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EXHIBIT 4.4
DECLARATION OF TRUST
OF
TRENWICK CAPITAL TRUST I
THIS DECLARATION OF TRUST ("Declaration") dated and effective as of
January 21, 1997 by the Trustee (as defined herein), the Sponsor (as defined
herein), and by the holders from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustee and the Sponsor desire to establish Trenwick
Capital Trust I (the "Trust") pursuant to the Delaware Business Trust Act for
the purpose of (a) selling Securities (as defined herein), (b) using the
proceeds from the sale of the Securities to purchase debentures of the Sponsor,
(c) making distributions to holders of the Securities, and (d) engaging only in
activities necessary, advisable or incidental to any of the foregoing.
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Delaware Business Trust Act and that
this Declaration constitute the governing instrument of such business trust.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended
from time to time;
(d) all references in this Declaration to Articles and Sections are
to Articles and Sections of this Declaration unless otherwise
specified; and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
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"Certificate of Trust" shall mean the certificate of trust to be
filed pursuant to Section 3810 of the Delaware Business Trust Act.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code 12 Del. Code [Section] 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Indemnified Person" has the meaning set forth in Section 4.3
hereof.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Security" means a security representing an undivided beneficial
interest in the assets of the Trust having such rights and with terms as may be
set out in this Declaration or in any amendment or restatement hereof.
"Sponsor" means Trenwick Group Inc. in its capacity as sponsor of
the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue as a trustee in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustee in accordance with the
provisions hereof, and references herein to a Trustee or the Trustee shall refer
to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "Trenwick Capital
Trust I." The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Trustee.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o Trenwick
Group Inc., Metro Center, One Station Place, Stamford, Connecticut 06902,
Attention: Chief Financial Officer. At any time, the Sponsor may designate
another principal office of the Trust.
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SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) selling
Securities, (b) using the proceeds from the sale of the Securities to purchase
debentures of the Sponsor, (c) making distributions to holders of the
Securities, and (d) engaging only in activities necessary, advisable or
incidental to any of the foregoing.
SECTION 2.4 Declaration and Authority.
(a) The Trustee declares that all assets contributed to the Trust
will be held in trust for the benefit of the holders, from time to time, of
the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Declaration.
The Sponsor hereby contributes the sum of $10 to be held by the Trustee
hereunder and to which all other assets of the Trust, from time to time,
shall be added.
(b) Subject to the limitations provided in this Declaration, the
Sponsor shall have exclusive and complete authority to instruct the Trustee
in carrying out the purposes of the Trust. An action taken by the Trustee
in accordance with such instructions shall constitute the act of and serve
to bind the Trust. In dealing with the Trustee acting on behalf of the
Trust, no Person shall be required to inquire into the authority of the
Trustee to bind the Trust. Persons dealing with the Trust are entitled to
rely conclusively on the power and authority of the Trustee as set forth in
this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6 Powers of the Trustee.
The Sponsor shall have the exclusive power and authority to cause
the Trustee to engage in the following activities:
(a) to issue and sell Securities in accordance with this
Declaration;
(b) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(c) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(d) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On the date of execution of this Declaration, the Trustee shall cause
the filing of the Certificate of Trust for the Trust in the form attached
hereto as Exhibit A with the Secretary of State of the State of Delaware.
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SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence until January 21, 2042.
SECTION 2.9 Responsibilities of the Sponsor.
The Sponsor shall have the exclusive right and responsibility to
cause the Trustee to issue and sell the Securities, the terms of which shall be
as adopted by resolution of the Sponsor.
SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security or
any interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEE
SECTION 3.1 Trustee.
The number of Trustees initially shall be one (1), and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor and delivered to the Trustee. The
Sponsor is entitled to appoint or remove without cause any Trustee at any time;
provided, however, that one Trustee, in the case of a natural person, shall be
a person who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State of
Delaware.
SECTION 3.2 Trustee.
The initial Trustee shall be:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(a) A Trustee may resign upon not less than 30 days written notice
to the Sponsor, which resignation shall take effect upon the later of
the date specified therein or the date on which a successor Trustee
appointed by the Sponsor pursuant to Section 3.1 has accepted such
appointment, provided, however, that such successor shall comply with
the provisions of [Section] 3807 of the Delaware Business Trust Act.
(b) A Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her
power for the purposes of signing any documents which the Trustee has
power and authority to cause the Trust to execute pursuant to Section
2.6.
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SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR SUFFICIENCY OF DECLARATION.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustee does not assume any responsibility
for their correctness. The Trustee makes no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustee makes
no representations as to the validity or sufficiency of this Declaration.
SECTION 3.4 COMPENSATION OF TRUSTEE.
The Sponsor agrees:
(a) to pay the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Declaration (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith;
(c) To the fullest extent possible the parties intend that
Section 3561 of Title 12 of the Delaware Code shall not apply to the
Trust and that compensation paid pursuant to Section 3.6(a) not be
subject to review by any court under Section 3560 of Title 12 of the
Delaware Code.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEE OR OTHERS
SECTION 4.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified
Person by this Declaration or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's gross negligence or willful misconduct with
respect to such acts or omissions; and
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
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to matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity,an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity,
are agreed by the parties hereto to replace such other duties and liabilities
of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable to the Trust
or any holder of Securities, the Indemnified Person shall resolve such conflict
of interest, take such action or provide such terms, considering in each case
the relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted industry practices, and
any applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or term
so made, taken or provided by the Indemnified Person shall not constitute a
breach of this Declaration or any other agreement contemplated herein or of any
duty or obligation of the Indemnified Person at law or in equity or otherwise;
and
(c) whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors affecting
the Trust or any other Person; or
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(ii) in its "good faith" or another express standard, the Indemnified
Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 4.3 Indemnification.
The Sponsor agrees, to the fullest extent permitted by applicable law,
to indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any
Trustee, (iii) any officer, director, shareholder, employee, representative or
agent of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates, (referred to herein as an "Indemnified Person") from and against
any loss, damage, liability, tax, penalty, expense or claim of any kind or
nature whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with respect
to such acts or omissions.
SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person, the Sponsor and the Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or
opportunity. Any Covered Person and the Trustee may engage or be interested in
any financial or other transaction with the Sponsor or any Affiliate of the
Sponsor or may act as depositary for, trustee or agent for or may act on any
committee or body of holders of, securities or other obligations of the Sponsor
or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issuance of any Securities, this Declaration may
be extended or restated by, and only by, a written instrument executed by the
Trustee and the Sponsor.
SECTION 5.2 Termination of Trust.
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(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a Certificate of Dissolution or its
equivalent with respect to the Sponsor or the failure of
the Sponsor to revive its Charter within ten (10) days
following the revocation of the Sponsor's charter or of the
Trust's Certificate of Trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust;
(iv) before the issuance of any Securities, at the election of
the Sponsor; and
(v) upon the expiration of the period set forth in Section 2.8
hereof.
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustee shall file a
certificate of cancellation with the Secretary of State of the
State of Delaware.
SECTION 5.3 GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws. The provisions of Section 3540 of
Title 12 of the Delaware Code shall not apply to the Trust.
SECTION 5.4 HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustee shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
SECTION 5.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 COUNTERPARTS.
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This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each party to one of such counterpart signature pages. All such counterpart
signature pages shall be read as though one, and they shall have the same force
and effect as though all of the signers had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year above written.
CHASE MANHATTAN BANK DELAWARE,
Not in its individual capacity but
solely as Delaware Trustee
By: /s/ JOHN J. CASHIN
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Name: John J. Cashin
Title: Senior Trust Officer
TRENWICK GROUP INC., as Sponsor
By: /s/ JAMES F. BILLETT, JR.
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Name: James F. Billett, Jr.
Title: Chairman, President & Chief
Executive Officer
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