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EXHIBIT 4.8
TRUST AGREEMENT
TRUST AGREEMENT, dated as of September 19, 2000, among HCC INSURANCE
HOLDINGS, INC., a Delaware corporation (including any successors or assigns, the
"Depositor"), First Union National Bank, a national banking association
organized under the laws of the United States (the "Property Trustee"), and
First Union Trust Company, N.A., a national banking association organized under
the laws of the United States (the "Delaware Trustee") (the Property Trustee and
the Delaware Trustee referred to collectively as the "Issuer Trustees"). The
Depositor and Issuer Trustees hereby agree as follows:
1. The trust created hereby shall be known as "HCC Capital Trust II,"
in which name the Issuer Trustees, or the Depositor to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Property Trustee the sum of $10. The Property Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Property Trustee hereby declares that
it will hold the trust estate in trust for the Depositor. 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. Code Section 3801 et
seq. (the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Issuer Trustees are hereby authorized and directed
to execute and file a certificate of trust in the office of the Secretary of
State of the State of Delaware in the form attached hereto. The Trust is hereby
established by the Depositor and the Issuer Trustees for the purpose of (i)
issuing and selling preferred securities ("Preferred Securities") representing
undivided beneficial interests in the assets of the Trust in exchange for cash
and investing the proceeds thereof in Junior Subordinated Debentures of the
Depositor (the "Debentures"), (ii) issuing and selling common securities
("Common Securities" and, together with the Preferred Securities, "Trust
Securities") representing undivided beneficial interests in the assets of the
Trust to the Depositor in exchange for cash and investing the proceeds thereof
in additional Debentures and (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities by the
Trust, the Depositor and the Issuer Trustees intend to 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 the Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the Issuer
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate.
4. The Depositor and the Property Trustee hereby authorize and direct
the Depositor, as the Depositor of the Trust, (i) to file with the Securities
and Exchange Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) the
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Registration Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to the 1933 Act
Registration Statement, relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities of the Trust and possibly certain
other securities and (b) a Registration Statement on Form 8-A (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) to file
with The New York Stock Exchange or any other national stock exchange (each, an
"Exchange") and execute on behalf of the Trust one or more listing applications
and all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred Securities
to be listed on any of the Exchanges; (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
as shall be necessary or desirable to register the Preferred Securities under
the securities or blue sky laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute on
behalf of the Trust that certain Underwriting Agreement relating to the
Preferred Securities, among the Trust, the Depositor and the Underwriter named
therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In connection with the filings referred to above, the
Depositor hereby constitutes and appoints Frank J. Bramanti, Christopher L.
Martin, and L. Byron Way, and each of them, as its true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or in the Depositor's name, place and stead,
in any and all capacities, to sign the 1933 Act Registration Statement, the 1934
Act Registration Statement and any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, the Exchange and administrators of
state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could to in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees initially shall be two (2) 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 Depositor which may increase or decrease the
number of trustees; provided, however, that the number of trustees shall in no
event be less than one (1); and provided, further, however, that to the extent
required by the Business Trust Act, one trustee 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
meets any other requirements imposed by applicable law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
trustee at any time. Any trustee may resign upon 30 days prior notice to the
Depositor.
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7. The recitals contained in this Trust Agreement shall be taken as
statements of the Depositor, and the Issuer Trustees do not assume any
responsibility for their correctness. The Issuer Trustees make no
representations as to the value or condition of the property of the Trust or any
part thereof. The Issuer Trustees make no representations as to the validity or
sufficiency of this Trust Agreement.
8. (a) The Issuer Trustees (the "Fiduciary Indemnified Persons") shall
not be liable, responsible or accountable in damages or otherwise to the Trust,
the Depositor or any holder of the Trust Securities (the Trust, the Depositor
and any holder of the Trust Securities being a "Covered Person") for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by the Fiduciary Indemnified Persons in good faith on behalf of the Trust and in
a manner the Fiduciary Indemnified Persons reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Persons by this Trust
Agreement or by law, except that the Fiduciary Indemnified Persons shall be
liable for any such loss, damage or claim incurred by reason of the Fiduciary
Indemnified Person's negligence or bad faith with respect to such acts or
omissions.
(b) The Fiduciary Indemnified Persons 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 to
matters the Fiduciary Indemnified Persons 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 Trust Securities might properly be
paid.
9. The Depositor agrees, to the fullest extent permitted by applicable
law,
(a) to indemnify and hold harmless each Fiduciary Indemnified Person,
or any of its officers, directors, shareholders, employees, representatives or
agents, from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by the Fiduciary Indemnified
Persons by reason of the creation, operation or termination of the Trust in a
manner the Fiduciary Indemnified Persons reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Persons by this Trust
Agreement, except that no Fiduciary Indemnified Persons shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by the Fiduciary
Indemnified Persons by reason of negligence or willful misconduct with respect
to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a Fiduciary
Indemnified Person in defending any claim, demand, action, suit or proceeding,
from time to time, prior to the final disposition of such claim, demand, action,
suit or proceeding, upon receipt by the Trust of an undertaking by or on behalf
of such Fiduciary Indemnified Persons to repay such amount if it shall be
determined that such Fiduciary
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Indemnified Person is not entitled to be indemnified as authorized in the
preceding subsection.
10. The provisions of Section 9 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
11. The Trust may terminate and dissolve without issuing any Trust
Securities at the election of the Depositor.
12. The Delaware Trustee shall not have any of the powers or duties of
the Issuer Trustees set forth herein, except as required under the Business
Trust Act. The Delaware Trustee shall be an Issuer Trustee hereunder for the
sole and limited purpose of fulfilling the requirements of 3807(a) of the
Business Trust Act.
13. This Trust Agreement 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 the principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
HCC INSURANCE HOLDINGS, INC.
By: /s/ FRANK J. BRAMANTI
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Name: Frank J. Bramanti
Title: Executive Vice President
FIRST UNION NATIONAL BANK, as
Property Trustee
By: /s/ EDWARD L. TRUITT, JR.
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Name: Edward L. Truitt, Jr.
Title: Vice President
FIRST UNION TRUST COMPANY, N.A.,
as Delaware Trustee
By: /s/ EDWARD L. TRUITT, JR.
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Name: Edward L. Truitt, Jr.
Title: Vice President
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