Exhibit 4.7
TRUST AGREEMENT
OF
EVEREST RE CAPITAL TRUST
The TRUST AGREEMENT OF EVEREST RE CAPITAL TRUST is dated as of September
17, 1999 (this "Trust Agreement"), by and among Everest Reinsurance Holdings,
Inc., a Delaware corporation, as depositor (the "Depositor"), and The Chase
Manhattan Bank, a New York banking corporation, as trustee (the "Property
Trustee"), Chase Manhattan Bank Delaware, a Delaware banking corporation, 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"
(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 business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
(S) 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 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 and 1934 Act
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, (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 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, 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 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 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
any NASD
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
THE CHASE MANHATTAN BANK, as
trustee
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CHASE MANHATTAN BANK
DELAWARE, as trustee
By: /s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
XXXXXXX X. XXXXXXX, as trustee
/s/ Xxxxxxx X. Xxxxxxx
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