DECLARATION OF TRUST
OF
Texas Capital Statutory Trust II
THIS DECLARATION OF TRUST is made as of March 28, 2003, (this
"Declaration"), by and between Texas Capital Bancshares, Inc., a Delaware
corporation, as sponsor (the "Sponsor"), and Wilmington Trust Company, a
Delaware banking corporation, as Delaware trustee (the "Trustee"). The Sponsor
and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Texas
Capital Statutory Trust II" (the "Trust"), in which name the Trustee or the
Sponsor, to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and
sets over to the Trust the sum of $10. The Trustee hereby acknowledges receipt
of such amount in trust from the Sponsor, which amount shall constitute the
initial trust estate. The Trustee hereby declares that it will hold the trust
estate in trust for the Sponsor. It is the intention of the parties hereto that
the Trust created hereby constitute a statutory trust under Chapter 38 of Title
12 of the Delaware Code, 12 Del. C. Section 3801, et seq. (the "Statutory Trust
Act"), and that this Declaration constitute the governing instrument of the
Trust. The Trustee is hereby authorized and directed to execute and file a
certificate of trust with the Secretary of State of the State of Delaware in the
form attached to this Declaration.
3. The Sponsor and the Trustee will enter into an
Amended and Restated Declaration of Trust satisfactory to each such party to
provide for the contemplated operation of the Trust created hereby and the
issuance by the Trust of the Capital Securities and Common Securities referred
to therein. Prior to the execution and delivery of such Amended and Restated
Declaration of Trust (i) the Trustee shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law, and (ii) the Sponsor shall take or cause to be taken any action
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 Trustee may take all actions which the Sponsor deems
necessary, convenient or incidental to effect the transactions contemplated
herein. The Trustee shall not have any duty or obligation under or in connection
with this Declaration or any document contemplated hereby, except as expressly
provided by the terms of this Declaration, and no implied duties or obligations
shall be read into this Declaration against the Trustee. The right of the
Trustee to perform any discretionary act enumerated herein shall not be
construed as a duty.
4. The Sponsor hereby agrees to (i) reimburse the
Trustee for all reasonable expenses (including reasonable fees and expenses of
counsel and other experts), (ii) indemnify, defend and hold harmless the Trustee
and the officers, directors, employees and agents of the Trustee (collectively,
including the Trustee in its individual capacity, the "Indemnified Persons")
from and against any and all losses, damages, liabilities, claims, actions,
suits, costs, expenses, disbursements (including the reasonable fees and
expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the
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performance of this Declaration, the creation, operation, administration or
termination of the Trust, or the transactions contemplated hereby; provided,
however, that the Sponsor shall not be required to indemnify an Indemnified
Person for Expenses to the extent such Expenses result from the willful
misconduct, bad faith or gross negligence of such Indemnified Person, and (iii)
advance to each such Indemnified Person Expenses incurred by such Indemnified
Person, in defending any claim, demand, action, suit or proceeding prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Sponsor of an undertaking, by or on behalf of such Indemnified Person, to
repay such amount if it shall be determined that such Indemnified Person is not
entitled to be indemnified therefor under this Section 4. The obligations of the
Sponsor under this Section 4 shall survive the resignation or removal of the
Trustee, shall survive the termination, amendment, supplement, and/or
restatement of this Declaration, and shall survive the transfer by the Sponsor
of any or all of its interest in the Trust pursuant to Section 5 below or
otherwise.
5. The Sponsor, as sponsor of the Trust, is hereby
authorized, in its discretion, (i) to prepare, execute and file on behalf of the
Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
that shall be necessary or desirable to register or establish the exemption from
registration of the Capital Securities of the Trust under the securities or
"Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable; (ii) to negotiate, execute, deliver and perform
on behalf of the Trust one or more placement agent agreements, dealer/manager
agreements, escrow agreements, subscription agreements and other similar or
related agreements providing for or relating to the sale and issuance of the
Capital Securities of the Trust and/or any other interests in the Trust; (iii)
to prepare, execute and deliver on behalf of the Trust any and all documents,
certificates, papers, instruments and other writings as it deems desirable in
connection with any of the foregoing; and (iv) to prepare, execute and deliver
letters or documents to, or instruments for filing with, a depository relating
to the Capital Securities of the Trust as it deems necessary or desirable.
In the event that any filing referred to in this Section 5 is
required by the rules and regulations of Securities and Exchange Commission (the
"Commission") or state securities or Blue Sky laws to be executed on behalf of
the Trust by a trustee, the Trustee, in its capacity as a trustee of the Trust,
so required to execute such filings is hereby authorized and, to the extent so
required, directed to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing, it being understood that the Trustee, in its
capacity as a 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 to do
so by the rules and regulations of the Commission or applicable state securities
or Blue Sky laws.
6. The Trustee is authorized to take such action or
refrain from taking such action under this Declaration as it may be directed in
writing by the Sponsor from time to time; provided, however, that the Trustee
shall not be required to take or refrain from taking any such action if the
Trustee shall have determined, or shall have been advised by counsel, that such
performance is likely to involve the Trustee in personal liability or is
contrary to the terms of this Declaration or of any document contemplated hereby
to which the Trust or the Trustee is a party or is otherwise contrary to law. If
at any time the Trustee determines that it requires or desires guidance
regarding the application of any provision of this Declaration or any other
document, or
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regarding compliance with any direction it received hereunder, then the Trustee
may deliver a notice to the Sponsor requesting written instructions as to the
course of action desired by the Sponsor, and such instructions shall constitute
full and complete authorization and protection for actions taken and other
performance by the Trustee in reliance thereon. Until the Trustee has received
such instructions after delivering such notice, it may refrain from taking any
action with respect to the matters described in such notice.
7. This Declaration may be executed in two or more
counterparts.
8. The number of trustees of the Trust initially shall
be one (1), 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
Sponsor which may increase or decrease the number of trustees of the Trust;
provided, however, to the extent required by the Statutory Trust Act, there
shall at all times be one trustee of the Trust that shall either be a natural
person who is a resident of the State of Delaware or, if not a natural person,
an entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
trustee of the Trust at any time. Any trustee of the Trust may resign upon
thirty (30) days' prior notice to the Sponsor.
9. This Declaration shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
TEXAS CAPITAL BANCSHARES, INC.
as Sponsor
By: /s/ RALEIGH HORTENSTINE III
--------------------------------
Name: Raleigh Hortenstine III
Title: President
WILMINGTON TRUST COMPANY
as Trustee
By: /s/ DONALD G. MACKELCAN
-----------------------------
Name: Donald G. MacKelcan
Title: Vice President
Declaration of Trust