Exhibit 4.9
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TRUST AGREEMENT
OF
DRH CAPITAL TRUST II
THIS TRUST AGREEMENT is made as of March 16, 2001 (this "Agreement"), by
and among D.R. Horton, Inc., a Delaware corporation, as depositor (the
"Depositor"), Adrianne M. Horne, as trustee (the "Delaware Trustee"), Donald R.
Horton, as trustee, and Donald J. Tomnitz, as trustee (Donald R. Horton and
Donald J. Tomnitz being collectively the "Administrative Trustees") (the
Administrative Trustees and the Delaware Trustee being collectively the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "DRH Capital Trust II"
(the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created
hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq. (the "Business Trust Act"),
and that this document constitute the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in such form as
the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Trust Preferred Securities and Trust Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or
with respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions
deemed proper as are necessary to effect the transactions contemplated
herein.
4. The Depositor is hereby authorized, in its sole discretion, (i)
to file with the Securities and Exchange Commission (the "Commission") and
to execute, in the case of the 1933 Act Registration Statement and 1934 Act
Registration Statement, on behalf of the Trust, (a) the 1933 Act
Registration Statement, including pre-effective or post-effective
amendments to such Registration Statement, relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the Trust
Preferred Securities of the Trust, (b) any preliminary prospectus or
prospectus or supplement thereto relating to the Trust Preferred Securities
required to be filed under the 1933 Act, and (c) if required, a
Registration Statement on Form 8-A or other appropriate form (the
"Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Trust Preferred
Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any national
exchange and execute on behalf of the Trust a listing application and all
other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Trust Preferred
Securities to be listed with the New York Stock Exchange or any national
exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Trust Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; (iv) to execute,
deliver and perform on behalf of the Trust, an underwriting agreement with
the Depositor and the underwriter or underwriters of the Trust Preferred
Securities of the Trust; (v) to execute, deliver and perform a depository
agreement with the initial clearing agency, relating to the Trust Preferred
Securities; and (vi) to apply for and obtain a tax identification number
for the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, PORTAL or state securities
or Blue Sky laws to be executed on behalf of the Trust by the Trustees, the
Trustees, in their capacity as trustees of the Trust, are hereby authorized
and directed to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Delaware Trustee, in its capacity
as trustee of the Trust, shall not be required to join in any such filing
or execute on behalf of the Trust any such document unless required by the
rules and regulations of the Commission, PORTAL or state securities or Blue
Sky laws. In connection with all of the foregoing, the Depositor hereby
constitutes and appoints each of Donald R. Horton, Donald J. Tomnitz and
Samuel R. Fuller, as its true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to sign any
and all amendments (including all pre-effective and post-effective
amendments) to the 1933 Act Registration Statement and any 1934 Act
Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting
unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Depositor
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his respective substitute or substitutes,
shall do or cause to be done by virtue hereof.
5. This Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be three and
thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of trustees of the
Trust; provided, however, that to the extent required by the Business Trust
Act, one trustee of the Trust shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, any entity
which has its principal place of business in the State of Delaware. Subject
to the foregoing, the Depositor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may
resign upon thirty days' prior notice to the Depositor.
7. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, with regard to conflict of laws
principles that would apply any other law.
8. The Delaware Trustee shall not have any of the powers or duties
of the Trustees set forth herein, except as required under the Business
Trust Act. The Delaware Trustee shall be a Trustee hereunder for the sole
and limited purpose of fulfilling the requirements of Section 3807(a) of
the Business Trust Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
DR Horton, Inc.
By: /s/
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Name:
Title:
/s/
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Adrianne M. Horne, as Delaware Trustee
/s/
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Donald R. Horton, as Administrative Trustee
/s/
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Donald J. Tomnitz, as Administrative Trustee