Exhibit 4.9
TRUST AGREEMENT
OF
EVEREST RE CAPITAL TRUST II
THIS TRUST AGREEMENT OF EVEREST RE CAPITAL TRUST II is dated as of June
25, 2003 (this "Trust Agreement"), by and among Everest Reinsurance Holdings,
Inc., a Delaware corporation, as depositor (the "Depositor"), JPMorgan Chase
Bank, a New York banking corporation, as trustee (the "Property Trustee"), Chase
Manhattan Bank USA, National Association, a national banking association, as
trustee (the "Delaware Trustee"), and Xxxxxxx X. Xxxxxxx, an individual, as
trustee (the "Regular Trustee" and collectively with the Property Trustee and
the Delaware Trustee, the "Trustees"). The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "Everest Re 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 xxx 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 statutory trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801, et seq. (the "Statutory 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
Secretary of State of the State of Delaware 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
preferred securities and common securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect of the
trust estate, except as otherwise contemplated by this Trust Agreement, 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, as depositor of the Trust, is hereby authorized (i)
to prepare and file with the Securities and Exchange Commission (the
"Commission") and to execute, in the case of the 1933 Act Registration
Statement, the 1934 Act Registration Statement (as herein defined) and the
462(b) Registration Statement (as herein defined), on behalf of the Trust, (a) a
Registration Statement (the "1933 Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
the preferred securities of the Trust and a Registration Statement relating
thereto made pursuant to Rule 462(b) of the 1933 Act (the "462(b) Registration
Statement"), (b) any preliminary prospectus or prospectus or supplement thereto
relating to the preferred securities of the Trust required to be filed pursuant
to the 1933 Act, and (c) a Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement"), including all
pre-effective and post-effective amendments thereto,
relating to the registration of the preferred securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) if and at such time as
determined by the Depositor, to file with the New York Stock Exchange or other
exchange, or the National Association of Securities Dealers ("NASD"), 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 preferred securities of the Trust to be listed on the
New York Stock Exchange or such other exchange, or the NASD's Nasdaq National
Market; (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 that shall be necessary or
desirable to register the preferred securities of the Trust 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 and deliver letters or
documents to, or instruments for filing with, a depository relating to the
preferred securities of the Trust; and (v) to execute, deliver and perform on
behalf of the Trust an underwriting agreement with one or more underwriters
relating to the offering of the preferred securities of the Trust. In the event
that any filing referred to in this Section 4 is required by the rules and
regulations of the Commission, the New York Stock Exchange or other exchange,
NASD, 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 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 Trustees, in
their capacity as trustees 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, the New York Stock Exchange or
other exchange, NASD, or state securities or "blue sky" laws.
5. This Trust 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 Statutory 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, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law.
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. The Depositor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against 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 performance of this Trust Agreement, the creation, operation or
termination of the Trust or the transactions contemplated hereby; provided,
however, that the Depositor shall not be required to indemnify
any Indemnified Person for any Expenses which are a result of the willful
misconduct, bad faith or gross negligence of such Indemnified Person.
8. The Trust may be dissolved and terminated before the issuance of the
preferred securities of the Trust at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
EVEREST REINSURANCE HOLDINGS,
INC., as Depositor
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
JPMORGAN CHASE BANK, as trustee
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as trustee
By: /s/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice-President
XXXXXXX X. XXXXXXX, as trustee
/s/ XXXXXXX X. XXXXXXX
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