EXHIBIT 4.10
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of August 25, 2003, among Delphi
Corporation, a Delaware corporation, as Sponsor (the "Sponsor"), Bank One
Delaware, Inc., a Delaware corporation, not in its individual capacity but
solely as Delaware Trustee (the "Delaware Trustee"), and J.T. Battenberg, III
and Alan S. Dawes, as Regular Trustees (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
Trust II", 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
sue 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 statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et seq. (the "Statutory 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,
(ii) issuing and selling common securities (collectively with the Preferred
Securities, the "Trust Securities") representing undivided beneficial interests
in the assets of the Trust to the Sponsor in exchange for cash, (iii) owning
subordinated debt securities of the Sponsor, and (iv) engaging in any other
lawful business or activity that may be engaged in by a statutory trust formed
under the Statutory Trust Act.
3. Concurrent with the first issuance of any Trust Securities by the
Trust, the Sponsor, the Trustees and certain other parties intend to enter into
an amended and restated Declaration of Trust, satisfactory to each such party
and substantially in the form to be included as an exhibit to the 1933 Act
Registration Statement referred to below at the time such registration statement
becomes effective under the Securities Act of 1933, as amended (the "Securities
Act"), to provide for the contemplated operation of the Trust created hereby and
the issuance of the Trust 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.
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4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, as applicable, (i) to prepare and file
with the Securities and Exchange Commission (the "Commission") and execute, in
each case on behalf of the Trust, (a) a Registration Statement on Forms S-3 (the
"1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to such Registration Statement, relating to the
registration of the Preferred Securities under the Securities Act and (b), as
applicable, a Registration Statement on Form 8-A (the "1934 Act Registration
Statement") (including any pre-effective or post-effective amendments thereto)
relating to the registration of the Preferred Securities under Section 12(b) or
(g) of the Securities Exchange Act of 1934, as amended; (ii) to prepare and file
with the New York Stock Exchange and/or any other exchange and execute, in each
case 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 to be listed on the New York
Stock Exchange and/or any other exchange; (iii) to prepare and file and execute,
in each case 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 Sponsor, on behalf of the Trust, may deem necessary or
desirable; (iv) to negotiate the terms of, and execute on behalf of the Trust,
any underwriting agreements, purchase agreements or other agreements relating to
the issuance of the Preferred Securities in exchange for cash; and (v) to
negotiate the terms of, and execute on behalf of the Trust, such agreements,
documents and certificates, and to do such other acts and things as the Sponsor
may deem to be necessary or advisable in order to carry out the purpose and
intent of the Trust. It is hereby acknowledged and agreed that in connection
with any execution, filing or document referred to in clauses (i) - (iii) above,
(A) any Regular Trustee (or his or her attorneys in fact and agents or the
Sponsor as permitted herein) 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 Commission or
the New York Stock Exchange or any other exchange or state securities or blue
sky laws, and in such case only to the extent so required. In connection with
all of the foregoing, the Sponsor and each Regular Trustee, solely in his or her
capacity as a trustee of the Trust, hereby constitute and appoint J.T.
Battenberg III and Alan S. Dawes and each of them, his, her or its, as the case
may be, true and lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for the Sponsor and each Regular Trustee and in
the Sponsor's and each Regular Trustee's name, place and stead, in any and all
capacities, to sign and file (i) the 1933 Act Registration Statement and, as
applicable, the 1934 Act Registration Statement and any and all amendments
(including post-effective amendments) or supplements thereto, with all exhibits
thereto, and other documents in connection therewith, and (ii), as applicable, a
registration statement and any and all amendments thereto filed pursuant to Rule
462(b) under the Securities Act with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing 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 Sponsor or any Regular Trustee might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his or her substitute or substitutes, shall
do or cause to be done by virtue hereof.
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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 the number of Trustees shall in no
event be less than two (2); and provided, further, however, that to the extent
required by the Statutory 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 Regular Trustee may resign upon thirty days prior
notice to the Sponsor. The Delaware Trustee may resign immediately upon notice
to the Sponsor if the 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, each Regular Trustee and the resigning
Delaware Trustee.
7. To the fullest extent permitted by applicable law, the Sponsor
agrees to (A) reimburse the Trustees for all reasonable expenses (including
reasonable fees and expenses of counsel and other experts) and (B) indemnify (i)
the Trustees, (ii) any affiliate of the Trustees, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Trustees (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 negligence or bad faith on its part, arising out of or in
connection with the acceptance, administration or termination of the trust or
trusts hereunder and the transactions contemplated thereby, 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 of Trust.
8. The Trust may terminate without issuing any Preferred Securities at
the election of the Sponsor.
9. This Declaration of Trust 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 CORPORATION, as Sponsor
By: /s/ Alan S. Dawes
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Name: Alan S. Dawes
Title: Vice Chairman and Chief
Financial Officer
BANK ONE DELAWARE, INC.,
as Delaware Trustee
By: /s/ Marla Roth
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Name: Marla Roth
Title: Vice President
/s/ J.T. Battenberg III
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Name: J.T. Battenberg III
Regular Trustee
/s/ Alan S. Dawes
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Name: Alan S. Dawes
Regular Trustee
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