EXHIBIT 4.10
DECLARATION OF TRUST
OF
FORD MOTOR COMPANY CAPITAL TRUST II
DECLARATION OF TRUST, dated as of November 30, 2001, between Ford Motor
Company, a Delaware corporation, as Sponsor, and Xxxxxxx X. Xxxxxxx, Xxxxx X.
Xxxxxxxx, and Xxxxx Manhattan Bank USA, National Association, as Trustees. The
Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Ford Motor Company
Capital Trust II" (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 sue 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. Sec. 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 with
the Secretary of State of the State of Delaware in accordance with the
provisions of the Business Trust Act. 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. At the time of issuance of the Preferred Securities, the Sponsor and
the Trustees will enter into an amended and restated Declaration of Trust (the
"Amended and Restated Declaration of Trust"), satisfactory to each such party
and having substantially the terms described in the Prospectus (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of the 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. Notwithstanding the foregoing, the Trustees may take all actions
deemed necessary or advisable to effect the transactions contemplated in the
Amended on Restated Declaration of Trust.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, in its discretion (i) to prepare and
distribute on behalf of the Trust a registration statement for filing with the
Securities and Exchange Commission (the "Commission"), including one or more
prospectuses, together with any necessary or desirable amendments thereto and
any exhibits contained therein or forming a part thereof (the
"Prospectus") relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities and the Common Securities of the Trust;
(ii) to prepare and distribute on behalf of the Trust a registration statement
on Form 8-A for filing with the commission (the "1934 Act Registration
Statement") (including all pre-effective and post-effective amendments thereto)
relating to the registration of the Preferred Securities and the Common
Securities of the Trust under Section 12 (b) of the Securities Exchange Act of
1934, as amended; (iii) to file with The New York Stock Exchange 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 to be listed on The New York
Stock Exchange; (iv) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorneys for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under, or obtain for
the Preferred Securities on exemption from, the securities or "Blue Sky" laws of
such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable; (v) to execute on behalf of the Trust such underwriting or purchase
agreements and related agreements with one or more underwriters, purchasers, or
agents relating to the offering of the Preferred Securities, as the Sponsor, on
behalf of the Trust, may deem necessary or desirable; (vi) to execute on behalf
of the Trust any or all documents, papers or instruments as may be desirable in
connection with any of the foregoing; and (vii) to employ or otherwise engage
employees and agents (who may be designated as officers with titles) and
managers, contractors, advisors, or consultants and provide for reasonable
compensation to carry out any of the purposes of the Trust. In the event that
any filing referred to in clauses (i)-(iv) above is required by the rules and
regulations of the Commission, the New York Stock Exchange or state securities
or blue sky laws, to be executed on behalf of the Trust by the Trustees, the
Sponsor and any of the Trustees appointed pursuant to Section 6 hereof are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that Chase
Manhattan Bank USA, National Association, in their capacity as Trustee of the
Trust, 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, the New York Stock Exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Sponsor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Xxxxxxx X.
Xxxxxxx, as his, her or its, as the case may be, true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the Sponsor or such Trustee or in the Sponsor's or such Trustee's name,
place and stead, in any and all capacities, to sign any and all registration
statements and any amendments (including post-effective amendments) to any
registration statement referred to herein and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent 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
Sponsor or such Trustee might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, shall do or cause to be done by virtue hereof.
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 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 or otherwise meets the requirements of
applicable
Delaware law (the "Delaware Trustee"). Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any Trustee at any time. Any Trustee
may resign upon thirty days prior notice to the Sponsor; provided, 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. Notwithstanding any other
provision of this Declaration, the Delaware Trustee shall not be entitled to
exercise any of the powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Regular Trustees described in this
Declaration. The Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of ss.3807 of the Business Trust Act.
7. The Trust may terminate without issuing any Preferred Securities or
Common Securities at the election of the Sponsor.
8. The Declaration of Trust shall be governed by and construed in
accordance with the laws of the State of Delaware.
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.
FORD MOTOR COMPANY,
as Sponsor
By: /s/ Xxxxx Xxxxxx, Xx.
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Name: Xxxxx Xxxxxx, Xx.
Title: Assistant Secretary
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx X. Xxxxxxx, as Trustee
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, as Trustee
CHASE MANHATTAN BANK USE,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
