;
provided
,
however
, that
there shall not be applicable to the Trust, the Trustees or this Declaration any provision of the
laws (statutory or common) of the State of Delaware pertaining to trusts that relate to or
regulate, in a manner inconsistent with the terms hereof (a) the filing with any court or
governmental body or agency of trustee accounts or schedules of trustee fees and charges, (b)
affirmative requirements to post bonds for trustees, officers, agents or employees of a trust, (c)
the necessity for obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (d) fees or other sums payable to trustees,
officers, agents or employees of a trust, (e) the allocation of receipts and expenditures to income
or principal, or (f) restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other manner of holding or
investing trust assets.
Section 13.3.
Intention of the Parties
.
It is the intention of the parties hereto
that the Trust be classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention of the parties.
Section 13.4.
Headings
.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this Declaration or any
provision hereof.
Section 13.5.
Successors and Assigns
.
Whenever in this Declaration any of the parties hereto is named or referred to, the successors
and assigns of such party shall be deemed to be included, and all covenants and agreements in this
Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
Section 13.6.
Partial Enforceability
.
If any provision of this Declaration, or the
application of such provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or circumstances other than
those to which it is held invalid, shall not be affected thereby.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
41
Section 13.7.
Counterparts
.
This Declaration may contain more than one counterpart of
the signature page and this Declaration may be executed by the affixing of the signature of each of
the Trustees and Administrators to any of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the same force and
effect as though all of the signers had signed a single signature page.
Signatures appear on the following page
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
42
IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day
and year first above written.
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WILMINGTON TRUST COMPANY,
as Delaware Trustee
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By:
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Name:
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Title:
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WILMINGTON TRUST COMPANY,
as Institutional Trustee
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By:
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Name:
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Title:
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TEXAS CAPITAL BANCSHARES, INC., as Sponsor
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By:
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Name:
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Title:
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ADMINISTRATORS OF TEXAS CAPITAL STATUTORY TRUST IV
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By:
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Administrator
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By:
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Administrator
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Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
43
ANNEX I
TERMS OF SECURITIES
Pursuant to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of April
28, 2006 (as amended from time to time, the Declaration), the designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital Securities and the Common
Securities are set out below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration):
1.
Designation and Number
.
(a) 25,000 Floating Rate Capital Securities of Texas Capital Statutory Trust IV (the Trust),
with an aggregate stated liquidation amount with respect to the assets of the Trust of twenty-five
million dollars ($25,000,000.00) and a stated liquidation amount with respect to the assets of the
Trust of $1,000.00 per Capital Security, are hereby designated for the purposes of identification
only as the
Capital Securities
. The Capital Security Certificates evidencing the Capital
Securities shall be substantially in the form of Exhibit A-1 to the Declaration, with such changes
and additions thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.
(b) 774 Floating Rate Common Securities of the Trust (the
Common Securities
) will be
evidenced by Common Security Certificates substantially in the form of Exhibit A-2 to the
Declaration, with such changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
2.
Distributions
.
(a) Distributions will be payable on each Security for the Distribution Period beginning on
(and including) the date of original issuance and ending on (but excluding) the Distribution
Payment Date in June 2006 at a rate per annum of 6.74875% and shall bear interest for each
successive Distribution Period beginning on (and including) the Distribution Payment Date in June
2006, and each succeeding Distribution Payment Date, and ending on (but excluding) the next
succeeding Distribution Payment Date at a rate per annum equal to the 3-Month LIBOR, determined as
described below, plus 1.60% (the
Coupon Rate
), applied to the stated liquidation amount
thereof, such rate being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears will bear interest thereon compounded quarterly at
the applicable Distribution Rate (to the extent permitted by law). Distributions, as used herein,
include cash distributions and any such compounded distributions unless otherwise noted. A
Distribution is payable only to the extent that payments are made in respect of the Debentures held
by the Institutional Trustee and to the extent the Institutional Trustee has funds available
therefor. The amount of the Distribution payable for any Distribution Period will be calculated by
applying the Distribution Rate to the stated liquidation amount outstanding at the commencement of
the Distribution Period on the basis of the actual number of days in the Distribution Period
concerned divided by 360. All percentages resulting from any calculations on the Capital
Securities will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half cent being rounded
upward)).
(b) Distributions on the Securities will be cumulative, will accrue from the date of original
issuance, and will be payable, subject to extension of distribution payment periods as described
herein, quarterly in arrears on March 15, June 15, September 15 and December 15 of each year, or if
such day is not a Business Day, then the next succeeding Business Day (each a
Distribution
Payment Date
)
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-1
(it being understood that interest accrues for any such non-Business Day), commencing on the
Distribution Payment Date in June 2006 when, as and if available for payment. The Debenture Issuer
has the right under the Indenture to defer payments of interest on the Debentures, so long as no
Acceleration Event of Default has occurred and is continuing, by deferring the payment of interest
on the Debentures for up to 20 consecutive quarterly periods (each an
Extension Period
)
at any time and from time to time, subject to the conditions described below, during which
Extension Period no interest shall be due and payable. During any Extension Period, interest will
continue to accrue on the Debentures, and interest on such accrued interest will accrue at an
annual rate equal to the Distribution Rate in effect for each such Extension Period, compounded
quarterly from the date such interest would have been payable were it not for the Extension Period,
to the extent permitted by law (such interest referred to herein as
Additional Interest
).
No Extension Period may end on a date other than a Distribution Payment Date. At the end of any
such Extension Period, the Debenture Issuer shall pay all interest then accrued and unpaid on the
Debentures (together with Additional Interest thereon);
provided
,
however
, that no
Extension Period may extend beyond the Maturity Date and
provided
further
,
however
, that during any such Extension Period, the Debenture Issuer and its Affiliates
shall not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or
make a liquidation payment with respect to, any of the Debenture Issuers or its Affiliates
capital stock (other than payments of dividends or distributions to the Debenture Issuer) or make
any guarantee payments with respect to the foregoing, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Debenture
Issuer or any Affiliate that rank
pari passu
in all respects with or junior in interest to the
Debentures (other than, with respect to clauses (i) and (ii) above, (a) repurchases, redemptions or
other acquisitions of shares of capital stock of the Debenture Issuer in connection with any
employment contract, benefit plan or other similar arrangement with or for the benefit of one or
more employees, officers, directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital stock of the
Debenture Issuer (or securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of any exchange or conversion of any class or series of the Debenture Issuers
capital stock (or any capital stock of a subsidiary of the Debenture Issuer) for any class or
series of the Debenture Issuers capital stock or of any class or series of the Debenture Issuers
indebtedness for any class or series of the Debenture Issuers capital stock, (c) the purchase of
fractional interests in shares of the Debenture Issuers capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholders rights plan, or the issuance of
rights, stock or other property under any stockholders rights plan, or the redemption or
repurchase of rights pursuant thereto, (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of such warrants, options
or other rights is the same stock as that on which the dividend is being paid or ranks
pari passu
with or junior to such stock and any cash payments in lieu of fractional shares
issued in
connection therewith, or (f) payments under the Capital Securities Guarantee). Prior to the
termination of any Extension Period, the Debenture Issuer may further extend such period, provided
that such period together with all such previous and further consecutive extensions thereof shall
not exceed 20 consecutive quarterly periods, or extend beyond the Maturity Date. Upon the
termination of any Extension Period and upon the payment of all accrued and unpaid interest and
Additional Interest, the Debenture Issuer may commence a new Extension Period, subject to the
foregoing requirements. No interest or Additional Interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest that would otherwise
have been due and payable during such Extension Period shall bear Additional Interest. During any
Extension Period, Distributions on the Securities shall be deferred for a period equal to the
Extension Period. If Distributions are deferred, the Distributions due shall be paid on the date
that the related Extension Period terminates to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately preceding such date. Distributions
on the Securities must be paid on the dates payable (after giving effect to any Extension Period)
to the extent that the Trust has
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-2
funds available for the payment of such distributions in the Property Account of the Trust.
The Trusts funds available for Distribution to the Holders of the Securities will be limited to
payments received from the Debenture Issuer. The payment of Distributions out of moneys held by
the Trust is guaranteed by the Guarantor pursuant to the Guarantee.
(c) Distributions on the Securities will be payable to the Holders thereof as they appear on
the books and records of the Trust on the relevant record dates. The relevant record dates shall
be fifteen days before the relevant Distribution Payment Date. Distributions payable on any
Securities that are not punctually paid on any Distribution Payment Date, as a result of the
Debenture Issuer having failed to make a payment under the Debentures, as the case may be, when due
(taking into account any Extension Period), will cease to be payable to the Person in whose name
such Securities are registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered on the special record
date or other specified date determined in accordance with the Indenture.
(d) In the event that there is any money or other property held by or for the Trust that is
not accounted for hereunder, such property shall be distributed Pro Rata (as defined herein) among
the Holders of the Securities.
3.
Liquidation Distribution Upon Dissolution
. In the event of the voluntary or
involuntary liquidation, dissolution, winding-up or termination of the Trust (each a
Liquidation
) other than in connection with a redemption of the Debentures, the Holders of
the Securities will be entitled to receive out of the assets of the Trust available for
distribution to Holders of the Securities, after satisfaction of liabilities to creditors of the
Trust (to the extent not satisfied by the Debenture Issuer), distributions equal to the aggregate
of the stated liquidation amount of $1,000.00 per Security plus accrued and unpaid Distributions
thereon to the date of payment (such amount being the
Liquidation Distribution
), unless
in connection with such Liquidation, the Debentures in an aggregate stated principal amount equal
to the aggregate stated liquidation amount of such Securities, with an interest rate equal to the
Distribution Rate of, and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, and having the same record date as, such Securities, after paying or
making reasonable provision to pay all claims and obligations of the Trust in accordance with the
Statutory Trust Act, shall be distributed on a Pro Rata basis to the Holders of the Securities in
exchange for such Securities.
The Sponsor, as the Holder of all of the Common Securities, has the right at any time to
dissolve the Trust (including, without limitation, upon the occurrence of a Special Event), subject
to the receipt by the Debenture Issuer of prior approval from the Board of Governors of the Federal
Reserve System, or its designated district bank, as applicable, and any successor federal agency
that is primarily responsible for regulating the activities of the Sponsor (the
Federal
Reserve
), if the Sponsor is a bank holding company, or from the Office of Thrift Supervision
and any successor federal agency that is primarily responsible for regulating the activities of
Sponsor, (the
OTS
) if the Sponsor is a savings and loan holding company, in either case
if then required under applicable capital guidelines or policies of the Federal Reserve or OTS, as
applicable, and, after satisfaction of liabilities to creditors of the Trust, cause the Debentures
to be distributed to the Holders of the Securities on a Pro Rata basis in accordance with the
aggregate stated liquidation amount thereof.
If a Liquidation of the Trust occurs as described in clause (i), (ii), (iii) or (v) in Section
7.1(a) of the Declaration, the Trust shall be liquidated by the Institutional Trustee as
expeditiously as it determines to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust, to the Holders of the Securities, the Debentures on a Pro Rata basis to the
extent not satisfied by the Debenture Issuer, unless such distribution is determined by the
Institutional Trustee not to be practical, in which event such Holders will be entitled to receive
out of the assets of the Trust available for distribution to the Holders,
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-3
after satisfaction of liabilities of creditors of the Trust to the extent not satisfied by the
Debenture Issuer, an amount equal to the Liquidation Distribution. An early Liquidation of the
Trust pursuant to clause (iv) of Section 7.1(a) of the Declaration shall occur if the Institutional
Trustee determines that such Liquidation is possible by distributing, after satisfaction of
liabilities to creditors of the Trust, to the Holders of the Securities on a Pro Rata basis, the
Debentures, and such distribution occurs.
If, upon any such Liquidation the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution,
then the amounts payable directly by the Trust on such Capital Securities shall be paid to the
Holders of the Trust Securities on a Pro Rata basis, except that if an Event of Default has
occurred and is continuing, the Capital Securities shall have a preference over the Common
Securities with regard to such distributions.
After the date for any distribution of the Debentures upon dissolution of the Trust (i) the
Securities of the Trust will be deemed to be no longer outstanding, (ii) upon surrender of a
Holders Securities certificate, such Holder of the Securities will receive a certificate
representing the Debentures to be delivered upon such distribution, (iii) any certificates
representing the Securities still outstanding will be deemed to represent undivided beneficial
interests in such of the Debentures as have an aggregate principal amount equal to the aggregate
stated liquidation amount with an interest rate identical to the Distribution Rate of, and bearing
accrued and unpaid interest equal to accrued and unpaid distributions on, the Securities until such
certificates are presented to the Debenture Issuer or its agent for transfer or reissuance (and
until such certificates are so surrendered, no payments of interest or principal shall be made to
Holders of Securities in respect of any payments due and payable under the Debentures;
provided
,
however
that such failure to pay shall not be deemed to be an Event of
Default and shall not entitle the Holder to the benefits of the Guarantee), and (iv) all rights of
Holders of Securities under the Declaration shall cease, except the right of such Holders to
receive Debentures upon surrender of certificates representing such Securities.
4.
Redemption and Distribution
.
(a) The Debentures will mature on June 15, 2036. The Debentures may be redeemed by the
Debenture Issuer, in whole or in part, at any Distribution Payment Date on or after the
Distribution Payment Date in June 2011, at the Redemption Price. In addition, the Debentures may be
redeemed by the Debenture Issuer at the Special Redemption Price, in whole but not in part, at any
Distribution Payment Date, upon the occurrence and continuation of a Special Event within 120 days
following the occurrence of such Special Event at the Special Redemption Price, upon not less than
30 nor more than 60 days notice to holders of such Debentures so long as such Special Event is
continuing. In each case, the right of the Debenture Issuer to redeem the Debentures is subject to
the Debenture Issuer having received prior approval from the Federal Reserve (if the Debenture
Issuer is a bank holding company) or prior approval from the OTS (if the Debenture Issuer is a
savings and loan holding company), in each case if then required under applicable capital
guidelines or policies of the applicable federal agency.
3-Month LIBOR
means the London interbank offered interest rate for three-month, U.S.
dollar deposits determined by the Debenture Trustee in the following order of priority:
(1) the rate (expressed as a percentage per annum) for U.S. dollar deposits having a
three-month maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on
the related Determination Date (as defined below). Telerate Page 3750 means the display
designated as Page 3750 on the Moneyline Telerate Service or such other page as may
replace Page 3750 on that service or such other service or services as may be nominated by
the British Bankers Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar deposits;
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-4
(2) if such rate cannot be identified on the related Determination Date, the Debenture
Trustee will request the principal London offices of four leading banks in the London
interbank market to provide such banks offered quotations (expressed as percentages per
annum) to prime banks in the London interbank market for U.S. dollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such Determination Date. If at least
two quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations;
(3) if fewer than two such quotations are provided as requested in clause (2) above,
the Debenture Trustee will request four major New York City banks to provide such banks
offered quotations (expressed as percentages per annum) to leading European banks for loans
in U.S. dollars as of 11:00 a.m. (London time) on such Determination Date. If at least two
such quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations;
and
(4) if fewer than two such quotations are provided as requested in clause (3) above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to the Distribution Period
immediately preceding such current Distribution Period.
If the rate for U.S. dollar deposits having a three-month maturity that initially appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related Determination Date is superseded
on the Telerate Page 3750 by a corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the applicable page will be the applicable
3-Month LIBOR for such Determination Date.
The Distribution Rate for any Distribution Period will at no time be higher than the maximum
rate then permitted by New York law as the same may be modified by United States law.
Capital Treatment Event
means the receipt by the Debenture Issuer and the Trust of
an opinion of counsel experienced in such matters to the effect that, as a result of the occurrence
of any amendment to, or change (including any announced prospective change) in, the laws, rules or
regulations of the United States or any political subdivision thereof or therein, or as the result
of any official or administrative pronouncement or action or decision interpreting or applying such
laws, rules or regulations, which amendment or change is effective or which pronouncement, action
or decision is announced on or after the date of original issuance of the Debentures, there is more
than an insubstantial risk that the Sponsor will not, within 90 days of the date of such opinion,
be entitled to treat an amount equal to the aggregate liquidation amount of the Capital Securities
as Tier 1 Capital (or its then equivalent) for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Sponsor (or if the Sponsor is not a bank
holding company or otherwise is not subject to the Federal Reserves risk-based capital adequacy
guidelines, such guidelines applied to the Sponsor as if the Sponsor were subject to such
guidelines);
provided
,
however
, that the inability of the Sponsor to treat all or
any portion of the liquidation amount of the Capital Securities as Tier l Capital shall not
constitute the basis for a Capital Treatment Event, if such inability results from the Sponsor
having cumulative preferred stock, minority interests in consolidated subsidiaries, or any other
class of security or interest which the Federal Reserve or OTS, as applicable, may now or hereafter
accord Tier 1 Capital treatment in excess of the amount which may now or hereafter qualify for
treatment as Tier 1 Capital under applicable capital adequacy guidelines;
provided
further
,
however
, that the distribution of Debentures in connection with the
Liquidation of the Trust shall not in and of itself constitute a Capital Treatment Event unless
such Liquidation shall have occurred in connection with a Tax Event or an Investment Company Event.
Determination Date
means the date that is two London Banking Days (i.e., a business
day in which dealings in deposits in U.S. dollars are transacted in the London interbank market)
preceding the particular Distribution Period for which a Coupon Rate is being determined.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-5
Investment Company Event
means the receipt by the Debenture Issuer and the Trust of
an opinion of counsel experienced in such matters to the effect that, as a result of the occurrence
of a change in law or regulation or written change (including any announced prospective change) in
interpretation or application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that the Trust is or,
within 90 days of the date of such opinion, will be considered an Investment Company that is
required to be registered under the Investment Company Act which change or prospective change
becomes effective or would become effective, as the case may be, on or after the date of the
issuance of the Debentures.
Maturity Date
means June 15, 2036.
Redemption Date
shall mean the date fixed for the redemption of Capital Securities,
which shall be any Distribution Payment Date on or after the Distribution Payment Date in June
2011.
Redemption Price
means 100% of the principal amount of the Debentures being
redeemed, plus accrued and unpaid Interest on such Debentures to the Redemption Date.
Special Event
means a Tax Event, an Investment Company Event or a Capital Treatment
Event.
Special Redemption Date
means a date on which a Special Event redemption occurs,
which shall be a Distribution Payment Date.
Special Redemption Price
means the price set forth in the following table for any
Special Redemption Date that occurs on the date indicated below (or if such day is not a Business
Day, then the next succeeding Business Day), expressed as the percentage of the principal amount of
the Debentures being redeemed:
|
|
|
|
|
Month in which
|
|
|
Special Redemption Date Occurs
|
|
Special Redemption Price
|
June 2006
|
|
|
104.625
|
%
|
September 2006
|
|
|
104.300
|
%
|
December 2006
|
|
|
104.000
|
%
|
March 2007
|
|
|
103.650
|
%
|
June 2007
|
|
|
103.350
|
%
|
September 2007
|
|
|
103.000
|
%
|
December 2007
|
|
|
102.700
|
%
|
March 2008
|
|
|
102.350
|
%
|
June 2008
|
|
|
102.050
|
%
|
September 2008
|
|
|
101.700
|
%
|
December 2008
|
|
|
101.400
|
%
|
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-6
|
|
|
|
|
Month in which
|
|
|
Special Redemption Date Occurs
|
|
Special Redemption Price
|
March 2009
|
|
|
101.050
|
%
|
June 2009
|
|
|
100.750
|
%
|
September 2009
|
|
|
100.450
|
%
|
December 2009
|
|
|
100.200
|
%
|
March 2010 and thereafter
|
|
|
100.000
|
%
|
plus, in each case, accrued and unpaid Interest on such Debentures to the Special Redemption
Date.
Tax Event
means the receipt by the Debenture Issuer and the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or therein, or as a result
of any official administrative pronouncement (including any private letter ruling, technical advice
memorandum, field service advice, regulatory procedure, notice or announcement including any notice
or announcement of intent to adopt such procedures or regulations) (an
Administrative
Action
) or judicial decision interpreting or applying such laws or regulations, regardless of
whether such Administrative Action or judicial decision is issued to or in connection with a
proceeding involving the Debenture Issuer or the Trust and whether or not subject to review or
appeal, which amendment, clarification, change, Administrative Action or decision is enacted,
promulgated or announced, in each case on or after the date of original issuance of the Debentures,
there is more than an insubstantial risk that: (i) the Trust is, or will be within 90 days of the
date of such opinion, subject to United States federal income tax with respect to income received
or accrued on the Debentures; (ii) interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date of such opinion, will not be, deductible by the Debenture
Issuer, in whole or in part, for United States federal income tax purposes; or (iii) the Trust is,
or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
(b) Upon the repayment in full at maturity or redemption in whole or in part of the Debentures
(other than following the distribution of the Debentures to the Holders of the Securities), the
proceeds from such repayment or payment shall concurrently be applied to redeem Pro Rata at the
applicable Redemption Price or Special Redemption Price, as applicable, Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the Debentures so repaid or
redeemed;
provided
,
however
, that holders of such Securities shall be given not
less than 30 nor more than 60 days notice of such redemption (other than at the scheduled maturity
of the Debentures).
(c) If fewer than all the outstanding Securities are to be so redeemed, the Common Securities
and the Capital Securities will be redeemed Pro Rata and the Capital Securities to be redeemed will
be redeemed Pro Rata from each Holder of Capital Securities.
(d) The Trust may not redeem fewer than all the outstanding Capital Securities unless all
accrued and unpaid Distributions have been paid on all Capital Securities for all quarterly
Distribution periods terminating on or before the date of redemption.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-7
(e)
Redemption or Distribution Procedures
.
(i) Notice of any redemption of, or notice of distribution of the Debentures in
exchange for, the Securities (a
Redemption/Distribution Notice
) will be given by
the Trust by mail to each Holder of Securities to be redeemed or exchanged not fewer than 30
nor more than 60 days before the date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of the Debentures. For purposes
of the calculation of the date of redemption or exchange and the dates on which notices are
given pursuant to this paragraph 4(e)(i), a Redemption/Distribution Notice shall be deemed
to be given on the day such notice is first mailed by first-class mail, postage prepaid, to
Holders of such Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of such Securities at the address of each such Holder appearing on the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in the mailing
thereof with respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) If the Securities are to be redeemed and the Trust gives a Redemption/
Distribution Notice, which notice may only be issued if the Debentures are redeemed as set
out in this paragraph 4 (which notice will be irrevocable), then,
provided
that the
Institutional Trustee has a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will pay the relevant
Redemption Price or Special Redemption Price, as applicable, to the Holders of such
Securities by check mailed to the address of each such Holder appearing on the books and
records of the Trust on the Redemption Date. If a Redemption/Distribution Notice shall have
been given and funds deposited as required then immediately prior to the close of business
on the date of such deposit Distributions will cease to accrue on the Securities so called
for redemption and all rights of Holders of such Securities so called for redemption will
cease, except the right of the Holders of such Securities to receive the applicable
Redemption Price or Special Redemption Price specified in paragraph 4(a), but without
interest on such Redemption Price or Special Redemption Price. If payment of the Redemption
Price or Special Redemption Price in respect of any Securities is improperly withheld or
refused and not paid either by the Trust or by the Debenture Issuer as guarantor pursuant to
the Guarantee, Distributions on such Securities will continue to accrue at the Distribution
Rate from the original Redemption Date to the actual date of payment, in which case the
actual payment date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price or Special Redemption Price. In the event of any
redemption of the Capital Securities issued by the Trust in part, the Trust shall not be
required to (i) issue, register the transfer of or exchange any Security during a period
beginning at the opening of business fifteen days before any selection for redemption of the
Capital Securities and ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all Holders of the Capital
Securities to be so redeemed or (ii) register the transfer of or exchange any Capital
Securities so selected for redemption, in whole or in part, except for the unredeemed
portion of any Capital Securities being redeemed in part.
(iii) Redemption/Distribution Notices shall be sent by the Administrators on behalf of
the Trust to (A) in respect of the Capital Securities, the Holders thereof and (B) in
respect of the Common Securities, the Holder thereof.
(iv) Subject to the foregoing and applicable law (including, without limitation, United
States federal securities laws), and provided that the acquiror is not the Holder of the
Common Securities or the obligor under the Indenture, the Sponsor or any of its
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-8
subsidiaries may at any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or by private agreement.
5.
Voting Rights Capital Securities
.
(a) Except as provided under paragraphs 5(b) and 7 and as otherwise required by law and the
Declaration, the Holders of the Capital Securities will have no voting rights. The Administrators
are required to call a meeting of the Holders of the Capital Securities if directed to do so by
Holders of at least 10% in liquidation amount of the Capital Securities.
(b) Subject to the requirements of obtaining a tax opinion by the Institutional Trustee in
certain circumstances set forth in the last sentence of this paragraph, the Holders of a Majority
in liquidation amount of the Capital Securities, voting separately as a class, have the right to
direct the time, method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the Institutional Trustee
under the Declaration, including the right to direct the Institutional Trustee, as holder of the
Debentures, to (i) exercise the remedies available under the Indenture as the holder of the
Debentures, (ii) waive any past default that is waivable under the Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent on behalf of all the Holders of the Capital Securities to any amendment,
modification or termination of the Indenture or the Debentures where such consent shall be
required;
provided
,
however
, that, where a consent or action under the Indenture
would require the consent or act of the holders of greater than a simple majority in aggregate
principal amount of Debentures (a
Super Majority
) affected thereby, the Institutional
Trustee may only give such consent or take such action at the written direction of the Holders of
at least the proportion in liquidation amount of the Capital Securities outstanding which the
relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding.
If the Institutional Trustee fails to enforce its rights under the Debentures after the Holders of
a Majority in liquidation amount of such Capital Securities have so directed the Institutional
Trustee, to the fullest extent permitted by law, a Holder of the Capital Securities may institute a
legal proceeding directly against the Debenture Issuer to enforce the Institutional Trustees
rights under the Debentures without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on the Debentures on the date the interest or
principal is payable (or in the case of redemption, the Redemption Date or the Special Redemption
Date, as applicable), then a Holder of record of the Capital Securities may directly institute a
proceeding for enforcement of payment, on or after the respective due dates specified in the
Debentures, to such Holder directly of the principal of or interest on the Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the Capital Securities of
such Holder. The Institutional Trustee shall notify all Holders of the Capital Securities of any
default actually known to the Institutional Trustee with respect to the Debentures unless (x) such
default has been cured prior to the giving of such notice or (y) the Institutional Trustee
determines in good faith that the withholding of such notice is in the interest of the Holders of
such Capital Securities, except where the default relates to the payment of principal of or
interest on any of the Debentures. Such notice shall state that such Indenture Event of Default
also constitutes an Event of Default hereunder. Except with respect to directing the time, method
and place of conducting a proceeding for a remedy, the Institutional Trustee shall not take any of
the actions described in clauses (i), (ii) or (iii) above unless the Institutional Trustee has
obtained an opinion of tax counsel to the effect that, as a result of such action, the Trust will
not be classified as other than a grantor trust for United
States federal income tax purposes.
In the event the consent of the Institutional Trustee, as the holder of the Debentures, is
required under the Indenture with respect to any amendment, modification or termination of the
Indenture, the Institutional Trustee shall request the direction of the Holders of the Securities
with respect to such
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-9
amendment, modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class;
provided
,
however
, that where a consent under
the Indenture would require the consent of a Super-Majority, the Institutional Trustee may only
give such consent at the direction of the Holders of at least the proportion in liquidation amount
of the Securities outstanding which the relevant Super-Majority represents of the aggregate
principal amount of the Debentures outstanding. The Institutional Trustee shall not take any such
action in accordance with the directions of the Holders of the Securities unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that, as a result of such action, the
Trust will not be classified as other than a grantor trust for United States federal income tax
purposes.
A waiver of an Indenture Event of Default will constitute a waiver of the corresponding Event
of Default hereunder. Any required approval or direction of Holders of the Capital Securities may
be given at a separate meeting of Holders of the Capital Securities convened for such purpose, at a
meeting of all of the Holders of the Securities in the Trust or pursuant to written consent. The
Institutional Trustee will cause a notice of any meeting at which Holders of the Capital Securities
are entitled to vote, or of any matter upon which action by written consent of such Holders is to
be taken, to be mailed to each Holder of record of the Capital Securities. Each such notice will
include a statement setting forth the following information (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or consents. No vote
or consent of the Holders of the Capital Securities will be required for the Trust to redeem and
cancel Capital Securities or to distribute the Debentures in accordance with the Declaration and
the terms of the Securities.
Notwithstanding that Holders of the Capital Securities are entitled to vote or consent under
any of the circumstances described above, any of the Capital Securities that are owned by the
Sponsor or any Affiliate of the Sponsor shall not entitle the Holder thereof to vote or consent and
shall, for purposes of such vote or consent, be treated as if such Capital Securities were not
outstanding.
In no event will Holders of the Capital Securities have the right to vote to appoint, remove
or replace the Administrators, which voting rights are vested exclusively in the Sponsor as the
Holder of all of the Common Securities of the Trust. Under certain circumstances as more fully
described in the Declaration, Holders of Capital Securities have the right to vote to appoint,
remove or replace the Institutional Trustee and the Delaware Trustee.
6.
Voting Rights Common Securities
.
(a) Except as provided under paragraphs 6(b), 6(c) and 7 and as otherwise required by law and
the Declaration, the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with Article IV of the
Declaration, to vote to appoint, remove or replace any Administrators.
(c) Subject to Section 6.7 of the Declaration and only after each Event of Default (if any)
with respect to the Capital Securities has been cured, waived, or otherwise eliminated and subject
to the requirements of the second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional Trustee under the
Declaration, including (i) directing the time, method, place of conducting any proceeding for any
remedy available to the Debenture Trustee, or exercising any trust or power conferred on the
Debenture Trustee with respect to the Debentures, (ii) waiving any past default and its
consequences that is waivable under the Indenture, or (iii) exercising
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-10
any right to rescind or annul a declaration that the principal of all the Debentures shall be
due and payable;
provided
,
however
, that, where a consent or action under the
Indenture would require a Super Majority, the Institutional Trustee may only give such consent or
take such action at the written direction of the Holders of at least the proportion in liquidation
amount of the Common Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Notwithstanding this paragraph 6(c), the
Institutional Trustee shall not revoke any action previously authorized or approved by a vote or
consent of the Holders of the Capital Securities. Other than with respect to directing the time,
method and place of conducting any proceeding for any remedy available to the Institutional Trustee
or the Debenture Trustee as set forth above, the Institutional Trustee shall not take any action
described in (i), (ii) or (iii) above, unless the Institutional Trustee has obtained an opinion of
tax counsel to the effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action. If the Institutional
Trustee fails to enforce its rights, to the fullest extent permitted by law, under the Declaration,
any Holder of the Common Securities may institute a legal proceeding directly against any Person to
enforce the Institutional Trustees rights under the Declaration, without first instituting a legal
proceeding against the Institutional Trustee or any other Person.
Any approval or direction of Holders of the Common Securities may be given at a separate
meeting of Holders of the Common Securities convened for such purpose, at a meeting of all of the
Holders of the Securities in the Trust or pursuant to written consent. The Administrators will
cause a notice of any meeting at which Holders of the Common Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is to be taken, to be mailed to
each Holder of the Common Securities. Each such notice will include a statement setting forth (i)
the date of such meeting or the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the delivery of proxies
or consents.
No vote or consent of the Holders of the Common Securities will be required for the Trust to
redeem and cancel Common Securities or to distribute the Debentures in accordance with the
Declaration and the terms of the Securities.
7.
Amendments to Declaration and Indenture
.
(a) In addition to any requirements under Section 11.1 of the Declaration, if any proposed
amendment to the Declaration provides for, or the Trustees, Sponsor or Administrators otherwise
propose to effect, (i) any action that would adversely affect the powers, preferences or special
rights of the Securities, whether by way of amendment to the Declaration or otherwise, or (ii) the
Liquidation of the Trust, other than as described in Section 7.1 of the Declaration, then the
Holders of outstanding Securities, voting together as a single class, will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of at least a Majority in liquidation amount of the Securities, affected
thereby;
provided
,
however
, if any amendment or proposal referred to in clause (i)
above would adversely affect only the Capital Securities or only the Common Securities, then only
the affected class will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of a Majority in liquidation amount of
such class of Securities.
(b) In the event the consent of the Institutional Trustee as the holder of the Debentures is
required under the Indenture with respect to any amendment, modification or termination of the
Indenture or the Debentures, the Institutional Trustee shall request the written direction of the
Holders of the Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification, or termination as directed by a Majority in
liquidation amount of the
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-11
Securities voting together as a single class;
provided
,
however
, that where a
consent under the Indenture would require a Super Majority, the Institutional Trustee may only give
such consent at the direction of the Holders of at least the proportion in liquidation amount of
the Securities which the relevant Super Majority represents of the aggregate principal amount of
the Debentures outstanding.
(c) Notwithstanding the foregoing, no amendment or modification may be made to the Declaration
if such amendment or modification would (i) cause the Trust to be classified for purposes of United
States federal income taxation as other than a grantor trust, (ii) reduce or otherwise adversely
affect the powers of the Institutional Trustee or (iii) cause the Trust to be deemed an Investment
Company which is required to be registered under the Investment Company Act.
(d) Notwithstanding any provision of the Declaration, the right of any Holder of the Capital
Securities to receive payment of distributions and other payments upon redemption or otherwise, on
or after their respective due dates, or to institute a suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the consent of such
Holder. For the protection and enforcement of the foregoing provision, each and every Holder of the
Capital Securities shall be entitled to such relief as can be given either at law or equity.
8.
Pro Rata
. A reference in these terms of the Securities to any payment,
distribution or treatment as being
Pro Rata
shall mean pro rata to each Holder of the
Securities according to the aggregate liquidation amount of the Securities held by the relevant
Holder in relation to the aggregate liquidation amount of all Securities then outstanding unless,
in relation to a payment, an Event of Default has occurred and is continuing, in which case any
funds available to make such payment shall be paid first to each Holder of the Capital Securities
Pro Rata according to the aggregate liquidation amount of the Capital Securities held by the
relevant Holder relative to the aggregate liquidation amount of all Capital Securities outstanding,
and only after satisfaction of all amounts owed to the Holders of the Capital Securities, to each
Holder of the Common Securities Pro Rata according to the aggregate liquidation amount of the
Common Securities held by the relevant Holder relative to the aggregate liquidation amount of all
Common Securities outstanding.
9.
Ranking
. The Capital Securities rank
pari passu
with and payment thereon shall be
made Pro Rata with the Common Securities except that, where an Event of Default has occurred and is
continuing, the rights of Holders of the Common Securities to receive payment of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the rights of the Holders
of the Capital Securities with the result that no payment of any Distribution on, or Redemption
Price (or Special Redemption Price) of, any Common Security, and no other payment on account of
redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in
full in cash of all accumulated and unpaid Distributions on all outstanding Capital Securities for
all distribution periods terminating on or prior thereto, or in the case of payment of the
Redemption Price (or Special Redemption Price) the full amount of such Redemption Price (or Special
Redemption Price) on all outstanding Capital Securities then called for redemption, shall have been
made or provided for, and all funds immediately available to the Institutional Trustee shall first
be applied to the payment in full in cash of all Distributions on, or the Redemption Price (or
Special Redemption Price) of, the Capital Securities then due and payable.
10.
Acceptance of Guarantee and Indenture
. Each Holder of the Capital Securities and
the Common Securities, by the acceptance of such Securities, agrees to the provisions of the
Guarantee, including the subordination provisions therein and to the provisions of the Indenture.
11.
No Preemptive Rights
. The Holders of the Securities shall have no preemptive or
similar rights to subscribe for any additional securities.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-12
12.
Miscellaneous
. These terms constitute a part of the Declaration. The Sponsor will
provide a copy of the Declaration, the Guarantee, and the Indenture to a Holder without charge on
written request to the Sponsor at its principal place of business.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
I-13
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE SPONSOR OR THE TRUST, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE SPONSORS AND THE TRUSTS RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE
SPONSOR OR THE TRUST. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) (EACH A PLAN), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY PLANS INVESTMENT IN THE ENTITY, AND
NO PERSON INVESTING PLAN ASSETS OF ANY PLAN MAY ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST
THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY
ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-1-1
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A
TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON
OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii)
SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF NOT LESS THAN $100,000.00 (100 SECURITIES) AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000.00
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE DECLARATION TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
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Certificate Number P-1
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25,000 Capital Securities
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[CUSIP NO. [_______] **
To be inserted at the request of a subsequent transferee]
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April 28, 2006
Certificate Evidencing Floating Rate Capital Securities
of
Texas Capital Statutory Trust IV
(liquidation amount $1,000.00 per Capital Security)
Texas Capital Statutory Trust IV, a statutory trust created under the laws of the State of
Delaware (the Trust), hereby certifies that First Tennessee Bank National Association is the
registered owner of capital securities of the Trust representing undivided beneficial interests in
the assets of the Trust, (liquidation amount $1,000.00 per capital security) (the Capital
Securities). Subject to the Declaration (as defined below), the Capital Securities are
transferable on the books and records of the Trust in person or by a duly authorized attorney, upon
surrender of this Certificate duly endorsed and in proper form for transfer. The Capital Securities
represented hereby are issued pursuant to, and the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities shall in all respects be
subject to, the provisions of the Amended and Restated Declaration of Trust of the Trust dated as
of April 28, 2006, among Joseph M. Grant and Dwain Howard, as Administrators, Wilmington Trust
Company, as Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, Texas Capital
Bancshares, Inc., as Sponsor, and the holders from time to time of undivided beneficial interests
in the assets of the Trust, including the designation of the terms of the Capital Securities as set
forth in Annex I to such amended and restated declaration as the same may be amended from time to
time (the Declaration). Capitalized terms used herein but not defined shall have the meaning
given them in the Declaration. The Holder is entitled to the benefits of the Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the Guarantee, and the
Indenture to the Holder without charge upon written request to the Sponsor at its principal place
of business.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-1-2
Upon receipt of this Security, the Holder is bound by the Declaration and is entitled to the
benefits thereunder.
By acceptance of this Security, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Capital Securities as evidence of beneficial
ownership in the Debentures.
This Capital Security is governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to principles of conflict of laws.
Signatures appear on following page
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-1-3
IN WITNESS WHEREOF, the Trust has duly executed this certificate.
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TEXAS CAPITAL STATUTORY TRUST IV
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By:
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Name:
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Title: Administrator
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CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-mentioned Declaration.
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WILMINGTON TRUST COMPANY,
as the Institutional Trustee
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By:
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Authorized Officer
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Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-1-4
[FORM OF REVERSE OF CAPITAL SECURITY]
Distributions payable on each Capital Security will be payable at an annual rate equal to
6.74875% beginning on (and including) the date of original issuance and ending on (but excluding)
the Distribution Payment Date in June 2006 and at an annual rate for each successive period
beginning on (and including) the Distribution Payment Date in June 2006, and each succeeding
Distribution Payment Date, and ending on (but excluding) the next succeeding Distribution Payment
Date (each a Distribution Period), equal to 3-Month LIBOR, determined as described below, plus
1.60% (the Coupon Rate), applied to the stated liquidation amount of $1,000.00 per Capital
Security, such rate being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears will bear interest thereon compounded quarterly at
the Distribution Rate (to the extent permitted by applicable law). The term Distributions as
used herein includes cash distributions and any such compounded distributions unless otherwise
noted. A Distribution is payable only to the extent that payments are made in respect of the
Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. As used herein, Determination Date means the date that is two London Banking
Days (i.e., a business day in which dealings in deposits in U.S. dollars are transacted in the
London interbank market) preceding the commencement of the relevant Distribution Period. The
amount of the Distribution payable for any Distribution Period will be calculated by applying the
Distribution Rate to the stated liquidation amount outstanding at the commencement of the
Distribution Period on the basis of the actual number of days in the Distribution Period concerned
divided by 360.
3-Month LIBOR as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Debenture Trustee in the following order of
priority: (i) the rate (expressed as a percentage per annum) for U.S. dollar deposits having a
three-month maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the
related Determination Date (Telerate Page 3750 means the display designated as Page 3750 on the
Moneyline Telerate Service or such other page as may replace Page 3750 on that service or such
other service or services as may be nominated by the British Bankers Association as the
information vendor for the purpose of displaying London interbank offered rates for U.S. dollar
deposits); (ii) if such rate cannot be identified on the related Determination Date, the Debenture
Trustee will request the principal London offices of four leading banks in the London interbank
market to provide such banks offered quotations (expressed as percentages per annum) to prime
banks in the London interbank market for U.S. dollar deposits having a three-month maturity as of
11:00 a.m. (London time) on such Determination Date. If at least two quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations; (iii) if fewer than two such
quotations are provided as requested in clause (ii) above, the Debenture Trustee will request four
major New York City banks to provide such banks offered quotations (expressed as percentages per
annum) to leading European banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations; and (iv) if fewer than two such quotations are provided as
requested in clause (iii) above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect to
the Distribution Period immediately preceding such current Distribution Period. If the rate for
U.S. dollar deposits having a three-month maturity that initially appears on Telerate Page 3750 as
of 11:00 a.m. (London time) on the related Determination Date is superseded on the Telerate Page
3750 by a corrected rate by 12:00 noon (London time) on such Determination Date, then the corrected
rate as so substituted on the applicable page will be the applicable 3-Month LIBOR for such
Determination Date.
The Distribution Rate for any Distribution Period will at no time be higher than the maximum
rate then permitted by New York law as the same may be modified by United States law.
All percentages resulting from any calculations on the Capital Securities will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of
a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-1-5
.0987655), and all dollar amounts used in or resulting from such calculation will be rounded
to the nearest cent (with one-half cent being rounded upward)).
Except as otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears
on March 15, June 15, September 15 and December 15 of each year or if any such day is not a
Business Day, then the next succeeding Business Day (each such day, a Distribution Payment Date)
(it being understood that interest accrues for any such non-Business Day), commencing on the
Distribution Payment Date in June 2006. The Debenture Issuer has the right under the Indenture to
defer payments of interest on the Debentures, so long as no Acceleration Event of Default has
occurred and is continuing, by extending the interest payment period for up to 20 consecutive
quarterly periods (each an Extension Period) at any time and from time to time on the Debentures,
subject to the conditions described below, during which Extension Period no interest shall be due
and payable. During any Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest will accrue at an annual rate equal to the Distribution Rate in
effect for each such Extension Period, compounded quarterly from the date such interest would have
been payable were it not for the Extension Period, to the extent permitted by law (such interest
referred to herein as Additional Interest). No Extension Period may end on a date other than a
Distribution Payment Date. At the end of any such Extension Period, the Debenture Issuer shall pay
all interest then accrued and unpaid on the Debentures (together with Additional Interest thereon);
provided
,
however
, that no Extension Period may extend beyond the Maturity Date.
Prior to the termination of any Extension Period, the Debenture Issuer may further extend such
period, provided that such period together with all such previous and further consecutive
extensions thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the Maturity
Date. Upon the termination of any Extension Period and upon the payment of all accrued and unpaid
interest and Additional Interest, the Debenture Issuer may commence a new Extension Period, subject
to the foregoing requirements. No interest or Additional Interest shall be due and payable during
an Extension Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear Additional Interest.
During any Extension Period, Distributions on the Capital Securities shall be deferred for a period
equal to the Extension Period. If Distributions are deferred, the Distributions due shall be paid
on the date that the related Extension Period terminates, to Holders of the Securities as they
appear on the books and records of the Trust on the record date immediately preceding such date.
Distributions on the Securities must be paid on the dates payable (after giving effect to any
Extension Period) to the extent that the Trust has funds available for the payment of such
distributions in the Property Account of the Trust. The Trusts funds available for Distribution
to the Holders of the Securities will be limited to payments received from the Debenture Issuer.
The payment of Distributions out of moneys held by the Trust is guaranteed by the Guarantor
pursuant to the Guarantee.
The Capital Securities shall be redeemable as provided in the Declaration.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital Security Certificate
to:
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(Insert assignees social security or tax identification number)
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(Insert address and zip code of assignee) and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
(Sign exactly as your name appears on the other side of this Capital Security Certificate)
Signature Guarantee:
1
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Signature must be guaranteed by an
eligible guarantor institution that is a bank, stockbroker,
savings and loan association or credit union meeting the requirements of the
Security registrar, which requirements include membership or participation in
the Securities Transfer Agents Medallion Program (STAMP) or such
other signature guarantee program as may be determined by the
Security registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
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Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-1-7
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM
REGISTRATION.
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH SECTION 8.1 OF THE DECLARATION.
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Certificate Number C-1
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774 Common Securities
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April 28, 2006
Certificate Evidencing Floating Rate Common Securities
of
Texas Capital Statutory Trust IV
Texas Capital Statutory Trust IV, a statutory trust created under the laws of the State of
Delaware (the Trust), hereby certifies that Texas Capital Bancshares, Inc. (the Holder) is the
registered owner of common securities of the Trust representing undivided beneficial interests in
the assets of the Trust (the Common Securities). The Common Securities represented hereby are
issued pursuant to, and the designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Common Securities shall in all respects be subject to, the provisions
of the Amended and Restated Declaration of Trust of the Trust dated as of April 28, 2006, among
Joseph M. Grant and Dwain Howard, as Administrators, Wilmington Trust Company, as Delaware Trustee,
Wilmington Trust Company, as Institutional Trustee, Texas Capital Bancshares, Inc., as Sponsor, and
the holders from time to time of undivided beneficial interest in the assets of the Trust including
the designation of the terms of the Common Securities as set forth in Annex I to such amended and
restated declaration, as the same may be amended from time to time (the Declaration).
Capitalized terms used herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Guarantee and the Indenture to the Holder
without charge upon written request to the Sponsor at its principal place of business.
As set forth in the Declaration, when an Event of Default has occurred and is continuing, the
rights of Holders of Common Securities to payment in respect of Distributions and payments upon
Liquidation, redemption or otherwise are subordinated to the rights of payment of Holders of the
Capital Securities.
Upon receipt of this Certificate, the Holder is bound by the Declaration and is entitled to
the benefits thereunder.
By acceptance of this Certificate, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as evidence of
undivided beneficial ownership in the Debentures.
This Common Security is governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to principles of conflict of laws.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-2-1
IN WITNESS WHEREOF, the Trust has duly executed this certificate.
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TEXAS CAPITAL STATUTORY TRUST IV
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By:
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Name:
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Title: Administrator
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Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-2-2
[FORM OF REVERSE OF COMMON SECURITY]
Distributions payable on each Common Security will be payable at an annual rate equal to
6.74875% beginning on (and including) the date of original issuance and ending on (but excluding)
the Distribution Payment Date in June 2006 and at an annual rate for each successive period
beginning on (and including) the Distribution Payment Date in June 2006, and each succeeding
Distribution Payment Date, and ending on (but excluding) the next succeeding Distribution Payment
Date (each a Distribution Period), equal to 3
-
Month LIBOR, determined as described below, plus
1.60% (the Coupon Rate), applied to the stated liquidation amount of $1,000.00 per Common
Security, such rate being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears will bear interest thereon compounded quarterly at
the Distribution Rate (to the extent permitted by applicable law). The term Distributions as
used herein includes cash distributions and any such compounded distributions unless otherwise
noted. A Distribution is payable only to the extent that payments are made in respect of the
Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. As used herein, Determination Date means the date that is two London Banking
Days (i.e., a business day in which dealings in deposits in U.S. dollars are transacted in the
London interbank market) preceding the commencement of the relevant Distribution Period. The
amount of the Distribution payable for any Distribution Period will be calculated by applying the
Distribution Rate to the stated liquidation amount outstanding at the commencement of the
Distribution Period on the basis of the actual number of days in the Distribution Period concerned
divided by 360.
3
-
Month LIBOR as used herein, means the London interbank offered interest rate for
three
-
month U.S. dollar deposits determined by the Debenture Trustee in the following order of
priority: (i) the rate (expressed as a percentage per annum) for U.S. dollar deposits having a
three
-
month maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the
related Determination Date (Telerate Page 3750 means the display designated as Page 3750 on the
Moneyline Telerate Service or such other page as may replace Page 3750 on that service or such
other service or services as may be nominated by the British Bankers Association as the
information vendor for the purpose of displaying London interbank offered rates for U.S. dollar
deposits); (ii) if such rate cannot be identified on the related Determination Date, the Debenture
Trustee will request the principal London offices of four leading banks in the London interbank
market to provide such banks offered quotations (expressed as percentages per annum) to prime
banks in the London interbank market for U.S. dollar deposits having a three
-
month maturity as of
11:00 a.m. (London time) on such Determination Date. If at least two quotations are provided,
3
-
Month LIBOR will be the arithmetic mean of such quotations; (iii) if fewer than two such
quotations are provided as requested in clause (ii) above, the Debenture Trustee will request four
major New York City banks to provide such banks offered quotations (expressed as percentages per
annum) to leading European banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided, 3
-
Month LIBOR will be the
arithmetic mean of such quotations; and (iv) if fewer than two such quotations are provided as
requested in clause (iii) above, 3
-
Month LIBOR will be a 3
-
Month LIBOR determined with respect to
the Distribution Period immediately preceding such current Distribution Period. If the rate for
U.S. dollar deposits having a three
-
month maturity that initially appears on Telerate Page 3750 as
of 11:00 a.m. (London time) on the related Determination Date is superseded on the Telerate Page
3750 by a corrected rate by 12:00 noon (London time) on such Determination Date, then the corrected
rate as so substituted on the applicable page will be the applicable 3
-
Month LIBOR for such
Determination Date.
The Distribution Rate for any Distribution Period will at no time be higher than the maximum
rate then permitted by New York law as the same may be modified by United States law.
All percentages resulting from any calculations on the Common Securities will be rounded, if
necessary, to the nearest one hundred
-
thousandth of a percentage point, with five one
-
millionths of
a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-2-3
.0987655), and all dollar amounts used in or resulting from such calculation will be rounded
to the nearest cent (with one
-
half cent being rounded upward)).
Except as otherwise described below, Distributions on the Common Securities will be
cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears
on March 15, June 15, September 15 and December 15 of each year or if any such day is not a
Business Day, then the next succeeding Business Day (each such day, a Distribution Payment Date)
(it being understood that interest accrues for any such non-Business Day), commencing on the
Distribution Payment Date in June 2006. The Debenture Issuer has the right under the Indenture to
defer payments of interest on the Debentures, so long as no Acceleration Event of Default has
occurred and is continuing, by extending the interest payment period for up to 20 consecutive
quarterly periods (each an Extension Period) at any time and from time to time on the Debentures,
subject to the conditions described below, during which Extension Period no interest shall be due
and payable. During any Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest will accrue at an annual rate equal to the Distribution Rate in
effect for each such Extension Period, compounded quarterly from the date such interest would have
been payable were it not for the Extension Period, to the extent permitted by law (such interest
referred to herein as Additional Interest). No Extension Period may end on a date other than a
Distribution Payment Date. At the end of any such Extension Period, the Debenture Issuer shall pay
all interest then accrued and unpaid on the Debentures (together with Additional Interest thereon);
provided
,
however
, that no Extension Period may extend beyond the Maturity Date.
Prior to the termination of any Extension Period, the Debenture Issuer may further extend such
period, provided that such period together with all such previous and further consecutive
extensions thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the Maturity
Date. Upon the termination of any Extension Period and upon the payment of all accrued and unpaid
interest and Additional Interest, the Debenture Issuer may commence a new Extension Period, subject
to the foregoing requirements. No interest or Additional Interest shall be due and payable during
an Extension Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear Additional Interest.
During any Extension Period, Distributions on the Common Securities shall be deferred for a period
equal to the Extension Period. If Distributions are deferred, the Distributions due shall be paid
on the date that the related Extension Period terminates, to Holders of the Securities as they
appear on the books and records of the Trust on the record date immediately preceding such date.
Distributions on the Securities must be paid on the dates payable (after giving effect to any
Extension Period) to the extent that the Trust has funds available for the payment of such
distributions in the Property Account of the Trust. The Trusts funds available for Distribution to
the Holders of the Securities will be limited to payments received from the Debenture Issuer.
The Common Securities shall be redeemable as provided in the Declaration.
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-2-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security Certificate to:
(Insert assignees social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints
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agent to transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
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Date:
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Signature:
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(Sign exactly as your name appears on the other side of this Common Security
Certificate)
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Signature:
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(Sign exactly as your name appears on the other side of this Common Security
Certificate)
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Signature Guarantee
2
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2
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Signature must be guaranteed by an
eligible guarantor institution that is a bank, stockbroker,
savings and loan association or credit union, meeting the requirements of the
Security registrar, which requirements include membership or participation in
the Securities Transfer Agents Medallion Program (STAMP) or such
other signature guarantee program as may be determined by the
Security registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
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Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
A-2-5
EXHIBIT B
SPECIMEN OF INITIAL DEBENTURE
(See Document No. 17)
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
B-1
EXHIBIT C
PLACEMENT AGREEMENT
(See Document No. 1)
Texas Capital Bancshares, Inc./Amended and Restated Declaration of Trust
C-1
Exhibit 10.2
TEXAS CAPITAL BANCSHARES, INC.,
as Issuer
INDENTURE
Dated as of April 28, 2006
WILMINGTON TRUST COMPANY,
as Trustee
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DUE 2036
Texas Capital Bancshares, Inc./Indenture
TABLE OF CONTENTS
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Page
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ARTICLE I. DEFINITIONS
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1
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Section 1.1.
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Definitions
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1
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ARTICLE II. DEBENTURES
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8
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Section 2.1.
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Authentication and Dating
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8
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Section 2.2.
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Form of Trustees Certificate of Authentication
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8
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Section 2.3.
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Form and Denomination of Debentures
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9
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Section 2.4.
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Execution of Debentures
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9
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Section 2.5.
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Exchange and Registration of Transfer of Debentures
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9
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Section 2.6.
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Mutilated, Destroyed, Lost or Stolen Debentures
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11
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Section 2.7.
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Temporary Debentures
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12
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Section 2.8.
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Payment of Interest and Additional Interest
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12
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Section 2.9.
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Cancellation of Debentures Paid, etc.
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13
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Section 2.10.
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Computation of Interest
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14
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Section 2.11.
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Extension of Interest Payment Period
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15
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Section 2.12.
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CUSIP Numbers
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16
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ARTICLE III. PARTICULAR COVENANTS OF THE COMPANY
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16
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Section 3.1.
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Payment of Principal, Premium and Interest; Agreed Treatment of the Debentures
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16
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Section 3.2.
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Offices for Notices and Payments, etc.
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17
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Section 3.3.
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Appointments to Fill Vacancies in Trustees Office
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17
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Section 3.4.
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Provision as to Paying Agent
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17
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Section 3.5.
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Certificate to Trustee
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18
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Section 3.6.
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Additional Sums
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18
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Section 3.7.
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Compliance with Consolidation Provisions
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19
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Section 3.8.
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Limitation on Dividends
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19
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Section 3.9.
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Covenants as to the Trust
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19
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Section 3.10.
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Additional Junior Indebtedness
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20
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ARTICLE IV. SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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20
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Section 4.1.
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Securityholders Lists
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20
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Section 4.2.
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Preservation and Disclosure of Lists
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20
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ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT
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21
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Section 5.1.
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Events of Default
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21
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Section 5.2.
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Payment of Debentures on Default; Suit Therefor
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23
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Section 5.3.
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Application of Moneys Collected by Trustee
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24
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Section 5.4.
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Proceedings by Securityholders
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24
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Section 5.5.
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Proceedings by Trustee
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25
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Section 5.6.
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Remedies Cumulative and Continuing; Delay or Omission Not a Waiver
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25
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Texas Capital Bancshares, Inc./Indenture
i
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Page
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Section 5.7.
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Direction of Proceedings and Waiver of Defaults by Majority of Securityholders
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25
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Section 5.8.
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Notice of Defaults
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26
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Section 5.9.
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Undertaking to Pay Costs
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26
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ARTICLE VI. CONCERNING THE TRUSTEE
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26
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Section 6.1.
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Duties and Responsibilities of Trustee
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26
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Section 6.2.
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Reliance on Documents, Opinions, etc.
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27
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Section 6.3.
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No Responsibility for Recitals, etc.
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28
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Section 6.4.
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Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debentures
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28
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Section 6.5.
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Moneys to be Held in Trust
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29
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Section 6.6.
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Compensation and Expenses of Trustee
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29
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Section 6.7.
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Officers Certificate as Evidence
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29
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Section 6.8.
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Eligibility of Trustee
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30
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Section 6.9.
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Resignation or Removal of Trustee
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30
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Section 6.10.
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Acceptance by Successor Trustee
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31
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Section 6.11.
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Succession by Merger, etc.
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32
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Section 6.12.
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Authenticating Agents
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32
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ARTICLE VII. CONCERNING THE SECURITYHOLDERS
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33
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Section 7.1.
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Action by Securityholders
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33
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Section 7.2.
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Proof of Execution by Securityholders
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33
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Section 7.3.
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Who Are Deemed Absolute Owners
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34
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Section 7.4.
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Debentures Owned by Company Deemed Not Outstanding
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34
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Section 7.5.
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Revocation of Consents; Future Holders Bound
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34
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ARTICLE VIII. SECURITYHOLDERS MEETINGS
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35
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Section 8.1.
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Purposes of Meetings
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35
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Section 8.2.
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Call of Meetings by Trustee
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35
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Section 8.3.
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Call of Meetings by Company or Securityholders
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35
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Section 8.4.
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Qualifications for Voting
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35
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Section 8.5.
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Regulations
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35
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Section 8.6.
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Voting
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36
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Section 8.7.
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Quorum; Actions
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36
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ARTICLE IX. SUPPLEMENTAL INDENTURES
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37
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Section 9.1.
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Supplemental Indentures without Consent of Securityholders
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37
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Section 9.2.
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Supplemental Indentures with Consent of Securityholders
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38
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Section 9.3.
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Effect of Supplemental Indentures
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39
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Section 9.4.
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Notation on Debentures
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39
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Section 9.5.
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Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee
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39
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ARTICLE X. REDEMPTION OF SECURITIES
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39
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Section 10.1.
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Optional Redemption
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39
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Section 10.2.
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Special Event Redemption
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39
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Section 10.3.
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Notice of Redemption; Selection of Debentures
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40
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Section 10.4.
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Payment of Debentures Called for Redemption
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40
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Texas Capital Bancshares, Inc./Indenture
ii
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Page
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ARTICLE XI. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
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41
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Section 11.1.
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Company May Consolidate, etc., on Certain Terms
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41
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Section 11.2.
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Successor Entity to be Substituted
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41
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Section 11.3.
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Opinion of Counsel to be Given to Trustee
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41
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ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE
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42
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Section 12.1.
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Discharge of Indenture
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42
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Section 12.2.
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Deposited Moneys to be Held in Trust by Trustee
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42
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Section 12.3.
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Paying Agent to Repay Moneys Held
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42
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Section 12.4.
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Return of Unclaimed Moneys
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42
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ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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43
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Section 13.1.
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Indenture and Debentures Solely Corporate Obligations
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43
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ARTICLE XIV. MISCELLANEOUS PROVISIONS
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43
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Section 14.1.
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Successors
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43
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Section 14.2.
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Official Acts by Successor Entity
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43
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Section 14.3.
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Surrender of Company Powers
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43
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Section 14.4.
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Addresses for Notices, etc.
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43
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Section 14.5.
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Governing Law
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44
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Section 14.6.
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Evidence of Compliance with Conditions Precedent
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44
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Section 14.7.
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Table of Contents, Headings, etc.
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44
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Section 14.8.
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Execution in Counterparts
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44
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Section 14.9.
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Separability
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44
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Section 14.10.
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Assignment
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44
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Section 14.11.
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Acknowledgment of Rights
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44
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ARTICLE XV. SUBORDINATION OF DEBENTURES
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45
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Section 15.1.
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Agreement to Subordinate
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45
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Section 15.2.
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Default on Senior Indebtedness
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45
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Section 15.3.
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Liquidation, Dissolution, Bankruptcy
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45
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Section 15.4.
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Subrogation
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46
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Section 15.5.
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Trustee to Effectuate Subordination
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47
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Section 15.6.
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Notice by the Company
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47
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Section 15.7.
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Rights of the Trustee; Holders of Senior Indebtedness
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48
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Section 15.8.
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Subordination May Not Be Impaired
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48
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Exhibit A Form of Floating Rate Junior Subordinated Deferrable Interest Debenture
Exhibit B Form of Certificate to Trustee
Texas Capital Bancshares, Inc./Indenture
iii
THIS INDENTURE, dated as of April 28, 2006, between Texas Capital Bancshares, Inc., a Delaware
corporation (the
Company
), and Wilmington Trust Company, a Delaware banking corporation,
as debenture trustee (the
Trustee
).
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of
its Floating Rate Junior Subordinated Deferrable Interest Debentures due 2036 (the
Debentures
) under this Indenture to provide, among other things, for the execution and
authentication, delivery and administration thereof, and the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid agreement according to
its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Debentures by the holders thereof,
the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the
respective holders from time to time of the Debentures as follows:
ARTICLE I.
DEFINITIONS
Section 1.1.
Definitions
.
The terms defined in this Section 1.1 (except as herein otherwise expressly provided or unless
the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section 1.1. All
accounting terms used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles and the term generally accepted
accounting principles means such accounting principles as are generally accepted in the United
States at the time of any computation. The words herein, hereof and hereunder and other
words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
Acceleration Event of Default
means an Event of Default under Section 5.1(a), (d),
(e) or (f), whatever the reason for such Acceleration Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body.
Additional Interest
has the meaning set forth in Section 2.11.
Additional Junior Indebtedness
means, without duplication and other than the
Debentures, any indebtedness, liabilities or obligations of the Company, or any Subsidiary of the
Company, under debt securities (or guarantees in respect of debt securities) initially issued after
the date of this Indenture to any trust, or a trustee of a trust, partnership or other entity
affiliated with the Company that is, directly or indirectly, a finance subsidiary (as such term is
defined in Rule 3a-5 under the Investment Company Act of 1940) or other financing vehicle of the
Company or any Subsidiary of the Company in connection with the issuance by that entity of
preferred securities or other securities that are eligible to qualify for Tier 1 capital treatment
(or its then equivalent) for purposes of the capital adequacy guidelines of the Federal Reserve, as
then in effect and applicable to the Company (or, if the Company is not a bank holding company,
such guidelines applied to the Company as if the Company were subject to such guidelines);
provided
,
however
, that the inability of the Company to treat all or any portion of
the Additional Junior
Indebtedness as Tier 1 capital shall not disqualify it as Additional Junior Indebtedness if
such inability results from the Company having cumulative preferred stock, minority interests in
consolidated
Texas Capital Bancshares, Inc./Indenture
1
subsidiaries, or any other class of security or interest which the Federal Reserve now
or may hereafter accord Tier 1 capital treatment (including the Debentures) in excess of the amount
which may qualify for treatment as Tier 1 capital under applicable capital adequacy guidelines.
Additional Sums
has the meaning set forth in Section 3.6.
Affiliate
has the same meaning as given to that term in Rule 405 of the Securities
Act or any successor rule thereunder.
Authenticating Agent
means any agent or agents of the Trustee which at the time
shall be appointed and acting pursuant to Section 6.12.
Bankruptcy Law
means Title 11, U.S. Code, or any similar federal or state law for
the relief of debtors.
Board of Directors
means the board of directors or the executive committee or any
other duly authorized designated officers of the Company.
Board Resolution
means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and delivered to the Trustee.
Business Day
means any day other than a Saturday, Sunday or any other day on which
banking institutions in New York City or Wilmington, Delaware are permitted or required by any
applicable law or executive order to close.
Capital Securities
means undivided beneficial interests in the assets of the Trust
which rank
pari passu
with Common Securities issued by the Trust;
provided
,
however
, that upon the occurrence and continuance of an Event of Default (as defined in the
Declaration), the rights of holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of such Capital Securities.
Capital Securities Guarantee
means the guarantee agreement that the Company enters
into with Wilmington Trust Company, as guarantee trustee, or other Persons that operates directly
or indirectly for the benefit of holders of Capital Securities of the Trust.
Capital Treatment Event
means the receipt by the Company and the Trust of an opinion
of counsel experienced in such matters to the effect that, as a result of the occurrence of any
amendment to, or change (including any announced prospective change) in, the laws, rules or
regulations of the United States or any political subdivision thereof or therein, or as the result
of any official or administrative pronouncement or action or decision interpreting or applying such
laws, rules or regulations, which amendment or change is effective or which pronouncement, action
or decision is announced on or after the date of original issuance of the Debentures, there is more
than an insubstantial risk that the Company will not, within 90 days of the date of such opinion,
be entitled to treat an amount equal to the aggregate liquidation amount of the Capital Securities
as Tier 1 Capital (or its then equivalent) for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Company (or if the Company is not a bank
holding company or is otherwise not subject to the Federal Reserves risk-based capital adequacy
guidelines, such guidelines applied to the Company as if the Company were subject to such
guidelines);
provided
,
however
, that the inability of the Company to treat all or
any portion of the liquidation amount of the Capital Securities as Tier l Capital shall not
constitute the basis
for a Capital Treatment Event, if such inability results from the Company having cumulative
preferred stock, minority interests in consolidated subsidiaries, or any other class of security or
interest which the
Texas Capital Bancshares, Inc./Indenture
2
Federal Reserve or OTS, as applicable, may now or hereafter accord Tier 1
Capital treatment in excess of the amount which may now or hereafter qualify for treatment as Tier
1 Capital under applicable capital adequacy guidelines;
provided
further
,
however
, that the distribution of Debentures in connection with the liquidation of the
Trust shall not in and of itself constitute a Capital Treatment Event unless such liquidation shall
have occurred in connection with a Tax Event or an Investment Company Event.
Certificate
means a certificate signed by any one of the principal executive
officer, the principal financial officer or the principal accounting officer of the Company.
Common Securities
means undivided beneficial interests in the assets of the Trust
which rank
pari passu
with Capital Securities issued by the Trust;
provided
,
however
, that upon the occurrence and continuance of an Event of Default (as defined in the
Declaration), the rights of holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of such Capital Securities.
Company
means Texas Capital Bancshares, Inc., a Delaware corporation, and, subject
to the provisions of Article XI, shall include its successors and assigns.
Coupon Rate
has the meaning set forth in Section 2.8.
Debenture
or
Debentures
has the meaning stated in the first recital of
this Indenture.
Debenture Register
has the meaning specified in Section 2.5.
Declaration
means the Amended and Restated Declaration of Trust of the Trust, as
amended or supplemented from time to time.
Default
means any event, act or condition that with notice or lapse of time, or
both, would constitute an Event of Default.
Defaulted Interest
has the meaning set forth in Section 2.8.
Determination Date
has the meaning set forth in Section 2.10.
Distribution Period
means (i) with respect to interest paid on the first Interest
Payment Date, the period beginning on (and including) the date of original issuance and ending on
(but excluding) the Interest Payment Date in June 2006 and (ii) thereafter, with respect to
interest paid on each successive Interest Payment Date, the period beginning on (and including) the
preceding Interest Payment Date and ending on (but excluding) such current Interest Payment Date.
Event of Default
means any event specified in Section 5.1, continued for the period
of time, if any, and after the giving of the notice, if any, therein designated.
Extension Period
has the meaning set forth in Section 2.11.
Federal Reserve
means the Board of Governors of the Federal Reserve System, or its
designated district bank, as applicable, and any successor federal agency that is primarily
responsible for regulating the activities of bank holding companies.
Indenture
means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or supplemented, or both.
Institutional Trustee
has the meaning set forth in the Declaration.
Texas Capital Bancshares, Inc./Indenture
3
Interest Payment Date
means March 15, June 15, September 15 and December 15 of each
year during the term of this Indenture, or if such day is not a Business Day, then the next
succeeding Business Day (it being understood that interest accrues for any such non-Business Day),
commencing in June 2006.
Interest Rate
means for the Distribution Period beginning on (and including) the
date of original issuance and ending on (but excluding) the Interest Payment Date in June 2006 the
rate per annum of 6.74875%, and for each Distribution Period beginning on or after the Interest
Payment Date in June 2006, the Coupon Rate for such Distribution Period.
Investment Company Event
means the receipt by the Company and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result of the occurrence of
a change in law or regulation or written change (including any announced prospective change) in
interpretation or application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that the Trust is or,
within 90 days of the date of such opinion will be considered an investment company that is
required to be registered under the Investment Company Act of 1940, as amended which change or
prospective change becomes effective or would become effective, as the case may be, on or after the
date of the issuance of the Debentures.
Liquidation Amount
means the stated amount of $1,000.00 per Trust Security.
Maturity Date
means June 15, 2036.
Officers Certificate
means a certificate signed by the Chairman of the Board, the
Chief Executive Officer, the Vice Chairman, the President, any Managing Director or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 14.6 if and to the extent required
by the provisions of such Section.
Opinion of Counsel
means an opinion in writing signed by legal counsel, who may be
an employee of or counsel to the Company, or may be other counsel reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section 14.6 if and to the
extent required by the provisions of such Section.
OTS
means the Office of Thrift Supervision and any successor federal agency that is
primarily responsible for regulating the activities of savings and loan holding companies.
The term
outstanding
, when used with reference to Debentures, means, subject to the
provisions of Section 7.4, as of any particular time, all Debentures authenticated and delivered by
the Trustee or the Authenticating Agent under this Indenture, except:
(a) Debentures theretofore canceled by the Trustee or the Authenticating Agent or delivered to
the Trustee for cancellation;
(b) Debentures, or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in trust by the Company (if
the Company shall act as its own paying agent);
provided
,
however
, that, if such
Debentures, or portions thereof, are to be redeemed prior to maturity thereof, notice of such
redemption shall have been given as provided in Section 10.3 or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Debentures paid pursuant to Section 2.6 or in lieu of or in substitution for which other
Debentures shall have been authenticated and delivered pursuant to the terms of Section 2.6 unless
proof
Texas Capital Bancshares, Inc./Indenture
4
satisfactory to the Company and the Trustee is presented that any such Debentures are held by
bona fide holders in due course.
Person
means any individual, corporation, limited liability company, partnership,
joint venture, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
Predecessor Security
of any particular Debenture means every previous Debenture
evidencing all or a portion of the same debt as that evidenced by such particular Debenture; and,
for purposes of this definition, any Debenture authenticated and delivered under Section 2.6 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the same debt as the
lost, destroyed or stolen Debenture.
Principal Office of the Trustee
, or other similar term, means the office of the
Trustee, at which at any particular time its corporate trust business shall be principally
administered, which at the time of the execution of this Indenture shall be Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890-1600, Attention: Corporate Trust
Administration.
Redemption Date
has the meaning set forth in Section 10.1.
Redemption Price
means 100% of the principal amount of the Debentures being
redeemed, plus accrued and unpaid interest (including any Additional Interest) on such Debentures
to the Redemption Date.
Responsible Officer
means, with respect to the Trustee, any officer within the
Principal Office of the Trustee, including any vice-president, any assistant vice-president, any
secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or
other officer of the Principal Trust Office of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of
that officers knowledge of and familiarity with the particular subject.
Securities Act
means the Securities Act of 1933, as amended from time to time or any
successor legislation.
Securityholder
, holder of Debentures, or other similar terms, means any Person in
whose name at the time a particular Debenture is registered on the register kept by the Company or
the Trustee for that purpose in accordance with the terms hereof.
Senior Indebtedness
means, with respect to the Company, (i) the principal, premium,
if any, and interest in respect of (A) indebtedness of the Company for all borrowed and purchased
money and (B) indebtedness evidenced by securities, debentures, notes, bonds or other similar
instruments issued by the Company; (ii) all capital lease obligations of the Company; (iii) all
obligations of the Company issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all obligations of the Company under any title
retention agreement; (iv) all obligations of the Company for the reimbursement of any letter of
credit, any bankers acceptance, any security purchase facility, any repurchase agreement or
similar arrangement, any interest rate swap, any other hedging arrangement, any obligation under
options or any similar credit or other transaction; (v) all obligations of the Company associated
with derivative products such as interest and foreign exchange rate contracts, commodity contracts,
and similar arrangements; (vi) all obligations of the type referred to in clauses (i) through (v)
above of other Persons for the payment of which the Company is responsible or liable as
obligor, guarantor or otherwise including, without limitation, similar obligations arising
from off-balance sheet guarantees and direct credit substitutes; and (vii) all obligations of the
type referred to in clauses (i)
Texas Capital Bancshares, Inc./Indenture
5
through (vi) above of other Persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by the Company),
whether incurred on or prior to the date of this Indenture or thereafter incurred. Notwithstanding
the foregoing, Senior Indebtedness shall not include (1) any Additional Junior Indebtedness, (2)
Debentures issued pursuant to this Indenture and guarantees in respect of such Debentures, (3)
trade accounts payable of the Company arising in the ordinary course of business (such trade
accounts payable being
pari passu
in right of payment to the Debentures), or (4) obligations with
respect to which (a) in the instrument creating or evidencing the same or pursuant to which the
same is outstanding, it is provided that such obligations are
pari passu
, junior or otherwise not
superior in right of payment to the Debentures and (b) the Company, prior to the issuance thereof,
has notified (and, if then required under the applicable guidelines of the regulating entity, has
received approval from) the Federal Reserve (if the Company is a bank holding company) or the OTS
(if the Company is a savings and loan holding company). Senior Indebtedness shall continue to be
Senior Indebtedness and be entitled to the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
Special Event
means any of a Capital Treatment Event, an Investment Company Event or
a Tax Event.
Special Redemption Date
has the meaning set forth in Section 10.2.
Special Redemption Price
means the price set forth in the following table for any
Special Redemption Date that occurs on the date indicated below (or if such day is not a Business
Day, then the next succeeding Business Day), expressed as the percentage of the principal amount of
the Debentures being redeemed:
|
|
|
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Month in which
|
|
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Special Redemption Date Occurs
|
|
Special Redemption Price
|
June 2006
|
|
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104.625
|
%
|
September 2006
|
|
|
104.300
|
%
|
December 2006
|
|
|
104.000
|
%
|
March 2007
|
|
|
103.650
|
%
|
June 2007
|
|
|
103.350
|
%
|
September 2007
|
|
|
103.000
|
%
|
December 2007
|
|
|
102.700
|
%
|
March 2008
|
|
|
102.350
|
%
|
June 2008
|
|
|
102.050
|
%
|
September 2008
|
|
|
101.700
|
%
|
December 2008
|
|
|
101.400
|
%
|
March 2009
|
|
|
101.050
|
%
|
Texas Capital Bancshares, Inc./Indenture
6
|
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Month in which
|
|
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Special Redemption Date Occurs
|
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Special Redemption Price
|
June 2009
|
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100.750
|
%
|
September 2009
|
|
|
100.450
|
%
|
December 2009
|
|
|
100.200
|
%
|
March 2010 and thereafter
|
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|
100.000
|
%
|
plus, in each case, accrued and unpaid interest (including any Additional Interest) on such
Debentures to the Special Redemption Date.
Subsidiary
means with respect to any Person, (i) any corporation at least a majority
of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one
or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of the outstanding
partnership or similar interests of which shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any
limited partnership of which such Person or any of its Subsidiaries is a general partner. For the
purposes of this definition, voting stock means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only by reason of the
occurrence of a contingency.
Tax Event
means the receipt by the Company and the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or therein, or as a result
of any official administrative pronouncement (including any private letter ruling, technical advice
memorandum, field service advice, regulatory procedure, notice or announcement, including any
notice or announcement of intent to adopt such procedures or regulations) (an
Administrative
Action
) or judicial decision interpreting or applying such laws or regulations, regardless of
whether such Administrative Action or judicial decision is issued to or in connection with a
proceeding involving the Company or the Trust and whether or not subject to review or appeal, which
amendment, clarification, change, Administrative Action or decision is enacted, promulgated or
announced, in each case on or after the date of original issuance of the Debentures, there is more
than an insubstantial risk that: (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income received or accrued on
the Debentures; (ii) interest payable by the Company on the Debentures is not, or within 90 days of
the date of such opinion, will not be, deductible by the Company, in whole or in part, for United
States federal income tax purposes; or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental
charges.
3-Month LIBOR
has the meaning set forth in Section 2.10.
Telerate Page 3750
has the meaning set forth in Section 2.10.
Trust
shall mean Texas Capital Statutory Trust IV, a Delaware statutory trust, or
any other similar trust created for the purpose of issuing Capital Securities in connection with
the issuance of Debentures under this Indenture, of which the Company is the sponsor.
Trust Securities
means Common Securities and Capital Securities of the Trust.
Texas Capital Bancshares, Inc./Indenture
7
Trustee
means Wilmington Trust Company, and, subject to the provisions of Article VI
hereof, shall also include its successors and assigns as Trustee hereunder.
ARTICLE II.
DEBENTURES
Section 2.1.
Authentication and Dating
.
Upon the execution and delivery of this Indenture, or from time to time thereafter, Debentures
in an aggregate principal amount not in excess of $25,774,000.00 may be executed and delivered by
the Company to the Trustee for authentication, and the Trustee, upon receipt of a written
authentication order from the Company, shall thereupon authenticate and make available for delivery
said Debentures to or upon the written order of the Company, signed by its Chairman of the Board of
Directors, Chief Executive Officer, Vice Chairman, the President, one of its Managing Directors or
one of its Vice Presidents without any further action by the Company hereunder. Notwithstanding
anything to the contrary contained herein, the Trustee shall be fully protected in relying upon the
aforementioned authentication order and written order in authenticating and delivering said
Debentures. In authenticating such Debentures, and accepting the additional responsibilities under
this Indenture in relation to such Debentures, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon:
(a) a copy of any Board Resolution or Board Resolutions relating thereto and, if applicable,
an appropriate record of any action taken pursuant to such resolution, in each case certified by
the Secretary or an Assistant Secretary of the Company, as the case may be; and
(b) an Opinion of Counsel prepared in accordance with Section 14.6 which shall also state:
(1) that such Debentures, when authenticated and delivered by the Trustee and
issued by the Company in each case in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, subject to or limited by applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, moratorium and other
statutory or decisional laws relating to or affecting creditors rights or the
reorganization of financial institutions (including, without limitation, preference
and fraudulent conveyance or transfer laws), heretofore or hereafter enacted or in
effect, affecting the rights of creditors generally; and
(2) that all laws and requirements in respect of the execution and delivery by
the Company of the Debentures have been complied with and that authentication and
delivery of the Debentures by the Trustee will not violate the terms of this
Indenture.
The Trustee shall have the right to decline to authenticate and deliver any Debentures under
this Section if the Trustee, being advised in writing by counsel, determines that such action may
not lawfully be taken or if a Responsible Officer of the Trustee in good faith shall determine that
such action would expose the Trustee to personal liability to existing holders.
The definitive Debentures shall be typed, printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by the officers executing such
Debentures, as evidenced by their execution of such Debentures.
Section 2.2.
Form of Trustees Certificate of Authentication
.
The Trustees certificate of authentication on all Debentures shall be in substantially the
following form:
This is one of the Debentures referred to in the within-mentioned Indenture.
Texas Capital Bancshares, Inc./Indenture
8
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WILMINGTON TRUST COMPANY, as Trustee
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By
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Authorized Signer
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Section 2.3.
Form and Denomination of Debentures.
The Debentures shall be substantially in the form of Exhibit A attached hereto. The
Debentures shall be in registered, certificated form without coupons and in minimum denominations
of $100,000.00 and any multiple of $1,000.00 in excess thereof. Any attempted transfer of the
Debentures in a block having an aggregate principal amount of less than $100,000.00 shall be deemed
to be void and of no legal effect whatsoever. Any such purported transferee shall be deemed not to
be a holder of such Debentures for any purpose, including, but not limited to the receipt of
payments on such Debentures, and such purported transferee shall be deemed to have no interest
whatsoever in such Debentures. The Debentures shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plans as the officers executing the same
may determine with the approval of the Trustee as evidenced by the execution and authentication
thereof.
Section 2.4.
Execution of Debentures
.
The Debentures shall be signed in the name and on behalf of the Company by the manual or
facsimile signature of its Chairman of the Board of Directors, Chief Executive Officer, Vice
Chairman, President, one of its Managing Directors or one of its Executive Vice Presidents, Senior
Vice Presidents or Vice Presidents. Only such Debentures as shall bear thereon a certificate of
authentication substantially in the form herein before recited, executed by the Trustee or the
Authenticating Agent by the manual signature of an authorized signer, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee or the Authenticating Agent upon any Debenture executed by the Company shall be conclusive
evidence that the Debenture so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Debentures shall cease to
be such officer before the Debentures so signed shall have been authenticated and delivered by the
Trustee or the Authenticating Agent, or disposed of by the Company, such Debentures nevertheless
may be authenticated and delivered or disposed of as though the Person who signed such Debentures
had not ceased to be such officer of the Company; and any Debenture may be signed on behalf of the
Company by such Persons as, at the actual date of the execution of such Debenture, shall be the
proper officers of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
Every Debenture shall be dated the date of its authentication.
Section 2.5.
Exchange and Registration of Transfer of Debentures
.
The Company shall cause to be kept, at the office or agency maintained for the purpose of
registration of transfer and for exchange as provided in Section 3.2, a register (the
Debenture Register
) for the Debentures issued hereunder in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the registration and
transfer of all Debentures as in this Article II provided. The Debenture Register shall be in
written form or in any other form capable of being converted into written form within a reasonable
time.
Debentures to be exchanged may be surrendered at the Principal Office of the Trustee or at any
office or agency to be maintained by the Company for such purpose as provided in Section 3.2, and
the Company shall execute, the Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in exchange therefor the
Debenture or Debentures which the Securityholder making the exchange shall be entitled to receive.
Upon due presentment for registration of transfer of any Debenture at the Principal Office of the
Trustee or at any
Texas Capital Bancshares, Inc./Indenture
9
office or agency of the Company maintained for such purpose as provided in
Section 3.2, the Company shall execute, the Company or the Trustee shall register and the Trustee
or the Authenticating Agent shall authenticate and make available for delivery in the name of the
transferee or transferees a new Debenture for a like aggregate principal amount. Registration or
registration of transfer of any Debenture by the Trustee or by any agent of the Company appointed
pursuant to Section 3.2, and delivery of such Debenture, shall be deemed to complete the
registration or registration of transfer of such Debenture.
All Debentures presented for registration of transfer or for exchange or payment shall (if so
required by the Company or the Trustee or the Authenticating Agent) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form satisfactory to the Company
and the Trustee or the Authenticating Agent duly executed by the holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of transfer of Debentures,
but the Company or the Trustee may require payment of a sum sufficient to cover any tax, fee or
other governmental charge that may be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or register a transfer of any
Debenture for a period of 15 days next preceding the date of selection of Debentures for
redemption.
Notwithstanding anything herein to the contrary, Debentures may not be transferred except in
compliance with the restricted securities legend set forth below, unless otherwise determined by
the Company, upon the advice of counsel expert in securities law, in accordance with applicable
law:
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES
OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON
WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN
ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANYS RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF
Texas Capital Bancshares, Inc./Indenture
10
AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE
INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) (EACH A PLAN), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY PLANS INVESTMENT IN THE ENTITY, AND
NO PERSON INVESTING PLAN ASSETS OF ANY PLAN MAY ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST
THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY
ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A
TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON
OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii)
SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE
PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
$100,000.00 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
Section 2.6.
Mutilated, Destroyed, Lost or Stolen Debentures
.
In case any Debenture shall become mutilated or be destroyed, lost or stolen, the Company
shall execute, and upon its written request the Trustee shall authenticate and deliver, a new
Debenture bearing a number not contemporaneously outstanding, in exchange and substitution for the
mutilated Debenture, or in lieu of and in substitution for the Debenture so destroyed, lost or
stolen. In every case the applicant for a substituted Debenture shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company
and the Trustee evidence to their satisfaction of the destruction, loss or theft of such Debenture
and of the ownership thereof.
The Trustee may authenticate any such substituted Debenture and deliver the same upon the
written request or authorization of any officer of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other expenses connected
therewith.
Texas Capital Bancshares, Inc./Indenture
11
In case any Debenture which has matured or is about to mature or has been called for
redemption in full shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Debenture, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Debenture) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the
Company and to the Trustee of the destruction, loss or theft of such Debenture and of the ownership
thereof.
Every substituted Debenture issued pursuant to the provisions of this Section 2.6 by virtue of
the fact that any such Debenture is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Debenture shall
be found at any time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures duly issued hereunder. All Debentures shall be
held and owned upon the express condition that, to the extent permitted by applicable law, the
foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.7.
Temporary Debentures
.
Pending the preparation of definitive Debentures, the Company may execute and the Trustee
shall authenticate and make available for delivery temporary Debentures that are typed, printed or
lithographed. Temporary Debentures shall be issuable in any authorized denomination, and
substantially in the form of the definitive Debentures in lieu of which they are issued but with
such omissions, insertions and variations as may be appropriate for temporary Debentures, all as
may be determined by the Company. Every such temporary Debenture shall be executed by the Company
and be authenticated by the Trustee upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Debentures. Without unreasonable delay the Company
will execute and deliver to the Trustee or the Authenticating Agent definitive Debentures and
thereupon any or all temporary Debentures may be surrendered in exchange therefor, at the principal
corporate trust office of the Trustee or at any office or agency maintained by the Company for such
purpose as provided in Section 3.2, and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery in exchange for such temporary Debentures a like aggregate
principal amount of such definitive Debentures. Such exchange shall be made by the Company at its
own expense and without any charge therefor except that in case of any such exchange involving a
registration of transfer the Company may require payment of a sum sufficient to cover any tax, fee
or other governmental charge that may be imposed in relation thereto.
Until so exchanged, the temporary Debentures shall in all respects be entitled to the same
benefits under this Indenture as definitive Debentures authenticated and delivered hereunder.
Section 2.8.
Payment of Interest and Additional Interest
.
Interest at the Interest Rate and any Additional Interest on any Debenture that is payable,
and is punctually paid or duly provided for, on any Interest Payment Date for Debentures shall be
paid to the Person in whose name said Debenture (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such interest installment except
that interest and any Additional Interest payable on the Maturity Date shall be paid to the Person
to whom principal is paid.
Each Debenture shall bear interest for the period beginning on (and including) the date of
original issuance and ending on (but excluding) the Interest Payment Date in June 2006 at a rate
per annum of 6.74875%, and shall bear interest for each successive Distribution Period beginning on
or after the Interest Payment Date in June 2006 at a rate per annum equal to the 3-Month LIBOR,
determined as described in Section 2.10, plus 1.60% (the
Coupon Rate
), applied to the
principal amount thereof, until
Texas Capital Bancshares, Inc./Indenture
12
the principal thereof becomes due and payable, and on any overdue
principal and to the extent that payment of such interest is enforceable under applicable law
(without duplication) on any overdue installment of interest (including Additional Interest) at the
Interest Rate in effect for each applicable period compounded quarterly. Interest shall be payable
(subject to any relevant Extension Period) quarterly in arrears on each Interest Payment Date with
the first installment of interest to be paid on the Interest Payment Date in June 2006.
Any interest on any Debenture, including Additional Interest, that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein called
Defaulted
Interest
) shall forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the
Company to the Persons in whose names such Debentures (or their respective Predecessor Securities)
are registered at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in
writing at least 25 days prior to the date of the proposed payment of the amount of Defaulted
Interest proposed to be paid on each such Debenture and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to be mailed, first class
postage prepaid, to each Securityholder at its address as it appears in the Debenture Register, not
less than 10 days prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such Debentures (or their respective
Predecessor Securities) are registered on such special record date and shall be no longer payable.
The Company may make payment of any Defaulted Interest on any Debentures in any other lawful
manner after notice given by the Company to the Trustee of the proposed payment method;
provided
,
however
, the Trustee in its sole discretion deems such payment method to
be practical.
Any interest (including Additional Interest) scheduled to become payable on an Interest
Payment Date occurring during an Extension Period shall not be Defaulted Interest and shall be
payable on such other date as may be specified in the terms of such Debentures.
The term regular record date as used in this Section shall mean the close of business on the
15th Business Day preceding the applicable Interest Payment Date.
Subject to the foregoing provisions of this Section, each Debenture delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Debenture
shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such
other Debenture.
Section 2.9.
Cancellation of Debentures Paid, etc
.
All Debentures surrendered for the purpose of payment, redemption, exchange or registration of
transfer, shall, if surrendered to the Company or any paying agent, be surrendered to the Trustee
and promptly canceled by it, or, if surrendered to the Trustee or any Authenticating Agent, shall
be promptly canceled by it, and no Debentures shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. All Debentures canceled by any
Authenticating Agent shall be delivered to the Trustee. The
Texas Capital Bancshares, Inc./Indenture
13
Trustee shall destroy all canceled
Debentures unless the Company otherwise directs the Trustee in writing. If the Company shall
acquire any of the Debentures, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures unless and until the same are
surrendered to the Trustee for cancellation.
Section 2.10.
Computation of Interest
.
The amount of interest payable for each Distribution Period will be calculated by applying the
Interest Rate to the principal amount outstanding at the commencement of the Distribution Period on
the basis of the actual number of days in the Distribution Period concerned divided by 360. All
percentages resulting from any calculations on the Debentures will be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage
point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and
all dollar amounts used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward)).
(a)
3-Month LIBOR
means the London interbank offered interest rate for three-month,
U.S. dollar deposits determined by the Trustee in the following order of priority:
(1) the rate (expressed as a percentage per annum) for U.S. dollar deposits having a
three-month maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on
the related Determination Date (as defined below). Telerate Page 3750 means the display
designated as Page 3750 on the Moneyline Telerate Service or such other page as may
replace Page 3750 on that service or such other service or services as may be nominated by
the British Bankers Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar deposits;
(2) if such rate cannot be identified on the related Determination Date, the Trustee
will request the principal London offices of four leading banks in the London interbank
market to provide such banks offered quotations (expressed as percentages per annum) to
prime banks in the London interbank market for U.S. dollar deposits having a three-month
maturity as of 11:00 a.m. (London time) on such Determination Date. If at least two
quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations;
(3) if fewer than two such quotations are provided as requested in clause (2) above,
the Trustee will request four major New York City banks to provide such banks offered
quotations (expressed as percentages per annum) to leading European banks for loans in U.S.
dollars as of 11:00 a.m. (London time) on such Determination Date. If at least two such
quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations; and
(4) if fewer than two such quotations are provided as requested in clause (3) above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to the Distribution Period
immediately preceding such current Distribution Period.
If the rate for U.S. dollar deposits having a three-month maturity that initially appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related Determination Date is superseded
on the Telerate Page 3750 by a corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the applicable page will be the applicable
3-Month LIBOR for such Determination Date.
(b) The Interest Rate for any Distribution Period will at no time be higher than the maximum
rate then permitted by New York law as the same may be modified by United States law.
Texas Capital Bancshares, Inc./Indenture
14
(c)
Determination Date
means the date that is two London Banking Days (i.e., a
business day in which dealings in deposits in U.S. dollars are transacted in the London interbank
market) preceding the particular Distribution Period for which a Coupon Rate is being determined.
(d) The Trustee shall notify the Company, the Institutional Trustee and any securities
exchange or interdealer quotation system on which the Capital Securities are listed, of the Coupon
Rate and the Determination Date for each Distribution Period, in each case as soon as practicable
after the determination thereof but in no event later than the thirtieth (30th) day of the relevant
Distribution Period. Failure to notify the Company, the Institutional Trustee or any securities
exchange or interdealer quotation system, or any defect in said notice, shall not affect the
obligation of the Company to make payment on the Debentures at the applicable Coupon Rate. Any
error in the calculation of the Coupon Rate by the Trustee may be corrected at any time by notice
delivered as above provided. Upon the request of a holder of a Debenture, the Trustee shall
provide the Coupon Rate then in effect and, if determined, the Coupon Rate for the next
Distribution Period.
(e) Subject to the corrective rights set forth above, all certificates, communications,
opinions, determinations, calculations, quotations and decisions given, expressed, made or obtained
for the purposes of the provisions relating to the payment and calculation of interest on the
Debentures and distributions on the Capital Securities by the Trustee or the Institutional Trustee
will (in the absence of willful default, bad faith and manifest error) be final, conclusive and
binding on the Trust, the Company and all of the holders of the Debentures and the Capital
Securities, and no liability shall (in the absence of willful default, bad faith or manifest error)
attach to the Trustee or the Institutional Trustee in connection with the exercise or non-exercise
by either of them or their respective powers, duties and discretion.
Section 2.11.
Extension of Interest Payment Period
.
So long as no Acceleration Event of Default has occurred and is continuing, the Company shall
have the right, from time to time, and without causing an Event of Default, to defer payments of
interest on the Debentures by extending the interest payment period on the Debentures at any time
and from time to time during the term of the Debentures, for up to 20 consecutive quarterly periods
(each such extended interest payment period, an
Extension Period
), during which Extension
Period no interest (including Additional Interest) shall be due and payable (except any Additional
Sums that may be due and payable). No Extension Period may end on a date other than an Interest
Payment Date. During an Extension
Period, interest will continue to accrue on the Debentures, and interest on such accrued
interest will accrue at an annual rate equal to the Interest Rate in effect for such Extension
Period, compounded quarterly from the date such interest would have been payable were it not for
the Extension Period, to the extent permitted by law (such interest referred to herein as
Additional Interest
). At the end of any such Extension Period the Company shall pay all
interest then accrued and unpaid on the Debentures (together with Additional Interest thereon);
provided
,
however
, that no Extension Period may extend beyond the Maturity Date;
provided
further
,
however
, that during any such Extension Period, the
Company shall not and shall not permit any Affiliate to (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Companys or such Affiliates capital stock (other than payments of dividends or
distributions to the Company) or make any guarantee payments with respect to the foregoing or (ii)
make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company or any Affiliate that rank
pari passu
in all respects with or
junior in interest to the Debentures (other than, with respect to clauses (i) or (ii) above, (a)
repurchases, redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other similar arrangement with or for the
benefit of one or more employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock
of the Company (or securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of any exchange or conversion of any
Texas Capital Bancshares, Inc./Indenture
15
class or series of the Companys capital stock
(or any capital stock of a subsidiary of the Company) for any class or series of the Companys
capital stock or of any class or series of the Companys indebtedness for any class or series of
the Companys capital stock, (c) the purchase of fractional interests in shares of the Companys
capital stock pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a dividend in connection with any
stockholders rights plan, or the issuance of rights, stock or other property under any
stockholders rights plan, or the redemption or repurchase of rights pursuant thereto, (e) any
dividend in the form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks
pari passu
with or junior to such stock and any cash
payments in lieu of fractional shares issued in connection therewith, or (f) payments under the
Capital Securities Guarantee). Prior to the termination of any Extension Period, the Company may
further extend such period, provided that such period together with all such previous and further
consecutive extensions thereof shall not exceed 20 consecutive quarterly periods, or extend beyond
the Maturity Date. Upon the termination of any Extension Period and upon the payment of all
accrued and unpaid interest and Additional Interest, the Company may commence a new Extension
Period, subject to the foregoing requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period shall bear Additional
Interest to the extent permitted by applicable law. The Company must give the Trustee notice of
its election to begin or extend an Extension Period by the close of business at least 15 Business
Days prior to the Interest Payment Date with respect to which interest on the Debentures would have
been payable except for the election to begin or extend such Extension Period. The Trustee shall
give notice of the Companys election to begin a new Extension Period to the Securityholders.
Section 2.12.
CUSIP Numbers
.
The Company in issuing the Debentures may use CUSIP numbers (if then generally in use), and,
if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to
Securityholders; provided, however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Debentures or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the
Debentures, and any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP
numbers.
ARTICLE III.
PARTICULAR COVENANTS OF THE COMPANY
Section 3.1.
Payment of Principal, Premium and Interest; Agreed Treatment of the
Debentures
.
(a) The Company covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of and premium, if any, and interest and any Additional Interest and other payments
on the Debentures at the place, at the respective times and in the manner provided in this
Indenture and the Debentures. Each installment of interest on the Debentures may be paid (i) by
mailing checks for such interest payable to the order of the holders of Debentures entitled thereto
as they appear on the registry books of the Company if a request for a wire transfer has not been
received by the Company or (ii) by wire transfer to any account with a banking institution located
in the United States designated in writing by such Person to the paying agent no later than the
related record date. Notwithstanding the foregoing, so long as the holder of this Debenture is the
Institutional Trustee, the payment of the principal of and interest on this Debenture will be made
in immediately available funds at such place and to such account as may be designated by the
Institutional Trustee.
Texas Capital Bancshares, Inc./Indenture
16
(b) The Company will treat the Debentures as indebtedness, and the amounts payable in respect
of the principal amount of such Debentures as interest, for all United States federal income tax
purposes. All payments in respect of such Debentures will be made free and clear of United States
withholding tax to any beneficial owner thereof that has provided an Internal Revenue Service Form
W8 BEN (or any substitute or successor form) establishing its non-United States status for United
States federal income tax purposes.
(c) As of the date of this Indenture, the Company has no present intention to exercise its
right under Section 2.11 to defer payments of interest on the Debentures by commencing an Extension
Period.
(d) As of the date of this Indenture, the Company believes that the likelihood that it would
exercise its right under Section 2.11 to defer payments of interest on the Debentures by commencing
an Extension Period at any time during which the Debentures are outstanding is remote because of
the restrictions that would be imposed on the Companys ability to declare or pay dividends or
distributions on, or to redeem, purchase or make a liquidation payment with respect to, any of its
outstanding equity and on the Companys ability to make any payments of principal of or interest
on, or repurchase or redeem, any of its debt securities that rank
pari passu
in all respects with
(or junior in interest to) the Debentures.
Section 3.2.
Offices for Notices and Payments, etc
.
So long as any of the Debentures remain outstanding, the Company will maintain in Wilmington,
Delaware, an office or agency where the Debentures may be presented for payment, an office or
agency where the Debentures may be presented for registration of transfer and for exchange as in
this Indenture provided and an office or agency where notices and demands to or upon the Company in
respect of the Debentures or of this Indenture may be served. The Company will give to the Trustee
written notice of the location of any such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Company in a notice to the Trustee, or
specified as contemplated by Section 2.5, such office or agency for all of the above purposes shall
be the office or agency of the Trustee. In case the Company shall fail to maintain any such office
or agency in Wilmington, Delaware,
or shall fail to give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the Principal Office of the
Trustee.
In addition to any such office or agency, the Company may from time to time designate one or
more offices or agencies outside Wilmington, Delaware, where the Debentures may be presented for
registration of transfer and for exchange in the manner provided in this Indenture, and the Company
may from time to time rescind such designation, as the Company may deem desirable or expedient;
provided
,
however
, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such office or agency in Wilmington,
Delaware, for the purposes above mentioned. The Company will give to the Trustee prompt written
notice of any such designation or rescission thereof.
Section 3.3.
Appointments to Fill Vacancies in Trustees Office
.
The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.9, a Trustee, so that there shall at all times be a
Trustee hereunder.
Section 3.4.
Provision as to Paying Agent
.
(a) If the Company shall appoint a paying agent other than the Trustee, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provision of this Section 3.4,
(1) that it will hold all sums held by it as such agent for the payment of the
principal of and premium, if any, or interest, if any, on the Debentures (whether
such sums have
Texas Capital Bancshares, Inc./Indenture
17
been paid to it by the Company or by any other obligor on the
Debentures) in trust for the benefit of the holders of the Debentures;
(2) that it will give the Trustee prompt written notice of any failure by the
Company (or by any other obligor on the Debentures) to make any payment of the
principal of and premium, if any, or interest, if any, on the Debentures when the
same shall be due and payable; and
(3) that it will, at any time during the continuance of any Event of Default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or before each due date of
the principal of and premium, if any, or interest or other payments, if any, on the Debentures, set
aside, segregate and hold in trust for the benefit of the holders of the Debentures a sum
sufficient to pay such principal, premium, interest or other payments so becoming due and will
notify the Trustee in writing of any failure to take such action and of any failure by the Company
(or by any other obligor under the Debentures) to make any payment of the principal of and premium,
if any, or interest or other payments, if any, on the Debentures when the same shall become due and
payable.
Whenever the Company shall have one or more paying agents for the Debentures, it will, on or
prior to each due date of the principal of and premium, if any, or interest, if any, on the
Debentures, deposit with a paying agent a sum sufficient to pay the principal, premium, interest or
other payments so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto and (unless such paying agent is the Trustee) the Company shall promptly notify
the Trustee in writing of its action or failure to act.
(c) Anything in this Section 3.4 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge with respect to the Debentures, or
for any other reason, pay, or direct any paying agent to pay to the Trustee all sums held in trust
by the Company or any such paying agent, such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section 3.4 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 3.4 is subject to Sections 12.3 and 12.4.
Section 3.5.
Certificate to Trustee
.
The Company will deliver to the Trustee on or before 120 days after the end of each fiscal
year, so long as Debentures are outstanding hereunder, a Certificate stating that in the course of
the performance by the signers of their duties as officers of the Company they would normally have
knowledge of any default during such fiscal year by the Company in the performance of any covenants
contained herein, stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the nature and status thereof.
A form of this Certificate is attached hereto as
Exhibit B
.
Section 3.6.
Additional Sums
.
If and for so long as the Trust is the holder of all Debentures and the Trust is required to
pay any additional taxes (including withholding taxes), duties, assessments or other governmental
charges as a result of a Tax Event, the Company will pay such additional amounts (
Additional
Sums
) on the Debentures as shall be required so that the net amounts received and retained by
the Trust after paying taxes (including withholding taxes), duties, assessments or other
governmental charges will be equal to the amounts the Trust would have received if no such taxes,
duties, assessments or other governmental charges had been imposed. Whenever in this Indenture or
the Debentures there is a reference in any context to the payment of principal of or interest on
the Debentures, such mention shall be deemed to include mention of payments of the Additional Sums
provided for in this paragraph to the
Texas Capital Bancshares, Inc./Indenture
18
extent that, in such context, Additional Sums are, were or
would be payable in respect thereof pursuant to the provisions of this paragraph and express
mention of the payment of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such express mention is not
made;
provided
,
however
, that the deferral of the payment of interest during an
Extension Period pursuant to Section 2.11 shall not defer the payment of any Additional Sums that
may be due and payable.
Section 3.7.
Compliance with Consolidation Provisions
.
The Company will not, while any of the Debentures remain outstanding, consolidate with, or
merge into, or merge into itself, or sell or convey all or substantially all of its property to any
other Person unless the provisions of Article XI hereof are complied with.
Section 3.8.
Limitation on Dividends
.
If Debentures are initially issued to the Trust or a trustee of such Trust in connection with
the issuance of Trust Securities by the Trust (regardless of whether Debentures continue to be held
by such Trust) and (i) there shall have occurred and be continuing an Event of Default, (ii) the
Company shall be in default with respect to its payment of any obligations under the Capital
Securities Guarantee, or (iii) the Company shall have given notice of its election to defer
payments of interest on the Debentures by extending the interest payment period as provided herein
and such period, or any extension thereof, shall be continuing, then the Company shall not, and
shall not allow any Affiliate of the Company to, (x) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Companys capital stock or its Affiliates capital stock
(other than payments of dividends or distributions to the Company) or make any guarantee payments
with respect to the foregoing or (y) make any payment of principal of or interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the Company or any Affiliate that
rank
pari passu
in all respects with or junior in interest to the Debentures (other than, with
respect to clauses (x) and (y) above, (1) repurchases, redemptions or other acquisitions of shares
of capital stock of the Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Extension Period, if any, (2) as a result of any exchange or conversion of
any class or series of the Companys capital stock (or any capital stock of a subsidiary of the
Company) for any class or series of the Companys capital stock or of any class or series of the
Companys indebtedness for any class or series of the Companys capital stock, (3) the purchase of
fractional interests in shares of the Companys capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or exchanged, (4) any
declaration of a dividend in connection with any stockholders rights plan, or the issuance of
rights, stock or other property under any stockholders rights plan, or the redemption or
repurchase of rights pursuant thereto, (5) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of such warrants, options
or other rights is the same stock as that on which the dividend is being paid or ranks
pari passu
with or junior to such stock and any cash payments in lieu of fractional shares issued in
connection therewith, or (6) payments under the Capital Securities Guarantee).
Section 3.9.
Covenants as to the Trust
.
For so long as the Trust Securities remain outstanding, the Company shall maintain 100%
ownership of the Common Securities;
provided
,
however
, that any permitted successor
of the Company under this Indenture may succeed to the Companys ownership of such Common
Securities. The Company, as owner of the Common Securities, shall, except in connection with a
distribution of Debentures to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of the Trust Securities or certain mergers, consolidations or amalgamations, each
as permitted by the Declaration, cause the Trust (a) to remain a statutory trust, (b) to otherwise
Texas Capital Bancshares, Inc./Indenture
19
continue to be classified as a grantor trust for United States federal income tax purposes,
and (c) to cause each holder of Trust Securities to be treated as owning an undivided beneficial
interest in the Debentures.
Section 3.10.
Additional Junior Indebtedness
. The Company shall not, and it shall not
cause or permit any Subsidiary of the Company to, incur, issue or be obligated on any Additional
Junior Indebtedness, either directly or indirectly, by way of guarantee, suretyship or otherwise,
other than Additional Junior Indebtedness (i) that, by its terms, is expressly stated to be either
junior and subordinate or
pari passu
in all respects to the Debentures, and (ii) of which the
Company has notified (and, if then required under the applicable guidelines of the regulating
entity, has received approval from) the Federal Reserve, if the Company is a bank holding company,
or the OTS, if the Company is a savings and loan holding company.
ARTICLE IV.
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 4.1.
Securityholders Lists
.
The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee:
(a) on each regular record date for the Debentures, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Securityholders of the Debentures as of such
record date; and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
except that no such lists need be furnished under this Section 4.1 so long as the Trustee is in
possession thereof by reason of its acting as Debenture registrar.
Section 4.2.
Preservation and Disclosure of Lists
.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Debentures (1) contained in the most
recent list furnished to it as provided in Section 4.1 or (2) received by it in the capacity of
Debentures registrar (if so acting) hereunder. The Trustee may destroy any list furnished to it as
provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more holders of Debentures (hereinafter referred to as applicants)
apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such
applicant has owned a Debenture for a period of at least 6 months preceding the date of such
application, and such application states that the applicants desire to communicate with other
holders of Debentures with respect to their rights under this Indenture or under such Debentures
and is accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within 5 Business Days after the receipt of such
application, at its election, either:
(1) afford such applicants access to the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section 4.2, or
(2) inform such applicants as to the approximate number of holders of Debentures
whose names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section 4.2, and
as to
Texas Capital Bancshares, Inc./Indenture
20
the approximate cost of mailing to such Securityholders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Securityholder whose name
and address appear in the information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy or other communication
which is specified in such request with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to such applicants and
file with the Securities and Exchange Commission, if permitted or required by applicable law,
together with a copy of the material to be mailed,
a written statement to the effect that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the holders of all Debentures, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of such opinion. If
said Commission, as permitted or required by applicable law, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Securityholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Debentures, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such information as to the names and addresses of
the holders of Debentures in accordance with the provisions of subsection (b) of this Section 4.2,
regardless of the source from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request made under said subsection
(b).
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
Section 5.1.
Events of Default
. Event of Default, wherever used herein, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(a) the Company defaults in the payment of any interest upon any Debenture, including any
Additional Interest in respect thereof, following the nonpayment of any such interest for twenty or
more consecutive Distribution Periods; or
(b) the Company defaults in the payment of all or any part of the principal of (or premium, if
any, on) any Debentures as and when the same shall become due and payable either at maturity, upon
redemption, by declaration of acceleration or otherwise; or
(c) the Company defaults in the performance of, or breaches, any of its covenants or
agreements in this Indenture or in the terms of the Debentures established as contemplated in this
Indenture (other than a covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the holders of at least 25% in aggregate principal
amount of the
Texas Capital Bancshares, Inc./Indenture
21
outstanding Debentures, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a Notice of Default hereunder; or
(d) a court of competent jurisdiction shall enter a decree or order for relief in respect of
the Company in an involuntary case under any applicable bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part
of its property, or ordering the winding-up or liquidation of its affairs and such decree or order
shall remain unstayed and in effect for a period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, shall consent to the entry of an
order for relief in an involuntary case under any such law, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) of the Company or of any substantial part of its property, or shall make
any general assignment for the benefit of creditors, or shall fail generally to pay its debts as
they become due; or
(f) the Trust shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence except in connection with (i) the distribution of
the Debentures to holders of such Trust Securities in liquidation of their interests in the Trust,
(ii) the redemption of all of the outstanding Trust Securities or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Declaration.
If an Acceleration Event of Default occurs and is continuing with respect to the Debentures,
then, and in each and every such case, unless the principal of the Debentures shall have already
become due and payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debentures then outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by Securityholders), may declare the entire principal of the
Debentures and the interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable. If an Event of Default
under Section 5.1(b) or (c) occurs and is continuing with respect to the Debentures, then, and in
each and every such case, unless the principal of the Debentures shall have already become due and
payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of
the Debentures then outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Securityholders), may proceed to remedy the default or breach thereunder by such
appropriate judicial proceedings as the Trustee or such holders shall deem most effectual to remedy
the defaulted covenant or enforce the provisions of this Indenture so breached, either by suit in
equity or by action at law, for damages or otherwise.
The foregoing provisions, however, are subject to the condition that if, at any time after the
principal of the Debentures shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as hereinafter
provided, (i) the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debentures and the principal of and premium, if any,
on the Debentures which shall have become due otherwise than by acceleration (with interest upon
such principal and premium, if any, and Additional Interest) and such amount as shall be sufficient
to cover reasonable compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other amounts due to the Trustee pursuant to Section 6.6, if
any, and (ii) all Events of Default under this Indenture, other than the non-payment of the
principal of or premium, if any, on Debentures which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein then and in every such case the
holders of a majority in aggregate principal amount of the Debentures then outstanding, by written
notice to the Company and to the Trustee, may
Texas Capital Bancshares, Inc./Indenture
22
waive all defaults and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or
for any other reason or shall have been determined adversely to the Trustee, then and in every such
case the Company, the Trustee and the holders of the Debentures shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and powers of the Company,
the Trustee and the holders of the Debentures shall continue as though no such proceeding had been
taken.
Section 5.2.
Payment of Debentures on Default; Suit Therefor
.
The Company covenants
that upon the occurrence of an Event of Default pursuant to Section 5.1(a) or (b) then, upon demand
of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the
Debentures the whole amount that then shall have become due and payable on all Debentures for
principal and premium, if any, or interest, or both, as the case may be, with Additional Interest
accrued on the Debentures (to the extent that payment of such interest is enforceable under
applicable law and, if the Debentures are held by the Trust or a trustee of such Trust, without
duplication of any other amounts paid by the Trust or a trustee in respect thereof); and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents, attorneys and counsel,
and any other amounts due to the Trustee under Section 6.6. In case the Company shall fail
forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or final decree against
the Company or any other obligor on such Debentures and collect in the manner provided by law out
of the property of the Company or any other obligor on such Debentures wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Debentures under Bankruptcy Law, or in case a receiver or
trustee shall have been appointed for the property of the Company or such other obligor, or in the
case of any other similar judicial proceedings relative to the Company or other obligor upon the
Debentures, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debentures shall then be due and payable as therein
expressed or by declaration of acceleration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 5.2, shall be entitled and
empowered, by intervention in such proceedings or otherwise,
|
(i)
|
|
to file and prove a claim or claims for the whole amount of principal and
interest owing and unpaid in respect of the Debentures,
|
|
|
(ii)
|
|
in case of any judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all other amounts due to the Trustee under Section 6.6), and of the
Securityholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Debentures, or to the creditors or property of the Company or such
other obligor, unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Debentures in any election of a trustee or a standby trustee in
arrangement,
|
Texas Capital Bancshares, Inc./Indenture
23
|
|
|
reorganization, liquidation or other bankruptcy or insolvency proceedings
or Person performing similar functions in comparable proceedings,
|
|
|
(iii)
|
|
to collect and receive any moneys or other property payable or deliverable on
any such claims, and
|
|
|
(iv)
|
|
to distribute the same after the deduction of its charges and expenses.
|
Any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of
the Securityholders to make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay to the Trustee such
amounts as shall
be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other amounts due to the Trustee under Section
6.6.
Nothing herein contained shall be construed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Debentures or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the
Debentures, may be enforced by the Trustee without the possession of any of the Debentures, or the
production thereof at any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall be for the ratable benefit of the holders of the
Debentures.
In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party), the
Trustee shall be held to represent all the holders of the Debentures, and it shall not be necessary
to make any holders of the Debentures parties to any such proceedings.
Section 5.3.
Application of Moneys Collected by Trustee
.
Any moneys collected by the
Trustee pursuant to this Article V shall be applied in the following order, at the date or dates
fixed by the Trustee for the distribution of such moneys, upon presentation of the several
Debentures in respect of which moneys have been collected, and stamping thereon the payment, if
only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses incurred by, and reasonable fees of, the Trustee,
its agents, attorneys and counsel, and of all other amounts due to the Trustee under Section 6.6;
Second: To the payment of all Senior Indebtedness of the Company if and to the extent
required by Article XV;
Third: To the payment of the amounts then due and unpaid upon Debentures for principal (and
premium, if any), and interest on the Debentures, in respect of which or for the benefit of which
money has been collected, ratably, without preference or priority of any kind, according to the
amounts due on such Debentures (including Additional Interest); and
Fourth: The balance, if any, to the Company.
Section 5.4.
Proceedings by Securityholders
.
No holder of any Debenture shall have
any right to institute any suit, action or proceeding for any remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of an Event of Default with respect to
the Debentures and
Texas Capital Bancshares, Inc./Indenture
24
unless the holders of not less than 25% in aggregate principal amount of the
Debentures then outstanding shall have given the Trustee a written request to institute such
action, suit or proceeding and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action, suit or proceeding.
Notwithstanding any other provisions in this Indenture, however, the right of any holder of
any Debenture to receive payment of the principal of, premium, if any, and interest, on such
Debenture when
due, or to institute suit for the enforcement of any such payment, shall not be impaired or
affected without the consent of such holder and by accepting a Debenture hereunder it is expressly
understood, intended and covenanted by the taker and holder of every Debenture with every other
such taker and holder and the Trustee, that no one or more holders of Debentures shall have any
right in any manner whatsoever by virtue or by availing itself of any provision of this Indenture
to affect, disturb or prejudice the rights of the holders of any other Debentures, or to obtain or
seek to obtain priority over or preference to any other such holder, or to enforce any right under
this Indenture, except in the manner herein provided and for the equal, ratable and common benefit
of all holders of Debentures. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 5.5.
Proceedings by Trustee
.
In case of an Event of Default hereunder the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Section 5.6.
Remedies Cumulative and Continuing; Delay or Omission Not a Waiver
.
Except as otherwise provided in Section 2.6, all powers and remedies given by this Article V to the
Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any other powers and remedies available to the Trustee or the holders of the
Debentures, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established with respect to the
Debentures, and no delay or omission of the Trustee or of any holder of any of the Debentures to
exercise any right, remedy or power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right, remedy or power, or shall be construed to be a waiver of any
such default or an acquiescence therein; and, subject to the provisions of Section 5.4, every power
and remedy given by this Article V or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee (in
accordance with its duties under Section 6.1) or by the Securityholders.
Section 5.7.
Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders
.
The holders of a majority in aggregate principal amount of the Debentures
affected (voting as one class) at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such Debentures;
provided
,
however
, that (subject to the provisions of Section 6.1) the Trustee
shall have the right to decline to follow any such direction if the Trustee shall determine that
the action so directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action or proceeding so
directed may not lawfully be taken or if a Responsible Officer of the Trustee shall determine that
the action or proceedings so directed would involve the Trustee in personal liability.
Texas Capital Bancshares, Inc./Indenture
25
The holders of a majority in aggregate principal amount of the Debentures at the time
outstanding may on behalf of the holders of all of the Debentures waive (or modify any previously
granted waiver of) any past default or Event of Default, and its consequences, except a default (a)
in the payment of principal of, premium, if any, or interest on any of the Debentures, (b) in
respect of covenants or provisions hereof
which cannot be modified or amended without the consent of the holder of each Debenture
affected, or (c) in respect of the covenants contained in Section 3.9;
provided
,
however
, that if the Debentures are held by the Trust or a trustee of such trust, such
waiver or modification to such waiver shall not be effective until the holders of a majority in
Liquidation Amount of Trust Securities of the Trust shall have consented to such waiver or
modification to such waiver,
provided
,
further
, that if the consent of the holder
of each outstanding Debenture is required, such waiver shall not be effective until each holder of
the Trust Securities of the Trust shall have consented to such waiver. Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Debentures shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon. Whenever any default or Event
of Default hereunder shall have been waived as permitted by this Section, said default or Event of
Default shall for all purposes of the Debentures and this Indenture be deemed to have been cured
and to be not continuing.
Section 5.8.
Notice of Defaults
.
The Trustee shall, within 90 days after the actual
knowledge by a Responsible Officer of the Trustee of the occurrence of a default with respect to
the Debentures, mail to all Securityholders, as the names and addresses of such holders appear upon
the Debenture Register, notice of all defaults with respect to the Debentures known to the Trustee,
unless such defaults shall have been cured before the giving of such notice (the term defaults
for the purpose of this Section 5.8 being hereby defined to be the events specified in clauses (a),
(b), (c), (d), (e) and (f) of Section 5.1, not including periods of grace, if any, provided for
therein);
provided
,
however
, that, except in the case of default in the payment of
the principal of, premium, if any, or interest on any of the Debentures, the Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of the Trustee in good
faith determines that the withholding of such notice is in the interests of the Securityholders.
Section 5.9.
Undertaking to Pay Costs
.
All parties to this Indenture agree, and each
holder of any Debenture by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable attorneys fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant;
provided
,
however
, that the
provisions of this Section 5.9 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Debentures outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debenture against the Company on or after the same shall have become due and
payable.
ARTICLE VI.
CONCERNING THE TRUSTEE
Section 6.1.
Duties and Responsibilities of Trustee
.
With respect to the holders of
Debentures issued hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Debentures and after the curing or waiving of all Events of Default which may have
occurred, with respect to the Debentures, undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In
Texas Capital Bancshares, Inc./Indenture
26
case an Event of Default with respect to the Debentures has
occurred (which has not been cured or waived), the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own
affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct, except
that:
(a) prior to the occurrence of an Event of Default with respect to Debentures and after the
curing or waiving of all Events of Default which may have occurred
(1) the duties and obligations of the Trustee with respect to Debentures shall be
determined solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations with respect
to the Debentures as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee, and
(2) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but, in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith, in accordance with the direction of the Securityholders pursuant to Section 5.7,
relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is ground for believing that the
repayment of such funds or liability is not assured to it under the terms of this Indenture or
indemnity satisfactory to the Trustee against such risk is not reasonably assured to it.
Section 6.2.
Reliance on Documents, Opinions, etc
.
Except as otherwise provided in
Section 6.1:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
Texas Capital Bancshares, Inc./Indenture
27
(c) the Trustee may consult with counsel of its selection and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers conferred upon it by
this Indenture; nothing contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to the Debentures (that has not been cured
or waived) to exercise with respect to Debentures such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, coupon or other paper or document, unless requested in writing to
do so by the holders of not less than a majority in aggregate principal amount of the outstanding
Debentures affected thereby;
provided
,
however
, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents (including any Authenticating Agent) or
attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed by it with due care; and
(h) with the exceptions of defaults under Sections 5.1(a) or (b), the Trustee shall not be
charged with knowledge of any Default or Event of Default with respect to the Debentures unless a
written notice of such Default or Event of Default shall have been given to the Trustee by the
Company or any other obligor on the Debentures or by any holder of the Debentures.
Section 6.3.
No Responsibility for Recitals, etc
.
The recitals contained herein and
in the Debentures (except in the certificate of authentication of the Trustee or the Authenticating
Agent) shall be taken as the statements of the Company, and the Trustee and the Authenticating
Agent assume no responsibility for the correctness of the same. The Trustee and the Authenticating
Agent make no representations as to the validity or sufficiency of this Indenture or of the
Debentures. The Trustee and the Authenticating Agent shall not be accountable for the use or
application by the Company of any Debentures or the proceeds of any Debentures authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the provisions of this
Indenture.
Section 6.4.
Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar
May Own Debentures
.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Debenture registrar, in its individual or any other capacity, may become the
owner or pledgee of
Debentures with the same rights it would have if it were not Trustee, Authenticating Agent,
paying agent, transfer agent or Debenture registrar.
Texas Capital Bancshares, Inc./Indenture
28
Section 6.5.
Moneys to be Held in Trust
.
Subject to the provisions of Section 12.4,
all moneys received by the Trustee or any paying agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were received, but need not be segregated
from other funds except to the extent required by law. The Trustee and any paying agent shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed in
writing with the Company. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon the written order of
the Company, signed by the Chairman of the Board of Directors, the Chief Executive Officer, the
President, a Managing Director, a Vice President, the Treasurer or an Assistant Treasurer of the
Company.
Section 6.6.
Compensation and Expenses of Trustee
.
The Company covenants and agrees
to pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its counsel and of all
Persons not regularly in its employ) except any such expense, disbursement or advance as may arise
from its negligence or willful misconduct. For purposes of clarification, this Section 6.6 does
not contemplate the payment by the Company of acceptance or annual administration fees owing to the
Trustee pursuant to the services to be provided by the Trustee under this Indenture or the fees and
expenses of the Trustees counsel in connection with the closing of the transactions contemplated
by this Indenture. The Company also covenants to indemnify each of the Trustee or any predecessor
Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including taxes (other than taxes based on
the income of the Trustee) incurred without negligence or willful misconduct on the part of the
Trustee and arising out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim of liability. The
obligations of the Company under this Section 6.6 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of
the Debentures upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Debentures.
Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee incurs expenses or renders services in connection with an Event of Default specified in
Section 5.1(d), (e) or (f), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the resignation or removal of the Trustee and the
defeasance or other termination of this Indenture.
Notwithstanding anything in this Indenture or any Debenture to the contrary, the Trustee shall
have no obligation whatsoever to advance funds to pay any principal of or interest on or other
amounts with respect to the Debentures or otherwise advance funds to or on behalf of the Company.
Section 6.7.
Officers Certificate as Evidence
.
Except as otherwise provided in Sections 6.1 and 6.2, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or
willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee
for any action taken or omitted by it under the provisions of this Indenture upon the faith
thereof.
Texas Capital Bancshares, Inc./Indenture
29
Section 6.8.
Eligibility of Trustee
.
The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of America or any
state or territory thereof or of the District of Columbia or a corporation or other Person
authorized under such laws to exercise corporate trust powers, having (or whose obligations under
this Indenture are guaranteed by an affiliate having) a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000.00) and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 6.8 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
records of condition so published.
The Company may not, nor may any Person directly or indirectly controlling, controlled by, or
under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions
of this Section 6.8, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.9.
If the Trustee has or shall acquire any conflicting interest within the meaning of § 310(b)
of the Trust Indenture Act of 1939, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner described by this Indenture.
Section 6.9.
Resignation or Removal of Trustee
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by
giving written notice of such resignation to the Company and by mailing notice thereof, at the
Companys expense, to the holders of the Debentures at their addresses as they shall appear on the
Debenture Register. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee or trustees by written instrument, in duplicate, executed by order of its Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy
to the successor Trustee. If no successor Trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee, or any Securityholder who has been a bona fide holder of a
Debenture or Debentures for at least six months may, subject to the provisions of Section 5.9, on
behalf of himself and all others similarly situated, petition any such court for the appointment of
a successor Trustee. Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur
(1) the Trustee shall fail to comply with the provisions of Section 6.8 after
written request therefor by the Company or by any Securityholder who has been a bona
fide holder of a Debenture or Debentures for at least 6 months, or
(2) the Trustee shall cease to be eligible in accordance with the provisions of
Section 6.8 and shall fail to resign after written request therefor by the Company
or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be adjudged as bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
Texas Capital Bancshares, Inc./Indenture
30
then, in any such case, the Company may remove the Trustee and appoint a successor
Trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor Trustee, or, subject to the provisions of Section 5.9,
any Securityholder who has been a bona fide holder of a Debenture or Debentures for
at least 6 months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and appoint successor
Trustee.
(c) Upon prior written notice to the Company and the Trustee, the holders of a majority in
aggregate principal amount of the Debentures at the time outstanding may at any time remove the
Trustee and nominate a successor Trustee, which shall be deemed appointed as successor Trustee
unless within 10 Business Days after such nomination the Company objects thereto, in which case, or
in the case of a failure by such holders to nominate a successor Trustee, the Trustee so removed or
any Securityholder, upon the terms and conditions and otherwise as in subsection (a) of this
Section 6.9 provided, may petition any court of competent jurisdiction for an appointment of a
successor.
(d) Any resignation or removal of the Trustee and appointment of a successor Trustee pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by
the successor Trustee as provided in Section 6.10.
Section 6.10.
Acceptance by Successor Trustee
.
Any successor Trustee appointed as
provided in Section 6.9 shall execute, acknowledge and deliver to the Company and to its
predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
duties and obligations with respect to the Debentures of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the written request of the
Company or of the successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to the provisions of Section 6.6, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee so ceasing to act
and shall duly assign, transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee thereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting in and confirming
to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property
or funds held or collected by such Trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor Trustee is appointed, the Company, the retiring Trustee and the successor
Trustee shall execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debentures as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the Trust hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee shall accept appointment as provided in this Section unless at the time
of such acceptance such successor Trustee shall be eligible under the provisions of Section 6.8.
Texas Capital Bancshares, Inc./Indenture
31
In no event shall a retiring Trustee be liable for the acts or omissions of any successor
Trustee hereunder.
Upon acceptance of appointment by a successor Trustee as provided in this Section 6.10, the
Company shall mail notice of the succession of such Trustee hereunder to the holders of Debentures
at their addresses as they shall appear on the Debenture Register. If the Company fails to mail
such notice within 10 Business Days after the acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be mailed at the expense of the Company.
Section 6.11.
Succession by Merger, etc
.
Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto;
provided
such corporation shall be otherwise
eligible and qualified under this Article.
In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Debentures shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver
such Debentures so authenticated; and in case at that time any of the Debentures shall not have
been authenticated, any successor to the Trustee may authenticate such Debentures either in the
name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Debentures or in this
Indenture provided that the certificate of the Trustee shall have;
provided
,
however
, that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Debentures in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
Section 6.12.
Authenticating Agents
.
There may be one or more Authenticating Agents
appointed by the Trustee upon the request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of Debentures issued upon exchange or
registration of transfer thereof as fully to all intents and purposes as though any such
Authenticating Agent had been expressly authorized to authenticate and deliver Debentures;
provided
,
however
, that the Trustee shall have no liability to the Company for any
acts or
omissions of the Authenticating Agent with respect to the authentication and delivery of
Debentures. Any such Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States or of any state or territory thereof or of the
District of Columbia authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of at least $50,000,000.00 and being subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of such authority, then
for the purposes of this Section 6.12 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.12 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Texas Capital Bancshares, Inc./Indenture
32
Any Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating
Agent with respect to the Debentures by giving written notice of termination to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible under this Section 6.12,
the Trustee may, and upon the request of the Company shall, promptly appoint a successor
Authenticating Agent eligible under this Section 6.12, shall give written notice of such
appointment to the Company and shall mail notice of such appointment to all holders of Debentures
as the names and addresses of such holders appear on the Debenture Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities with respect to the Debentures of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent herein.
The Company agrees to pay to any Authenticating Agent from time to time reasonable
compensation for its services. Any Authenticating Agent shall have no responsibility or liability
for any action taken by it as such in accordance with the directions of the Trustee.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
Section 7.1.
Action by Securityholders
.
Whenever in this Indenture it is provided
that the holders of a specified percentage in aggregate principal amount of the Debentures may take
any action (including the making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action) the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a) by any instrument or
any number of instruments of similar tenor executed by such Securityholders in person or by agent
or proxy appointed in writing, or (b) by the record of such holders of Debentures voting in favor
thereof at any meeting of such Securityholders duly called and held in accordance with the
provisions of Article VIII, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of such Securityholders or (d) by any other method the Trustee deems
satisfactory.
If the Company shall solicit from the Securityholders any request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same, the Company may, at
its option, as evidenced by an Officers Certificate, fix in advance a record date for such
Debentures for the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation of the same, but
the Company shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action or revocation of the same
may be given before or after the record date, but only the Securityholders of record at the close
of business on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of outstanding Debentures have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same, and for that purpose the outstanding
Debentures shall be computed as of the record date;
provided
,
however
, that no such
authorization, agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this Indenture not later
than 6 months after the record date.
Section 7.2.
Proof of Execution by Securityholders
.
Subject to the provisions of
Section 6.1, 6.2 and 8.5, proof of the execution of any instrument by a Securityholder or his agent
or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
ownership of Debentures shall be proved by the Debenture Register or by a certificate of the
Debenture registrar. The
Texas Capital Bancshares, Inc./Indenture
33
Trustee may require such additional proof of any matter referred to in
this Section as it shall deem necessary.
The record of any Securityholders meeting shall be proved in the manner provided in Section
8.6.
Section 7.3.
Who Are Deemed Absolute Owners
.
Prior to due presentment for
registration of transfer of any Debenture, the Company, the Trustee, any Authenticating Agent, any
paying agent, any transfer agent and any Debenture registrar may deem the Person in whose name such
Debenture shall be registered upon the Debenture Register to be, and may treat him as, the absolute
owner of such Debenture (whether or not such Debenture shall be overdue) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and interest on such
Debenture and for all other purposes; and neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent nor any Debenture registrar shall
be affected by any notice to the contrary. All such payments so made to any holder for the time
being or upon his order shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Debenture.
Section 7.4.
Debentures Owned by Company Deemed Not Outstanding
.
In determining
whether the holders of the requisite aggregate principal amount of Debentures have concurred in any
direction, consent or waiver under this Indenture, Debentures which are owned by the Company or any
other obligor on the Debentures or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other obligor on the
Debentures shall be disregarded and deemed not to be outstanding for the purpose of any such
determination;
provided
,
however
, that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver, only Debentures
which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 7.4 if the pledgee shall establish to the satisfaction of the Trustee the
pledgees right to vote such Debentures and
that the pledgee is not the Company or any such other obligor or Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any
such other obligor. In the case of a dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be full protection to the Trustee.
Section 7.5.
Revocation of Consents; Future Holders Bound
.
At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the taking of any action
by the holders of the percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any holder (in cases where no record date has been set
pursuant to Section 7.1) or any holder as of an applicable record date (in cases where a record
date has been set pursuant to Section 7.1) of a Debenture (or any Debenture issued in whole or in
part in exchange or substitution therefor) the serial number of which is shown by the evidence to
be included in the Debentures the holders of which have consented to such action may, by filing
written notice with the Trustee at the Principal Office of the Trustee and upon proof of holding as
provided in Section 7.2, revoke such action so far as concerns such Debenture (or so far as
concerns the principal amount represented by any exchanged or substituted Debenture). Except as
aforesaid any such action taken by the holder of any Debenture shall be conclusive and binding upon
such holder and upon all future holders and owners of such Debenture, and of any Debenture issued
in exchange or substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon such Debenture or any Debenture issued
in exchange or substitution therefor.
Texas Capital Bancshares, Inc./Indenture
34
ARTICLE VIII.
SECURITYHOLDERS MEETINGS
Section 8.1.
Purposes of Meetings
.
A meeting of Securityholders may be called at any
time and from time to time pursuant to the provisions of this Article VIII for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any
other action authorized to be taken by Securityholders pursuant to any of the provisions of Article
V;
(b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article VI;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 9.2; or
(d) to take any other action authorized to be taken by or on behalf of the holders of any
specified aggregate principal amount of such Debentures under any other provision of this Indenture
or under applicable law.
Section 8.2.
Call of Meetings by Trustee
.
The Trustee may at any time call a meeting
of Securityholders to take any action specified in Section 8.1, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of the Securityholders, setting
forth the time and the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed to holders of Debentures affected at their addresses as they shall
appear on the Debentures Register and, if the Company is not a holder of
Debentures, to the Company. Such notice shall be mailed not less than 20 nor more than 180
days prior to the date fixed for the meeting.
Section 8.3.
Call of Meetings by Company or Securityholders
.
In case at any time the
Company pursuant to a Board Resolution, or the holders of at least 10% in aggregate principal
amount of the Debentures, as the case may be, then outstanding, shall have requested the Trustee to
call a meeting of Securityholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Company or such Securityholders may
determine the time and the place for such meeting and may call such meeting to take any action
authorized in Section 8.1, by mailing notice thereof as provided in Section 8.2.
Section 8.4.
Qualifications for Voting
.
To be entitled to vote at any meeting of
Securityholders a Person shall (a) be a holder of one or more Debentures with respect to which the
meeting is being held or (b) a Person appointed by an instrument in writing as proxy by a holder of
one or more such Debentures. The only Persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 8.5.
Regulations
.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Debentures and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.
Texas Capital Bancshares, Inc./Indenture
35
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Securityholders as provided in
Section 8.3, in which case the Company or the Securityholders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.4, at any meeting each holder of Debentures with
respect to which such meeting is being held or proxy therefor shall be entitled to one vote for
each $1,000.00 principal amount of Debentures held or represented by him;
provided
,
however
, that no vote shall be cast or counted at any meeting in respect of any Debenture
challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of Debentures held by him
or instruments in writing as aforesaid duly designating him as the Person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant to the provisions of
Section 8.2 or 8.3 may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without further notice.
Section 8.6.
Voting
.
The vote upon any resolution submitted to any meeting of holders
of Debentures with respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such holders or of their representatives by proxy and the
serial number or numbers of the Debentures
held or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was mailed as provided in Section 8.2. The
record shall show the serial numbers of the Debentures voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 8.7.
Quorum; Actions
.
The Persons entitled to vote a majority in principal
amount of the Debentures then outstanding shall constitute a quorum for a meeting of
Securityholders;
provided
,
however
, that if any action is to be taken at such
meeting with respect to a consent, waiver, request, demand, notice, authorization, direction or
other action which may be given by the holders of not less than a specified percentage in principal
amount of the Debentures then outstanding, the Persons holding or representing such specified
percentage in principal amount of the Debentures then outstanding will constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Securityholders, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the permanent chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the permanent chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided
in Section 8.2, except that such notice need be given only once not less than 5 days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting
Texas Capital Bancshares, Inc./Indenture
36
shall state expressly the percentage, as provided above, of the principal amount of the
Debentures then outstanding which shall constitute a quorum.
Except as limited by the provisos in the first paragraph of Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the holders of a majority in principal amount
of the Debentures then outstanding;
provided
,
however
, that, except as limited by
the provisos in the first paragraph of Section 9.2, any resolution with respect to any consent,
waiver, request, demand, notice, authorization, direction or other action which this Indenture
expressly provides may be given by the holders of not less than a specified percentage in principal
amount of the Debentures then outstanding may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid only by the affirmative vote of the
holders of a not less than such specified percentage in principal amount of the Debentures then
outstanding.
Any resolution passed or decision taken at any meeting of holders of Debentures duly held in
accordance with this Section shall be binding on all the Securityholders, whether or not present or
represented at the meeting.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.1.
Supplemental Indentures without Consent of Securityholders
.
The Company,
when authorized by a Board Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto, without the consent of the Securityholders,
for one or more of the following purposes:
(a) to evidence the succession of another Person to the Company, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the
Company, pursuant to Article XI hereof;
(b) to add to the covenants of the Company such further covenants, restrictions or conditions
for the protection of the holders of Debentures as the Board of Directors shall consider to be for
the protection of the holders of such Debentures, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions or conditions a default
or an Event of Default permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth;
provided
,
however
, that in respect of any such
additional covenant restriction or condition such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate enforcement upon such default or may
limit the remedies available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other provisions in regard to matters or
questions arising under this Indenture;
provided
that any such action shall not materially
adversely affect the interests of the holders of the Debentures;
(d) to add to, delete from, or revise the terms of Debentures, including, without limitation,
any terms relating to the issuance, exchange, registration or transfer of Debentures, including to
provide for transfer procedures and restrictions substantially similar to those applicable to the
Capital Securities as required by Section 2.5 (for purposes of assuring that no registration of
Debentures is required under the Securities Act);
provided
,
however
, that any such
action shall not adversely affect the interests of the
Texas Capital Bancshares, Inc./Indenture
37
holders of the Debentures then outstanding
(it being understood, for purposes of this proviso, that transfer restrictions on Debentures
substantially similar to those that were applicable to Capital Securities shall not be deemed to
materially adversely affect the holders of the Debentures);
(e) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Debentures and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee;
(f) to make any change (other than as elsewhere provided in this paragraph) that does not
adversely affect the rights of any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms and conditions of the
Debentures, to establish the form of any certifications required to be furnished pursuant to the
terms of this Indenture or the Debentures, or to add to the rights of the holders of Debentures.
The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustees own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 9.1 may be executed by
the Company and the Trustee without the consent of the holders of any of the Debentures at the time
outstanding, notwithstanding any of the provisions of Section 9.2.
Section 9.2.
Supplemental Indentures with Consent of Securityholders
.
With the
consent (evidenced as provided in Section 7.1) of the holders of not less than a majority in
aggregate principal amount of the Debentures at the time outstanding affected by such supplemental
indenture (voting as a class), the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Debentures;
provided
,
however
, that no such
supplemental indenture shall without the consent of the holders of each Debenture then outstanding
and affected thereby (i) change the fixed maturity of any Debenture, or reduce the principal amount
thereof or any premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof or make the principal thereof or any
interest or premium thereon payable in any coin or currency other than that provided in the
Debentures, or impair or affect the right of any Securityholder to institute suit for payment
thereof or impair the right of repayment, if any, at the option of the holder, or (ii) reduce the
aforesaid percentage of Debentures the holders of which are required to consent to any such
supplemental indenture;
provided
further
,
however
, that if the Debentures
are held by a trust or a trustee of such trust, such supplemental indenture shall not be effective
until the holders of a majority in Liquidation Amount of Trust Securities shall have consented to
such supplemental indenture;
provided
further
,
however
, that if the consent
of the Securityholder of each outstanding Debenture is required, such supplemental indenture shall
not be effective until each holder of the Trust Securities shall have consented to such
supplemental indenture.
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustees own rights, duties
or
Texas Capital Bancshares, Inc./Indenture
38
immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, prepared by the Company, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders as their names and addresses appear upon the
Debenture Register. Any failure of the Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section 9.2 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
Section 9.3.
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture pursuant to the provisions of this Article
IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debentures shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes.
Section 9.4.
Notation on Debentures
.
Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this Article IX may bear a
notation as to any matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Debentures so modified as to conform, in the opinion of the Board
of Directors of the Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee or
the Authenticating Agent and delivered in exchange for the Debentures then outstanding.
Section 9.5.
Evidence of Compliance of Supplemental Indenture to be Furnished to
Trustee
.
The Trustee, subject to the provisions of Sections 6.1 and 6.2, shall, in addition to
the documents required by Section 14.6, receive an Officers Certificate and an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article IX. The Trustee shall receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article IX is authorized or
permitted by, and conforms to, the terms of this Article IX and that it is proper for the Trustee
under the provisions of this Article IX to join in the execution thereof.
ARTICLE X.
REDEMPTION OF SECURITIES
Section 10.1.
Optional Redemption
.
The Company shall have the right (subject to the
receipt by the Company of prior approval (i) if the Company is a bank holding company, from the
Federal Reserve, if then required under applicable capital guidelines or policies of the Federal
Reserve or (ii) if the Company is a savings and loan holding company, from the OTS, if then
required under applicable capital guidelines or policies of the OTS) to redeem the Debentures, in
whole or in part, but in all cases in a principal amount with integral multiples of $1,000.00, on
any Interest Payment Date on or after the Interest Payment Date in June 2011 (the
Redemption
Date
), at the Redemption Price.
Section 10.2.
Special Event Redemption
.
If a Special Event shall occur and be
continuing, the Company shall have the right (subject to the receipt by the Company of prior
approval (i) if the
Texas Capital Bancshares, Inc./Indenture
39
Company is a bank holding company, from the Federal Reserve, if then required
under applicable capital guidelines or policies of the Federal Reserve or (ii) if the Company is a
savings and loan holding company, from the OTS, if then required under applicable capital
guidelines or policies of the OTS) to redeem the Debentures in whole, but not in part, at any
Interest Payment Date, within 120 days following the occurrence of such Special Event (the
Special Redemption Date
) at the Special Redemption Price.
Section 10.3.
Notice of Redemption; Selection of Debentures
.
In case the Company
shall desire to exercise the right to redeem all, or, as the case may be, any part of the
Debentures, it shall cause to be mailed a notice of such redemption at least 30 and not more than
60 days prior to the Redemption Date or the Special Redemption Date to the holders of Debentures so
to be redeemed as a whole or in part at their last addresses as the same appear on the Debenture
Register. Such mailing shall be by first class mail. The notice if mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the holder receives
such notice. In any case, failure to give such notice by mail or any defect in the notice to the
holder of any Debenture designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Debenture.
Each such notice of redemption shall specify the CUSIP number, if any, of the Debentures to be
redeemed, the Redemption Date or the Special Redemption Date, as applicable, the Redemption Price
or the Special Redemption Price, as applicable, at which Debentures are to be redeemed, the place
or places of payment, that payment will be made upon presentation and surrender of such Debentures,
that interest accrued to the date fixed for redemption will be paid as specified in said notice,
and that on and after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all the Debentures are to be redeemed the notice of redemption shall
specify the numbers of the Debentures to be redeemed. In case the Debentures are to be redeemed in
part only, the notice of redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon surrender of such
Debenture, a new Debenture or Debentures in principal amount equal to the unredeemed portion
thereof will be issued.
Prior to 10:00 a.m. New York City time on the Redemption Date or Special Redemption Date, as
applicable, the Company will deposit with the Trustee or with one or more paying agents an amount
of money sufficient to redeem on the Redemption Date or the Special Redemption Date, as applicable,
all the Debentures so called for redemption at the appropriate Redemption Price or Special
Redemption Price.
If all, or less than all, the Debentures are to be redeemed, the Company will give the Trustee
notice not less than 45 nor more than 60 days, respectively, prior to the Redemption Date or
Special Redemption Date, as applicable, as to the aggregate principal amount of Debentures to be
redeemed and the Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Debentures or portions thereof (in integral multiples of $1,000.00) to be
redeemed.
Section 10.4.
Payment of Debentures Called for Redemption
.
If notice of redemption
has been given as provided in Section 10.3, the Debentures or portions of Debentures with respect
to which such notice has been given shall become due and payable on the Redemption Date or Special
Redemption Date, as applicable, and at the place or places stated in such notice at the applicable
Redemption Price or Special Redemption Price and on and after said date (unless the Company shall
default in the payment of such Debentures at the Redemption Price or Special Redemption Price, as
applicable) interest on the Debentures or portions of Debentures so called for redemption shall
cease to accrue. On presentation and surrender of such Debentures at a place of payment specified
in said notice, such Debentures or the specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price or Special Redemption Price.
Texas Capital Bancshares, Inc./Indenture
40
Upon presentation of any Debenture redeemed in part only, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of
the Company, a new Debenture or Debentures of authorized denominations, in principal amount equal
to the unredeemed portion of the Debenture so presented.
ARTICLE XI.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 11.1.
Company May Consolidate, etc., on Certain Terms
.
Nothing contained in
this Indenture or in the Debentures shall prevent any consolidation or merger of the Company with
or into any other Person (whether or not affiliated with the Company) or successive consolidations
or mergers in which the Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or
its successor or successors as an entirety, or substantially as an entirety, to any other Person
(whether or not affiliated with the Company, or its successor or successors) authorized to acquire
and operate the same;
provided
,
however
, that the Company hereby covenants and
agrees that, upon any such consolidation, merger (where the Company is not the surviving
corporation), sale, conveyance, transfer or other disposition, the due and punctual payment of the
principal of (and premium, if any) and interest on all of the Debentures in accordance with their
terms, according to their tenor, and the due and punctual performance and observance of all the
covenants and conditions of this Indenture to be kept or performed by the Company, shall be
expressly assumed by supplemental indenture satisfactory in form to the Trustee executed and
delivered to the Trustee by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such property.
Section 11.2.
Successor Entity to be Substituted
.
In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form
to the Trustee, of the due and punctual payment of the principal of and premium, if any, and
interest on all of the Debentures and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the Company, such
successor entity shall succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the Company, and thereupon the predecessor entity shall be relieved of any
further liability or obligation hereunder or upon the Debentures. Such successor entity thereupon
may cause to be signed, and may issue in its own name, any or all of the Debentures issuable
hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee
or the Authenticating Agent; and, upon the order of such successor entity instead of the Company
and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
or the Authenticating Agent shall authenticate and deliver any Debentures which previously shall
have been signed and delivered by the officers of the Company, to the Trustee or the Authenticating
Agent for authentication, and any Debentures which such successor entity thereafter shall cause to
be signed and delivered to the Trustee or the Authenticating Agent for that purpose. All the
Debentures so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debentures theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debentures had been issued at the date of the execution hereof.
Section 11.3.
Opinion of Counsel to be Given to Trustee
.
The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall receive, in addition to the Opinion of Counsel required
by Section 9.5, an Opinion of Counsel as conclusive evidence that any consolidation, merger, sale,
conveyance, transfer or other disposition, and any assumption, permitted or required by the terms
of this Article XI complies with the provisions of this Article XI.
Texas Capital Bancshares, Inc./Indenture
41
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.1.
Discharge of Indenture
.
When
|
(a)
|
|
the Company shall deliver to the Trustee for cancellation all Debentures
theretofore authenticated (other than any Debentures which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section 2.6)
and not theretofore canceled, or
|
|
|
(b)
|
|
all the Debentures not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and
payable within 1 year or are to be called for redemption within 1 year under
arrangements satisfactory to the Trustee for the giving of notice of redemption, and
the Company shall deposit with the Trustee, in trust, funds, which shall be immediately
due and payable, sufficient to pay at maturity or upon redemption all of the Debentures
(other than any Debentures which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.6) not theretofore canceled
or delivered to the Trustee for cancellation, including principal and premium, if any,
and interest due or to become due to such date of maturity or redemption date, as the
case may be, but excluding, however, the amount of any moneys for the payment of
principal of, and premium, if any, or interest on the Debentures (1) theretofore repaid
to the Company in accordance with the provisions of Section 12.4, or (2) paid to any
state or to the District of Columbia pursuant to its unclaimed property or similar
laws,
|
and if in the case of either clause (a) or clause (b) the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of
further effect except for the provisions of Sections 2.5, 2.6, 2.8, 3.1, 3.2, 3.4, 6.6, 6.8, 6.9
and 12.4 hereof shall survive until such Debentures shall mature and be paid. Thereafter, Sections
6.6 and 12.4 shall survive, and the Trustee, on demand of the Company accompanied by an Officers
Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been complied with, and at
the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in connection with this
Indenture or the Debentures.
Section 12.2.
Deposited Moneys to be Held in Trust by Trustee
.
Subject to the
provisions of Section 12.4, all moneys deposited with the Trustee pursuant to Section 12.1 shall be
held in trust in a non-interest bearing account and applied by it to the payment, either directly
or through any paying agent (including the Company if acting as its own paying agent), to the
holders of the particular Debentures for the payment of which such moneys have been deposited with
the Trustee, of all sums due and to become due thereon for principal, and premium, if any, and
interest.
Section 12.3.
Paying Agent to Repay Moneys Held
.
Upon the satisfaction and discharge
of this Indenture all moneys then held by any paying agent of the Debentures (other than the
Trustee) shall, upon demand of the Company, be repaid to it or paid to the Trustee, and thereupon
such paying agent shall be released from all further liability with respect to such moneys.
Section 12.4.
Return of Unclaimed Moneys
.
Any moneys deposited with or paid to the
Trustee or any paying agent for payment of the principal of, and premium, if any, or interest on
Debentures and not applied but remaining unclaimed by the holders of Debentures for 2 years after
the date upon which the principal of, and premium, if any, or interest on such Debentures, as the
case may be,
Texas Capital Bancshares, Inc./Indenture
42
shall have become due and payable, shall, subject to applicable escheatment laws, be
repaid to the Company by the Trustee or such paying agent on written demand; and the holder of any
of the Debentures shall thereafter look only to the Company for any payment which such holder may
be entitled to collect, and all liability of the Trustee or such paying agent with respect to such
moneys shall thereupon cease.
ARTICLE XIII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.1.
Indenture and Debentures Solely Corporate Obligations
.
No recourse for
the payment of the principal of or premium, if any, or interest on any Debenture, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any
such Debenture, or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, employee, officer or director, as such, past, present or
future, of the Company or of any successor Person of the Company, either directly or through the
Company or any successor Person of the Company, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise, it being expressly
understood that all such liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the Debentures.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
Section 14.1.
Successors
.
All the covenants, stipulations, promises and agreements of
the Company in this Indenture shall bind its successors and assigns whether so expressed or not.
Section 14.2.
Official Acts by Successor Entity
.
Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee
or officer of the Company shall and may be done and performed with like force and effect by the
like board, committee, officer or other authorized Person of any entity that shall at the time be
the lawful successor of the Company.
Section 14.3.
Surrender of Company Powers
.
The Company by instrument in writing
executed by authority of at least 2/3 (two-thirds) of its Board of Directors and delivered to the
Trustee may surrender any of the powers reserved to the Company and thereupon such power so
surrendered shall terminate both as to the Company, and as to any permitted successor.
Section 14.4.
Addresses for Notices, etc
.
Any notice, consent, direction, request, authorization, waiver or demand which by any
provision of this Indenture is required or permitted to be given, made, furnished or served by the
Trustee or by the Securityholders on or to the Company may be given or served in writing by being
deposited postage prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company, with the Trustee for the purpose) to the Company,
2100 McKinney Avenue, Suite 1250, Dallas, Texas 75201, Attention: Mark R. Frears. Any notice,
consent, direction, request, authorization, waiver or demand by any Securityholder or the Company
to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the office of the Trustee, addressed to the Trustee, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-1600, Attention: Corporate Trust
Administration. Any notice, consent, direction, request, authorization, waiver or demand on or to
any Securityholder shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the address set forth in the Debenture Register.
Texas Capital Bancshares, Inc./Indenture
43
Section 14.5.
Governing Law
.
This Indenture and each Debenture shall be deemed to be
a contract made under the law of the State of New York, and for all purposes shall be governed by
and construed in accordance with the law of said State, without regard to conflict of laws
principles thereof.
Section 14.6.
Evidence of Compliance with Conditions Precedent
.
Upon any application
or demand by the Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers Certificate stating that in the
opinion of the signers all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include (1)
a statement that the person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based; (3) a statement that, in
the opinion of such person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not in the opinion of such person, such
condition or covenant has been complied with.
Section 14.7.
Table of Contents, Headings, etc
.
The table of contents and the titles
and headings of the articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
Section 14.8.
Execution in Counterparts
.
This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 14.9.
Separability
.
In case any one or more of the provisions contained in this Indenture or in the Debentures
shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture
or of such Debentures, but this Indenture and such Debentures shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or therein.
Section 14.10.
Assignment
.
The Company will have the right at all times to assign any
of its rights or obligations under this Indenture to a direct or indirect wholly owned Subsidiary
of the Company, provided that, in the event of any such assignment, the Company will remain liable
for all such obligations. Subject to the foregoing, this Indenture is binding upon and inures to
the benefit of the parties hereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties hereto.
Section 14.11.
Acknowledgment of Rights
.
The Company agrees that, with respect to any
Debentures held by the Trust or the Institutional Trustee of the Trust, if the Institutional
Trustee of the Trust fails to enforce its rights under this Indenture as the holder of Debentures
held as the assets of such Trust after the holders of a majority in Liquidation Amount of the
Capital Securities of such Trust have so directed such Institutional Trustee, a holder of record of
such Capital Securities may, to the fullest extent permitted by law, institute legal proceedings
directly against the Company to enforce such Institutional Trustees rights under this Indenture
without first instituting any legal proceedings against such trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Company to pay interest (or premium, if any) or
Texas Capital Bancshares, Inc./Indenture
44
principal on
the Debentures on the date such interest (or premium, if any) or principal is otherwise payable (or
in the case of redemption, on the redemption date), the Company agrees that a holder of record of
Capital Securities of the Trust may directly institute a proceeding against the Company for
enforcement of payment to such holder directly of the principal of (or premium, if any) or interest
on the Debentures having an aggregate principal amount equal to the aggregate Liquidation Amount of
the Capital Securities of such holder on or after the respective due date specified in the
Debentures.
ARTICLE XV.
SUBORDINATION OF DEBENTURES
Section 15.1.
Agreement to Subordinate
.
The Company covenants and agrees, and each
holder of Debentures by such Securityholders acceptance thereof likewise covenants and agrees,
that all Debentures shall be issued subject to the provisions of this Article XV; and each holder
of a Debenture, whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment by the Company of the principal of, and premium, if any, and interest on all
Debentures shall, to the extent and in the manner hereinafter set forth, be subordinated and junior
in right of payment to the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred;
provided
,
however
, that the Debentures shall rank
pari passu
in right of payment with the Companys:
(1) Floating Rate Junior Subordinated Debentures due November 19, 2032 issued pursuant to an
Indenture dated as of November 19, 2002 by and between the Company and State Street Bank and Trust
Company of Connecticut, National Association; (2) Floating Rate Junior Subordinated Debt Securities
due April 24, 2033 issued pursuant to an Indenture dated as of April 10, 2003 by and between the
Company and Wilmington Trust Company; and (3) Fixed/Floating
Rate Junior Subordinated Debentures due December 15, 2035 issued pursuant to an Indenture
dated as of October 6, 2005 by and between the Company and Wilmington Trust Company.
No provision of this Article XV shall prevent the occurrence of any default or Event of
Default hereunder.
Section 15.2.
Default on Senior Indebtedness
.
In the event and during the
continuation of any default by the Company in the payment of principal, premium, interest or any
other payment due on any Senior Indebtedness of the Company following any grace period, or in the
event that the maturity of any Senior Indebtedness of the Company has been accelerated because of a
default and such acceleration has not been rescinded or canceled and such Senior Indebtedness has
not been paid in full, then, in either case, no payment shall be made by the Company with respect
to the principal (including redemption) of, or premium, if any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee
when such payment is prohibited by the preceding paragraph of this Section 15.2, such payment
shall, subject to Section 15.7, be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent that the holders of
the Senior Indebtedness (or their representative or representatives or a trustee) notify the
Trustee in writing within 90 days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
Section 15.3.
Liquidation, Dissolution, Bankruptcy
.
Upon any payment by the Company
or distribution of assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the
Company, whether
Texas Capital Bancshares, Inc./Indenture
45
voluntary or involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due upon all Senior Indebtedness of the Company shall first be paid in
full, or payment thereof provided for in money in accordance with its terms, before any payment is
made by the Company, on account of the principal (and premium, if any) or interest on the
Debentures. Upon any such dissolution or winding-up or liquidation or reorganization, any payment
by the Company, or distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Securityholders or the Trustee would be entitled to receive
from the Company, except for the provisions of this Article XV, shall be paid by the Company, or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Securityholders or by the Trustee under this Indenture if received by
them or it, directly to the holders of Senior Indebtedness (
pro rata
to such holders on the basis
of the respective amounts of Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to pay such Senior
Indebtedness in full, in money or moneys worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any payment or distribution
is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee before all Senior Indebtedness is paid in full, or
provision is made for such payment in money in accordance with its terms, such payment or
distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company, for application to
the payment of all Senior Indebtedness, remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article XV, the words cash, property or securities shall not be deemed
to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article XV with respect to
the Debentures to the payment of all Senior Indebtedness, that may at the time be outstanding,
provided that (i) such Senior Indebtedness is assumed by the new corporation, if any, resulting
from any such reorganization or readjustment, and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article XI of this Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this Section if such
other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article XI of this Indenture. Nothing in Section 15.2 or in this
Section shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.6 of
this Indenture.
Section 15.4.
Subrogation
.
Subject to the payment in full of all Senior Indebtedness,
the Securityholders shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Company, applicable to
such Senior Indebtedness until the principal of (and premium, if any) and interest on the
Debentures shall be paid in full. For the purposes of such subrogation, no payments or
distributions to the holders of such Senior
Texas Capital Bancshares, Inc./Indenture
46
Indebtedness of any cash, property or securities to
which the Securityholders or the Trustee would be entitled except for the provisions of this
Article XV, and no payment over pursuant to the provisions of this Article XV to or for the benefit
of the holders of such Senior Indebtedness by Securityholders or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness of the Company, and the holders of
the Debentures be deemed to be a payment or distribution by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article XV are and are intended
solely for the purposes of defining the relative rights of the holders of the Securities, on the
one hand, and the holders of such Senior Indebtedness, on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or in the Debentures is
intended to or shall impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Debentures, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Debentures the principal of (and premium, if any)
and interest on the Debentures as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the holders of the Debentures
and creditors of the Company, other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article XV of the holders of such Senior Indebtedness in respect of cash, property
or securities of the Company, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in this Article XV, the
Trustee, subject to the provisions of Article VI of this Indenture, and the Securityholders shall
be entitled to conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent or
other Person making such payment or distribution, delivered to the Trustee or to the
Securityholders, for the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XV.
Section 15.5.
Trustee to Effectuate Subordination
.
Each Securityholder by such
Securityholders acceptance thereof authorizes and directs the Trustee on such Securityholders
behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided in this Article XV and appoints the Trustee such Securityholders attorney-in-fact for any
and all such purposes.
Section 15.6.
Notice by the Company
.
The Company shall give prompt written notice to
a Responsible Officer of the Trustee at the Principal Office of the Trustee of any fact known to
the Company that would prohibit the making of any payment of monies to or by the Trustee in respect
of the Debentures pursuant to the provisions of this Article XV. Notwithstanding the provisions of
this Article XV or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any payment of monies to
or by the Trustee in respect of the Debentures pursuant to the provisions of this Article XV,
unless and until a Responsible Officer of the Trustee at the Principal Office of the Trustee shall
have received written notice thereof from the Company or a holder or holders of Senior Indebtedness
or from any trustee therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Article VI of this Indenture, shall be entitled in all respects to
assume that no such facts exist;
provided
,
however
, that if the Trustee shall not
have received the notice provided for in this Section at least 2 Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on any Debenture),
then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power
and authority
Texas Capital Bancshares, Inc./Indenture
47
to receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be received by it within
2 Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this Indenture, shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person representing himself to be
a holder of Senior Indebtedness (or a trustee or representative on behalf of such holder), to
establish that such notice has been given by a holder of such Senior Indebtedness or a trustee or
representative on behalf of any such holder or holders. In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any Person as a holder
of such Senior Indebtedness to participate in any payment or distribution pursuant to this Article
XV, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article XV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Section 15.7.
Rights of the Trustee; Holders of Senior Indebtedness
.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article XV in respect of any Senior Indebtedness at any time held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article
XV, and no implied covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and, subject to the provisions of Article
VI of this Indenture, the Trustee shall not be liable to any holder of such Senior Indebtedness if
it shall pay over or deliver to Securityholders, the Company or any other Person money or assets to
which any holder of such Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise.
Nothing in this Article XV shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.6.
Section 15.8.
Subordination May Not Be Impaired
.
No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of the Company, or by
any act or failure to act, in good faith, by any such holder, or by any noncompliance by the
Company, with the terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or notice to the
Trustee or the Securityholders, without incurring responsibility to the Securityholders and without
impairing or releasing the subordination provided in this Article XV or the obligations hereunder
of the holders of the Debentures to the holders of such Senior Indebtedness, do any one or more of
the following: (i) change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Senior Indebtedness, or otherwise amend or supplement in any manner such
Senior Indebtedness or any instrument evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii) release any Person liable
in any manner for the collection of such Senior
Texas Capital Bancshares, Inc./Indenture
48
Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, and any other Person.
Signatures appear on the following page
Texas Capital Bancshares, Inc./Indenture
49
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their
respective officers thereunto duly authorized, as of the day and year first above written.
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TEXAS CAPITAL BANCSHARES, INC.
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By
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Name:
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Title:
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WILMINGTON TRUST COMPANY, as Trustee
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Name:
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Title:
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Texas Capital Bancshares, Inc./Indenture
50
EXHIBIT A
FORM OF FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
[FORM OF FACE OF SECURITY]
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES
OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN
ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANYS RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE
INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) (EACH A PLAN), OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY PLANS INVESTMENT IN THE
ENTITY, AND NO PERSON INVESTING PLAN ASSETS OF ANY PLAN MAY ACQUIRE OR HOLD THE SECURITIES OR ANY
INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER
U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY
Texas Capital Bancshares, Inc./Indenture
A-1
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING.
ANY PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY
OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE
PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
$100,000.00 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Floating Rate Junior Subordinated Deferrable Interest Debenture
of
Texas Capital Bancshares, Inc.
April 28, 2006
Texas Capital Bancshares, Inc., a Delaware corporation (the Company which term includes any
successor Person under the Indenture hereinafter referred to), for value received promises to pay
to Wilmington Trust Company, not in its individual capacity but solely as Institutional Trustee for
Texas Capital Statutory Trust IV (the Holder) or registered assigns, the principal sum of
twenty-five million seven hundred seventy-four thousand dollars ($25,774,000.00) on June 15, 2036,
and to pay interest on said principal sum from April 28, 2006, or from the most recent Interest
Payment Date (as defined below) to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on March 15, June 15, September 15 and
December 15 of each year or if such day is not a Business Day, then the next succeeding Business
Day (each such date, an Interest Payment Date) (it being understood that interest accrues for any
such non-Business Day), commencing on the Interest Payment Date in June 2006, at an annual rate
equal to 6.74875% beginning on (and including) the date of original issuance and ending on (but
excluding) the Interest Payment Date in June 2006 and at an annual rate for each successive period
beginning on (and including) the Interest Payment Date in June 2006, and each succeeding Interest
Payment Date, and ending on (but excluding) the next succeeding Interest Payment Date (each a
Distribution Period), equal to 3-Month LIBOR, determined as described below, plus 1.60% (the
Coupon Rate), applied to the principal amount hereof, until the principal hereof is paid or duly
provided for or made available for payment, and on any overdue principal and (without duplication
and to the extent that payment of such interest is enforceable under applicable law) on any
Texas Capital Bancshares, Inc./Indenture
A-2
overdue installment of interest (including Additional Interest) at the Interest Rate in effect
for each applicable period, compounded quarterly, from the dates such amounts are due until they
are paid or made available for payment. The amount of interest payable for any period will be
computed on the basis of the actual number of days in the Distribution Period concerned divided by
360. The interest installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of business on the
regular record date for such interest installment, which shall be fifteen Business Days prior to
the day on which the relevant Interest Payment Date occurs. Any such interest installment not so
punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such
regular record date and may be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on a special record date.
3-Month LIBOR as used herein, means the London interbank offered interest rate for
three-month U.S. dollar deposits determined by the Trustee in the following order of priority: (i)
the rate (expressed as a percentage per annum) for U.S. dollar deposits having a three-month
maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the related
Determination Date (Telerate Page 3750 means the display designated as Page 3750 on the
Moneyline Telerate Service or such other page as may replace Page 3750 on that service or such
other service or services as may be nominated by the British Bankers Association as the
information vendor for the purpose of displaying London interbank offered rates for U.S. dollar
deposits); (ii) if such rate cannot be identified on the related Determination Date, the Trustee
will request the principal London offices of four leading banks in the London interbank market to
provide such banks offered quotations (expressed as percentages per annum) to prime banks in the
London interbank market for U.S. dollar deposits having a three-month maturity as of 11:00 a.m.
(London time) on such Determination Date. If at least two quotations are provided, 3-Month LIBOR
will be the arithmetic mean of such quotations; (iii) if fewer than two such quotations are
provided as requested in clause (ii) above, the Trustee will request four major New York City banks
to provide such banks offered quotations (expressed as percentages per annum) to leading European
banks for loans in U.S. dollars as of 11:00 a.m. (London time) on such Determination Date. If at
least two such quotations are provided, 3-Month LIBOR will be the arithmetic mean of such
quotations; and (iv) if fewer than two such quotations are provided as requested in clause (iii)
above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect to the Distribution Period
immediately preceding such current Distribution Period. If the rate for U.S. dollar deposits
having a three-month maturity that initially appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on the related Determination Date is superseded on the Telerate Page 3750 by a corrected rate
by 12:00 noon (London time) on such Determination Date, then the corrected rate as so substituted
on the applicable page will be the applicable 3-Month LIBOR for such Determination Date. As used
herein, Determination Date means the date that is two London Banking Days (i.e., a business day
in which dealings in deposits in U.S. dollars are transacted in the London interbank market)
preceding the commencement of the relevant Distribution Period.
The Interest Rate for any Distribution Period will at no time be higher than the maximum rate
then permitted by New York law as the same may be modified by United States law.
All percentages resulting from any calculations on the Debentures will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of
a percentage point rounded upward (e.g., 9.876545% (or .09876545)
being rounded to 9.87655% (or .0987655), and all dollar amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward)).
The principal of and interest on this Debenture shall be payable at the office or agency of
the Trustee (or other paying agent appointed by the Company) maintained for that purpose in any
coin or
Texas Capital Bancshares, Inc./Indenture
A-3
currency of the United States of America that at the time of payment is legal tender for
payment of public and private debts;
provided
,
however
, that payment of interest
may be made by check mailed to the registered holder at such address as shall appear in the
Debenture Register if a request for a wire transfer by such holder has not been received by the
Company or by wire transfer to an account appropriately designated by the holder hereof.
Notwithstanding the foregoing, so long as the holder of this Debenture is the Institutional
Trustee, the payment of the principal of and interest on this Debenture will be made in immediately
available funds at such place and to such account as may be designated by the Trustee.
So long as no Acceleration Event of Default has occurred and is continuing, the Company shall
have the right, from time to time, and without causing an Event of Default, to defer payments of
interest on the Debentures by extending the interest payment period on the Debentures at any time
and from time to time during the term of the Debentures, for up to 20 consecutive quarterly periods
(each such extended interest payment period, an Extension Period), during which Extension Period
no interest (including Additional Interest) shall be due and payable (except any Additional Sums
that may be due and payable). No Extension Period may end on a date other than an Interest Payment
Date. During an Extension Period, interest will continue to accrue on the Debentures, and interest
on such accrued interest will accrue at an annual rate equal to the Interest Rate in effect for
such Extension Period, compounded quarterly from the date such interest would have been payable
were it not for the Extension Period, to the extent permitted by law (such interest referred to
herein as Additional Interest). At the end of any such Extension Period the Company shall pay
all interest then accrued and unpaid on the Debentures (together with Additional Interest thereon);
provided
,
however
, that no Extension Period may extend beyond the Maturity Date;
provided
further
,
however
, that during any such Extension Period, the
Company shall not and shall not permit any Affiliate to engage in any of the activities or
transactions described on the reverse side hereof and in the Indenture. Prior to the termination
of any Extension Period, the Company may further extend such period, provided that such period
together with all such previous and further consecutive extensions thereof shall not exceed 20
consecutive quarterly periods, or extend beyond the Maturity Date. Upon the termination of any
Extension Period and upon the payment of all accrued and unpaid interest and Additional Interest,
the Company may commence a new Extension Period, subject to the foregoing requirements. No
interest or Additional Interest shall be due and payable during an Extension Period, except at the
end thereof, but each installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest. The Company must give the Trustee notice of
its election to begin or extend an Extension Period by the close of business at least 15 Business
Days prior to the Interest Payment Date with respect to which interest on the Debentures would have
been payable except for the election to begin or extend such Extension Period.
The indebtedness evidenced by this Debenture is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness,
and this Debenture is issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take such action as may
be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
This Debenture shall not be entitled to any benefit under the Indenture hereinafter referred
to, be valid or become obligatory for any purpose until the certificate of authentication hereon
shall have been signed by or on behalf of the Trustee.
Texas Capital Bancshares, Inc./Indenture
A-4
The provisions of this Debenture are continued on the reverse side hereof and such provisions
shall for all purposes have the same effect as though fully set forth at this place.
Texas Capital Bancshares, Inc./Indenture
A-5
IN WITNESS WHEREOF, the Company has duly executed this certificate.
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TEXAS CAPITAL BANCSHARES, INC.
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By
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Debentures referred to in the within-mentioned Indenture.
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WILMINGTON TRUST COMPANY, as Trustee
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By:
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Authorized Officer
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Texas Capital Bancshares, Inc./Indenture
A-6
[FORM OF REVERSE OF DEBENTURE]
This Debenture is one of the floating rate junior subordinated deferrable interest debentures
of the Company, all issued or to be issued under and pursuant to the Indenture dated as of April
28, 2006 (the Indenture), duly executed and delivered between the Company and the Trustee, to
which Indenture reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the
Debentures. The Debentures are limited in aggregate principal amount as specified in the
Indenture.
Upon the occurrence and continuation of a Special Event prior to the Interest Payment Date in
June 2011, the Company shall have the right to redeem the Debentures in whole, but not in part, at
any Interest Payment Date, within 120 days following the occurrence of such Special Event, at the
Special Redemption Price.
In addition, the Company shall have the right to redeem the Debentures, in whole or in part,
but in all cases in a principal amount with integral multiples of $1,000.00, on any Interest
Payment Date on or after the Interest Payment Date in June 2011, at the Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date or Special Redemption Date, as
applicable, the Company will deposit with the Trustee or with one or more paying agents an amount
of money sufficient to redeem on the Redemption Date or the Special Redemption Date, as applicable,
all the Debentures so called for redemption at the appropriate Redemption Price or Special
Redemption Price.
If all, or less than all, the Debentures are to be redeemed, the Company will give the Trustee
notice not less than 45 nor more than 60 days, respectively, prior to the Redemption Date or
Special Redemption Date, as applicable, as to the aggregate principal amount of Debentures to be
redeemed and the Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Debentures or portions thereof (in integral multiples of $1,000.00) to be
redeemed.
Notwithstanding the foregoing, any redemption of Debentures by the Company shall be subject to
the receipt of any and all required regulatory approvals.
In case an Acceleration Event of Default shall have occurred and be continuing, upon demand of
the Trustee, the principal of all of the Debentures shall become due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the Debentures at the time
outstanding, to execute supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders of the Debentures;
provided
,
however
, that no such supplemental indenture shall without the consent of
the holders of each Debenture then outstanding and affected thereby (i) change the fixed maturity
of any Debenture, or reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable on redemption
thereof or make the principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in the Debentures, or impair or affect the right of any
Securityholder to institute suit for payment thereof or impair the right of repayment, if any, at
the option of the holder, or (ii) reduce the aforesaid percentage of Debentures the holders of
which are required to consent to any such supplemental indenture.
Texas Capital Bancshares, Inc./Indenture
A-7
The Indenture also contains provisions permitting the holders of a majority in aggregate
principal amount of the Debentures at the time outstanding on behalf of the holders of all of the
Debentures to waive (or modify any previously granted waiver of) any past default or Event of
Default, and its consequences, except a default (a) in the payment of principal of, premium, if
any, or interest on any of the Debentures, (b) in respect of covenants or provisions hereof or of
the Indenture which cannot be modified or amended without the consent of the holder of each
Debenture affected, or (c) in respect of the covenants contained in Section 3.9 of the Indenture;
provided
,
however
, that if the Debentures are held by the Trust or a trustee of
such trust, such waiver or modification to such waiver shall not be effective until the holders of
a majority in Liquidation Amount of Trust Securities of the Trust shall have consented to such
waiver or modification to such waiver,
provided
,
further
, that if the consent of
the holder of each outstanding Debenture is required, such waiver shall not be effective until each
holder of the Trust Securities of the Trust shall have consented to such waiver. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all purposes of the Indenture
and the Company, the Trustee and the holders of the Debentures shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon. Whenever any default or
Event of Default hereunder shall have been waived as permitted by the Indenture, said default or
Event of Default shall for all purposes of the Debentures and the Indenture be deemed to have been
cured and to be not continuing.
No reference herein to the Indenture and no provision of this Debenture or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest, including Additional Interest, on this
Debenture at the time and place and at the rate and in the money herein prescribed.
The Company has agreed that if Debentures are initially issued to the Trust or a trustee of
such Trust in connection with the issuance of Trust Securities by the Trust (regardless of whether
Debentures continue to be held by such Trust) and (i) there shall have occurred and be continuing
an Event of Default, (ii) the Company shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee, or (iii) the Company shall have given notice of
its election to defer payments of interest on the Debentures by extending the interest payment
period as provided herein and such Extension Period, or any extension thereof, shall be continuing,
then the Company shall not, and shall not allow any Affiliate of the Company to, (x) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with
respect to, any of the Companys capital stock or its Affiliates capital stock (other than
payments of dividends or distributions to the Company) or make any guarantee payments with respect
to the foregoing or (y) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company or any Affiliate that rank
pari
passu
in all respects with or junior in interest to the Debentures (other than, with respect to
clauses (x) and (y) above, (1) repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers, directors or consultants,
in connection with a dividend reinvestment or stockholder stock purchase plan or in connection with
the issuance of capital stock of the Company (or securities convertible into or exercisable for
such capital stock) as consideration in an acquisition transaction entered into prior to the
applicable Extension Period, if any, (2) as a result of any exchange or conversion of any class or
series of the Companys capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Companys capital stock or of any class or series of the Companys
indebtedness for any class or series of the Companys capital stock, (3) the purchase of fractional
interests in shares of the Companys capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged, (4) any declaration
of a dividend in connection with any stockholders rights plan, or the issuance of rights, stock or
other property under any stockholders rights plan, or the redemption or repurchase of rights
pursuant thereto, (5) any dividend in the form of stock, warrants, options or other rights where
the
Texas Capital Bancshares, Inc./Indenture
A-8
dividend stock or the stock issuable upon exercise of such warrants, options or other rights
is the same stock as that on which the dividend is being paid or ranks
pari passu
with or junior to
such stock and any cash payments in lieu of fractional shares issued in connection therewith, or
(6) payments under the Capital Securities Guarantee).
The Debentures are issuable only in registered, certificated form without coupons and in
minimum denominations of $100,000.00 and any multiple of $1,000.00 in excess thereof. As provided
in the Indenture and subject to the transfer restrictions and limitations as may be contained
herein and therein from time to time, this Debenture is transferable by the holder hereof on the
Debenture Register of the Company. Upon due presentment for registration of transfer of any
Debenture at the Principal Office of the Trustee or at any office or agency of the Company
maintained for such purpose as provided in Section 3.2 of the Indenture, the Company shall execute,
the Company or the Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in the name of the transferee or transferees a new
Debenture for a like aggregate principal amount. All Debentures presented for registration of
transfer or for exchange or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written instrument or instruments
of transfer in form satisfactory to, the Company and the Trustee or the Authenticating Agent duly
executed by the holder or his attorney duly authorized in writing. No service charge shall be made
for any exchange or registration of transfer of Debentures, but the Company or the Trustee may
require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
Prior to due presentment for registration of transfer of any Debenture, the Company, the
Trustee, any Authenticating Agent, any paying agent, any transfer agent and any Debenture registrar
may deem the Person in whose name such Debenture shall be registered upon the Debenture Register to
be, and may treat him as, the absolute owner of such Debenture (whether or not such Debenture shall
be overdue) for the purpose of receiving payment of or on account of the principal of, premium, if
any, and interest on such Debenture and for all other purposes; and neither the Company nor the
Trustee nor any Authenticating Agent nor any paying agent nor any transfer agent nor any Debenture
registrar shall be affected by any notice to the contrary. All such payments so made to any holder
for the time being or upon his order shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any such Debenture.
No recourse for the payment of the principal of or premium, if any, or interest on any
Debenture, or for any claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or in any supplemental
indenture, or in any such Debenture, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, officer or director, as
such, past, present or future, of the Company or of any successor Person of the Company, either
directly or through the Company or any successor Person of the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, it being expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of the Indenture and the
issue of the Debentures.
Capitalized terms used and not defined in this Debenture shall have the meanings assigned in
the Indenture dated as of the date of original issuance of this Debenture between the Trustee and
the Company.
THE INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.
Texas Capital Bancshares, Inc./Indenture
A-9
EXHIBIT B
FORM OF CERTIFICATE TO TRUSTEE
Pursuant to Section 3.5 of the Indenture between Texas Capital Bancshares, Inc., as the
Company (the Company), and Wilmington Trust Company, as Trustee, dated as of April 28, 2006 (the
Indenture), the undersigned hereby certifies as follows:
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1.
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In my capacity as an officer of the Company, I would normally have knowledge of
any default by the Company during the last fiscal year in the performance of any
covenants of the Company contained in the Indenture.
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2.
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[To my knowledge, the Company is not in default in the performance of any
covenants contained in the Indenture.
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or, alternatively:
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I am aware of the default(s) in the performance of covenants in the Indentures, as
specified below.]
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Capitalized terms used herein, and not otherwise defined herein, have the respective meanings
ascribed thereto in the Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Certificate.
Date:
Texas Capital Bancshares, Inc./Indenture
B-1
Exhibit 10.3
GUARANTEE AGREEMENT
by and between
TEXAS CAPITAL BANCSHARES, INC.
and
WILMINGTON TRUST COMPANY
Dated as of April 28, 2006
Texas Capital Bancshares, Inc./Guarantee Agreement
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (this Guarantee), dated as of April 28, 2006, is executed and
delivered by Texas Capital Bancshares, Inc., a Delaware corporation (the Guarantor), and
Wilmington Trust Company, a Delaware banking corporation, as trustee (the Guarantee Trustee), for
the benefit of the Holders (as defined herein) from time to time of the Capital Securities (as
defined herein) of Texas Capital Statutory Trust IV, a Delaware statutory trust (the Issuer).
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the Declaration), dated
as of the date hereof among Wilmington Trust Company, not in its individual capacity but solely as
institutional trustee, the administrators of the Issuer named therein, the Guarantor, as sponsor,
and the holders from time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof those undivided beneficial interests, having an aggregate
liquidation amount of $25,000,000.00 (the Capital Securities); and
WHEREAS, as incentive for the Holders to purchase the Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in this Guarantee, to pay
to the Holders of Capital Securities the Guarantee Payments (as defined herein) and to make certain
other payments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of the Capital Securities,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1.
Definitions and Interpretation
.
In this Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Guarantee has the same meaning throughout;
(c) all references to the Guarantee or this Guarantee are to this Guarantee as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee to Articles or Sections are to Articles or Sections
of this Guarantee, unless otherwise specified;
(e) terms defined in the Declaration as at the date of execution of this Guarantee have the
same meanings when used in this Guarantee, unless otherwise defined in this Guarantee or unless the
context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
Affiliate
has the same meaning as given to that term in Rule 405 of the Securities
Act of 1933, as amended, or any successor rule thereunder.
Beneficiaries
means any Person to whom the Issuer is or hereafter becomes indebted
or liable.
Texas Capital Bancshares, Inc./Guarantee Agreement
Capital Securities
has the meaning set forth in the recitals to this Guarantee.
Common Securities
means the common securities issued by the Issuer to the Guarantor
pursuant to the Declaration.
Corporate Trust Office
means the office of the Guarantee Trustee at which the
corporate trust business of the Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Guarantee is located at Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-1600, Attention: Corporate Trust
Administration.
Covered Person
means any Holder of Capital Securities.
Debentures
means the debt securities of the Guarantor designated the Floating Rate
Junior Subordinated Deferrable Interest Debentures due 2036 held by the Institutional Trustee (as
defined in the Declaration) of the Issuer.
Declaration Event of Default
means an Event of Default as defined in the
Declaration.
Event of Default
has the meaning set forth in Section 2.4(a).
Guarantee Payments
means the following payments or distributions, without
duplication, with respect to the Capital Securities, to the extent not paid or made by the Issuer:
(i) any accrued and unpaid Distributions (as defined in the Declaration) which are required to be
paid on such Capital Securities to the extent the Issuer shall have funds available therefor, (ii)
the Redemption Price to the extent the Issuer has funds available therefor, with respect to any
Capital Securities called for redemption by the Issuer, (iii) the Special Redemption Price to the
extent the Issuer has funds available therefor, with respect to Capital Securities redeemed upon
the occurrence of a Special Event, and (iv) upon a voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders of the Capital Securities in exchange therefor as
provided in the Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Capital Securities to the date of payment, to the extent
the Issuer shall have funds available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer (in either case, the
Liquidation Distribution).
Guarantee Trustee
means Wilmington Trust Company, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the terms of this
Guarantee and thereafter means each such Successor Guarantee Trustee.
Guarantor
means Texas Capital Bancshares, Inc. and each of its successors and
assigns.
Holder
means any holder, as registered on the books and records of the Issuer, of
any Capital Securities;
provided
,
however
, that, in determining whether the Holders
of the requisite percentage of Capital Securities have given any request, notice, consent or waiver
hereunder, Holder shall not include the Guarantor or any Affiliate of the Guarantor.
Indemnified Person
means the Guarantee Trustee, any Affiliate of the Guarantee
Trustee, or any officers, directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Guarantee Trustee.
Indenture
means the Indenture dated as of the date hereof between the Guarantor and
Wilmington Trust Company, not in its individual capacity but solely as trustee, and any indenture
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2
supplemental thereto pursuant to which the Debentures are to be issued to the institutional trustee
of the Issuer.
Issuer
has the meaning set forth in the opening paragraph to this Guarantee.
Liquidation Distribution
has the meaning set forth in the definition of Guarantee
Payments herein.
Majority in liquidation amount of the Capital Securities
means Holder(s) of
outstanding Capital Securities, voting together as a class, but separately from the holders of
Common Securities, of more than 50% of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of all Capital
Securities then outstanding.
Obligations
means any costs, expenses or liabilities (but not including liabilities
related to taxes) of the Issuer other than obligations of the Issuer to pay to holders of any Trust
Securities the amounts due such holders pursuant to the terms of the Trust Securities.
Officers Certificate
means, with respect to any Person, a certificate signed by one
Authorized Officer of such Person. Any Officers Certificate delivered with respect to compliance
with a condition or covenant provided for in this Guarantee shall include:
(a) a statement that the officer signing the Officers Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or investigation
undertaken by the officer in rendering the Officers Certificate;
(c) a statement that the officer has made such examination or investigation as, in such
officers opinion, is necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of the officer, such condition or
covenant has been complied with.
Person
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision thereof, or any
other entity of whatever nature.
Redemption Price
has the meaning set forth in the Indenture.
Responsible Officer
means, with respect to the Guarantee Trustee, any officer within
the Corporate Trust Office of the Guarantee Trustee including any Vice President, Assistant Vice
President, Secretary, Assistant Secretary or any other officer of the Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated officers and also,
with respect to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officers knowledge of and familiarity with the particular subject.
Special Event
has the meaning set forth in the Indenture.
Special Redemption Price
has the meaning set forth in the Indenture.
Texas Capital Bancshares, Inc./Guarantee Agreement
3
Successor Guarantee Trustee
means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 3.1.
Trust Securities
means the Common Securities and the Capital Securities.
ARTICLE II
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
Section 2.1.
Powers and Duties of the Guarantee Trustee
.
(a) This Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders of
the Capital Securities, and the Guarantee Trustee shall not transfer this Guarantee to any Person
except a Holder of Capital Securities exercising his or her rights pursuant to Section 4.4(b) or to
a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment
to act as Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee
shall automatically vest in any Successor Guarantee Trustee, and such vesting and cessation of
title shall be effective whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of the Guarantee Trustee
has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee for the benefit
of the Holders of the Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and after curing all
Events of Default that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants shall be read into this
Guarantee against the Guarantee Trustee. In case an Event of Default has occurred (that has not
been waived pursuant to Section 2.4) and is actually known to a Responsible Officer of the
Guarantee Trustee, the Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Guarantee, and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the curing or waiving of
all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be determined
solely by the express provisions of this Guarantee, and the Guarantee Trustee shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Guarantee, and no implied covenants or obligations
shall be read into this Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee Trustee, the
Guarantee Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished
to the Guarantee Trustee and conforming to the requirements of this Guarantee;
but in the
Texas Capital Bancshares, Inc./Guarantee Agreement
4
case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that such
Responsible Officer of the Guarantee Trustee or the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction of the
Holders of not less than a Majority in liquidation amount of the Capital Securities relating
to the time, method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or relating to the exercise of any trust or power conferred upon the
Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the Guarantee Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such funds is not
reasonably assured to it under the terms of this Guarantee or security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
Section 2.2.
Certain Rights of Guarantee Trustee
.
(a) Subject to the provisions of Section 2.1:
(i) The Guarantee Trustee may conclusively rely, and shall be fully protected in acting
or refraining from acting upon, any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officers Certificate.
(iii) Whenever, in the administration of this Guarantee, the Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers Certificate of the Guarantor which, upon receipt of such
request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument (or any re-recording, refiling or re-registration thereof).
(v) The Guarantee Trustee may consult with counsel of its selection, and the advice or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be counsel to the Guarantor
or any
Texas Capital Bancshares, Inc./Guarantee Agreement
5
of its Affiliates and may include any of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the administration of this
Guarantee from any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against the costs, expenses (including
attorneys fees and expenses and the expenses of the Guarantee Trustees agents, nominees or
custodians) and liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the Guarantee Trustee;
provided
,
however
, that nothing contained in this Section 2.2(a)(vi) shall
relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Guarantee.
(vii) The Guarantee Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, nominees, custodians
or attorneys, and the Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Guarantee Trustee or its agents hereunder shall bind the
Holders of the Capital Securities, and the signature of the Guarantee Trustee or its agents
alone shall be sufficient and effective to perform any such action. No third party shall be
required to inquire as to the authority of the Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Guarantee, both of which shall be
conclusively evidenced by the Guarantee Trustees or its agents taking such action.
(x) Whenever in the administration of this Guarantee the Guarantee Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (i) may request instructions from the
Holders of a Majority in liquidation amount of the Capital Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or acting in accordance
with such instructions.
(xi) The Guarantee Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith, without negligence, and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred upon it by this
Guarantee.
(b) No provision of this Guarantee shall be deemed to impose any duty or obligation on the
Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal or in which the
Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law to perform
any such act or acts or to exercise any such right, power, duty or obligation. No permissive power
or authority available to the Guarantee Trustee shall be construed to be a duty.
Texas Capital Bancshares, Inc./Guarantee Agreement
6
Section 2.3.
Not Responsible for Recitals or Issuance of Guarantee
.
The recitals
contained in this Guarantee shall be taken as the statements of the Guarantor, and the Guarantee
Trustee does not assume any responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee.
Section 2.4.
Events of Default; Waiver
.
(a) An Event of Default under this Guarantee will occur upon the failure of the Guarantor to
perform any of its payment or other obligations hereunder.
(b) The Holders of a Majority in liquidation amount of the Capital Securities may, voting or
consenting as a class, on behalf of the Holders of all of the Capital Securities, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and shall be deemed to have been cured, for every purpose of this Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or impair any right
consequent thereon.
Section 2.5.
Events of Default; Notice
.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Capital Securities and the
Guarantor, notices of all Events of Default actually known to a Responsible Officer of the
Guarantee Trustee, unless such defaults have been cured before the giving of such notice,
provided
,
however
, that the Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the Holders of the Capital
Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless
the Guarantee Trustee shall have received written notice from the Guarantor or a Holder of the
Capital Securities (except in the case of a payment default), or a Responsible Officer of the
Guarantee Trustee charged with the administration of this Guarantee shall have obtained actual
knowledge thereof.
ARTICLE III
GUARANTEE TRUSTEE
Section 3.1.
Guarantee Trustee; Eligibility
.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor, and
(ii) be a corporation organized and doing business under the laws of the United States
of America or any State or Territory thereof or of the District of Columbia, or Person
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above, then, for the
purposes of this Section 3.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
Texas Capital Bancshares, Inc./Guarantee Agreement
7
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section
3.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in
Section 3.2(c).
(c) If the Guarantee Trustee has or shall acquire any conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee shall either eliminate
such interest or resign to the extent and in the manner provided by, and subject to this Guarantee.
Section 3.2.
Appointment, Removal and Resignation of Guarantee Trustee
.
(a) Subject to Section 3.2(b), the Guarantee Trustee may be appointed or removed without cause
at any time by the Guarantor except during an Event of Default.
(b) The Guarantee Trustee shall not be removed in accordance with Section 3.2(a) until a
Successor Guarantee Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until a Successor Guarantee
Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take
effect until a Successor Guarantee Trustee has been appointed and has accepted such appointment by
an instrument in writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 3.2 within 60 days after delivery of an instrument of removal or
resignation, the Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to act of any Successor
Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the Guarantee Trustee
pursuant to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee all amounts owing to
the Guarantee Trustee under Sections 7.2 and 7.3 accrued to the date of such termination, removal
or resignation.
Texas Capital Bancshares, Inc./Guarantee Agreement
8
ARTICLE IV
GUARANTEE
Section 4.1.
Guarantee
.
(a) The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by the Issuer), as and when
due, regardless of any defense (except the defense of payment by the Issuer), right of set-off or
counterclaim that the Issuer may have or assert. The Guarantors obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders
or by causing the Issuer to pay such amounts to the Holders.
(b) The Guarantor hereby also agrees to assume any and all Obligations of the Issuer and in
the event any such Obligation is not so assumed, subject to the terms and conditions hereof, the
Guarantor hereby irrevocably and unconditionally guarantees to each Beneficiary the full payment,
when and as due, of any and all Obligations to such Beneficiaries. This Guarantee is intended to
be for the benefit of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 4.2.
Waiver of Notice and Demand
.
The Guarantor hereby waives notice of
acceptance of this Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
Section 4.3.
Obligations Not Affected
.
The obligations, covenants, agreements and
duties of the Guarantor under this Guarantee shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the performance or observance
by the Issuer of any express or implied agreement, covenant, term or condition relating to the
Capital Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any portion of the
Distributions, Redemption Price, Special Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Capital Securities or the extension of time for the performance
of any other obligation under, arising out of or in connection with, the Capital Securities (other
than an extension of time for payment of Distributions, Redemption Price, Special Redemption Price,
Liquidation Distribution or other sum payable that results from the extension of any interest
payment period on the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce,
assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the
terms of the Capital Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
Texas Capital Bancshares, Inc./Guarantee Agreement
9
(e) any invalidity of, or defect or deficiency in, the Capital Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 4.3 that the obligations
of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent of, the
Guarantor with respect to the happening of any of the foregoing.
Section 4.4.
Rights of Holders
.
(a) The Holders of a Majority in liquidation amount of the Capital Securities have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under this Guarantee;
provided
,
however
, that
(subject to Section 2.1) the Guarantee Trustee shall have the right to decline to follow any such
direction if the Guarantee Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Guarantee Trustee in good faith by its
board of directors or trustees, executive committees or a trust committee of directors or trustees
and/or Responsible Officers shall determine that the action or proceedings so directed would
involve the Guarantee Trustee in personal liability.
(b) Any Holder of Capital Securities may institute a legal proceeding directly against the
Guarantor to enforce the Guarantee Trustees rights under this Guarantee, without first instituting
a legal proceeding against the Issuer, the Guarantee Trustee or any other Person. The Guarantor
waives any right or remedy to require that any such action be brought first against the Issuer, the
Guarantee Trustee or any other Person before so proceeding directly against the Guarantor.
Section 4.5.
Guarantee of Payment
.
This Guarantee creates a guarantee of payment and
not of collection.
Section 4.6.
Subrogation
.
The Guarantor shall be subrogated to all (if any) rights of
the Holders of Capital Securities against the Issuer in respect of any amounts paid to such Holders
by the Guarantor under this Guarantee;
provided
,
however
, that the Guarantor shall
not (except to the extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee, if, after giving effect
to any such payment, any amounts are due and unpaid under this Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such
amount in trust for the Holders and to pay over such amount to the Holders.
Section 4.7.
Independent Obligations
.
The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with respect to the Capital Securities
and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 4.3 hereof.
Section 4.8.
Enforcement by a Beneficiary
.
A Beneficiary may enforce the obligations of the Guarantor contained in Section 4.1(b)
directly against the Guarantor and the Guarantor waives any right or remedy to require that any
action be brought against the Issuer or any other person or entity
Texas Capital Bancshares, Inc./Guarantee Agreement
10
before proceeding against the
Guarantor. The Guarantor shall be subrogated to all rights (if any) of any Beneficiary against the
Issuer in respect of any amounts paid to the Beneficiaries by the Guarantor under this Guarantee;
provided
,
however
, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights that it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Guarantee, if at the time of any such payment, and after giving effect to such
payment, any amounts are due and unpaid under this Guarantee.
ARTICLE V
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 5.1.
Limitation of Transactions
.
So long as any Capital Securities remain
outstanding, if (a) there shall have occurred and be continuing an Event of Default or a
Declaration Event of Default or (b) the Guarantor shall have selected an Extension Period as
provided in the Declaration and such period, or any extension thereof, shall have commenced and be
continuing, then the Guarantor shall not and shall not permit any Affiliate to (x) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with
respect to, any of the Guarantors or such Affiliates capital stock (other than payments of
dividends or distributions to the Guarantor) or make any guarantee payments with respect to the
foregoing or (y) make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Guarantor or any Affiliate that rank
pari passu
in
all respects with or junior in interest to the Debentures (other than, with respect to clauses (x)
and (y) above, (i) repurchases, redemptions or other acquisitions of shares of capital stock of the
Guarantor in connection with any employment contract, benefit plan or other similar arrangement
with or for the benefit of one or more employees, officers, directors or consultants, in connection
with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance
of capital stock of the Guarantor (or securities convertible into or exercisable for such capital
stock) as consideration in an acquisition transaction entered into prior to the occurrence of the
Event of Default, Declaration Event of Default or Extension Period, as applicable, (ii) as a result
of any exchange or conversion of any class or series of the Guarantors capital stock (or any
capital stock of a subsidiary of the Guarantor) for any class or series of the Guarantors capital
stock or of any class or series of the Guarantors indebtedness for any class or series of the
Guarantors capital stock, (iii) the purchase of fractional interests in shares of the Guarantors
capital stock pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (iv) any declaration of a dividend in connection with any
stockholders rights plan, or the issuance of rights, stock or other property under any
stockholders rights plan, or the redemption or repurchase of rights pursuant thereto, (v) any
dividend in the form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks
pari passu
with or junior to such stock and any cash
payments in lieu of fractional shares issued in connection therewith, or (vi) payments under this
Guarantee).
Section 5.2.
Ranking
.
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) of the Guarantor. By their acceptance thereof, each
Holder of Capital Securities agrees to the foregoing provisions of this Guarantee and the other
terms set forth herein.
The right of the Guarantor to participate in any distribution of assets of any of its
subsidiaries upon any such subsidiarys liquidation or reorganization or otherwise is subject to
the prior claims of creditors of that subsidiary, except to the extent the Guarantor may itself be
recognized as a creditor of that subsidiary. Accordingly, the Guarantors obligations under this
Guarantee will be effectively
Texas Capital Bancshares, Inc./Guarantee Agreement
11
subordinated to all existing and future liabilities of the
Guarantors subsidiaries, and claimants should look only to the assets of the Guarantor for
payments hereunder. This Guarantee does not limit the incurrence or issuance of other secured or
unsecured debt of the Guarantor, including Senior Indebtedness of the Guarantor, under any
indenture that the Guarantor may enter into in the future or otherwise.
ARTICLE VI
TERMINATION
Section 6.1.
Termination
.
This Guarantee shall terminate as to the Capital Securities
(i) upon full payment of the Redemption Price or Special Redemption Price of all Capital Securities
then outstanding, (ii) upon the distribution of all of the Debentures to the Holders of all of the
Capital Securities or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon dissolution of the Issuer. This Guarantee will continue to be effective or will
be reinstated, as the case may be, if at any time any Holder of Capital Securities must restore
payment of any sums paid under the Capital Securities or under this Guarantee.
ARTICLE VII
INDEMNIFICATION
Section 7.1.
Exculpation
.
(a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise
to the Guarantor or any Covered Person for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in accordance with this
Guarantee and in a manner that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such
Indemnified Persons negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith upon the records
of the Issuer or the Guarantor and upon such information, opinions, reports or statements presented
to the Issuer or the Guarantor by any Person as to matters the Indemnified Person reasonably
believes are within such other Persons professional or expert competence and who, if selected by
such Indemnified Person, has been selected with reasonable care by such Indemnified Person,
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 Capital Securities might properly be paid.
Section 7.2.
Indemnification
.
(a) The Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage, claim or expense incurred
without negligence or willful misconduct on the part of the Indemnified Person, arising out of or
in
connection with the acceptance or administration of the trust or trusts hereunder, including,
but not limited to, the costs and expenses (including reasonable legal fees and expenses) of the
Indemnified Person defending itself against, or investigating, any claim or liability in connection
with the exercise or performance of any of the Indemnified Persons powers or duties hereunder.
The obligation to indemnify as set forth in this Section 7.2 shall survive the resignation or
removal of the Guarantee Trustee and the termination of this Guarantee.
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(b) Promptly after receipt by an Indemnified Person under this Section 7.2 of notice of the
commencement of any action, such Indemnified Person will, if a claim in respect thereof is to be
made against the Guarantor under this Section 7.2, notify the Guarantor in writing of the
commencement thereof; but the failure so to notify the Guarantor (i) will not relieve the Guarantor
from liability under paragraph (a) above unless and to the extent that the Guarantor did not
otherwise learn of such action and such failure results in the forfeiture by the Guarantor of
substantial rights and defenses and (ii) will not, in any event, relieve the Guarantor from any
obligations to any Indemnified Person other than the indemnification obligation provided in
paragraph (a) above. The Guarantor shall be entitled to appoint counsel of the Guarantors choice
at the Guarantors expense to represent the Indemnified Person in any action for which
indemnification is sought (in which case the Guarantor shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the Indemnified Person or Persons except as
set forth below);
provided
,
however
, that such counsel shall be reasonably
satisfactory to the Indemnified Person. Notwithstanding the Guarantors election to appoint
counsel to represent the Guarantor in an action, the Indemnified Person shall have the right to
employ separate counsel (including local counsel), and the Guarantor shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Guarantor
to represent the Indemnified Person would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include both the Indemnified
Person and the Guarantor and the Indemnified Person shall have reasonably concluded that there may
be legal defenses available to it and/or other Indemnified Person(s) which are different from or
additional to those available to the Guarantor, (iii) the Guarantor shall not have employed counsel
satisfactory to the Indemnified Person to represent the Indemnified Person within a reasonable time
after notice of the institution of such action or (iv) the Guarantor shall authorize the
Indemnified Person to employ separate counsel at the expense of the Guarantor. The Guarantor will
not, without the prior written consent of the Indemnified Persons, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder (whether or
not the Indemnified Persons are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each Indemnified Person from
all liability arising out of such claim, action, suit or proceeding.
Section 7.3.
Compensation; Reimbursement of Expenses
.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree to from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation of a trustee of an express
trust); and
(b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or made by it in
accordance with any provision of this Guarantee (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or willful misconduct.
For purposes of clarification, this Section 7.3 does not contemplate the payment by the
Guarantor of acceptance or annual administration fees owing to the Guarantee Trustee for services
to be provided by the Guarantee Trustee under this Guarantee or the fees and expenses of the
Guarantee Trustees counsel in connection with the closing of the transactions contemplated by this
Guarantee. The provisions of this Section 7.3 shall survive the resignation or removal of the
Guarantee Trustee and the termination of this Guarantee.
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ARTICLE VIII
MISCELLANEOUS
Section 8.1.
Successors and Assigns
.
All guarantees and agreements contained in this
Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Capital Securities then outstanding.
Except in connection with any merger or consolidation of the Guarantor with or into another entity
or any sale, transfer or lease of the Guarantors assets to another entity, in each case, to the
extent permitted under the Indenture, the Guarantor may not assign its rights or delegate its
obligations under this Guarantee without the prior approval of the Holders of at least a Majority
in liquidation amount of the Capital Securities.
Section 8.2.
Amendments
.
Except with respect to any changes that do not adversely
affect the rights of Holders of the Capital Securities in any material respect (in which case no
consent of Holders will be required), this Guarantee may be amended only with the prior approval of
the Holders of not less than a Majority in liquidation amount of the Capital Securities. The
provisions of the Declaration with respect to amendments thereof apply to the giving of such
approval.
Section 8.3.
Notices
.
All notices provided for in this Guarantee shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first
class mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustees mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of to the Holders of the
Capital Securities and the Guarantor):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1600
Attention: Corporate Trust Administration
Telecopy: 302-636-4140
(b) If given to the Guarantor, at the Guarantors mailing address set forth below (or such
other address as the Guarantor may give notice of to the Holders of the Capital Securities and to
the Guarantee Trustee):
Texas Capital Bancshares, Inc.
2100 McKinney Avenue, Suite 1250
Dallas, Texas 75201
Attention: Mark R. Frears
Telecopy: 214-932-6687
(c) If given to any Holder of the Capital Securities, at the address set forth on the books
and records of the Issuer.
All such notices shall be deemed to have been given when received in person, telecopied with
receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
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Section 8.4.
Benefit
.
This Guarantee is solely for the benefit of the Beneficiaries
and, subject to Section 2.1(a), is not separately transferable from the Capital Securities.
Section 8.5.
Governing Law
.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Section 8.6.
Counterparts
.
This Guarantee may be executed in one or more
counterparts, each of which shall be an original, but all of which taken together shall constitute
one and the same instrument.
Section 8.7
Separability
. In case one or more of the provisions contained in this
Guarantee shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this Guarantee,
but this Guarantee shall be construed as if such invalid or illegal or unenforceable provision had
never been contained herein.
Signatures appear on the following page
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THIS GUARANTEE is executed as of the day and year first above written.
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TEXAS CAPITAL BANCSHARES, INC., as Guarantor
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By:
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Name:
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Title:
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WILMINGTON TRUST COMPANY, as Guarantee Trustee
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By:
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Name:
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Title:
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