TRUST AGREEMENT OF WILMINGTON TRUST CAPITAL A
Exhibit 4.10
THIS TRUST AGREEMENT, dated as of December 5, 2008, between Wilmington Trust Corporation
(“Sponsor”), Xxxxx Fargo Delaware Trust Company, a Delaware limited purpose trust company
(“Delaware Trustee”), and Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxxxxx (“Administrators”). The
Sponsor and the Delaware Trustee hereby agree as follows:
1. The trust created hereby shall be known as Wilmington Trust Capital A (the “Trust”), in
which name the Delaware Trustee and the Administrators, or the Sponsor to the extent provided
herein, may conduct the business and affairs of the Trust, contract on behalf of the Trust, and xxx
and be sued on behalf of the Trust.
2. The Sponsor hereby assigns, transfers, conveys, and sets over to the Trust the sum of Ten
Dollars ($10). Such amount shall constitute the initial trust estate. 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. § 3801 et seq. (the “Statutory Trust
Act”), and that this document constitutes the governing instrument of the Trust. The Delaware
Trustee is hereby authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Statutory Trust Act in the
form attached hereto as Exhibit A.
3. The Sponsor, the Delaware Trustee, and the Administrators will 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 Common
Securities as defined therein. Prior to the execution and delivery of such amended and restated
Trust Agreement, neither the Delaware Trustee nor the Administrators shall 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. Notwithstanding the foregoing, the
Delaware Trustee and the Administrators may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Sponsor agrees to (a) pay the fees of the Delaware Trustee as agreed to separately in
writing and (b) indemnify the Administrators, the Delaware Trustee, and any of the officers,
directors, employees and agents of the Delaware Trustee (the “Indemnified Persons”) for, and to
hold each Indemnified Person harmless against, any 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.
5. The Sponsor, as sponsor of the Trust, is hereby authorized, in its discretion, (i) to file
with the Securities and Exchange Commission (the “Commission”) and to execute, in the
case of the
1933 Act Registration Statement and 1934 Act Registration Statement (as herein defined), on behalf
of the Trust, (a) a Registration Statement (the “1933 Act Registration Statement”), which may be an
automatically effective registration statement, including all pre-effective and post-effective
amendments thereto, relating to the registration under the Securities Act of 1933, as amended (the
“1933 Act”), of the Preferred Securities or Common Securities of the Trust, (b) any preliminary
prospectus, prospectus, or supplement thereto, or free-writing prospectus relating to the Preferred
Securities or Common Securities of the Trust required to be filed pursuant to the 1933 Act, and
(c) a Registration Statement on Form 8-A or other appropriate form (the “1934 Act Registration
Statement”), including all pre-effective and post-effective amendments thereto, relating to the
registration of the Preferred Securities or Common Securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange or other exchange
or interdealer quotation system, and execute 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 or Common Securities of the Trust to be
listed on the New York Stock Exchange or such other exchange or interdealer quotation system;
(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 that shall be necessary or desirable to register the Preferred Securities or Common
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; (iv) to execute and deliver
letters or documents to, or instruments for filing with, a depository relating to the Preferred
Securities or Common Securities of the Trust; and (v) to execute, deliver, and perform on behalf of
the Trust an underwriting agreement with one or more underwriters relating to the offering of the
Preferred Securities or Common Securities of the Trust.
6. This Trust Agreement may be executed in one or more counterparts.
7. The Delaware Trustee shall be the initial trustee of the Trust. Thereafter, the Sponsor
may increase or decrease (but not below one) the number of trustees of the Trust by executing a
written instrument fixing such number, provided, however, that so long as it is
required by the Statutory Trust Act, one trustee of the Trust shall be either a natural person who
is a resident of the State of Delaware or an entity other than a natural person that has its
principal place of business in the State of Delaware and that, in either case, otherwise meets the
requirements of applicable Delaware law. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any trustee at any time. Either the Delaware Trustee or any
Administrator may resign upon thirty days’ prior written notice to the Sponsor.
8. This Trust Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware (without regard to conflict of laws principles that would call for the
application of the substantive law of any jurisdiction other than the State of Delaware).
[Remainder of page intentionally left blank]
- 2 -
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed as
of the day and year first written above.
| WILMINGTON TRUST CORPORATION Sponsor | XXXXX FARGO DELAWARE TRUST COMPANY | |||||||
| as Delaware Trustee | ||||||||
By:
|
/s/ Xxxxxx X. Xxxxxxxxxxx | By: | /s/ Xxx X. Xxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxxxxxx | Name: | Xxx X. Xxxxxx | ||||||
| Title: Vice President | Title: | Vice President | ||||||
In his capacity as Administrator
/s/ Xxxxx X. Xxxxxx |
||
In his capacity as Administrator |
||
/s/ Xxxxxx X. Xxxxxxxxxxx |
||
- 3 -
