Exhibit 4.4
DECLARATION OF TRUST
OF
AFC CAPITAL TRUST I
This DECLARATION OF TRUST, dated as of January 24, 1997, between
Allmerica Financial Corporation, a Delaware corporation, as "Sponsor" and Xxxxxx
X. Xxxxx III and Xxxx X. Xxxxx as "Administrative Trustees" and Chase Manhattan
Bank Delaware as "Delaware Trustee" (the Delaware Trustee and the Administrative
Trustees together, the "Trustees"). The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as AFC Capital Trust I (the
"Trust"), 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
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust 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. (S) 3801 et seq. (the "Business Trust Act"), and that
this document constitutes 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 accordance with the
provisions of the Business Trust Act.
3. The Sponsor, the Trustees and certain other parties, will enter into
an Amended and Restated Declaration of Trust, satisfactory to each such party
and having substantially the terms described in the Offering Circular (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Capital Securities and 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 distribute one or more
offering circulars on behalf of the Trust, including the offering circular dated
January 24, 1997, including any necessary or desirable amendments thereto
(including any exhibits contained therein or forming a part thereof) (the
"Offering Circular"), relating to the Capital Securities and Common Securities
of
the Trust and certain other securities; (ii) to file with the Private Offering,
Resales and Trading through Automatic Linkages (PORTAL) Market ("PORTAL") and
execute on behalf of the Trust a listing application or applications and all
other applications, statements, certificates, agreements and other instruments
as shall be necessary or desirable to cause the Capital Securities to be listed
on PORTAL; (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 the Sponsor, on behalf of
the Trust, may deem necessary or desirable to qualify or register the Capital
Securities under, or obtain for the Capital Securities an exemption from, the
securities or "Blue Sky" laws in such jurisdictions as the Sponsor may
determine; (iv) to execute on behalf of the Trust such underwriting or purchase
agreements with one or more underwriters, purchasers or agents relating to the
offering of the Capital Securities as the Sponsor, on behalf of the Trust, may
deem necessary or desirable; (v) to execute on behalf of the Trust any and all
documents, papers and instruments as may be desirable in connection with any of
the foregoing; (vi) 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; (vii) to
incur expenses which are necessary or incidental to carry out any of the
purposes of the Trust. If any filing referred to in clauses (i), (ii) and (iii)
above is required by law or by the rules and regulations of applicable
governmental agency, self-regulatory organization or other person or
organization to be executed on behalf of the Trust by one of the Trustees, the
Sponsor and any of the Trustees appointed pursuant to Section 6 hereof are
hereby authorized to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) 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 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 otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Sponsor provided, however, such notice shall not be required if it is waived by
-------- -------
the Sponsor. Except as expressly set forth in this Declaration, any power of the
Trustees may be exercised by, or with the consent of, any one Administrative
Trustee.
7. The recitals contained in this Declaration of Trust shall be taken
as statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration of Trust.
8. (a) The Delaware Trustee shall not be liable, responsible or
accountable for damages or otherwise to the Trust, the Sponsor, the other
Trustees or any holder of the Capital Securities for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by the Delaware
Trustee in good faith on behalf of the Trust and in a manner the Delaware
Trustee reasonably believed to be within the scope of authority conferred on the
Delaware Trustee by this Declaration or by law, except that the Delaware Trustee
shall be liable for any such loss, damage or claim incurred by reason of the
Delaware Trustee's gross negligence or willful misconduct with respect to such
acts or omissions.
(b) The Delaware Trustee 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 Delaware
Trustee 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 Capital Securities might properly be paid.
9. The Sponsor agrees, to the fullest extent permitted by applicable
law:
(a) to indemnify and hold harmless the Delaware Trustee, 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 reason of the creation, operation or
termination of the Trust or any act or omission performed or omitted by the
Delaware Trustee in good faith on behalf of the Trust in a manner reasonably
believed to be within the scope of authority conferred on the Delaware Trustee
by this Declaration of Trust, except that the Delaware Trustee shall not be
entitled to be indemnified in respect of any loss, damage or claim incurred by
reason of its gross negligence or willful misconduct with respect to such acts
or omissions; and
(b) to advance expenses (including the fees and expenses of counsel)
incurred by the Delaware Trustee 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.
10. The provisions of Section 9 shall survive the termination of this
Declaration of Trust or the earlier resignation or removal of the Delaware
Trustee.
11. The Trust may terminate without issuing any Capital Securities at
the election of the Sponsor.
-3-
12. Chase Manhattan Bank Delaware, in its capacity as Delaware Trustee,
shall not have any of the powers or duties of the Trustees set forth herein and
shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
13. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
-4-
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.
ALLMERICA FINANCIAL CORPORATION,
as Sponsor
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Vice President, Chief Financial Officer
and Treasurer
CHASE MANHATTAN BANK DELAWARE
as Trustee
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
/s/ Xxxx X. Xxxxx
--------------------------------
as Regular Trustee
/s/ Xxxxxx X. Xxxxx III
--------------------------------
as Regular Trustee
-5-