Exhibit 4.9
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of April 19, 2002, between Delphi Financial
Group, Inc., as sponsor (the "Sponsor"), Christiana Bank & Trust Company, as
Delaware trustee (the "Delaware Trustee"), and Xxxxxx X. Xxxxx, Xx., Xxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxxxx, as regular trustees (the "Regular Trustees" and
collectively with the Delaware Trustee, the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Delphi Finance
Trust I", in which name the Trustees, or the Sponsor to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount
from the Sponsor, which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate for the Sponsor. 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.
xx.xx. 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 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 Sponsor and the Trustees for the purposes
of (i) issuing preferred securities ("Preferred Securities") representing
undivided beneficial interests in the assets of the Trust in exchange for cash
and investing the proceeds thereof in debt securities of the Sponsor, (ii)
issuing and selling common securities ("Common Securities") representing
undivided beneficial interests in the assets of the Trust to the Sponsor in
exchange for cash and investing the proceeds thereof in additional debt
securities of the Sponsor and (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, 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 Declaration of Trust, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise 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.
4. The Sponsor and the Trustees hereby authorize and direct the Sponsor, as
the sponsor of the Trust, (i) to prepare and file a Registration Statement
(including the Prospectus included therein and any Prospectus Supplement
relating thereto) relating to the Preferred Securities meeting the requirements
of the Securities Act of 1933, as amended (the "1933 Act"), and such other forms
or filings as may be required by the 1933 Act, the Securities Exchange Act of
1934, as amended, or the Trust Indenture Act of 1939, as amended, in each case
relating to the Preferred Securities of the Trust; (ii) 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 or
establish the exemption from registration of the Preferred Securities of the
Trust under the securities or "Blue Sky" laws of such jurisdictions as the
Sponsor, on behalf of the Trust, may deem necessary or desirable; (iii) to
execute and file an application, and all other applications, statements,
certificates, agreements and other instruments that shall be necessary or
desirable, to the New York Stock Exchange or any other national stock exchange
or the Nasdaq National Market for listing or quotation of the Preferred
Securities of the Trust; (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 one
or more underwriting agreements, purchase agreements, dealer manager agreements,
escrow agreements and other related agreements providing for or relating to the
sale of the Preferred Securities of the Trust. It is hereby further acknowledged
and agreed that in connection with the execution and/or filing of any document
referred to in clauses (i)-(v) above, (A) any Regular Trustee (or his
attorneys-in-fact and agents) and/or the Sponsor is authorized on behalf of the
Trust to file and execute such document on behalf of the Trust and (B) the
Delaware Trustee 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 New York Stock Exchange or any other national stock exchange
or the Nasdaq National Market or state securities or blue sky laws, and in such
case only to the extent so required.
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of Trustees initially shall be four (4) 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 which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be fewer than two (2); 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 that 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 Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon 30 days prior notice to the
Sponsor; provided, however, that the Delaware Trustee may resign immediately
upon notice to the Sponsor if the Delaware Trustee is required to join in any
filing or execute on behalf of the Trust any document pursuant to the provisions
of paragraph 4 hereof and, upon giving such notice, the Delaware Trustee shall
not be required to join in any such filing or execute on behalf of the Trust any
such document; provided, further, however, that no resignation of the Delaware
Trustee shall be effective until a successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee; provided, further, however, that upon notice of resignation by
the Delaware Trustee to the Sponsor, the Sponsor shall use its best efforts
promptly to appoint a successor Delaware Trustee and if no successor Delaware
Trustee shall have been appointed and accepted appointment within 30 days after
delivery to the Sponsor of notice of resignation, the resigning Delaware Trustee
may petition any court of competent jurisdiction for appointment of a successor
Delaware Trustee at the sole cost and expense of the Sponsor.
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7. To the fullest extent permitted by applicable law, the Sponsor agrees to
indemnify (i) the Delaware Trustee, (ii) any affiliate of the Delaware Trustee,
and (iii) any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Delaware Trustee (each of
the persons or entities in (i) through (iii) being referred to as an
"Indemnified Person") for, and to hold each Indemnified Person harmless against,
any loss, liability or expense incurred without gross negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this paragraph 7 shall survive the termination of this
Declaration. The Delaware Trustee shall not have any of the powers or duties of
the trustees set forth herein, except as required under the Business Trust Act.
The Delaware Trustee shall be a trustee hereunder for the sole and limited
purpose of fulfilling the requirements of Section 3807(a) of the Business Trust
Act.
8. The Trust may terminate without issuing any Preferred Securities or
Common Securities at the election of the Sponsor.
9. This Declaration shall be governed by the laws of the State of Delaware,
without regard to conflict of laws principles.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
DELPHI FINANCIAL GROUP, INC.
as Sponsor
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
CHRISTIANA BANK & TRUST COMPANY
as Delaware Trustee
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Trust Officer
/s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx., as Regular Trustee
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, as Regular Trustee
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, as Regular Trustee
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