Exhibit 3.64
TRUST AGREEMENT
OF
TXI OPERATING TRUST
This TRUST AGREEMENT is made as of this 29th day of May, 1996, by and among
TXI Texas, Inc., a Delaware corporation, as Settlor, and James R. McCraw,
Richard M. Fowler, Robert C. Moore, and Delaware Trust Capital Management, a
Delaware corporation, as Trustees.
RECITALS
WHEREAS, the Settlor desires to establish a business trust under and in
accordance with Chapter 38 of Title 12 of the Delaware Code, Part V, (S)(S)3801
et seq. (the "Delaware Business Trust Act"), for the purpose or purposes of
engaging in any lawful act or activity for which business trusts may be
organized under and in accordance with the provisions of Delaware Business Trust
Act; and
WHEREAS, the beneficial interest in the assets of such trust shall be held
initially by TXI Texas, Inc., as Beneficiary; and
WHEREAS, the Managing Trustees are willing to undertake the provision of
such services and such other lawful business purposes on the terms and
conditions set forth herein.
NOW, THEREFORE, the Settlor hereby expressly declares that there is created
a business trust which exists subject to the Delaware Business Trust Act, and
the Settlor hereby transfers and delivers unto the Managing Trustees of said
business trust certain property, together with the right, title, and interest in
and to the same, to have and hold said property, together with any additions
thereto, accumulations thereon, and changes therein, in trust under and in
accordance with the Delaware Business Trust Act as herein set forth:
FURTHER, the Managing Trustees hereby declare (i) that all property, real
or personal or mixed, tangible or intangible, or of any other description now
held or hereafter acquired by or transferred to them in their capacity as
Managing Trustees hereunder, together with the income and profits therefrom and
the proceeds thereof, shall be held by them in trust and shall be received,
managed, and disposed of by them for the benefit of the Beneficiary hereunder
subject to the terms and conditions provided herein; and (ii) that all
activities of the Trust shall be conducted in accordance with the provisions
hereof and the Delaware Business Trust Act, to wit:
ARTICLE I
NAME OF TRUST, DEFINITIONS, AND CONSTRUCTION
1.1 Name. The Trust established under this Agreement shall be known as the
TXI OPERATING TRUST. So far as may be practicable, legal, and convenient, the
affairs of the Trust shall be conducted and transacted under that name, which
name shall not refer, individually or personally, to the Trustees, to the
Beneficiary, or to any officers, employees, or agents of the Trust.
1.2 Definitions. Whenever used in this Agreement, unless the context
otherwise requires, the terms defined below shall have the respective meanings:
(a) Agreement. "Agreement" shall mean this Trust Agreement of TXI
Operating Trust and all amendments or modifications hereof.
(b) Beneficial Interest. "Beneficial Interest" shall mean the
beneficial interest of the Beneficiary in the Trust as described in Section
6.1.
(c) Beneficiary. "Beneficiary" initially shall mean TXI Texas, Inc., a
Delaware corporation, and any successors or assigns thereof acquiring the
Beneficial Interest in accordance with the provisions hereof. If, at any
time, more than one Person shall have a Beneficial Interest in the Trust
(as a result of a transfer of a portion of the Beneficial Interest as
permitted by Section 6.4 or otherwise), the term "Beneficiary" shall refer
to all such Persons holding a Beneficial Interest in the Trust.
(d) By-Laws. "By-Laws" shall mean the By-Laws referred to in Section
4.4, if adopted.
(e) Certificate. "Certificate" shall mean the Certificate of Trust
authorized to be filed pursuant to Section 4.3(z) hereof, as required to be
filed pursuant to Section 3810 of the Delaware Business Trust Act and
Section 9.3 hereof.
(f) Delaware Business Trust Act. "Delaware Business Trust Act" shall
have the meaning assigned to that term in the Recitals hereof, as the same
may be amended from time to time.
(g) Managing Trustees. Managing Trustees shall mean James R. McCraw,
Richard M. Fowler, and Robert C. Moore in their capacity as Managing
Trustees under this Agreement or any successor thereto.
(h) Notice of Transfer. "Notice of Transfer" shall mean the Notice of
Transfer referred to in Section 6.4 and in substantially the form set forth
in Exhibit A hereto.
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(i) Person. "Person" shall include individuals, corporations, limited
partnerships, general partnerships, limited liability companies, joint
stock companies or associations, joint ventures, associations, consortia,
companies, trusts, banks, trust companies, land trusts, common law trusts,
business trusts, or other entities, and governments and agencies and
political subdivisions thereof.
(j) Securities. "Securities" shall mean (i) any stock, shares, voting
trust certificates, bonds, debentures, notes, or other evidences of
indebtedness or ownership, (ii) in general any instruments commonly known
as securities, or (iii) any certificates of interest, shares, or
participation in temporary or interim certificates for, receipts for,
guarantees of, or warrants, options or rights to subscribe, in any of the
foregoing.
(k) Settlor. "Settlor" shall mean TXI Texas, Inc., a Delaware
corporation.
(l) Statutory Trustee. "Statutory Trustee" shall mean Delaware Trust
Capital Management, a Delaware corporation, not in its individual capacity,
but solely in its capacity as Statutory Trustee for the purpose of
qualifying the Trust as a Delaware business trust, and any successor
Statutory Trustee hereunder.
(m) Trust. "Trust" shall mean TXI OPERATING TRUST, the business trust
established hereunder.
(n) Trustees. "Trustees" shall mean, as of any particular time, those
Persons who serve and hold office as Managing Trustees or the Statutory
Trustee hereunder at such time, whether they be the Trustees named herein
or additional or successor Trustees. "Trustees" shall not include the
officers, representatives, or agents of the Trust or the Beneficiary;
provided, however, that nothing herein shall be deemed to preclude the
Trustees from also serving as officers, representatives, or agents of the
Trust, the Beneficiary, Texas Industries Holdings, Inc., a Delaware
corporation, TXI Texas, Inc., a Delaware corporation, Texas Industries,
Inc., a Delaware corporation, Texas Industries Trust or TXI Operations,
L.P.
(o) Trust Estate. "Trust Estate" shall mean, as of any particular
time, any and all property, real or personal or otherwise, tangible or
intangible, transferred, conveyed, or paid to the Trust or to the Trustees
as Trustees, and all rents, income, profits and gains therefrom, together
with the proceeds from the sale or other disposition thereof, which at such
time are owned or held by the Trust or the Trustees.
1.3 Construction. In this Agreement and in any amendment hereto, references
to this Agreement and to "herein," "hereof" and "hereunder" shall be deemed to
refer to this Agreement as a whole as the same may be amended. References to the
masculine
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gender shall include the feminine and neuter genders. Words in the singular
number include the plural, and in the plural number include the singular.
ARTICLE II
PURPOSE AND NATURE OF TRUST
2.1 Purpose of Trust. The purpose of the Trust is (i) to engage in any
lawful acts or activities, as the Managing Trustees may determine from time to
time, for which business trusts may be organized under the laws of the State of
Delaware, (ii) in general to carry on any other acts in connection with or
arising out of the foregoing, (iii) to have and exercise all powers that are
available to business trusts formed under the laws of the State of Delaware, and
(iv) to do any or all of the things herein set forth to the same extent as
natural persons.
2.2 Nature of Trust. The Trust is a business trust of the type referred to
in Section 3801 (a) of the Delaware Business Trust Act, and without limiting the
provisions hereof, the Trust may have and exercise all powers which may be
exercised by such a trust. The Trust is not intended to be, shall not be deemed
to be, and shall not be treated as, a general partnership, limited partnership,
joint venture, corporation, or joint stock company or association for purposes
of Delaware law or the laws of any other state of the United States. Neither the
Trustees nor the Beneficiary shall be deemed to be, or be treated, in any way as
partners or joint venturers or as agents of one another, or liable or
responsible as such hereunder. The relationship of the Beneficiary to the
Trustees shall be solely that of the beneficiary of the Trust, and its rights
shall be limited to those conferred upon it by this Agreement and, to the extent
permissible under the Delaware Business Trust Act and not inconsistent herewith,
the Delaware Business Trust Act.
ARTICLE III
TRUSTEES
3.1 Number, Term of Office, Qualifications of Managing Trustees. There
shall be no fewer than three (3) nor more than nine (9) Managing Trustees. The
initial Managing Trustees shall be the signatories hereto as Managing Trustees.
The Managing Trustees, from time to time, may fix the number of Trustees within
the range established in this Agreement, and may change the range in the
authorized number of Trustees; provided, however, that the lower end of the
authorized range shall not be fewer than three. Subject to the provisions of
Section 3.3, each Managing Trustee shall hold office for a term of one year or
until the appointment and qualification of his successor. At each annual meeting
of the Beneficiary, the Beneficiary shall appoint successors to the Managing
Trustees, unless the number of Managing Trustees is then being reduced. Managing
Trustees may be reappointed without limit as to the number of times. The
Managing Trustees shall be individuals at least 21 years of age who are not
under legal disability. Unless otherwise required by law or by action of the
Managing Trustees, no
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Managing Trustee shall be required to give bond, surety, or security in any
jurisdiction for the performance of any duties or obligations hereunder. Under
no circumstances may the Beneficiary serve as a Managing Trustee. The Managing
Trustees in their capacity as Managing Trustees shall not be required to devote
their entire time to the business and affairs of the Trust.
3.2 Compensation and Other Remuneration of Managing Trustees. As
specifically prescribed from time to time by action of the Managing Trustees,
the Managing Trustees may be allowed to receive reasonable compensation for
their services as Managing Trustees. The Managing Trustees may also be allowed
to receive, directly or indirectly, remuneration for services rendered to the
Trust in any other capacity, including, without limitation, remuneration for
rendered services as an officer of or consultant to the Trust, or for legal,
accounting or other professional services rendered to the Trust, or otherwise.
The Managing Trustees shall be reimbursed for their reasonable expenses incurred
in connection with their services as Managing Trustees.
3.3 Resignation, Removal, and Death of Managing Trustees. A Managing
Trustee may resign at any time by giving written notice to the remaining
Managing Trustees at the principal place of business of the Trust. Such
resignation shall take effect on the date such notice is given or at any later
time specified in the notice without need for prior accounting. A Managing
Trustee may be removed at any time (i) with or without cause by the Beneficiary
and (ii) with cause by all remaining Managing Trustees. For purposes of the
preceding sentence, "cause" shall include, but shall not be limited to, physical
and/or mental inability, due to a condition or illness which is expected to be
of permanent or indefinite duration, to perform the duties of a Managing
Trustee. Upon the resignation or removal of any Managing Trustee, or his
otherwise ceasing to be a Managing Trustee, he (or his legal representative)
shall execute and deliver such documents as the remaining Managing Trustees
shall require for the conveyance of any trust property held in his name, shall
account to the remaining Trustees as they require for all property which he
holds as Managing Trustee, and shall thereupon be discharged as Managing
Trustee. Upon the incapacity, death, bankruptcy or dissolution of any Managing
Trustee, such person shall cease to be a Managing Trustee and the vacancy caused
by such death or incapacity shall be filled in accordance with Section 3.4.
3.4 Vacancies of Managing Trustees. If any or all of the Managing Trustees
cease to be Managing Trustees hereunder, whether by reason of resignation,
removal, incapacity, death, bankruptcy, dissolution, or otherwise, such event
shall not terminate the Trust or affect its continuity. Until vacancies are
filled, the remaining Managing Trustee or Managing Trustees (even though fewer
than three) may exercise the powers of the Managing Trustee or Managing Trustees
hereunder. Vacancies (including vacancies created by increases in the number of
Managing Trustees) may be filled for the unexpired term by the remaining
Managing Trustee or by a majority of the remaining Managing Trustees. If, at any
time, no Managing Trustees remain in office, successor Managing Trustees shall
be appointed by the Beneficiary as provided in Section 6.7.
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3.5 Successor and Additional Managing Trustees. The right, title, and
interest of the Managing Trustees in and to the Trust Estate shall vest
automatically in successor and additional Managing Trustees upon their
qualification, and they shall thereupon have all the rights and obligations of
Managing Trustees hereunder. Such right, title, and interest shall vest in the
Managing Trustees whether or not the appropriate transfer documents have been
executed and delivered pursuant to Section 3.3 or otherwise. Appropriate written
evidence of the appointment and qualification of successor and additional
Managing Trustees shall be kept with the records of the Trust. Upon the
resignation, removal, or death of a Managing Trustee, such Managing Trustee (and
in the event of his death, his estate) shall automatically cease to have any
right, title, or interest in or to any of the Trust property, and the right,
title, and interest of such Managing Trustee in and to the Trust Estate shall
vest automatically in the remaining Trustees without any further act.
3.6 Actions by Managing Trustees and Consents. The Managing Trustees may
act with or without a meeting. A quorum for all meetings of the Managing
Trustees shall be a majority of the Managing Trustees. Unless specifically
provided otherwise in this Agreement, any action of the Managing Trustees may be
taken at a meeting by vote of a majority of the Managing Trustees present at
such meeting if a quorum is present, or without a meeting by written consent of
all the Managing Trustees. Any agreement, deed, mortgage, lease, or other
instrument or writing executed by any one or more of the Managing Trustees or by
any one or more authorized Persons shall be valid and binding upon the Managing
Trustees and upon the Trust when authorized by action of the Managing Trustees
or as provided in the By-Laws, if the same are adopted. Managing Trustees and
members of any committee of the Managing Trustees may conduct meetings by
conference telephone call or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
3.7 Meetings of Managing Trustees; Notices and Waiver of Notice. An annual
meeting of the Managing Trustees shall be held immediately after the annual
meeting of the Beneficiary. Regular meetings, if any, shall be held at such
other times as shall be fixed by the Trustees. No notice shall be required of an
annual or a regular meeting of Managing Trustees. Special meetings of the
Managing Trustees shall be called by the Chairman or the President upon the
request of any two Managing Trustees and may be called by the Chairman or
President on his own motion, with such notice as the Managing Trustees or person
calling such meeting shall determine. Such notice, which need not state the
purpose of the meeting, shall be by oral, telegraphic, telephonic, or written
communication stating the time and place therefor. Notice of any special meeting
need not be given to any Managing Trustee entitled thereto who submits a written
and signed waiver of notice, either before or after the meeting, or who attends
the meeting without protesting the lack of notice prior to or at the
commencement of the meeting. Regular or special meetings of the Managing
Trustees may be held, within or without the State of Delaware, at such places as
shall be designated by the Managing Trustees. The Managing Trustees may adopt
such rules and regulations for their conduct and the
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management of the affairs of the Trust as they may deem proper and as are not
inconsistent with this Agreement.
3.8 Committees. The Managing Trustees may appoint from among their number
an executive committee and such other standing committees, including, without
limitation, audit, nominating and compensation committees, or such other special
committees as the Managing Trustees determine. Each standing committee shall
consist of two or more members. Each committee shall have such powers, duties,
and obligations as the Managing Trustees may deem necessary and appropriate.
Without limiting the generality of the foregoing, the executive committee shall
have the power to conduct the business and affairs of the Trust during periods
between meetings of the Managing Trustees. The executive committee and other
committees shall report their activities periodically to the Managing Trustees.
3.9 Ownership of Trust Assets. Legal title to the Trust Estate subject from
time to time to this Agreement shall be transferred to, vested in, and held by
the Managing Trustees as Trustees of this Trust; provided, however, that the
Managing Trustees shall have the power to cause legal title to any property of
the Trust to be held by and/or in the name of one or more of the Managing
Trustees, or any other Person as nominee, on such terms, in such manner, and
with such powers as the Managing Trustees may determine; provided, further, that
the Managing Trustees shall have the power to cause any property of the Trust to
be held in the custody of any bank and that such bank may hold the property of
the Trust in the name of any nominee, partnership, or nontaxable corporation.
3.10 Statutory Trustee. The Statutory Trustee is hereby appointed as a
Trustee of the Trust effective as of the date hereof, solely to serve as
resident trustee as required by Section 3807(a) of the Delaware Business Trust
Act and to perform the functions specifically required of a resident trustee
thereunder. The Statutory Trustee shall have no other power or duties with
respect to the Trust. The Statutory Trustee shall receive as compensation for
its services hereunder those fees described on Exhibit A hereto (and
incorporated herein by reference) and the Statutory Trustee shall be entitled to
be reimbursed by Settlor for its other reasonable expenses hereunder, including
the reasonable compensation, expenses and disbursements of such agents,
representatives experts and counsel as such Statutory Trustee may employ in
connection with the exercise and performance of its rights and duties hereunder.
The Statutory Trustee shall at all times be a corporation or other Person
satisfying the provisions of Section 3807(a) of the Delaware Business Trust Act.
If at any time the Statutory Trustee shall cease to be eligible in
accordance with the provisions of this Section 3.10 and shall fail to resign
after written request therefore by the Managing Trustees or if at any time the
Statutory Trustee shall be legally unable to act or shall be adjudged bankrupt
or insolvent or a receiver of the Statutory Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Statutory
Trustee or of its property or affairs for the purpose of rehabilitation,
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conservation or liquidation, then the Managing Trustees may remove the Statutory
Trustee. If the Managing Trustees remove the Statutory Trustee under the
authority of the immediately preceding sentence, the Managing Trustees shall
promptly appoint a successor Statutory Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Statutory Trustee so removed (together with payment of all fees owing to the
outgoing Statutory Trustee) and one copy shall be delivered to the successor
Statutory Trustee.
Any successor Statutory Trustee appointed pursuant to this Section 3.10
shall execute, acknowledge and deliver to the Managing Trustees and to its
predecessor Statutory Trustee an instrument accepting such appointment under
this Agreement, and thereupon the resignation or removal of the predecessor
Statutory Trustee shall become effective and such successor Statutory Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this
agreement, with like effect as if originally named as Statutory Trustee. The
predecessor Statutory Trustee shall upon payment of its fees and expenses
deliver to the successor Statutory Trustee all documents and statements and
monies held by it under this Agreement; and the Managing Trustees and the
predecessor Statutory Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Statutory Trustee all such rights, powers,
duties, and obligations.
ARTICLE IV
MANAGING TRUSTEES' POWERS
4.1 Power and Authority of Managing Trustees. Subject only to the
provisions of this Agreement, the Managing Trustees shall have full, absolute,
and exclusive power, control, and authority over the Trust Estate and over the
business and affairs of the Trust to the same extent as if the Managing Trustees
were the sole owners thereof in their own right, free from any power of control
on the part of the Beneficiary. The Managing Trustees shall also have full,
absolute, and exclusive power to do all such acts and things as in their sole
judgment and discretion are necessary or incidental to, or desirable for, the
carrying out of any of the purposes of the Trust or conducting the business of
the Trust. Any determination made in good faith by the Managing Trustees of the
purposes of the Trust or the existence of any power or authority hereunder shall
be conclusive. In construing the provisions of this Agreement, the presumption
shall be in favor of the grant of powers and authority to the Managing Trustees.
The enumeration of any specific power or authority herein shall not be construed
as limiting the general powers or authority or any other specified power or
authority conferred upon the Managing Trustees hereunder.
4.2 General Powers and Authority. Subject only to the provisions of this
Agreement, and in addition to any powers and authority conferred by this
Agreement or by virtue of any statute or law, and without any action or consent
by the Beneficiary
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(except as expressly required by this Agreement), the Managing Trustees shall
have and may (but are not required to) exercise, at any time and from time to
time, the following powers and authorities as they may deem proper:
(a) To receive title to, hold, buy, sell, exchange, transfer, and
convey real and personal property for the use of the Trust.
(b) To take, receive, invest, or disburse the receipts, earnings,
rents, profits, or returns of the Trust.
(c) To carry on and conduct any lawful business designated in this
Agreement (including without limitation any business associated with the
purpose of the Trust as set forth in or established by the Managing
Trustees pursuant to Section 2.1), and generally to do any lawful act in
relation to the Trust Estate that any individual owning the same absolutely
might do.
(d) To cause the Trust to merge with another business trust,
association, corporation, partnership, or other Person, to divide, or to
engage in any fundamental or other transaction (including, without
limitation, dissolution) contemplated by this Agreement.
4.3 Specific Powers and Authority. Without limiting the generality of the
powers and authority set forth in Section 4.2 (and subject to the qualifications
set forth above), the specific powers of the Managing Trustees shall include the
following:
(a) For such consideration as the Managing Trustees deem proper, to
purchase or otherwise acquire for cash or other property and hold for
investment real or personal property of any kind, tangible or intangible,
in entirety or in participation, all without regard to whether any such
property is authorized by law for the investment of trust funds, and to
possess and exercise all the rights, powers, and privileges appertaining to
the ownership of the Trust Estate with respect thereto.
(b) To sell, rent, lease, hire, exchange, release, partition, assign,
mortgage, pledge, hypothecate, grant security interests in, encumber,
negotiate, convey, transfer, or otherwise dispose of or grant interests in
all or any portion of the Trust Estate by deeds, financing statements,
security agreements and other instruments, trust deeds, assignments, bills
of sale, transfers, leases, or mortgages, for any of such purposes.
(c) To enter into leases, contracts, obligations, and other agreements
for a term which may extend beyond the term of office of the Managing
Trustees.
(d) To borrow money and give negotiable or nonnegotiable instruments
therefor; to guarantee, indemnify, or act as surety with respect to payment
or
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performance of obligations of third parties; to enter into other
obligations on behalf of the Trust; and to assign, convey, transfer,
mortgage, subordinate, pledge, grant security interests in, encumber, or
hypothecate the Trust Estate to secure any of the foregoing.
(e) To lend money, whether secured or unsecured, to any Person.
(f) To create reserve funds for any purpose.
(g) To incur and pay out of the Trust Estate any charges or expenses,
and disburse any funds of the Trust, which charges, expenses, or
disbursements are, in the opinion of the Managing Trustees, necessary or
incidental to or desirable for the carrying out of any of the purposes of
the Trust or conducting the business of the Trust, including, without
limitation, fees payable to the Statutory Trustee, taxes and other
governmental levies, charges, and assessments, of whatever kind or nature,
imposed upon or against the Managing Trustees in connection with the Trust
or the Trust Estate or upon or against the Trust Estate or any part
thereof.
(h) To deposit funds of the Trust in or with banks, trust companies,
savings and loan associations, money market organizations, and other
depositories or issuers of depository-type accounts, whether such deposits
will draw interest or be insured, the same to be subject to withdrawal or
redemption on such terms and in such manner and by such Person or Persons
(including any one or more Managing Trustees, officers, agents, or
representatives of the Trust) as the Managing Trustees may determine.
(i) To possess and exercise all the rights, powers, and privileges
appertaining to the ownership of all or any mortgages or Securities issued
or created by, or interests in, any Person, forming part of the Trust
Estate, to the same extent that an individual might, which may include the
exercise of discretionary powers; and, without limiting the generality of
the foregoing, to vote or give consent, request or notice, or waive any
notice, either in person or by proxy or power of attorney, with or without
power of substitution, to one or more Persons, for meetings or action
generally or for any particular meeting or action.
(j) To enter into joint ventures, general or limited partnerships,
limited liability companies and any other lawful combinations or
associations.
(k) To elect or appoint officers of the Trust (which shall include a
Chairman, who will be a Managing Trustee, and a President, a Treasurer, and
a Secretary, and which may include one or more Vice Presidents and other
officers as the Managing Trustees may determine, and none of whom needs be
a Managing Trustee), who may be removed or discharged at the discretion of
the Managing Trustees, which officers shall have such powers and duties,
and shall serve such terms, as may be prescribed by the Managing Trustees
or in the By-Laws of the
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Trust, if adopted; to engage or employ any persons as agents,
representatives, employees, or independent contractors in one or more
capacities, in connection with the management of the Trust's affairs or
otherwise, and to pay compensation from the Trust for services to such
Persons in as many capacities as such Person may be so engaged or employed,
notwithstanding that any such Person is a Managing Trustee or officer of
the Trust or an affiliate thereof; and, except as prohibited by law, to
delegate any of the powers and duties of the Managing Trustees to any one
or more Managing Trustees, agents, representatives, officers, employees,
independent contractors, or other Persons.
(l) To collect, sue for, and receive all sums of money coming due to
the Trust, and to engage in, intervene in, prosecute, join, defend,
compound, compromise, abandon, or adjust, by arbitration or otherwise, any
actions, suits, proceedings, disputes, claims, controversies, demands, or
other litigation relating to the Trust, the Trust Estate, or the Trust's
affairs; to enter into agreements relating thereto whether any suit is
commenced or claim accrued or asserted; and to enter into agreements
regarding arbitration, adjudication or settlement of any controversy in
advance thereof.
(m) To renew, modify, release, compromise, extend, consolidate, or
cancel, in whole or in part, any obligation to or of the Trust.
(n) To purchase and pay for out of the Trust Estate insurance
contracts and policies insuring the Trust Estate against any and all risks
and insuring the Trust, the Managing Trustees, the Statutory Trustee, the
Beneficiary, the officers of the Trust, such agents, representatives,
employees, or independent contractors for the Trust, or any or all of them,
against any and all claims and liabilities of every nature asserted by any
person arising by reason of any action alleged to have been taken or
omitted by the Trust or by the Managing Trustees, the Statutory Trustee,
the Beneficiary, the officers of the Trust, or such agents,
representatives, employees, or independent contractors for the Trust.
(o) To cause legal title to any of the Trust Estate to be held by or
in the name of the Managing Trustees or, except as prohibited by law, by or
in the name of the Trust or one or more of the Managing Trustees or any
other Person as the Managing Trustees may determine, on such terms, in such
manner, and with such powers as the Trustees may determine, and with or
without disclosure that the Trust or Managing Trustees are interested
therein.
(p) To adopt a fiscal year and accounting method for the Trust; from
time to time to change such fiscal year and accounting method; and to
engage a firm of independent public accountants to audit the financial
records of the Trust.
(q) To adopt and use a seal (but the use of a seal shall not be
required for the execution of instruments or obligations of the Trust).
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(r) To declare and pay distributions as provided in Section 6.5.
(s) To file any and all documents and take any and all such other
action as the Managing Trustees in their sole judgment may deem necessary
in order that the Trust may lawfully conduct its business in any
jurisdiction.
(t) To participate in any reorganization, readjustment, consolidation,
merger, dissolution, sale or purchase of assets, lease, or similar
proceedings of any corporation, partnership, or other organization; to
delegate discretionary powers to any reorganization, protective, or similar
committee in connection therewith; and to pay assessments and other
expenses in connection therewith.
(u) To cause to be organized or assist in organizing any Person, which
may or may not be a subsidiary or affiliate of the Trust, under the laws of
any jurisdiction to acquire the Trust Estate or any part or parts thereof
or to carry on any business in which the Trust shall, directly or
indirectly, have any interest; subject to the provisions of this Agreement,
to cause the Trust to merge with such Person or any existing Person or to
sell, rent, lease, hire, convey, negotiate, assign, exchange, or transfer
the Trust Estate or any part or parts thereof to or with any such Person or
any existing Person in exchange for the Securities thereof or otherwise;
and to lend money to, subscribe for the Securities of, and enter into any
contracts with, any such Person in which the Trust holds or is about to
acquire Securities or any other interest.
(v) To decide whether, at any time or from time to time, to cause the
Trust to maintain its status or to cease to maintain its status as a
business trust, and to take all action deemed by the Managing Trustees
appropriate in connection with maintaining or ceasing to maintain such
status.
(w) To make any indemnification payment authorized by this Agreement.
(x) To do all other such acts and things as are incident to the
foregoing; to exercise all powers which are necessary or useful to carry on
the business of the Trust; to promote any of the purposes for which the
Trust is formed; and to carry out the provisions of this Agreement.
(y) To guarantee the debt of Texas Industries, Inc.
(z) To cause to be filed the Certificate with the Delaware Secretary
of State including any amendment or cancellation of such Certificate.
4.4 By-Laws. The Managing Trustees may, but are not required to, make,
adopt, amend, or repeal By-Laws containing provisions relating to the business
of the Trust, the conduct of its affairs, its rights or powers of the
Beneficiary, of the Managing Trustees, or of the officers of the Trust not
inconsistent with law or with this Agreement;
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provided however, that no provision of such By-Laws may impose any duty,
obligation or responsibility on the Statutory Trustee not otherwise set forth in
this Agreement without the prior written consent of the Statutory Trustee. Such
By-Laws may provide for the appointment by the Chairman and President of
assistant officers or of agents of the Trust in addition to those provided for
in the foregoing Section 4.3(k), subject however to the right of the Managing
Trustees to remove or discharge such officers or agents.
4.5 Trustees Acting Only In Fiduciary Capacity and Other Matters.
(a) Each and every power, authority, and discretion given to or vested
in the Trustees by or pursuant to the provisions of this Agreement or by
law shall be exercised by the Trustees only in a fiduciary capacity.
(b) The Managing Trustees shall have no duty to dispose of the general
partnership interest in TXI Operations, L.P. even though such investment
may not yield as high a rate of return as other available investments and
even though the retention of such limited partnership interest may raise
questions of prudence. The Managing Trustees shall have no responsibility
for any loss that may result from acting in accordance with the immediately
preceding sentence and no action or failure to act by the Trustees pursuant
to the immediately preceding sentence shall be subject to question by the
Beneficiary.
(c) The Trustees and the Trust shall not be subject to Section 3540 of
the Delaware Code Annotated, Title 12, Chapter 35.
ARTICLE V
OFFICERS, EMPLOYEES, AND OTHER AGENTS
5.1 Employment of Officers, Employees, and Other Agents. The Managing
Trustees are responsible for the general policies of the Trust and for such
general supervision of the business of the Trust conducted by all officers,
agents, employees, advisers, managers, or independent contractors of the Trust
as may be necessary to insure that such business conforms to the provisions of
this Agreement. However, the Managing Trustees are not, and shall not be,
required personally to conduct the business of the Trust. Consistent with the
powers described in Section 4.3(k), the Managing Trustees shall have the power
to appoint, employ, or contract with any Person (including one or more of
themselves, or any corporation, partnership, or trust in which one of more of
them may be directors, officers, stockholders, partners, or trustees) as the
Managing Trustees may deem necessary or proper for the transaction of the
business of the Trust. For such purpose, the Managing Trustees may grant or
delegate such authority to any such Person as the Managing Trustees may in their
sole discretion deem necessary or desirable without regard to whether such
authority is normally granted or delegated by trustees.
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5.2 Compensation and Powers. The Managing Trustees shall have the power to
determine the terms and compensation of any Person whom they may employ or with
whom they may contract other than the Statutory Trustee, whose compensation is
as set forth in Section 3.10 hereof. The Managing Trustees may exercise broad
discretion in allowing officers, employees, or other agents to administer and
regulate the operations of the Trust, to act as agent for the Trust, to execute
documents on behalf of the Managing Trustees, and to make executive decisions
which conform to general policies and principles previously established by the
Managing Trustees and not inconsistent with this Agreement.
ARTICLE VI
BENEFICIARY AND BENEFICIAL INTEREST IN TRUST
6.1 Beneficial Interest in Trust. All beneficial interest in the Trust
shall be vested in the Beneficiary and shall be referred to herein as the
Beneficial Interest of the Beneficiary. The Beneficial Interest shall not be
represented by shares or other certificates.
6.2 Legal Ownership of Trust Estate. Except to the extent provided in
Sections 3.9 and 5.1. The legal ownership of the Trust Estate and the right to
conduct the business of the Trust are vested exclusively in the Managing
Trustees. The Beneficiary shall have no interest therein, other than the
Beneficial Interest in the Trust conferred on it by this Agreement. The
Beneficiary shall have no right to compel any partition, division, dividend, or
distribution of the Trust or any of the Trust Estate, nor may it be called upon
to share or assume any losses of the Trust or suffer an assessment of any kind
by virtue of its Beneficial Interest.
6.3 Beneficial Interest Deemed Personal Property. The Beneficial Interest
of the Beneficiary shall be personal property and shall confer upon the
Beneficiary only the interest and rights specifically set forth in this
Agreement. The death, dissolution, liquidation, insolvency, or incapacity of the
Beneficiary shall not dissolve or terminate the Trust, affect its continuity, or
give the legal representative of the Beneficiary any rights whatsoever, whether
against or in respect of the Managing Trustees or the Trust Estate or otherwise.
6.4 Transfer of Beneficial Interest by Beneficiary. The Beneficiary may at
any time transfer all or from time to time transfer a portion of its Beneficial
Interest in the Trust to any Person. Any such transfer shall be effective upon
receipt by the Managing Trustees of a Notice of Transfer, which Notice shall, in
substantially the form of Exhibit B hereto, (a) specify the name and address of
the transferee and the percentage of the Beneficial Interest in the Trust being
transferred to such transferee and (b) be signed by the Beneficiary, the
transferee, and at least one of the Managing Trustees. The Managing Trustees
shall maintain or cause to be maintained in the records of the Trust all Notices
of Transfer, which Notices shall be conclusive evidence of the transfer of all
or a portion,
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as the case may be, of the Beneficial Interest. By signing the Notice of
Transfer, the transferee of all or any portion of the Beneficial Interest shall
have agreed to and shall be bound by the terms and conditions of this Agreement,
as provided in Section 9.7.
6.5 Distributions to the Beneficiary. The Managing Trustees may from time
to time declare and pay to the Beneficiary such distributions in cash or other
property, out of current or accumulated income, capital, capital gains,
principal, surplus, proceeds from the increase or refinancing of Trust
obligations, from the repayment of loans made by the Trust, from the sale of
portions of the Trust Estate, or from any other source as the Managing Trustees
in their discretion shall determine. The Beneficiary shall have no right to any
distribution unless and until declared by the Managing Trustees.
6.6 Meetings of the Beneficiary. The Managing Trustees shall cause to be
called and held an annual meeting of the Beneficiary at such time and such place
as they may determine at which Managing Trustees shall be appointed and any
other proper business may be conducted. The annual meeting of the Beneficiary
shall be held on such date and upon such notice as the Managing Trustees shall
determine. Special meetings of the Beneficiary may be called by a majority of
the Managing Trustees or the Chairman or the President of the Trust, and shall
be called by the Managing Trustees or any officer of the Trust upon the written
request of the Beneficiary (or, if more than one Person holds a Beneficial
Interest, upon the written request of one or more Persons collectively holding
not less than 75 percent of the Beneficial Interest in the Trust), which written
request shall state the purpose(s) of the meeting so requested. The Trust shall
provide the Beneficiary due notice (either in person or by mail) of a special
meeting and the purpose of such meeting, including the date, time, and place of
such meeting, as determined by the Managing Trustees. If there shall be no
Managing Trustees, a special meeting of the Beneficiary shall be held promptly
for the appointment of successor Managing Trustees. The call and notice of any
special meeting shall state the purpose of the meeting.
6.7 Actions by the Beneficiary and Consents. The presence of the
Beneficiary (or, if more than one Person holds a Beneficial Interest, the
presence of one or more Persons collectively holding at least 51 percent of the
Beneficial Interest in the Trust) at any meeting shall constitute a quorum at
such meeting. Whenever the Beneficiary is required or permitted to take any
action, such action may be taken, except as otherwise provided by this Agreement
or required by law, by the vote of the Beneficiary cast at a meeting of the
Beneficiary at which a quorum is present (or, if more than one Person holds a
Beneficial Interest, by the vote of one or more Persons collectively holding at
least 51 percent of the Beneficial Interest in the Trust present at a meeting of
the Beneficiary at which a quorum is present), or without a meeting by written
consent setting forth the action so taken signed by the Beneficiary (or, if more
than one Person holds a Beneficial Interest, signed by each such Person).
Notwithstanding any provision of this Agreement to the contrary, no vote or
consent of the Beneficiary shall be required to approve the sale, exchange, or
other disposition by the Managing Trustees of one or more assets of
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the Trust, or the pledging, hypothecating, granting security interests in,
mortgaging, encumbering, or leasing of all or any of the Trust Estate.
6.8 Notice to the Beneficiary; Waiver of Notice. Any notice of meeting or
other notice, communication, or report to the Beneficiary shall be deemed duly
delivered to the Beneficiary when such notice, communication, or report is
deposited, with postage thereon prepaid, in the United States mail, addressed to
the Beneficiary at its address as appears on the records of the Trust or is
delivered in person to the Beneficiary. Notice of any annual meeting of the
Beneficiary or any special meeting of the Beneficiary need not be given to the
Beneficiary if it submits a written and signed waiver of notice, either before
or after the meeting, or if it attends the meeting without protesting the lack
of notice prior to or at the commencement of the meeting.
6.9 Inspection by the Beneficiary. The Beneficiary shall have the same
right to inspect the records of the Trust as has a shareholder in a Delaware
business corporation.
ARTICLE VII
LIABILITY OF TRUSTEES, THE BENEFICIARY
AND OFFICERS, AND OTHER MATTERS
7.1 Limitation of Liability of Trustees and Officers. No Trustee or officer
of the Trust shall be liable to the Trust or to any Trustee or the Beneficiary
for any act or omission whether his or its own or that of any other Trustee or
officer of the Trust or of the Beneficiary or any agent of the Trust, nor shall
any such Trustee be held to any personal liability whatsoever in tort, contract,
or otherwise in connection with the affairs of this Trust, except only that
arising from his or its own bad faith, willful misfeasance, gross negligence, or
reckless disregard of his or its duties.
7.2 Limitation of Liability of the Beneficiary, Trustees, and Officers;
Indemnification of Beneficiary. The Trustees and officers in incurring any
debts, liabilities, or obligations, or in taking or omitting any other actions
for or in connection with the Trust are and shall be deemed to be, acting as
Trustees or officers of the Trust and not in their own individual capacities.
Except to the extent provided in Section 7.1, no Trustee or officer of the Trust
or the Beneficiary shall be liable for any debt, claim, demand, judgment,
decree, liability, or obligation of any kind of, against, or with respect to the
Trust arising out of any action taken or omitted for or on behalf of the Trust.
The Trust shall be solely liable therefor and resort shall be had solely to the
Trust Estate for the payment or performance thereof. The Beneficiary shall be
entitled to indemnification from the Trust Estate if, contrary to the provisions
hereof, the Beneficiary shall be held to any such personal liability.
7.3 Express Exculpatory Clauses in Instruments. To the extent practicable,
the Managing Trustees shall make reasonable efforts to cause any written
instrument creating an obligation of the Trust to include a reference to this
Agreement, and to provide that
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neither the Beneficiary nor the Trustees or the officers of the Trust shall be
liable thereunder and that the other parties to such instrument shall look
solely to the Trust Estate for the payment of any claim thereunder or for the
performance thereof; provided, however, that the omission of such provision from
any such instrument shall not render the Beneficiary or any Trustee or officer
of the Trust liable nor shall the Trustees or any officer of the Trust be liable
to anyone for such omission.
7.4 Indemnification and Reimbursement of Trustees and Officers.
(a) Right to Indemnification. Each Trustee and officer of the Trust
shall be entitled as of right to be indemnified by the Trust against any
expenses and liabilities paid or incurred by such Person in connection with
any actual or threatened claim, action, suit, or proceeding, civil,
criminal, administrative, investigative or other, whether brought by or in
the right of the Trust or otherwise, in which he or it may be involved in
any manner as a party, witness, or otherwise, or is threatened to be made
so involved, by reason of such Person being or having been a Trustee or
officer of the Trust or by reason of the fact that such Person is or was
serving at the request of the Trustees as a director, officer, employee,
fiduciary, or other representative of another Person (such claim, action,
suit, or proceeding hereinafter being referred to as an "Action");
provided, however, that no such right of indemnification shall exist with
respect to any Action initiated by an indemnitee (as hereinafter defined)
other than the Statutory Trustee against the Trust (an "Indemnitee
Action"), except as provided in the last sentence of this subsection (a).
Persons who are not Trustees or officers of the Trust may be similarly
indemnified in respect of service to the Trust or to another Person on
behalf of the Trust at the request of the Trustees to the extent the
Trustees at any time denominate any of such Persons as entitled to the
benefits of this Section 7.4.
As used in this Section 7.4, the following terms shall have the
following meanings:
(i) "indemnitee" shall include each Trustee and officer of the
Trust and each other Person denominated by the Trustees as entitled to
the benefits of this Section 7.4.
(ii) "expenses" shall mean all expenses actually and reasonably
incurred, including fees and expenses of counsel selected by an
indemnitee.
(iii) "liabilities" shall mean amounts of judgments, excise
taxes, fines, penalties, and amounts paid in settlement.
An indemnitee other than the Statutory Trustee shall be entitled to be
indemnified pursuant to this subsection (a) for expenses incurred in
connection with any Indemnitee Action only (i) if the Indemnitee Action is
instituted under subsection
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(c) of this Section 7.4 and the indemnitee is successful in whole or in
part in such Indemnitee Action, (ii) if the indemnitee is successful in
whole or in part in another Indemnitee Action for which expenses are
claimed or (iii) if the indemnification for expenses is included in a
settlement of, or is awarded by a court in, such other Indemnitee Action.
(b) Right to Advancement of Expenses. Every indemnitee shall be
entitled as of right to have his expenses in defending any Action, or in
initiating and pursuing any Indemnitee Action for indemnity or advancement
of expenses under subsection (c) (or, in the case of the Statutory Trustee,
an Action under subsection (c)), paid in advance by the Trust prior to
final disposition of such Action or Indemnitee Action, provided that the
Trust receives a written undertaking by or on behalf of the indemnitee to
repay the amount advanced if it should ultimately be determined that the
indemnitee is not entitled to be indemnified for such expenses.
(c) Right of Indemnitee to Initiate Action. If a written claim under
subsection (a) or (b) is not paid in full by the Trust within thirty (30)
days after such claim has been received by the Trust, the indemnitee may at
any time thereafter initiate an Indemnitee Action (or in the case of the
Statutory Trustee, an Action) to recover the unpaid amount of the claim
and, if successful in whole or in part, in the case of any indemnitee other
than the Statutory Trustee, and without regard to such success provided
such action was initiated in good faith in the case of the Statutory
Trustee, the indemnitee shall also be entitled to be paid the expense of
prosecuting such Indemnitee Action (or in the case of the Statutory
Trustee, an Action). The only defense to an Indemnitee Action to recover on
a claim for indemnification under subsection (a) shall be that the
indemnitee's conduct was such that under Delaware law the Trust is
prohibited from indemnifying the indemnitee for the amount claimed, but the
burden of proving such defense shall be on the Trust. Neither the failure
of the Trust (including its Trustees, independent legal counsel, or the
Beneficiary) to have made a determination prior to the commencement of such
Indemnitee Action that indemnification of the indemnitee is proper in the
circumstances, nor an actual determination by the Trust (including its
Trustees, independent legal counsel, or the Beneficiary) that the
indemnitee's conduct was such that indemnification is prohibited by
Delaware law, shall be a defense to such Indemnitee Action or create a
presumption that the indemnitee's conduct was such that indemnification is
prohibited by Delaware law. The only defense to an Indemnitee Action to
recover on a claim for advancement of expenses under subsection (b) shall
be the indemnitee's failure to provide the undertaking required by
subsection (b).
(d) Insurance and Funding. The Trust may purchase and maintain
insurance to protect itself and any Person eligible to be indemnified
hereunder against any liability or expense asserted or incurred by such
Person in connection with any Action, whether or not the Trust would have
the power to indemnify such
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Person against such liability or expense by law or under the provisions of
this Section 7.4. The Trust may create a trust fund, grant a security
interest, cause a letter of credit to be issued or use other means (whether
or not similar to the foregoing) to ensure the payment of such sums as may
become necessary to effect indemnification as provided herein.
(e) Non-Exclusivity; Nature and Extent of Rights. The rights to
indemnification and advancement of expenses provided for in this Section
7.4 shall (i) not be deemed exclusive of any other rights, whether now
existing or hereafter created, to which any indemnitee may be entitled
under any agreement or the By-Laws (if adopted), vote of the Beneficiary or
Trustees or otherwise, (ii) be deemed to create contractual rights in favor
of each indemnitee who serves the Trust at any time while this Section 7.4
is in effect (and each such indemnitee shall be deemed to be so serving in
reliance on the provisions of this Section 7.4), and (iii) continue as to
each indemnitee who has ceased to have the status pursuant to which he was
entitled or was denominated as entitled to indemnification under this
Section 7.4 and shall also inure to the benefit of the heirs and legal
representatives of each indemnitee. Any amendment or repeal of this Section
7.4 or adoption of any By-Law or provision of this Agreement which has the
effect of limiting in any way the rights to indemnification or advancement
of expenses provided for in this Section 7.4 shall operate prospectively
only and shall not affect any action taken, or failure to act, by an
indemnitee prior to the adoption of such amendment, repeal, By-Law, or
other provision, nor shall any such changes affect the Statutory Trustee's
rights hereunder without its prior written consent.
(f) Partial Indemnity. If an indemnitee is entitled under any
provision of this Section 7.4 to indemnification by the Trust for some or a
portion of the expenses or liabilities paid or incurred by the indemnitee
in the preparation, investigation, defense, appeal, or settlement of any
Action or Indemnitee Action but not, however, for the total amount thereof,
the Trust shall indemnify the indemnitee for the portion of such expenses
or liabilities to which the indemnitee is entitled.
(g) Conflicts. Notwithstanding any provision of this Section 7.4 to
the contrary, in the event there is any conflict between the provisions of
this Section 7.4 and the provisions of the Articles of Incorporation for
Texas Industries, Inc. the provisions of such Articles of Incorporation
shall control; provided, however, the preceding provisions of this Section
7.4(g) shall have no effect on the rights and obligations of the Statutory
Trustee hereunder.
7.5 Persons Dealing With Trustees or Officers. Any act of the Trustees or
officers purporting to be done in their capacity as such shall, as to any
Persons dealing with such Trustees or officers, be conclusively deemed to be
within the purposes of this Trust and within the powers of the Trustees and
officers. No Person dealing with the Trustees or any of them, or with the
authorized officers, agents, or representatives of the Trust, shall be bound to
see to the application of any funds or property passing into their
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hands or control. The receipt of the Trustees or any of them, or of authorized
officers, agents, or representatives of the Trust, for moneys or other
consideration, shall be binding upon the Trust.
7.6 Reliance. The Trustees and officers may consult with counsel and the
advice or opinion of such counsel shall be full and complete personal protection
to all of the Trustees and officers in respect of any action taken or suffered
by them in good faith and in reliance on or in accordance with such advice or
opinion. In discharging their duties, Trustees and officers, when acting in good
faith, may rely upon financial statements of the Trust represented to them to be
correct by the President or the officer of the Trust having charge of its books
of account, or stated in a written report by an independent certified public
accountant fairly to present the financial position of the Trust. The Trustees
may rely, and shall be personally protected in acting, upon any instrument or
other document believed by them to be genuine.
ARTICLE VIII
DURATION, MERGER, DISSOLUTION, AND
AMENDMENT OF TRUST AGREEMENT
8.1 Duration of Trust. The period of duration of the Trust shall be
perpetual; provided, that the period of duration may be changed pursuant to an
appropriate amendment to this Agreement.
8.2 Merger or Consolidation. The Managing Trustees may, with the prior
approval of the Beneficiary, (a) merge or consolidate the Trust with and/or
into, or sell, convey, and transfer the Trust Estate to, any Person in exchange
for shares or Securities thereof, or beneficial interests therein, or other
consideration, and (if the Trust is not the surviving entity of such merger,
consolidation, or other transaction) the assumption by such transferee of the
liabilities of the Trust and (b) subject to Section 8.3, if the Trust is not the
surviving entity of such merger, consolidation, or other transaction, thereupon
terminate the Trust and distribute such shares, securities, beneficial
interests, or other consideration, to the Beneficiary pursuant to a plan or
other determination duly adopted by the Managing Trustees.
8.3 Dissolution. The Trust may be dissolved by the Managing Trustees, with
the prior approval of the Beneficiary, pursuant to a plan of dissolution or
liquidation adopted by the Managing Trustees and at the direction of the
Managing Trustees consented to by the Statutory Trustee. Such plan shall provide
that all debts of the Trust shall be satisfied and that the remaining property
of the Trust Estate shall be distributed to the Beneficiary (or, if more than
one Person holds a Beneficial Interest, to such Persons in accordance with their
percentage interest of the Beneficial Interest in the Trust); provided, however,
that such plan may include a provision for the creation of an escrow to cover
any debts or other obligations of the Trust which are not matured or are
contingent or otherwise not paid or subject to payment at the time such plan
becomes effective. At the time of any such dissolution or termination, the
Managing Trustees shall cause this
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Agreement to be amended in accordance with Section 8.4 to change the duration of
the Trust, as permitted by Section 8.1.
8.4 Amendment of Trust Agreement. This Agreement may be amended by the
Managing Trustees, but only with the prior approval of the Beneficiary;
provided, however, that the Managing Trustees may amend this Agreement without
the approval of the Beneficiary at any time to the extent deemed by the Managing
Trustees in good faith to be necessary to meet the requirements necessary to
maintain the Trust's status as a business trust under the laws of the State of
Delaware, but the Managing Trustees shall not be liable for failing so to do;
provided, further, that no amendment shall adversely affect the liability of the
Beneficiary or the Statutory Trustee without their respective approvals. Actions
by the Managing Trustees pursuant to Section 9.6(a) that result in amending this
Agreement also may be effected without the approval of the Beneficiary. The
Managing Trustees shall give the Statutory Trustee notice of any proposed
amendment ten (10) days prior to the effective date of such amendment and the
Statutory Trustee shall have the right to resign as Statutory Trustee during
such period and the Managing Trustees shall appoint a replacement Statutory
Trustee pursuant to Section 3.10. The Managing Trustees shall file an amended
Certificate to reflect such resignation and replacement.
ARTICLE IX
MISCELLANEOUS
9.1 Applicable Law. The Trust set forth in this Agreement is created under
and shall be governed by and construed and administered according to the laws of
the State of Delaware.
9.2 Situs of Trust. The Trust will maintain a registered office and agent
in the State of Delaware. The initial registered office and agent of the Trust
in the State of Delaware shall be the Statutory Trustee at 900 Market Street,
Wilmington, Delaware 19801. The Statutory Trustee's sole responsibility in
connection with serving as registered agent and providing a registered office
shall be to forward to such address as the Managing Trustees shall specify in
writing, from time to time, service of process and other communications received
by it and clearly designated as receivable by or in the name of the Trust. The
Trust may have such principal and other business offices or places of business
within or without the State of Delaware as the Managing Trustees may from time
to time determine. The Managing Trustees shall select and may from time to time
change the situs of the Trust within the United States.
9.3 Certificates. A certificate of trust as required pursuant to (S)3810 of
the Delaware Business Trust Act shall be filed for the Trust. Any person dealing
with the Trust may rely on a certificate by a Managing Trustee or an officer of
the Trust as to the terms of this Agreement and any amendments to the Agreement,
as to the identity of the Trustees and officers, and as to any matters in
connection with the Trust hereunder. Any
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person dealing with the Trust may, with the same effect as if it were the
original, rely on a copy of this Agreement or of any amendments hereto certified
by a Managing Trustee or an officer of the Trust to be such a copy of the
Agreement or of any such amendments.
9.4 Headings. Headings are placed herein for convenience of reference only
and shall not be taken as a part hereof or control or affect the meaning,
construction, or effect of this Agreement.
9.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
9.6 Provisions of the Trust in Conflict With Law or Regulations;
Severability and Enforceability.
(a) The provisions of this Agreement are severable. If the Managing
Trustees shall determine, with or without the advice of counsel, that any
one or more of such provisions (the "Conflicting Provisions") could have
the effect of preventing the Trust from maintaining its status as a
Delaware business trust or are in conflict with other applicable federal or
state laws or regulations, the Conflicting Provisions shall be deemed never
to have constituted a part of this Agreement; provided, however, that such
determination by the Managing Trustees shall not affect or impair any of
the remaining provisions of this Agreement or render invalid or improper
any action taken or omitted (including of or by the Managing Trustees)
prior to such determination. A certification signed by a majority of the
Managing Trustees setting forth a determination that one or more provisions
are Conflicting Provisions and reciting that it was duly adopted by the
Managing Trustees, or a copy of this Agreement with the Conflicting
Provisions removed pursuant to such a determination signed by a majority of
the Managing Trustees, shall be conclusive evidence of such determination
when kept in the records of the Trust. The Managing Trustees shall not be
liable for failure to make any determination under this Section 9.6.
Nothing in this Section 9.6 shall in any way limit or affect the right of
the Managing Trustees to amend this Agreement as provided in Section 8.4.
The Managing Trustees shall give the Statutory Trustee notice of any
proposed determination pursuant to the first sentence of this Section
9.6(a) ten (10) days prior to the effective date of any such determination
and the Statutory Trustee shall have the right to resign as Statutory
Trustee during such period and the Managing Trustees shall appoint a
replacement Statutory Trustee pursuant to Section 3.10. The Managing
Trustees shall file an amended Certificate to reflect such resignation and
replacement.
(b) If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to
such provision, and shall not in any manner affect or render invalid or
unenforceable any other provision of this
-22-
Agreement. This Agreement shall be carried out as if any such invalid or
unenforceable provisions were not contained herein.
9.7 Binding Effect: Successors in Interest. Each Person who becomes the
holder of all or a part of the Beneficial Interest in the Trust shall agree to
be, and shall be, bound by the provisions of this Agreement. This Agreement
shall be binding upon and inure to the benefit of the Trustees and the
Beneficiary and the respective successors, assigns, heirs, distributees, and
legal representatives of each of them.
9.8 Irrevocability by Settlor. This Agreement and the Trust created
hereunder shall be irrevocable by the Settlor, subject to the provisions of
Article VIII hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
SETTLOR:
TXI TEXAS, INC.
By: /s/ Richard M. Fowler
-------------------------------------
Title: PRESIDENT
MANAGING TRUSTEES:
/s/ James R. McCraw
-----------------------------------------
James R. McCraw, Trustee
Address: 1341 Mockingbird Lane, 7th Floor
Dallas, Texas 75247
/s/ Richard M. Fowler
-----------------------------------------
Richard M. Fowler, Trustee
Address: 1341 Mockingbird Lane, 7th Floor
Dallas, Texas 75247
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/s/ Robert C. Moore
-----------------------------------------
Robert C. Moore, Trustee
Address: 1341 Mockingbird Lane, 7th Floor
Dallas, Texas 75247
STATUTORY TRUSTEE:
DELAWARE TRUST CAPITAL MANAGEMENT,
not in its individual capacity but solely
as Statutory Trustee
By: /s/ Illegible
-------------------------------------
Title: VICE PRESIDENT
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STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
BEFORE ME, the undersigned, a Notary Public in and for said County and
State on this 29TH day of MAY, 1996, personally appeared RICHARD M. FOWLER, to
me known to be the identical person who subscribed the name TXI Texas, Inc., a
Delaware corporation, to the foregoing instrument as its PRESIDENT, and
acknowledged to me that he executed the same as his free and voluntary act and
deed and as the free and voluntary act and deed of such organization for the
uses and purposes therein set forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, the day and year last above
written.
/s/ Gwynn E. Herrick
----------------------------
Notary public in and for the
State of Texas
My Commission Expires: Printed Name of Notary Public:
----------------------------------
GWYNN E. HERRICK
Notary Public
[SEAL] STATE OF TEXAS
(NOTARY SEAL) My Comm. Exp. SEPT 2, 1996
----------------------------------
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STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
BEFORE ME, the undersigned, a Notary Public in and for said County and
State on this 29TH day of MAY, 1996, personally appeared James R. McCraw, to me
known to be the identical person who subscribed his name to the foregoing
instrument as its Trustee, and acknowledged to me that he executed the same as
his free and voluntary act and deed for the uses and purposes therein set forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, the day and year last above
written.
/s/ Gwynn E. Herrick
----------------------------
Notary public in and for the
State of Texas
My Commission Expires: Printed Name of Notary Public:
----------------------------------
GWYNN E. HERRICK
Notary Public
[SEAL] STATE OF TEXAS
(NOTARY SEAL) My Comm. Exp. SEPT 2, 1996
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STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
BEFORE ME, the undersigned, a Notary Public in and for said County and
State on this 29TH day of MAY, 1996, personally appeared Richard M. Fowler, to
me known to be the identical person who subscribed his name to the foregoing
instrument as Trustee, and acknowledged to me that he executed the same as his
free and voluntary act and deed for the uses and purposes therein set forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, the day and year last above
written.
/s/ Gwynn E. Herrick
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Notary public in and for the
State of Texas
My Commission Expires: Printed Name of Notary Public:
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GWYNN E. HERRICK
Notary Public
[SEAL] STATE OF TEXAS
(NOTARY SEAL) My Comm. Exp. SEPT 2, 1996
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STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
BEFORE ME, the undersigned, a Notary Public in and for said County and
State on this 29TH day of MAY, 1996, personally appeared Robert C. Moore, to me
known to be the identical person who subscribed his name to the foregoing
instrument as Trustee, and acknowledged to me that he executed the same as
his free and voluntary act and deed for the uses and purposes therein set forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, the day and year last above
written.
/s/ Gwynn E. Herrick
----------------------------
Notary public in and for the
State of Texas
My Commission Expires: Printed Name of Notary Public:
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GWYNN E. HERRICK
Notary Public
[SEAL] STATE OF TEXAS
(NOTARY SEAL) My Comm. Exp. SEPT 2, 1996
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STATE OF DELAWARE (S)
(S)
COUNTY OF NEWCASTLE (S)
BEFORE ME, the undersigned, a Notary Public in and for said County and
State on this 26th day of June, 1996, personally appeared Richard N. Smith, to
me known to be the identical person who subscribed the name Delaware Trust
Capital Management to the foregoing instrument as its Vice President, and
acknowledged to me that he executed the same as his free and voluntary act and
deed of such organization for the uses and purposes therein set forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, the day and year last above
written.
/s/ Anna M. Sklodowski
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Notary public in and for the
State of Delaware
My Commission Expires: Printed Name of Notary Public:
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ANNA M. SKLODOWSKI
(NOTARY SEAL) NOTARY PUBLIC - DELAWARE
My Commission expires Feb 15, 1996
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