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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549-1004
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report
(Date of earliest event reported) April 28, 1999
Delphi Automotive Systems Corporation
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(Exact name of registrant as specified in its charter)
Delaware 1-14787 38-3430473
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
5725 Delphi Drive, Troy, Michigan 48098
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (248) 813-2000
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
Delphi Automotive Systems Corporation (the "Company") has
registered Debt Securities (the "Debt Securities") pursuant to Registration
Statement No. 333-73285, as amended (the "Registration Statement"). The Debt
Securities were registered on Form S-3 to be offered on a delayed or continuous
basis pursuant to Rule 4l5 under the Securities Act of 1933.
On April 28, 1999, the Company entered into an Underwriting
Agreement (the "Underwriting Agreement") with Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Morgan Stanley & Co. Incorporated, as representatives of
the several underwriters named therein, relating to the offering by the Company
of three series of Debt Securities under the Registration Statement: (i)
$500,000,000 aggregate principal amount of 6 1/8% Notes due 2004, (ii)
$500,000,000 aggregate principal amount of 6 1/2% Notes due 2009 and (iii)
$500,000,000 aggregate principal amount of 7 1/8% Debentures due 2029
(collectively, the "Offered Securities"). The Underwriting Agreement
incorporates by reference the terms of a Form of Underwriting Agreement Standard
Provisions (Debt Securities) dated April 28, 1999 (the "Standard Provisions").
The Offered Securities will be issued under an Indenture, dated as of April 28,
1999, between the Company and The First National Bank of Chicago, as trustee
(the "Trustee"), a form of which was filed as Exhibit 4.1 to the Registration
Statement. Each of the (i) Underwriting Agreement, (ii) the Standard Provisions,
(iii) the terms of the Offered Securities, including the forms of Offered
Securities, (iv) an opinion of Drinker Biddle & Reath LLP, counsel to the
Company, as to the legality of the Offered Securities and (v) an opinion of
Drinker Biddle & Reath LLP, counsel to the Company, as to certain tax matters
relating to the Offered Securities is being filed as an exhibit to this report.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
1.1 -- Form of Underwriting Agreement Standard
Provisions (Debt Securities) dated
April 28, 1999
1.2 -- Underwriting Agreement dated as of
April 28, 1999 between the Company and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Morgan Stanley & Co.
Incorporated, as representatives of the
several underwriters named therein
4.1 -- Terms of the Securities, including the forms
of Offered Securities
5.1 -- Opinion of Drinker Biddle & Reath LLP,
counsel to the Company, as to the legality
of the Offered Securities
8.1 -- Opinion of Drinker Biddle & Reath LLP,
counsel to the Company, as to certain tax
matters relating to the Offered Securities
23.1 -- Consent of Drinker Biddle & Reath LLP
(contained in Exhibits 5.1 and 8.1)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
April 30, 1999 By:/s/ John G. Blahnik
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John G. Blahnik
Vice President and Treasurer
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EXHIBIT INDEX
Exhibit
Number Description
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1.1 -- Form of Underwriting Agreement Standard
Provisions (Debt Securities) dated
April 28, 1999
1.2 -- Underwriting Agreement dated as of
April 28, 1999 between the Company and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Morgan Stanley & Co.
Incorporated, as representatives of the
several underwriters named therein
4.1 -- Terms of the Securities, including the forms
of Offered Securities
5.1 -- Opinion of Drinker Biddle & Reath LLP,
counsel to the Company, as to the legality
of the Offered Securities
8.1 -- Opinion of Drinker Biddle & Reath LLP,
counsel to the Company, as to certain tax
matters relating to the Offered Securities
23.1 -- Consent of Drinker Biddle & Reath LLP
(contained in Exhibits 5.1 and 8.1)
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EXHIBIT 1.1
Delphi Automotive Systems Corporation
Form of Underwriting Agreement
Standard Provisions (Debt Securities)
(April , 1999)
From time to time, Delphi Automotive Systems Corporation (the
"Company"), a Delaware corporation, may enter into one or more underwriting
agreements substantially in the form of Schedule I hereto that provide for the
sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time debt securities (the
"Securities") to be issued pursuant to the provisions of an Indenture,
substantially in the form filed as an exhibit to the Registration Statement
referred to below, between the Company and The First National Bank of Chicago,
as Trustee (the "Indenture"). The Securities will have varying designations,
maturities, rates and times of payment of interest, selling prices and
redemption terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration No. 333-73285) including a
prospectus relating to the Securities and has filed with, or mailed for filing
to, or proposes to file with, the Commission a prospectus supplement
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement as amended to the date
of the Underwriting Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement in the form first used to confirm sales
of the Securities. The term "Prospectus" means the Basic Prospectus together
with the prospectus supplement specifically relating to the Securities in the
form first used to confirm sales of the Securities, as filed electronically
with, or mailed for filing to, the Commission pursuant to Rule 424. The term
"Preliminary Prospectus" means a preliminary prospectus supplement specifically
relating to the Securities together with the Basic Prospectus. If the Company
has filed an abbreviated registration statement pursuant to Rule 462(b) under
the Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "Preliminary Prospectus" shall include in
each case the material, if any, incorporated by reference therein.
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The term "Underwriters' Securities" means the Securities to be
purchased by the Underwriters pursuant to this Agreement. The term "Contract
Securities" means the Securities, if any, to be purchased pursuant to the
delayed delivery contracts referred to below.
II.
If the Prospectus provides for sales of Securities pursuant to delayed
delivery contracts, the Company hereby authorizes the Underwriters to solicit
offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule II attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as herein defined), the Company will pay the managing Underwriter
or Underwriters of the offering of the Securities (the "Manager") as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts. If the Company
executes and delivers Delayed Delivery Contracts with institutional investors,
the Contract Securities shall be deducted from the Securities to be purchased by
the several Underwriters and the aggregate principal amount of Securities to be
purchased by each Underwriter shall be reduced pro rata in proportion to the
principal amount of Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made to the Company
in Federal or other funds immediately available in New York City against
delivery of such Securities for the respective accounts of the several
Underwriters at the time and place set forth in this Agreement. The time and
date of such payment and delivery with respect to the Underwriters' Securities
are herein referred to as the "Closing Date."
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, no proceedings for such purpose shall be pending
before or threatened by the
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Commission, there shall have been no material adverse change or development
involving a prospective material adverse change in the condition of the Company
and its subsidiaries, taken as a whole, from that set forth in the Registration
Statement and the representations and warranties of the Company in this
Agreement shall be true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date; and the Manager shall have received on
the Closing Date a certificate, dated the Closing Date and signed on behalf of
the Company by an executive officer of the Company, to the foregoing effect. The
officer making such certificate may rely upon the best of his knowledge as to
proceedings threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Drinker Biddle & Reath LLP, counsel to the Company, dated the Closing Date, to
the effect that:
(i) the Securities have been duly authorized and, when duly
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, or by
institutional investors, if any, pursuant to Delayed Delivery
Contracts, will constitute valid and binding obligations of
the Company entitled to the benefits provided by the
Indenture, enforceable in accordance with the terms thereof
subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before
which any proceeding therefor may be brought;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and binding agreement of the Company, enforceable in
accordance with its terms subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor
may be brought); and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act);
(iv) the execution and delivery by the Company of the
Indenture, the performance of the Company's obligations under
the Indenture, the issuance of the Securities in accordance
with the Indenture and the sale of the Securities pursuant to
this Agreement do not and will not violate or conflict with
any provision of applicable law or of any agreement or
instrument listed in Schedule I to the opinion of counsel
delivered pursuant to this Article V(b) (except that such
counsel need express no opinion in this paragraph as to the
securities and Blue Sky Laws of various jurisdictions,
compliance with any disclosure requirement or any prohibition
against fraud or misrepresentation or as to whether
performance of
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any indemnification or contribution provisions would be
permitted) or the Amended and Restated Certificate of
Incorporation or By-laws of the Company or any judgment, order
or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its Significant
Subsidiaries (as defined below) known to such counsel;
(v) in connection with the offer and sale of the Securities by
the Underwriters as contemplated by the Registration Statement
the Company is not required to obtain any consent, approval or
authorization of any governmental body or agency for the
performance of its obligations under the Indenture and this
Agreement other than the registration of the Securities under
the Securities Act, authorizations or qualifications required
under the Trust Indenture Act and compliance with the
insurance, securities and Blue Sky Laws of various
jurisdictions (as to which such counsel need express no
opinion);
(vi) the Securities and the Indenture conform in all material
respects to the descriptions thereof contained or incorporated
by reference in the Registration Statement and the Prospectus
and the statements in the Prospectus under "Underwriting" and
"Plan of Distribution", insofar as such statements constitute
a summary of the documents or proceedings referred to therein,
fairly present the information called for with respect to such
documents and proceedings;
(vii) the statements set forth in the Prospectus Supplement
under the heading "Certain United States Federal Tax Matters",
insofar as such statements constitute a summary of United
States federal tax law, provide a fair summary of such legal
matters.
Such counsel shall also provide its advice that (relying as to factual
matters to the extent deemed appropriate by such counsel upon
representations and statements of officers and other representatives of
the Company) no facts came to its attention that caused such counsel to
believe that (i) the Registration Statement (including the documents
incorporated by reference therein, except for (1) financial statements
and schedules and other financial and statistical data included or
incorporated by reference therein and (2) that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1 of
the Trustee, as to which, in the case of either (1) or (2), such
counsel need express no belief), on its effective date or, if later, as
of the date of the Company's most recent filing of an Annual Report on
Form 10-K (including such Annual Report on Form 10-K), contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or (ii) the Prospectus, on the date it bears or
as of the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Such counsel shall also
opine that the Registration Statement as of its effective date
(including all documents incorporated by reference therein) complied,
and on the date of this Agreement, the Prospectus (including all
documents incorporated by reference therein) complies, and any further
amendments or supplements
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thereto made by the Company on or prior to the date of such opinion
comply (except for (1) the financial statements and schedules and other
financial and statistical data included or incorporated by reference
therein and (2) the Form T-1, as to which such counsel need express no
opinion) as to form in all material respects with the requirements of
the Securities Act, the Exchange Act, the Trust Indenture Act and the
applicable rules and regulations under said Acts.
With respect to the opinion to be provided pursuant to the immediately
preceding paragraph, such counsel may state that its opinion and belief
are based on its participation in the preparation of the Registration
Statement and Prospectus, and any amendments or supplements thereto,
and discussion of the contents thereof, but are without independent
check or verification, except as specified. In rendering such opinion,
such counsel may (i) state that its opinion is limited to the federal
laws of the United States, the laws of the State of New York and the
General Corporation Law of the State of Delaware, (ii) rely as to
matters of fact upon the representations contained in this Agreement
and the certificates of officers of the Company and its subsidiaries
and of public officials and (iii) rely on the opinions of other counsel
reasonably acceptable to Underwriters' counsel as to matters governed
by the laws of the State of New York.
(c) The Manager shall have received on the Closing Date an
opinion of Logan G. Robinson, General Counsel of the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
other jurisdiction in which it owns or leases properties or conducts
any business, in each case so as to require such qualification;
(ii) each Significant Subsidiary of the Company has
been duly incorporated or organized, as the case may be, is validly
existing as a corporation or a limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation, has the corporate or limited liability company power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each other jurisdiction in which it owns or leases
properties or conducts any business, in each case so as to require such
qualification;
(iii) all of the issued and outstanding shares of
capital stock or limited liability company interests, as the case may
be, of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable in the
case of a corporation and are owned of record, directly or indirectly
by the Company, to the best knowledge of such counsel, free and clear
of all liens, encumbrances, equities or claims;
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(iv) other than as set forth or contemplated in the
Prospectus, there are no governmental investigations, legal or
governmental actions, suits or proceedings pending or, to the best of
such counsel's knowledge, threatened against or affecting the Company
or any of its subsidiaries or any of their respective properties or to
which the Company or any of its subsidiaries is or may be a party or to
which any property of the Company or its subsidiaries is or may be
subject which, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have, or
reasonably be expected to have, a material adverse effect on the
business, financial position or results of operations of the Company
and its subsidiaries taken as a whole; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such counsel does
not know of any such pending or threatened action, suit or proceeding
or of any statutes, regulations, contracts or other documents required
to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are
not filed or described as required; and
(v) to the best of such counsel's knowledge, neither
the Company nor any of its Significant Subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or
in default under, in any material respect, its Articles of
Incorporation or By-Laws;
In rendering such opinion, such counsel may (i) state that his
opinion is limited to the federal laws of the United States, the laws
of the State of Michigan and of the State of New York and the General
Corporation Law of the State of Delaware and (ii) rely as to matters of
fact upon certificates of officers of the Company and its subsidiaries
and of public officials.
(d) The Manager shall have received on the Closing Date an
opinion of O'Melveny & Myers, LLP, counsel for the Underwriters, dated
the Closing Date with respect to the validity of the Indenture and the
Securities, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as it may
reasonably request to enable it to pass upon such matters.
(e) The Manager shall have received on the Closing Date a
letter dated the Closing Date in form and substance satisfactory to the
Manager, from DeLoitte & Touche LLP, independent accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus.
(f) (i) No downgrading shall have occurred in the rating
accorded the Company's securities by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act and
(ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's securities.
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If any condition specified in this Article V shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Manager by notice to the Company at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party, except as provided in Article X.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To file the Prospectus in a form approved by the Underwriters
pursuant to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of determination
of the offering price of the Securities or, if applicable, such earlier time as
may be required by Rule 424(b). As used herein, the term "Business Day" means
any day other than a day on which banks are permitted or required to be closed
in New York City.
(b) To furnish the Manager, without charge, a copy of the Registration
Statement including exhibits and materials, if any, incorporated by reference
therein and, during the period mentioned in paragraph (d) below, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as the Manager may reasonably request.
(c) From the date hereof and prior to the completion of the offering of
the Securities, before amending or supplementing the Registration Statement or
the Prospectus, to furnish the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which
the Manager reasonably objects, unless counsel to the Company advises that such
filing is required by law, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus required
to be filed pursuant to such rule.
(d) If, during such period after the first date of the public offering
of the Securities as in the opinion of counsel for the Underwriters, the
Prospectus is required by law to be delivered, any event shall occur as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to prepare
and furnish, at its own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus,
as so amended or supplemented, will comply with applicable law.
(e) To promptly advise the Manager of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any
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proceeding for that purpose, and of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(f) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky Laws of such jurisdictions as the Manager shall
reasonably request and to pay all reasonable expenses (including reasonable fees
and disbursements of counsel) in connection with such qualification.
(g) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve-month period
beginning with the first fiscal quarter of the Company occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder.
(h) During the period beginning from the date of this Agreement and
continuing to and including the later of (i) the termination of trading
restrictions for the Securities, as notified to the Company by the Manager and
(ii) the Closing Date, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year after the
Closing Date and which are substantially similar to the Securities, without the
prior written consent of the Manager.
VII.
The Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before, or to its knowledge threatened
by, the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(ii) the Registration Statement and the Prospectus (as amended or supplemented,
if applicable), comply and will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (iii) on the Effective Date and the Closing Date, respectively, the
Indenture conformed and will conform in all material respects with the
requirements of the Trust Indenture Act and the applicable rules and regulations
thereunder, (iv) the documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the Securities
Act, at the time they were filed with the Commission, complied in all material
respects with the requirements of the Exchange Act; no such document when it was
filed contained and, when read together with the other information in the
Prospectus (as amended or supplemented, if applicable), at the time the
Registration Statement became effective and as of the date hereof, did not and
do not contain, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (v) the Prospectus, on the date it bears and as of the Closing
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Date, does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to (i) statements or
omissions in the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use therein and (ii) that part of the Registration
Statement which constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Trustee under the Trust Indenture Act.
(c) The Company has been duly incorporated, is validly existing as a
company in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or to be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each Significant Subsidiary of the Company has been duly
incorporated or organized, as the case may be, is validly existing as a company
or a limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock or limited liability company interests, as the
case may be, of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and are owned
by the Company and its subsidiaries free and clear of all liens, encumbrances,
equities or claims. Delphi Automotive Systems LLC, Delco Electronics Corporation
and Delphi Automotive Systems (Holding), Inc. (collectively, the "Significant
Subsidiaries") are the only subsidiaries of the Company that are "significant
subsidiaries" as such term is defined in Rule 1-02(w) of Regulation S-X.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Securities have been duly authorized and, when duly executed
and authenticated in accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters in accordance with the terms of this Agreement,
or by institutional investors, if any, pursuant to Delayed Delivery Contracts,
will constitute valid and binding obligations of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance with the terms
thereof subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought);
(g) The Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, when executed and delivered by the Company and the
Trustee, the Indenture will
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constitute a valid and binding instrument enforceable in accordance with its
terms, subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought; and the Securities and the
Indenture will conform to the descriptions thereof in the Prospectus.
(h) The execution, delivery and performance of the Company's
obligations under the Indenture, the issuance of the Securities in accordance
with the Indenture and the sale of the Securities pursuant to this Agreement do
not and will not violate or conflict with (i) any provision of applicable law,
except that enforcement of rights to indemnity and contribution may be limited
by Federal or state securities laws or principles of public policy, (ii) the
Certificate of Incorporation or By-laws of the Company or (iii) any agreement or
instrument listed in Schedule I to the opinion of counsel delivered pursuant to
Article V(b) hereunder or any other agreement or other instrument binding upon
the Company or any of its subsidiaries, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, except for violations or conflicts that would not, singularly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries as a whole.
(i) In connection with the offer and sale of the Securities by the
Underwriters as contemplated by the Registration Statement, the Company is not
required to obtain any consent, approval or authorization of any governmental
body or agency for the performance of its obligations under the Indenture and
this Agreement other than the registration of the Securities under the
Securities Act, authorizations or qualifications required under the Trust
Indenture Act and compliance with the insurance, securities and Blue Sky Laws of
various jurisdictions.
VIII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any Preliminary Prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter expressly for
use therein, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such losses, claims, damages or liabilities
promptly after receipt of adequate documentation relating thereto, provided that
the foregoing indemnity agreement with respect to any Preliminary Prospectus or
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
-10-
<PAGE> 11
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Securities to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities, unless
such failure is the result of noncompliance by the Company with Article VI(b)
hereof.
Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished in writing
by such Underwriter expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any Preliminary Prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party shall have agreed in writing to pay such fees and expenses, (ii) the
indemnifying party shall have failed to assume the defense of such proceeding
and employ counsel reasonably satisfactory to the indemnified person in such
proceeding or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to local counsel) for all
such indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the
Manager in the case of parties indemnified pursuant to the second preceding
paragraph and by the Company in the case of parties indemnified pursuant to the
first preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is entitled to indemnification hereunder, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
-11-
<PAGE> 12
If the indemnification provided for in the first or second paragraph of
this Article VIII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other in connection with the offering of
the Securities shall be deemed to be in the same respective proportions as the
net proceeds from the offering of such Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amounts paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraphs shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VIII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten and distributed to the public by such
Underwriter were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Article VIII are several, in
proportion to the respective principal amounts of Securities purchased by each
of such Underwriters, and not joint. The remedies provided for in this Article
VIII are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article
VIII and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any
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<PAGE> 13
investigation made by any Underwriter or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of any payment for any of the Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading in securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any material outbreak or
escalation of hostilities or other calamity and (b) in the case of any of the
events specified in clauses (i) through (iv), such event, singly or together
with any other such event, makes it, in the Manager's reasonable judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
X.
If as of the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase the Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of the
Securities that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of the Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of the
Securities set forth opposite their names in this Agreement bears to the
aggregate principal amount of the Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the Manager
may specify, to purchase the Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of the Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Article X by an amount in excess of one-tenth of such amount
without the written consent of such Underwriter. If on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of the Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of the
Securities to be purchased, and arrangements satisfactory to the Underwriters
and the Company for the purchase of such Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either the
Underwriters or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
-13-
<PAGE> 14
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-14-
<PAGE> 15
SCHEDULE I
Underwriting Agreement
[date]
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, MI 48098
Dear Sirs:
We (the "Underwriters") understand that Delphi Automotive Systems
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
$__________ aggregate principal amount of _____ % [title of issue] Due _________
(the "Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and we agree
to purchase, severally and not jointly, the principal amounts of such Securities
set forth below opposite our names at _____ % of their principal amount and
accrued interest, if any, from ______________ , 1999 to the date of payment and
delivery:
NAME OF UNDERWRITER PRINCIPAL AMOUNT
$
====================
The Underwriters will pay for such Securities upon delivery thereof at
the offices of _____________________ at _______ a.m. (New York time) on
________________ , 1999, as shall be designated by the Manager. The Securities
shall have the terms set forth in the Company's Prospectus Supplement dated
________________ , 19__ relating to the Securities and the Prospectus dated
________________ , 19__, particularly as follows:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
-15-
<PAGE> 16
Other Principal Terms:
All the provisions contained in the document entitled "Delphi
Automotive Systems Corporation Form of Underwriting Agreement Standard
Provisions (Debt Securities) (March 1999)" filed as Exhibit 1 to the Company's
Registration Statement on Form S-3 (File No. 333-73285), a copy of which we have
previously received, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein. The term "Manager" as used
therein, for purposes of this Agreement, means [name of Underwriter].
Any other terms and conditions agreed to by such underwriter(s) and the
Company.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below. This Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Very truly yours,
[Name of Manager]
On behalf of itself and the other
Underwriters named heretofore
By: _________________________
Accepted:
Delphi Automotive Systems Corporation
By: _________________________
-16-
<PAGE> 17
Schedule II
DELAYED DELIVERY CONTRACT
, 1999
_______________
Dear Sirs:
The undersigned hereby agrees to purchase from Delphi Automotive
Systems Corporation, a Delaware corporation (the "Company") and the Company
agrees to sell to the undersigned $__________ principal amount of the Company's
[state title of issue] (the "Securities"), offered by the Company's Prospectus
dated ________________ , 1999 and Prospectus Supplement dated ________________ ,
19__, receipt of copies of which are hereby acknowledged, at a purchase price of
_____ % of the principal amount thereof plus accrued interest, if any, and on
the further terms and conditions set forth in this contract. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
<TABLE>
<CAPTION>
DELIVERY PRINCIPAL PLUS ACCRUED
DATE AMOUNT INTEREST FROM:
<S> <C> <C>
$
----------------- ------------------ -----------------
$
----------------- ------------------ -----------------
$
----------------- ------------------ -----------------
</TABLE>
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities that the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
__________________ , New York, NY, at ______ a.m. (New York time) on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and
-17-
<PAGE> 18
delivery shall have taken place to the underwriters (the "Underwriters") named
in the Prospectus Supplement referred to above, such part of the Securities as
is to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the laws of
the State of New York.
Very truly yours,
----------------------------------------
(Purchaser)
By:
-------------------------------------
Title:
----------------------------------
----------------------------------------
----------------------------------------
(Address)
Accepted:
Delphi Automotive Systems Corporation
By:
-----------------------------
Title:
--------------------------
-18-
<PAGE> 1
EXHIBIT 1.2
UNDERWRITING AGREEMENT
April 28, 1999
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
5725 Delphi Drive
Troy, MI 48098-1815
Ladies and Gentlemen:
We (the "underwriters") understand that Delphi Automotive Systems
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
(i) $500,000,000 aggregate principal amount of 6 1/8% Notes due May 1, 2004 (the
"2004 NOTES"); (ii) $500,000,000 aggregate principal amount of 6 1/2% Notes due
May 1, 2009 (the "2009 NOTES"); and (iii) $500,000,000 aggregate principal
amount of 7 1/8% Debentures due May 1, 2029 (the "2029 DEBENTURES") (the 2004
Notes, the 2009 Notes and the 2029 Debentures are collectively referred to as
the "Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and we agree
to purchase, severally and not jointly, the principal amount of such Securities
set forth below opposite our names at (i) 99.523% of the principal amount of the
2004 Notes, (ii) 98.943% of the principal amount of the 2009 Notes and (iii)
98.355% of the principal amount of the 2029 Debentures, in each case plus
accrued interest, if any, from May 4, 1999 to the date of payment and delivery:
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
UNDERWRITER OF NOTES DUE 2004
- ----------- -----------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated............................ $175,000,000
Morgan Stanley & Co. Incorporated 175,000,000
Chase Securities Inc. 50,000,000
Goldman, Sachs & Co......................................... 50,000,000
BNY Capital Markets, Inc.................................... 10,000,000
First Union Capital Markets Corp............................ 10,000,000
Lehman Brothers Inc......................................... 10,000,000
Ormes Capital Markets, Inc.................................. 10,000,000
SG Cowen Securities Corporation............................. 10,000,000
------------
Total........................................ $500,000,000
============
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
UNDERWRITER OF NOTES DUE 2009
- ----------- -----------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.......................... $175,000,000
Morgan Stanley & Co. Incorporated.......................... 175,000,000
Chase Securities Inc....................................... 50,000,000
Goldman, Sachs & Co........................................ 50,000,000
Bank One Capital Markets, Inc.............................. 10,000,000
Blaylock & Partners, L.P................................... 10,000,000
BNP Capital Markets LLC.................................... 10,000,000
CIBC Oppeheimer Corp....................................... 10,000,000
Credit Lyonnais S.A........................................ 10,000,000
------------
Total....................................... $500,000,000
============
<CAPTION>
PRINCIPAL AMOUNT
UNDERWRITER OF DEBENTURES DUE 2029
- ----------- ----------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated......................... $175,000,000
Morgan Stanley & Co. Incorporated......................... 175,000,000
Chase Securities Inc...................................... 50,000,000
Goldman, Sachs & Co....................................... 50,000,000
Barclays Bank PLC......................................... 10,000,000
Bear, Stearns & Co. Inc................................... 10,000,000
Deutsche Bank AG London................................... 10,000,000
NationsBanc Montgomery Securities LLC..................... 10,000,000
Salomon Smith Barney Inc.................................. 10,000,000
------------
Total...................................... $500,000,000
============
</TABLE>
The Underwriters will pay for such Securities upon delivery thereof at
the offices of O'Melveny & Myers LLP, 153 East 53rd Street, New York, New York
10022 at 10:00 a.m. (New York time) on May 4, 1999 or at such other time, not
later than May 4,1999 as shall be designated by the Managers (as defined
herein).
The Securities shall have the terms set forth in the Company's
Prospectus Supplement dated April 28, 1999 (the "Supplement") and the Company's
Prospectus dated March 30, 1999 (together with the Supplement, the "Prospectus")
particularly as follows:
2004 NOTES
Maturity: May 1, 2004
Interest Rate: 6 1/8% per annum from May 4, 1999 or from the most
2
<PAGE> 3
recent Interest Payment Date to which interest has
been paid or duly provided for.
2009 NOTES
Maturity: May 1, 2009
Interest Rate: 6 1/2% per annum from May 4, 1999 or from the most
recent Interest Payment Date to which interest has
been paid or duly provided for.
2029 DEBENTURES
Maturity: May 1, 2029
Interest Rate: 7 1/8% per annum from May 4, 1999 or from the most
recent Interest Payment Date to which interest has
been paid or duly provided for.
THE SECURITIES
Redemption Provisions: The Securities will be redeemable prior to maturity
at the option of the Company, in whole or in part,
at the redemption prices set forth in the
Prospectus Supplement plus accrued interest and
each affected series of the Securities will be
redeemable as a whole, but not in part, at 100% of
their principal amount plus accrued interest in the
event of certain changes relating to United States
taxation, in each case subject to the terms and
conditions described in the Prospectus.
Interest Payment Dates: May 1 and November 1 commencing November 1, 1999,
until the principal amount thereof is paid or made
available for payment.
Listing: Luxembourg Stock Exchange.
Other Principal Terms The purchase price will be payable in immediately
available funds on the Closing Date.
Book Entry Form: Each of the 2004 Notes, the 2009 Notes and the 2029
Debentures will be issued in the form of one or
more fully registered global securities (in each
case, the "Global Security") which will be
deposited with, or on behalf of, The Depository
Trust Company, New York, New York (the
"Depository") and registered in the name of the
Depository's nominee. The Global Security may be
transferred, in whole and not in part,
3
<PAGE> 4
only to another nominee of the Depository or a
successor of the Depository or its nominee.
Ownership of beneficial interests of the Global
Security will be shown on, and the transfer of that
interest will be effected only through, records
maintained by the Depository (with respect to its
Participants' interests), its Participants and
indirect participants (with respect to the owners
of beneficial interests in the Global Security).
Each Underwriter, severally and not jointly, represents and agrees that:
(i) no action has been or will be taken by it that would permit
the offer or sale of the Securities or any interest therein or possession or
distribution of the Prospectus or any amendment thereto or any other offering
material relating to the Securities in any jurisdiction where action for that
purpose is required, by the Company, other than the registration of the
Securities under the Securities Act of 1933, as amended (the "Securities Act").
Each Underwriter agrees that it will not directly or indirectly offer, sell or
deliver any Securities or any interest therein or distribute or publish the
Prospectus or any other offering material relating to the Securities, in or from
any jurisdiction except under circumstances that will, to the best knowledge of
such Underwriter, result in compliance with all applicable laws and regulations
and will not impose any obligations on the Company, or the other Underwriters,
and that all offers, sales and deliveries of Securities or any interest therein
by it will be made on the same terms. Subject as provided above, each
Underwriter shall, as required (and unless prohibited) by applicable law,
furnish to each person to whom it offers, sells or delivers the Securities a
copy of the Prospectus or (unless delivery of the Prospectus is required by
applicable law) inform each such person that a copy thereof (as then amended or
supplemented) will be made available upon request. No Underwriter is authorized
to give any information or to make any representation not contained in the
Prospectus in connection with the offer and sale of the Securities;
(ii) it has not offered or sold and, prior to the expiration of
the six months from the Closing Date, will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995;
(iii) it has complied and will comply with all applicable
provisions of the Financial Services Act of 1986, with respect to anything done
by it in relation to the Securities in, from or otherwise involving the United
Kingdom, and
(iv) it has only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in connection with the
issue of the Securities to a person who is of a kind described in Article 11 (3)
of the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996, as amended, or is a person to whom such documents may otherwise
lawfully be issued or passed on.
4
<PAGE> 5
The Manager may terminate this Agreement (upon consultation with the
Company) at any time prior to the Closing Date at which payment would otherwise
be due under this Agreement to the Company if, in the opinion of the Manager,
there shall have been such a change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls
which in the Manager's view will have a materially adverse effect on the success
of the offering and distribution of or a secondary market of the Securities.
After consultation with the Company, the parties to this Agreement shall be
released and discharged from their respective obligations under this Agreement
without liability on the part of any Manager or on the part of the Company and
each party will pay its own expenses.
In addition to the provisions of Article V of the Standard Provisions
(as defined below), the several obligations of the Underwriters are also subject
to the following conditions:
(i) In lieu of the letter to be delivered pursuant to Article V(e)
of the Standard Provisions, on the Closing Date the Manager shall have received
a letter dated such date in form and substance satisfactory to the Manager, from
Deloitte and Touche LLP, independent accountants, (a) confirming that they are
independent public accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the United States Securities
and Exchange Commission, (b) stating, as of the date of such letter (or with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in or incorporated by
reference into the Prospectus, as of a date not more than five days prior to the
date of such letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by its letter (the "initial
letter") delivered to the Manager concurrently with the execution of this
Agreement and (c) confirming in all material respects the conclusions and
findings set forth in the initial letter.
In addition to the provisions of Article VI of the Standard
Provisions, the Company further covenants as follows:
(i) the Company shall use its reasonable best efforts to cause the
Securities to be listed on the Luxembourg Stock Exchange, or on such other
European stock exchange as is reasonably requested by the Manager.
Except as otherwise provided above, all the provisions contained in the
document entitled Delphi Automotive Systems Corporation's Underwriting Agreement
Standard Provisions (Debt Securities) April 28, 1999 attached hereto as Exhibit
A (the "Standard Provisions"), are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein, except that the term
"Manager" as used therein shall, for purposes of this Agreement, mean Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co.
Incorporated, in each case whose authority hereunder may be exercised jointly by
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co.
Incorporated. In the event of a conflict between this Agreement and the Standard
Provisions with respect to any term or condition, this Agreement shall take
precedence.
[Remainder of Page Blank]
5
<PAGE> 6
Please confirm your agreement by having an authorized officer sign
a copy of this, Agreement in the space set forth below. This Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Very truly yours,
For the 2004 Notes
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
BNY CAPITAL MARKETS, INC.
FIRST UNION CAPITAL MARKETS CORP.
LEHMAN BROTHERS INC.
ORMES CAPITAL MARKETS, INC.
SG COWEN SECURITIES CORPORATION
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
------------------------------------------
Title:
By: MORGAN STANLEY & CO. INCORPORATED
By:
------------------------------------------
Title:
Accepted:
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
By:
------------------------------------------
Title:
S-1
<PAGE> 7
For the 2009 Notes
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
BANC ONE CAPITAL MARKETS, INC.
BLAYLOCK & PARTNERS, L.P.
BNP LONDON BRANCH S.A.
CIBC OPPENHEIMER CORP.
CREDIT LYONNAIS S.A.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
------------------------------------------
Title:
By: MORGAN STANLEY & CO. INCORPORATED
By:
------------------------------------------
Title:
Accepted:
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
By:
------------------------------------------
Title:
S-2
<PAGE> 8
For the 2029 Debentures
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
BARCLAYS BANK PLC
BEAR, STEARNS & CO. INC.
DEUTSCHE BANK SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
------------------------------------------
Title:
By: MORGAN STANLEY & CO. INCORPORATED
By:
------------------------------------------
Title:
Accepted:
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
By:
------------------------------------------
Title:
S-3
<PAGE> 1
EXHIBIT 4.1
Terms of the Securities
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
April 28, 1999
6 1/8% Notes due 2004
6 1/2% Notes due 2009
7 1/8% Debentures due 2029
Three series of Securities are hereby established pursuant to Section
2.01 of the Indenture dated April 28, 1999 (the "Indenture") between Delphi
Automotive Systems Corporation (the "Corporation") and The First National Bank
of Chicago (the "Trustee"), as follows:
1. Each capitalized term used but not defined herein shall have the
meaning assigned to such term in the Indenture.
2. The designation of the 6 1/8% Notes due 2004 shall be the "6 1/8%
Notes due 2004" (the "Notes due 2004"), the designation of the 6 1/2% Notes due
2009 shall be the "6 1/2% Notes due 2009" (the "Notes due 2009") and the
designation of the 7 1/8% Debentures due 2029 shall be the "7 1/8% Debentures
due 2029" (the "Debentures due 2029" and, together with the Notes due 2004 and
the Notes due 2009, the "Designated Securities").
3. The limit upon the aggregate principal amount of the Notes due 2004,
the Notes due 2009 and the Debentures due 2029 that may be authenticated and
delivered under the Indenture (except for Designated Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Designated Securities of the series pursuant to Section 2.05, 2.06,
2.07, 3.02 or 10.04 of the Indenture) is $ 500,000,000, $500,000,000 and
$500,000,000, respectively.
4. The date on which the principal of the Notes due 2004, the Notes due
2009 and the Debentures due 2029 shall be payable shall be May 1, 2004, May 1,
2009 and May 1, 2029, respectively.
5. The rate at which the Notes due 2004, the Notes due 2009 and the
Debentures due 2029 shall bear interest shall be 6 1/8% per annum, 6 1/2% per
annum and 7 1/8% per annum, respectively. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months. The date from which interest
shall accrue for the Designated Securities of each series shall be May 4, 1999
or the most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be. The Interest Payment Dates on which such
interest shall be payable shall be May 1 and November 1 of each year, commencing
November 1, 1999. The record dates for the interest payable on the Designated
Securities on any Interest Payment Date shall be April 15 and October 15, as the
case may be, next preceding such Interest Payment Date.
<PAGE> 2
6. The form of Security for each of the Notes due 2004, the Notes due
2009 and the Debentures due 2029 shall be as set forth on Attachments A-1, A-2
and A-3 hereto, respectively.
7. The place or places where the principal of (and premium, if any) and
interest and Additional Amounts on the Designated Securities shall be payable
shall be the office or agency of the Corporation maintained for that purpose in
the Borough of Manhattan, the City of New York; provided, however, that at the
option of the Corporation, payment of interest may be made by check mailed to
the address of the Holder entitled thereto as such address shall appear in the
Security Register or by wire transfer of immediately available funds if the
Holder holds U.S. $10,000,000 or more in aggregate principal amount and sends
wire transfer instructions to the Trustee as required in the Indenture.
8. The Securities of each series are subject to redemption, in whole at
any time or in part from time to time, at the option of the Corporation, at a
redemption price equal to the greater of (1) 100% of the principal amount of the
Securities to be redeemed, and (2) the sum of the present values of the
remaining scheduled payments of principal and interest on such Securities,
discounted to the date of redemption on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the applicable Treasury Rate plus 10
basis points for the Notes due 2004, the applicable Treasury Rate plus 15 basis
points for the Notes due 2009 or the applicable Treasury Rate plus 25 basis
points for the Debentures due 2029 plus, in each case, accrued and unpaid
interest on the principal amount being redeemed to the redemption date.
"TREASURY RATE" means, with respect to any redemption date, (1) the
yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months
before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Treasury Rate will be interpolated or
extrapolated from such yields on a straight line basis, rounding to the
nearest month) or (2) if such release (or any successor release) is not
published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual
equivalent yield-to-maturity of the Comparable Treasury Issue
calculated using a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable
Treasury Price of such redemption date. The Treasury Rate will be
calculated on the third Business Day preceding the redemption date.
"BUSINESS DAY" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are
open for business in New York, New York.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term
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<PAGE> 3
("Remaining Life") of the Designated Securities to be redeemed that
would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of such
Designated Securities.
"INDEPENDENT INVESTMENT BANKER" means either Merrill Lynch, Pierce,
Fenner & Smith Incorporated or Morgan Stanley & Co. Incorporated, and
their respective successors, or, if both firms are unwilling or unable
to select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee after
consultation with the Corporation.
"COMPARABLE TREASURY PRICE" means (1) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (2) if
the Independent Investment Banker obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such
quotations.
"REFERENCE TREASURY DEALER" means (1) Merrill Lynch, Pierce Fenner &
Smith Incorporated and Morgan Stanley & Co. Incorporated, and their
respective successors, provided, however, that if any of the foregoing
shall cease to be a primary U.S. government securities dealer in New
York City (a "Primary Treasury Dealer"), the Corporation will
substitute for such underwriter another Primary Treasury Dealer and (2)
any other Primary Treasury Dealer selected by the Independent
Investment Banker after consultation with the Corporation.
"THE REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker at 5:00 p.m., New York City time, on the
third Business Day preceding such redemption date.
9. If (1) as a result of any change in, or amendment to, the laws (or
any regulations or rulings promulgated thereunder) of the United States (or any
political subdivision or taxing authority thereof or therein), or any change in,
or amendments to, the official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after the date hereof, the Corporation
becomes or will become obligated to pay Additional Amounts or (2) any act is
taken by a taxing authority of the United States on or after the date hereof,
whether or not such act is taken with respect to the Corporation or any
affiliate, that results in a substantial probability that the Corporation will
or may be required to pay such Additional Amounts, then the Corporation may, at
its option, redeem, in whole, but not in part, each affected series of the
Designated Securities on not less than 30 nor more than 60 days' prior notice,
at a redemption price equal to 100% of the principal amount of the relevant
Designated Securities, together with interest accrued but unpaid thereon to the
date fixed for redemption; provided that the Corporation determines, in its
business judgment, that the obligation to pay such additional amounts cannot be
avoided by the use of reasonable measures available to it, not including
substitution of the obligor under the Designated Securities. No redemption
pursuant to (2) above may be made unless the
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<PAGE> 4
Corporation shall have received an opinion of independent counsel to the effect
that an act taken by a taxing authority of the United States results in a
substantial probability that it will or may be required to pay Additional
Amounts and the Corporation shall have delivered to the Trustee a certificate,
signed by a duly authorized officer, stating that based on such opinion the
Corporation is entitled to redeem the Designated Securities pursuant to their
terms.
10. The Corporation shall have no obligation to redeem, purchase or
repay the Designated Securities pursuant to any sinking fund or analogous
provision or at the option of the Holder thereof.
11. The Designated Securities shall be issued in the form of one or
more definitive Global Securities in registered form and deposited with, or on
behalf of, the Depository Trust Company, New York ("DTC"), and registered in the
name of DTC's nominee, provided that they will be issued in definitive form only
under certain circumstances. If any of the Euroclear System ("Euroclear"),
Cedelbank or DTC notifies the Corporation that it is unwilling or unable to
continue as a clearing system in connection with the Global Securities or, in
the case of DTC only, DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and in each case a successor
clearing system is not appointed by the Corporation within 90 days after
receiving such notice from Euroclear, Cedelbank or DTC or on becoming aware that
DTC is no longer so registered, the Corporation will issue or cause to be issued
individual certificates in registered form on registration of transfer of, or in
exchange for, book-entry interests in the Designated Securities represented by
such Global Securities upon delivery of such Global Securities for cancellation.
In the event definitive Designated Securities are issued, the Corporation will
appoint a paying agent and transfer agent in Luxembourg. The Corporation will
publish the name of the Luxembourg paying agent and transfer agent in
Luxembourg. In the event definitive Designated Securities are issued, the
Holders thereof will be able to receive payments on the Designated Securities
and effect transfers of the Designated Securities at the offices of the
Luxembourg paying agent and transfer agent.
12. The Corporation will, subject to the exceptions and limitations set
forth below, pay as additional interest on the Designated Securities such
Additional Amounts as are necessary in order that the net payment by the
Corporation or a paying agent of the principal of and interest on the Designated
Securities to a Holder who is a non-United States person (as defined below),
after deduction for any present or future tax, assessment or governmental charge
of the United States or a political subdivision or taxing authority thereof or
therein, imposed by withholding with respect to the payment, will not be less
than the amount provided in the Designated Securities to be then due and
payable; provided, however, that the foregoing obligation to pay Additional
Amounts shall not apply:
(1) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the Holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the Holder if
the Holder is an estate, trust, partnership or corporation, or
a person holding a power over an estate or trust administered
by a fiduciary Holder, being considered as:
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<PAGE> 5
(a) being or having been present or engaged in trade or
business in the United States or having or having had
a permanent establishment in the United States;
(b) having a current or former relationship with the
United States, including a relationship as a citizen
or resident thereof;
(c) being or having been a foreign or domestic personal
holding company, a passive foreign investment company
or a controlled foreign corporation with respect to
the United States or a corporation that has
accumulated earnings to avoid United States federal
income tax; or
(d) being or having been a "10-percent shareholder" of
the Corporation as defined in section 871 (h) (3) of
the United States Internal Revenue Code of 1986, as
amended (the "Code"), or any successor provision;
(2) to any Holder that is not the sole beneficial owner of the
Designated Securities, or a portion thereof, or that is a
fiduciary or partnership, but only to the extent that a
beneficiary or settlor with respect to the fiduciary or a
beneficial owner or member of the partnership would not have
been entitled to the payment of an Additional Amount had the
beneficiary, settlor, beneficial owner or member received
directly its beneficial or distributive share of the payment;
(3) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the failure of the Holder or any
other person to comply with certification, identification or
information reporting requirements concerning the nationality,
residence, identity or connection with the United States of
the Holder or beneficial owner of such Designated Securities,
if compliance is required by statute, by regulation of the
United States Treasury Department or by an applicable income
tax treaty to which the United States is a party as a
precondition to exemption from, or reduction of, such tax,
assessment or other governmental charge;
(4) to a tax, assessment or governmental charge that is imposed
otherwise than by withholding by the Corporation or a paying
agent from the payment;
(5) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes
effective more than 15 days after the payment becomes due or
is duly provided for, whichever occurs later;
(6) to an estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or a similar tax, assessment
or governmental charge;
(7) to any tax, assessment or other governmental charge required
to be withheld by any paying agent from any payment of
principal of or interest on any Offered
-5-
<PAGE> 6
Security, if such payment can be made without such withholding
by any other paying agent; or
(8) in the case of any combination of items (1), (2), (3), (4),
(5), (6) or (7) above.
The Designated Securities are subject in all cases to any tax, fiscal
or other law or regulation or administrative or judicial interpretation
applicable thereto. Except as herein specifically provided, the Corporation will
not be required to make any payment with respect to any tax, assessment or
governmental charge imposed by any government or a political subdivision or
taxing authority thereof or therein.
As used herein, the term "United States" means the United States of
America (including the States and the District of Columbia) and its territories,
its possessions and other areas subject to its jurisdiction. "United States
person" means (1) any individual who is a citizen or resident of the United
States, (2) a corporation, partnership or other entity created or organized in
or under the laws of the United States, (3) any estate the income of which is
subject to United States federal income taxation regardless of its source or (4)
any trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust or
if the trust elects under United States Treasury Regulations to be treated as a
U.S. person, and "non-United States person" means a person who is not a United
States person.
13. The provisions of Article Twelve of the Indenture relating to
defeasance of Securities shall apply to the Designated Securities.
14. The Corporation's Luxembourg Stock Exchange listing agent shall be
Banque Internationale a Luxembourg S.A., 69 route d'Esch, L-1470 Luxembourg. The
Paying Agent and Transfer Agent for the Designated Securities of each series, in
definitive form, shall be Banque Internationale a Luxembourg S.A.. In addition,
so long as the Securities of any series are listed on the Luxembourg Stock
Exchange, the Corporation shall maintain a Paying Agent and Transfer Agent for
the Securities of such series in Luxembourg.
15. The Notes due 2004 shall be offered at an initial public offering
price equal to 99.873% of their principal amount, and in payment for the Notes
due 2004 the Corporation shall receive 99.523% of their principal amount
(99.873% of their principal amount less an underwriting discount of .350% to be
paid to the underwriters pursuant to the Underwriting Agreement).
The Notes due 2009 shall be offered at an initial public offering price
equal to 99.393% of their principal amount, and in payment for the Notes due
2009 the Corporation shall receive 98.943% of their principal amount (99.393% of
their principal amount less an underwriting discount of .450% to be paid to the
underwriters pursuant to the Underwriting Agreement).
The Debentures due 2029 shall be offered at an initial public offering
price equal to 99.230% of their principal amount, and that in payment for the
Debentures due 2029 the Corporation shall receive 98.355% of their principal
amount (99.230% of their principal amount
-6-
<PAGE> 7
less an underwriting discount of .875% of their principal amount to be paid to
the underwriters pursuant to the Underwriting Agreement).
-7-
<PAGE> 8
Attachment A-1
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Note may not be transferred except as a whole by (i) the
Depositary to a nominee of the Depositary, (ii) a nominee of the Depositary to
the Depositary or another nominee of the Depositary or (iii) the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. The Depositary Trust Company, a New York corporation ("DTC"), shall
act as the Depositary until a successor shall be appointed by the Corporation
and the Registrar. Unless this certificate is presented by an authorized
representative of DTC to the Corporation or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
6 1/8% Notes Due May 1, 2004 CUSIP 247126 AA 3
DELPHI AUTOMOTIVE SYSTEMS CORPORATION, a Delaware corporation (the
"Corporation"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of Five Hundred Million Dollars
($500,000,000) at the office or agency of the Corporation for such purpose in
the Borough of Manhattan, the City of New York, on May 1, 2004, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest on
said principal sum at the rate of 6 1/8% per annum at the office or agency of
the Corporation in the Borough of Manhattan, the City of New York, in like coin
or currency from the first day of May or November, as the case may be, to which
interest on the 6 1/8% Notes Due May 1, 2004 (the "Notes") has been paid
preceding the date hereof (unless the date hereof is a May 1 or November 1 to
which interest has been paid, in which case from the date hereof, or unless no
interest has been paid on the Notes since the original issuance of the Notes, in
which case from May 4, 1999), semi-annually on May 1 and November 1, until
payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after April 15 or November
15, as the case may be, and before the following May 1 or November 1, and if no
default in the payment of interest on this Note shall have occurred and be
continuing on the date of this Note, this Note shall bear interest from such May
1 or November 1, provided, however, that if the Corporation shall default in the
payment of interest due on such May 1 or November 1, then this Note shall bear
interest from the next preceding May 1 or November 1, to which interest has been
paid. The interest so payable on any May 1 or November 1 will, subject to
certain exceptions provided in the Indenture referred to below, be paid to the
person in whose name this Note is registered at the close of business on the
fifteenth day of the calendar month next preceding such May 1 or November 1 at
the office or agency of the Corporation maintained for that purpose in the
Borough of Manhattan, the City of New York; at the option of the Corporation,
interest may be paid by check to the registered holder hereof entitled thereto
at his,
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<PAGE> 9
her or its last address as it appears on the registry books, or by wire transfer
of immediately available funds if the registered Holder hereof holds U.S.
$10,000,000 or more in aggregate principal amount and sends wire transfer
instructions to the Trustee as required in the Indenture, and principal may be
paid by check to the registered Holder hereof or other person entitled thereto
against surrender of this Note.
This Note represents all of the Corporation's 6 1/8% Notes Due May 1, 2004
limited in aggregate principal amount to $500,000,000, and is one of a duly
authorized issue of debentures, notes, bonds or other evidences of indebtedness
of the Corporation (the "Securities"), all issued or to be issued under and
pursuant to an Indenture dated as of April 28, 1999 (the "Indenture"), duly
executed and delivered by the Corporation to The First National Bank of Chicago,
Trustee (the "Trustee"), to which Indenture and any indentures supplemental
thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Corporation and the Holders of the Securities. The Securities may be issued in
one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption provisions (if any), and
may otherwise vary as provided in the Indenture. The terms of the Notes are set
forth in a set of resolutions of the Debt Finance Committee of the Board of
Directors of the Corporation dated April 28, 1999 (the "Resolutions").
Initially, the Trustee will act as Paying Agent and Registrar.
The Corporation will, subject to the exceptions and limitations set forth below,
pay as additional interest on this Note such Additional Amounts as are necessary
in order that the net payment by the Corporation or a paying agent of the
principal of and interest on this Note to a Holder who is a non-United States
person (as defined below), after deduction for any present or future tax,
assessment or governmental charge of the United States or a political
subdivision or taxing authority thereof or therein, imposed by withholding with
respect to the payment, will not be less than the amount provided in this Note
to be then due and payable; provided, however, that the foregoing obligation to
pay Additional Amounts shall not apply:
(1) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the Holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the Holder if
the Holder is an estate, trust, partnership or corporation, or
a person holding a power over an estate or trust administered
by a fiduciary Holder, being considered as:
(a) being or having been present or engaged in trade or
business in the United States or having or having had
a permanent establishment in the United States;
(b) having a current or former relationship with the
United States, including a relationship as a citizen
or resident thereof;
-9-
<PAGE> 10
(c) being or having been a foreign or domestic personal
holding company, a passive foreign investment company
or a controlled foreign corporation with respect to
the United States or a corporation that has
accumulated earnings to avoid United States federal
income tax; or
(d) being or having been a "10-percent shareholder" of
the Corporation as defined in section 871 (h) (3) of
the United States Internal Revenue Code of 1986, as
amended (the "Code"), or any successor provision;
(2) to any Holder that is not the sole beneficial owner of this
Note, or a portion hereof, or that is a fiduciary or
partnership, but only to the extent that a beneficiary or
settlor with respect to the fiduciary or a beneficial owner or
member of the partnership would not have been entitled to the
payment of an Additional Amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or
distributive share of the payment;
(3) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the failure of the Holder or any
other person to comply with certification, identification or
information reporting requirements concerning the nationality,
residence, identity or connection with the United States of
the Holder or beneficial owner of this Note, if compliance is
required by statute, by regulation of the United States
Treasury Department or by an applicable income tax treaty to
which the United States is a party as a precondition to
exemption from, or reduction of, such tax, assessment or other
governmental charge;
(4) to a tax, assessment or governmental charge that is imposed
otherwise than by withholding by the Corporation or a paying
agent from the payment;
(5) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes
effective more than 15 days after the payment becomes due or
is duly provided for, whichever occurs later;
(6) to an estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or a similar tax, assessment
or governmental charge;
(7) to any tax, assessment or other governmental charge required
to be withheld by any paying agent from any payment of
principal of or interest on the Notes, if such payment can be
made without such withholding by any other paying agent; or
(8) in the case of any combination of items (1), (2), (3), (4),
(5), (6) or (7) above.
This Note is subject in all cases to any tax, fiscal or other law or
regulation or administrative or judicial interpretation applicable thereto.
Except as herein specifically provided, the Corporation will not be required to
make any payment with respect to any tax,
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<PAGE> 11
assessment or governmental charge imposed by any government or a political
subdivision or taxing authority thereof or therein.
As used herein, the term "United States" means the United States of
America (including the States and the District of Columbia) and its territories,
its possessions and other areas subject to its jurisdiction. "United States
person" means (1) any individual who is a citizen or resident of the United
States, (2) a corporation, partnership or other entity created or organized in
or under the laws of the United States, (3) any estate the income of which is
subject to United States federal income taxation regardless of its source or (4)
any trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust or
if the trust elects under United States Treasury Regulations to be treated as a
U.S. person, and "non-United States person" means a person who is not a United
States person.
In case an Event of Default, as defined in the Indenture, with respect to the
Notes shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the Trustee to
execute a supplemental indenture to add any provisions to, change in any manner
or eliminate any provisions of, the Indenture or any existing supplemental
indenture, or to modify the rights of the Holders of the Securities issued under
either such Indenture or existing supplemental indenture, with the consent of
the Holders of not less than a majority in principal amount of the Securities of
all series at the time Outstanding that are affected by the supplemental
indenture to be executed (voting as one class) if the supplemental Indenture to
be executed does not:
(i) (a) change the fixed maturity of any Securities, (b) reduce their
principal amount or premium, if any, (c) reduce the rate or extend the
time of payment of interest or any additional amounts payable on the
debt securities, (d) reduce the amount due and payable upon
acceleration of the maturity of the Securities or the amount provable
in bankruptcy or (e) make the principal of, or any interest, premium or
additional amounts on, any Security payable in a coin or currency
different from that provided in the Security,
(ii) impair the right to initiate suit for the enforcement of any such
payment on or after the stated maturity of the Securities, or
(iii) reduce the requirement, stated above, for the consent of the
Holders of the Securities to any modification described above, or the
percentage required for the consent of the Holders to waive defaults,
without the consent of the Holder of each Security so affected.
The Indenture also contains provisions permitting the Corporation and the
Trustee to execute supplemental indentures without the consent of the Holders of
the Securities to (a) evidence the assumption by a successor corporation of the
obligations of the Corporation, (b) add covenants for the protection of the
Holders of the Securities, (c) add or change any of the provisions of the
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<PAGE> 12
Indenture to permit or facilitate the issuance of Securities of any series in
bearer form and to provide for the exchange of Securities in bearer form with
registered Securities, (d) cure any ambiguity or correct any inconsistency in
the Indenture or in a supplemental indenture, (e) transfer, assign, mortgage or
pledge any property to or with the Trustee, (f) establish the form or terms of
Securities of any series as permitted by the terms of the Indenture, (g)
evidence the acceptance of appointment by a successor trustee and (h) change or
eliminate provisions of the Indenture where the changes or eliminations do not
apply to any Security outstanding and become effective only when there is no
Security outstanding of a series created before the execution of the
supplemental indenture that is entitled to the benefit of the provision being
changed or eliminated.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rate, and in the coin or currency,
herein prescribed.
The Notes may be redeemed in whole at any time or in part from time to time, at
the option of the Corporation, at a redemption price equal to the greater of (1)
100% of the principal amount of the Notes to be redeemed, and (2) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon discounted to the date of redemption on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the applicable Treasury Rate
plus 10 basis points, plus accrued and unpaid interest thereon to the redemption
date.
"TREASURY RATE" means, with respect to any redemption date, (1) the
yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months
before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Treasury Rate will be interpolated or
extrapolated from such yields on a straight line basis, rounding to the
nearest month) or (2) if such release (or any successor release) is not
published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual
equivalent yield-to-maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable
Treasury Price of such redemption date. The Treasury Rate will be
calculated on the third Business Day preceding the redemption date.
"BUSINESS DAY" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are
open for business in New York, New York.
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<PAGE> 13
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term ("Remaining Life") of the notes to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of such notes.
"INDEPENDENT INVESTMENT BANKER" means either Merrill Lynch, Pierce,
Fenner & Smith Incorporated or Morgan Stanley & Co. Incorporated, and
their respective successors, or, if both firms are unwilling or unable
to select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee after
consultation with the Corporation.
"COMPARABLE TREASURY PRICE" means (1) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (2) if
the Independent Investment Banker obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such
quotations.
"REFERENCE TREASURY DEALER" means (1) Merrill Lynch, Pierce Fenner &
Smith Incorporated and Morgan Stanley & Co. Incorporated, and their
respective successors, provided, however, that if any of the foregoing
shall cease to be a primary U.S. government securities dealer in New
York City (a "Primary Treasury Dealer"), the Corporation will
substitute for such underwriter another Primary Treasury Dealer and (2)
any other Primary Treasury Dealer selected by the Independent
Investment Banker after consultation with the Corporation.
"THE REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker at 5:00 p.m., New York City time, on the
third Business Day preceding such redemption date.
If (1) as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States (or any
political subdivision or taxing authority thereof or therein), or any change in,
or amendments to, the official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after the date of the Resolutions, the
Corporation becomes or will become obligated to pay Additional Amounts or (2)
any act is taken by a taxing authority of the United States on or after the date
of the Resolutions, whether or not such act is taken with respect to the
Corporation or any affiliate, that results in a substantial probability that the
Corporation will or may be required to pay such Additional Amounts, then the
Corporation may, at its option, redeem, in whole, but not in part, the Notes on
not less than 30 nor more than 60 days' prior notice, at a redemption price
equal to 100% of their principal amount, together with interest accrued but
unpaid thereon to the date fixed for redemption; provided that the Corporation
determines, in its business judgment, that the obligation to pay such additional
amounts cannot be avoided by the use of reasonable measures available to it, not
including substitution of the obligor under the Notes. No redemption pursuant to
(2) above may be made
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<PAGE> 14
unless the Corporation shall have received an opinion of independent counsel to
the effect that an act taken by a taxing authority of the United States results
in a substantial probability that it will or may be required to pay Additional
Amounts and the Corporation shall have delivered to the Trustee a certificate,
signed by a duly authorized officer, stating that based on such opinion the
Corporation is entitled to redeem the Notes pursuant to their terms.
Upon due presentment for registration of transfer of this Note at the office or
agency designated and maintained by the Corporation for such purpose in the
Borough of Manhattan, The City of New York, pursuant to the provisions of the
Indenture, a new Note for an equal aggregate principal amount will be issued to
the transferee in exchange therefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Corporation, the Trustee and any authorized agent of the Corporation or the
Trustee may deem and treat the Holder in whose name this Note is registered as
the absolute owner of this Note (whether or not this Note shall be overdue) for
the purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and subject to the provisions contained herein, interest
hereon, and for all other purposes, and neither the Corporation nor the Trustee
nor any authorized agent of the Corporation or the Trustee shall be affected by
any notice to the contrary. Notes so issued in definitive form will be issued as
registered Notes without coupons in denominations of $1,000 and integral
multiples of $1,000.
No recourse under or upon any obligation, covenant or agreement of the
Corporation in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any past, present or future incorporator, stockholder, officer or
director, as such, of the Corporation or of any successor entity, either
directly or through the Corporation or any successor entity, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
The Corporation shall have no obligation to redeem, purchase or repay this Note
pursuant to any sinking fund or analogous provision or at the option of the
Holder hereof.
At the option of the Corporation and upon satisfaction of certain conditions
specified in the Indenture, either (a) the Corporation shall be deemed to have
paid and discharged the entire indebtedness on the Notes or (b) the Corporation
shall cease to be under any obligation to comply with any term, provision,
condition or covenant contained in the Indenture, in each case upon the deposit
by the Corporation with the Trustee in trust for the Holders of the Notes of an
amount of funds or obligations issued or guaranteed by the United States of
America sufficient to pay and discharge upon the stated maturity thereof the
entire indebtedness evidenced by the Notes, all as provided in the Indenture.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Corporation has caused a CUSIP number to be
printed on this Note as a convenience to the Holders of this Note. No
representation is made as to the accuracy of
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<PAGE> 15
such number as printed on this Note and reliance may be placed only on the other
identification numbers printed hereon.
Terms used herein which are defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee in
accordance with the Indenture.
WITNESS THE SEAL OF THE CORPORATION AND THE SIGNATURES OF ITS DULY AUTHORIZED
OFFICERS.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
Dated: May 4, 1999
By:
------------------------------------
Name: John G. Blahnik
Title: Vice President and Treasurer
[SEAL]
By:
------------------------------------
Name: Diane L. Kaye
Title: Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES OF THE
SERIES DESIGNATED THEREIN REFERRED TO
IN THE WITHIN-MENTIONED INDENTURE.
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By:
-------------------------------------
Authorized Signatory
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<PAGE> 16
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Note of DELPHI AUTOMOTIVE SYSTEMS CORPORATION and hereby irrevocably
constitutes and appoints
attorney to transfer said Note on the books of the
within-named Corporation, with full power of substitution in the premises.
Dated:
SIGN HERE
---------------------------------
NOTICE: THE SIGNATURE OF THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF
THE WITHIN INSTRUMENT IN EVERY
PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE GUARANTEED
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<PAGE> 17
Attachment A-2
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Note may not be transferred except as a whole by (i) the
Depositary to a nominee of the Depositary, (ii) a nominee of the Depositary to
the Depositary or another nominee of the Depositary or (iii) the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. The Depositary Trust Company, a New York corporation ("DTC"), shall
act as the Depositary until a successor shall be appointed by the Corporation
and the Registrar. Unless this certificate is presented by an authorized
representative of DTC to the Corporation or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
6 1/2% Notes Due May 1, 2009 CUSIP 247126 AB 1
DELPHI AUTOMOTIVE SYSTEMS CORPORATION, a Delaware corporation (the
"Corporation"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of Five Hundred Million Dollars
($500,000,000) at the office or agency of the Corporation for such purpose in
the Borough of Manhattan, the City of New York, on May 1, 2009, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest on
said principal sum at the rate of 6 1/2% per annum at the office or agency of
the Corporation in the Borough of Manhattan, the City of New York, in like coin
or currency from the first day of May or November, as the case may be, to which
interest on the 6 1/2% Notes Due May 1, 2009 (the "Notes") has been paid
preceding the date hereof (unless the date hereof is a May 1 or November 1 to
which interest has been paid, in which case from the date hereof, or unless no
interest has been paid on the Notes since the original issuance of the Notes, in
which case from May 4, 1999), semi-annually on May 1 and November 1, until
payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after April 15 or November
15, as the case may be, and before the following May 1 or November 1, and if no
default in the payment of interest on this Note shall have occurred and be
continuing on the date of this Note, this Note shall bear interest from such May
1 or November 1, provided, however, that if the Corporation shall default in the
payment of interest due on such May 1 or November 1, then this Note shall bear
interest from the next preceding May 1 or November 1, to which interest has been
paid. The interest so payable on any May 1 or November 1 will, subject to
certain exceptions provided in the Indenture referred to below, be paid to the
person in whose name this Note is registered at the close of business on the
fifteenth day of the calendar month next preceding such May 1 or November 1 at
the office or agency of the Corporation maintained for that purpose in the
Borough of Manhattan, the City of New York; at the option of the
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<PAGE> 18
Corporation, interest may be paid by check to the registered holder hereof
entitled thereto at his, her or its last address as it appears on the registry
books, or by wire transfer of immediately available funds if the registered
Holder hereof holds U.S. $10,000,000 or more in aggregate principal amount and
sends wire transfer instructions to the Trustee as required in the Indenture,
and principal may be paid by check to the registered Holder hereof or other
person entitled thereto against surrender of this Note.
This Note represents all of the Corporation's 6 1/2% Notes Due May 1, 2009
limited in aggregate principal amount to $500,000,000, and is one of a duly
authorized issue of debentures, notes, bonds or other evidences of indebtedness
of the Corporation (the "Securities"), all issued or to be issued under and
pursuant to an Indenture dated as of April 28, 1999 (the "Indenture"), duly
executed and delivered by the Corporation to The First National Bank of Chicago,
Trustee (the "Trustee"), to which Indenture and any indentures supplemental
thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Corporation and the Holders of the Securities. The Securities may be issued in
one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption provisions (if any), and
may otherwise vary as provided in the Indenture. The terms of the Notes are set
forth in a set of resolutions of the Debt Finance Committee of the Board of
Directors of the Corporation dated April 28, 1999 (the "Resolutions").
Initially, the Trustee will act as Paying Agent and Registrar.
The Corporation will, subject to the exceptions and limitations set forth below,
pay as additional interest on this Note such Additional Amounts as are necessary
in order that the net payment by the Corporation or a paying agent of the
principal of and interest on this Note to a Holder who is a non-United States
person (as defined below), after deduction for any present or future tax,
assessment or governmental charge of the United States or a political
subdivision or taxing authority thereof or therein, imposed by withholding with
respect to the payment, will not be less than the amount provided in this Note
to be then due and payable; provided, however, that the foregoing obligation to
pay Additional Amounts shall not apply:
(1) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the Holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the Holder if
the Holder is an estate, trust, partnership or corporation, or
a person holding a power over an estate or trust administered
by a fiduciary Holder, being considered as:
(a) being or having been present or engaged in trade or
business in the United States or having or having had
a permanent establishment in the United States;
(b) having a current or former relationship with the
United States, including a relationship as a citizen
or resident thereof;
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<PAGE> 19
(c) being or having been a foreign or domestic personal
holding company, a passive foreign investment company
or a controlled foreign corporation with respect to
the United States or a corporation that has
accumulated earnings to avoid United States federal
income tax; or
(d) being or having been a "10-percent shareholder" of
the Corporation as defined in section 871 (h) (3) of
the United States Internal Revenue Code of 1986, as
amended (the "Code"), or any successor provision;
(2) to any Holder that is not the sole beneficial owner of this
Note, or a portion hereof, or that is a fiduciary or
partnership, but only to the extent that a beneficiary or
settlor with respect to the fiduciary or a beneficial owner or
member of the partnership would not have been entitled to the
payment of an Additional Amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or
distributive share of the payment;
(3) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the failure of the Holder or any
other person to comply with certification, identification or
information reporting requirements concerning the nationality,
residence, identity or connection with the United States of
the Holder or beneficial owner of this Note, if compliance is
required by statute, by regulation of the United States
Treasury Department or by an applicable income tax treaty to
which the United States is a party as a precondition to
exemption from, or reduction of, such tax, assessment or other
governmental charge;
(4) to a tax, assessment or governmental charge that is imposed
otherwise than by withholding by the Corporation or a paying
agent from the payment;
(5) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes
effective more than 15 days after the payment becomes due or
is duly provided for, whichever occurs later;
(6) to an estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or a similar tax, assessment
or governmental charge;
(7) to any tax, assessment or other governmental charge required
to be withheld by any paying agent from any payment of
principal of or interest on the Notes, if such payment can be
made without such withholding by any other paying agent; or
(8) in the case of any combination of items (1), (2), (3), (4),
(5), (6) or (7) above.
This Note is subject in all cases to any tax, fiscal or other law or
regulation or administrative or judicial interpretation applicable thereto.
Except as herein specifically provided, the Corporation will not be required to
make any payment with respect to any tax,
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<PAGE> 20
assessment or governmental charge imposed by any government or a political
subdivision or taxing authority thereof or therein.
As used herein, the term "United States" means the United States of
America (including the States and the District of Columbia) and its territories,
its possessions and other areas subject to its jurisdiction. "United States
person" means (1) any individual who is a citizen or resident of the United
States, (2) a corporation, partnership or other entity created or organized in
or under the laws of the United States, (3) any estate the income of which is
subject to United States federal income taxation regardless of its source or (4)
any trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust or
if the trust elects under United States Treasury Regulations to be treated as a
U.S. person, and "non-United States person" means a person who is not a United
States person.
In case an Event of Default, as defined in the Indenture, with respect to the
Notes shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the Trustee to
execute a supplemental indenture to add any provisions to, change in any manner
or eliminate any provisions of, the Indenture or any existing supplemental
indenture, or to modify the rights of the Holders of the Securities issued under
either such Indenture or existing supplemental indenture, with the consent of
the Holders of not less than a majority in principal amount of the Securities of
all series at the time Outstanding that are affected by the supplemental
indenture to be executed (voting as one class) if the supplemental Indenture to
be executed does not:
(i) (a) change the fixed maturity of any Securities, (b) reduce their
principal amount or premium, if any, (c) reduce the rate or extend the
time of payment of interest or any additional amounts payable on the
debt securities, (d) reduce the amount due and payable upon
acceleration of the maturity of the Securities or the amount provable
in bankruptcy or (e) make the principal of, or any interest, premium or
additional amounts on, any Security payable in a coin or currency
different from that provided in the Security,
(ii) impair the right to initiate suit for the enforcement of any such
payment on or after the stated maturity of the Securities, or
(iii) reduce the requirement, stated above, for the consent of the
Holders of the Securities to any modification described above, or the
percentage required for the consent of the Holders to waive defaults,
without the consent of the Holder of each Security so affected.
The Indenture also contains provisions permitting the Corporation and the
Trustee to execute supplemental indentures without the consent of the Holders of
the Securities to (a) evidence the assumption by a successor corporation of the
obligations of the Corporation, (b) add covenants for the protection of the
Holders of the Securities, (c) add or change any of the provisions of the
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<PAGE> 21
Indenture to permit or facilitate the issuance of Securities of any series in
bearer form and to provide for the exchange of Securities in bearer form with
registered Securities, (d) cure any ambiguity or correct any inconsistency in
the Indenture or in a supplemental indenture, (e) transfer, assign, mortgage or
pledge any property to or with the Trustee, (f) establish the form or terms of
Securities of any series as permitted by the terms of the Indenture, (g)
evidence the acceptance of appointment by a successor trustee and (h) change or
eliminate provisions of the Indenture where the changes or eliminations do not
apply to any Security outstanding and become effective only when there is no
Security outstanding of a series created before the execution of the
supplemental indenture that is entitled to the benefit of the provision being
changed or eliminated.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rate, and in the coin or currency,
herein prescribed.
The Notes may be redeemed in whole at any time or in part from time to time, at
the option of the Corporation, at a redemption price equal to the greater of (1)
100% of the principal amount of the Notes to be redeemed, and (2) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon discounted to the date of redemption on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the applicable Treasury Rate
plus 15 basis points, plus accrued and unpaid interest thereon to the redemption
date.
"TREASURY RATE" means, with respect to any redemption date, (1) the
yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months
before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Treasury Rate will be interpolated or
extrapolated from such yields on a straight line basis, rounding to the
nearest month) or (2) if such release (or any successor release) is not
published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual
equivalent yield-to-maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable
Treasury Price of such redemption date. The Treasury Rate will be
calculated on the third Business Day preceding the redemption date.
"BUSINESS DAY" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are
open for business in New York, New York.
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<PAGE> 22
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term ("Remaining Life") of the notes to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of such notes.
"INDEPENDENT INVESTMENT BANKER" means either Merrill Lynch, Pierce,
Fenner & Smith Incorporated or Morgan Stanley & Co. Incorporated, and
their respective successors, or, if both firms are unwilling or unable
to select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee after
consultation with the Corporation.
"COMPARABLE TREASURY PRICE" means (1) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (2) if
the Independent Investment Banker obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such
quotations.
"REFERENCE TREASURY DEALER" means (1) Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Morgan Stanley & Co. Incorporated, and their
respective successors, provided, however, that if any of the foregoing
shall cease to be a primary U.S. government securities dealer in New
York City (a "Primary Treasury Dealer"), the Corporation will
substitute for such underwriter another Primary Treasury Dealer and (2)
any other Primary Treasury Dealer selected by the Independent
Investment Banker after consultation with the Corporation.
"THE REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker at 5:00 p.m., New York City time, on the
third Business Day preceding such redemption date.
If (1) as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States (or any
political subdivision or taxing authority thereof or therein), or any change in,
or amendments to, the official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after the date of the Resolutions, the
Corporation becomes or will become obligated to pay Additional Amounts or (2)
any act is taken by a taxing authority of the United States on or after the date
of the Resolutions, whether or not such act is taken with respect to the
Corporation or any affiliate, that results in a substantial probability that the
Corporation will or may be required to pay such Additional Amounts, then the
Corporation may, at its option, redeem, in whole, but not in part, the Notes on
not less than 30 nor more than 60 days' prior notice, at a redemption price
equal to 100% of their principal amount, together with interest accrued but
unpaid thereon to the date fixed for redemption; provided that the Corporation
determines, in its business judgment, that the obligation to pay such additional
amounts cannot be avoided by the use of reasonable measures available to it, not
including substitution of the obligor under the Notes. No redemption pursuant to
(2) above may be made
-22-
<PAGE> 23
unless the Corporation shall have received an opinion of independent counsel to
the effect that an act taken by a taxing authority of the United States results
in a substantial probability that it will or may be required to pay Additional
Amounts and the Corporation shall have delivered to the Trustee a certificate,
signed by a duly authorized officer, stating that based on such opinion the
Corporation is entitled to redeem the Notes pursuant to their terms.
Upon due presentment for registration of transfer of this Note at the office or
agency designated and maintained by the Corporation for such purpose in the
Borough of Manhattan, The City of New York, pursuant to the provisions of the
Indenture, a new Note for an equal aggregate principal amount will be issued to
the transferee in exchange therefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Corporation, the Trustee and any authorized agent of the Corporation or the
Trustee may deem and treat the Holder in whose name this Note is registered as
the absolute owner of this Note (whether or not this Note shall be overdue) for
the purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and subject to the provisions contained herein, interest
hereon, and for all other purposes, and neither the Corporation nor the Trustee
nor any authorized agent of the Corporation or the Trustee shall be affected by
any notice to the contrary. Notes so issued in definitive form will be issued as
registered Notes without coupons in denominations of $1,000 and integral
multiples of $1,000.
No recourse under or upon any obligation, covenant or agreement of the
Corporation in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any past, present or future incorporator, stockholder, officer or
director, as such, of the Corporation or of any successor entity, either
directly or through the Corporation or any successor entity, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
The Corporation shall have no obligation to redeem, purchase or repay this Note
pursuant to any sinking fund or analogous provision or at the option of the
Holder hereof.
At the option of the Corporation and upon satisfaction of certain conditions
specified in the Indenture, either (a) the Corporation shall be deemed to have
paid and discharged the entire indebtedness on the Notes or (b) the Corporation
shall cease to be under any obligation to comply with any term, provision,
condition or covenant contained in the Indenture, in each case upon the deposit
by the Corporation with the Trustee in trust for the Holders of the Notes of an
amount of funds or obligations issued or guaranteed by the United States of
America sufficient to pay and discharge upon the stated maturity thereof the
entire indebtedness evidenced by the Notes, all as provided in the Indenture.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Corporation has caused a CUSIP number to be
printed on this Note as a convenience to the Holders of this Note. No
representation is made as to the accuracy of
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<PAGE> 24
such number as printed on this Note and reliance may be placed only on the
other identification numbers printed hereon.
Terms used herein which are defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee in
accordance with the Indenture.
WITNESS THE SEAL OF THE CORPORATION AND THE SIGNATURES OF ITS DULY AUTHORIZED
OFFICERS.
DELPHI AUTOMOTIVE SYSTEMS
CORPORATION
Dated: May 4, 1999
By:
-------------------------------------
Name: John G. Blahnik
Title: Vice President and Treasurer
[SEAL]
By:
-------------------------------------
Name: Diane L. Kaye
Title: Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES OF THE
SERIES DESIGNATED THEREIN REFERRED TO IN
THE WITHIN-MENTIONED INDENTURE.
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By:
-------------------------------------
Authorized Signatory
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<PAGE> 25
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Note of DELPHI AUTOMOTIVE SYSTEMS CORPORATION and hereby irrevocably
constitutes and appoints
_________________________ attorney to transfer said Note on the books of the
within-named Corporation, with full power of substitution in the premises.
Dated:
SIGN HERE
-----------------------------------
NOTICE: THE SIGNATURE OF THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF
THE WITHIN INSTRUMENT IN EVERY
PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE GUARANTEED
-25-
<PAGE> 26
Attachment A-3
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Debenture may not be transferred except as a whole by (i)
the Depositary to a nominee of the Depositary, (ii) a nominee of the Depositary
to the Depositary or another nominee of the Depositary or (iii) the Depositary
or any such nominee to a successor Depositary or a nominee of such successor
Depositary. The Depositary Trust Company, a New York corporation ("DTC"), shall
act as the Depositary until a successor shall be appointed by the Corporation
and the Registrar. Unless this certificate is presented by an authorized
representative of DTC to the Corporation or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
7 1/8% Debentures Due May 1, 2029 CUSIP 247126 AC 9
DELPHI AUTOMOTIVE SYSTEMS CORPORATION, a Delaware corporation (the
"Corporation"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of Five Hundred Million ($500,000,000) at
the office or agency of the Corporation for such purpose in the Borough of
Manhattan, the City of New York, on May 1, 2029 in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest on said principal sum
at the rate of 7 1/8% per annum at the office or agency of the Corporation in
the Borough of Manhattan, the City of New York, in like coin or currency from
the first day of May or November, as the case may be, to which interest on the 7
1/8% Debentures Due May 1, 2029 (the "Debentures") has been paid preceding the
date hereof (unless the date hereof is a May 1 or November 1 to which interest
has been paid, in which case from the date hereof, or unless no interest has
been paid on the Debentures since the original issuance of the Debentures, in
which case from May 4, 1999), semi-annually on May 1 and November 1, until
payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after April 15 or November
15, as the case may be, and before the following May 1 or November 1, and if no
default in the payment of interest on this Debenture shall have occurred and be
continuing on the date of this Debenture, this Debenture shall bear interest
from such May 1 or November 1, provided, however, that if the Corporation shall
default in the payment of interest due on such May 1 or November 1, then this
Debenture shall bear interest from the next preceding May 1 or November 1, to
which interest has been paid. The interest so payable on any May 1 or November 1
will, subject to certain exceptions provided in the Indenture referred to below,
be paid to the person in whose name this Debenture is registered at the close of
business on the fifteenth day of the calendar month next preceding such May 1 or
November 1 at the office or agency of the Corporation maintained for that
purpose in the Borough of Manhattan, the City of New York; at the option of the
Corporation, interest may be paid by check to the
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<PAGE> 27
registered holder hereof entitled thereto at his, her or its last address as it
appears on the registry books, or by wire transfer of immediately available
funds if the registered Holder hereof holds U.S. $10,000,000 or more in
aggregate principal amount and sends wire transfer instructions to the Trustee
as required in the Indenture, and principal may be paid by check to the
registered Holder hereof or other person entitled thereto against surrender of
this Debenture.
This Debenture represents all of the Corporation's 7 1/8% Debentures Due May 1,
2029 limited in aggregate principal amount to $500,000,000, and is one of a duly
authorized issue of debentures, notes, bonds or other evidences of indebtedness
of the Corporation (the "Securities"), all issued or to be issued under and
pursuant to an Indenture dated as of April 28, 1999 (the "Indenture"), duly
executed and delivered by the Corporation to The First National Bank of Chicago,
Trustee (the "Trustee"), to which Indenture and any indentures supplemental
thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Corporation and the Holders of the Securities. The Securities may be issued in
one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption provisions (if any), and
may otherwise vary as provided in the Indenture. The terms of the Debentures are
set forth in a set of resolutions of the Debt Finance Committee of the Board of
Directors of the Corporation dated April 28, 1999 (the "Resolutions").
Initially, the Trustee will act as Paying Agent and Registrar.
The Corporation will, subject to the exceptions and limitations set forth below,
pay as additional interest on this Debenture such Additional Amounts as are
necessary in order that the net payment by the Corporation or a paying agent of
the principal of and interest on this Debenture to a Holder who is a non-United
States person (as defined below), after deduction for any present or future tax,
assessment or governmental charge of the United States or a political
subdivision or taxing authority thereof or therein, imposed by withholding with
respect to the payment, will not be less than the amount provided in this
Debenture to be then due and payable; provided, however, that the foregoing
obligation to pay Additional Amounts shall not apply:
(1) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the Holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the Holder if
the Holder is an estate, trust, partnership or corporation, or
a person holding a power over an estate or trust administered
by a fiduciary Holder, being considered as:
(a) being or having been present or engaged in trade or
business in the United States or having or having had
a permanent establishment in the United States;
(b) having a current or former relationship with the
United States, including a relationship as a citizen
or resident thereof;
-27-
<PAGE> 28
(c) being or having been a foreign or domestic personal
holding company, a passive foreign investment company
or a controlled foreign corporation with respect to
the United States or a corporation that has
accumulated earnings to avoid United States federal
income tax; or
(d) being or having been a "10-percent shareholder" of
the Corporation as defined in section 871 (h) (3) of
the United States Internal Revenue Code of 1986, as
amended (the "Code"), or any successor provision;
(2) to any Holder that is not the sole beneficial owner of this
Debenture, or a portion hereof, or that is a fiduciary or
partnership, but only to the extent that a beneficiary or
settlor with respect to the fiduciary or a beneficial owner or
member of the partnership would not have been entitled to the
payment of an Additional Amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or
distributive share of the payment;
(3) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the failure of the Holder or any
other person to comply with certification, identification or
information reporting requirements concerning the nationality,
residence, identity or connection with the United States of
the Holder or beneficial owner of this Debenture, if
compliance is required by statute, by regulation of the United
States Treasury Department or by an applicable income tax
treaty to which the United States is a party as a precondition
to exemption from, or reduction of, such tax, assessment or
other governmental charge;
(4) to a tax, assessment or governmental charge that is imposed
otherwise than by withholding by the Corporation or a paying
agent from the payment;
(5) to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes
effective more than 15 days after the payment becomes due or
is duly provided for, whichever occurs later;
(6) to an estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or a similar tax, assessment
or governmental charge;
(7) to any tax, assessment or other governmental charge required
to be withheld by any paying agent from any payment of
principal of or interest on the Debentures, if such payment
can be made without such withholding by any other paying
agent; or
(8) in the case of any combination of items (1), (2), (3), (4),
(5), (6) or (7) above.
This Debenture is subject in all cases to any tax, fiscal or other law
or regulation or administrative or judicial interpretation applicable thereto.
Except as herein specifically provided, the Corporation will not be required to
make any payment with respect to any tax,
-28-
<PAGE> 29
assessment or governmental charge imposed by any government or a political
subdivision or taxing authority thereof or therein.
As used herein, the term "United States" means the United States of
America (including the States and the District of Columbia) and its territories,
its possessions and other areas subject to its jurisdiction. "United States
person" means (1) any individual who is a citizen or resident of the United
States, (2) a corporation, partnership or other entity created or organized in
or under the laws of the United States, (3) any estate the income of which is
subject to United States federal income taxation regardless of its source or (4)
any trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust or
if the trust elects under United States Treasury Regulations to be treated as a
U.S. person, and "non-United States person" means a person who is not a United
States person.
In case an Event of Default, as defined in the Indenture, with respect to the
Debentures shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the Trustee to
execute a supplemental indenture to add any provisions to, change in any manner
or eliminate any provisions of, the Indenture or any existing supplemental
indenture, or to modify the rights of the Holders of the Securities issued under
either such Indenture or existing supplemental indenture, with the consent of
the Holders of not less than a majority in principal amount of the Securities of
all series at the time Outstanding that are affected by the supplemental
indenture to be executed (voting as one class) if the supplemental Indenture to
be executed does not:
(i) (a) change the fixed maturity of any Securities, (b) reduce their
principal amount or premium, if any, (c) reduce the rate or extend the
time of payment of interest or any additional amounts payable on the
debt securities, (d) reduce the amount due and payable upon
acceleration of the maturity of the Securities or the amount provable
in bankruptcy or (e) make the principal of, or any interest, premium or
additional amounts on, any Security payable in a coin or currency
different from that provided in the Security,
(ii) impair the right to initiate suit for the enforcement of any such
payment on or after the stated maturity of the Securities, or
(iii) reduce the requirement, stated above, for the consent of the
Holders of the Securities to any modification described above, or the
percentage required for the consent of the Holders to waive defaults,
without the consent of the Holder of each Security so affected.
The Indenture also contains provisions permitting the Corporation and the
Trustee to execute supplemental indentures without the consent of the Holders of
the Securities to (a) evidence the assumption by a successor corporation of the
obligations of the Corporation, (b) add covenants for the protection of the
Holders of the Securities, (c) add or change any of the provisions of the
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<PAGE> 30
Indenture to permit or facilitate the issuance of Securities of any series in
bearer form and to provide for the exchange of Securities in bearer form with
registered Securities, (d) cure any ambiguity or correct any inconsistency in
the Indenture or in a supplemental indenture, (e) transfer, assign, mortgage or
pledge any property to or with the Trustee, (f) establish the form or terms of
Securities of any series as permitted by the terms of the Indenture, (g)
evidence the acceptance of appointment by a successor trustee and (h) change or
eliminate provisions of the Indenture where the changes or eliminations do not
apply to any Security outstanding and become effective only when there is no
Security outstanding of a series created before the execution of the
supplemental indenture that is entitled to the benefit of the provision being
changed or eliminated.
No reference herein to the Indenture and no provision of this Debenture or of
the Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and interest on this
Debenture at the place, at the respective times, at the rate, and in the coin or
currency, herein prescribed.
The Debentures may be redeemed in whole at any time or in part from time to
time, at the option of the Corporation, at a redemption price equal to the
greater of (1) 100% of the principal amount of the Debentures to be redeemed,
and (2) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the applicable Treasury Rate plus 25 basis points, plus accrued and unpaid
interest thereon to the redemption date.
"TREASURY RATE" means, with respect to any redemption date, (1) the
yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months
before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Treasury Rate will be interpolated or
extrapolated from such yields on a straight line basis, rounding to the
nearest month) or (2) if such release (or any successor release) is not
published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual
equivalent yield-to-maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable
Treasury Price of such redemption date. The Treasury Rate will be
calculated on the third Business Day preceding the redemption date.
"BUSINESS DAY" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are
open for business in New York, New York.
-30-
<PAGE> 31
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term ("Remaining Life") of the notes to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of such notes.
"INDEPENDENT INVESTMENT BANKER" means either Merrill Lynch, Pierce,
Fenner & Smith Incorporated or Morgan Stanley & Co. Incorporated, and
their respective successors, or, if both firms are unwilling or unable
to select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee after
consultation with the Corporation.
"COMPARABLE TREASURY PRICE" means (1) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (2) if
the Independent Investment Banker obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such
quotations.
"REFERENCE TREASURY DEALER" means (1) Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Morgan Stanley & Co. Incorporated, and their
respective successors, provided, however, that if any of the foregoing
shall cease to be a primary U.S. government securities dealer in New
York City (a "Primary Treasury Dealer"), the Corporation will
substitute for such underwriter another Primary Treasury Dealer and (2)
any other Primary Treasury Dealer selected by the Independent
Investment Banker after consultation with the Corporation.
"THE REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker at 5:00 p.m., New York City time, on the
third Business Day preceding such redemption date.
If (1) as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States (or any
political subdivision or taxing authority thereof or therein), or any change in,
or amendments to, the official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after the date of the Resolutions, the
Corporation becomes or will become obligated to pay Additional Amounts or (2)
any act is taken by a taxing authority of the United States on or after the date
of the Resolutions, whether or not such act is taken with respect to the
Corporation or any affiliate, that results in a substantial probability that the
Corporation will or may be required to pay such Additional Amounts, then the
Corporation may, at its option, redeem, in whole, but not in part, the
Debentures on not less than 30 nor more than 60 days' prior notice, at a
redemption price equal to 100% of their principal amount, together with interest
accrued but unpaid thereon to the date fixed for redemption; provided that the
Corporation determines, in its business judgment, that the obligation to pay
such additional amounts cannot be avoided by the use of reasonable measures
available to it, not including substitution of the obligor under the Debentures.
No redemption pursuant to (2) above may be
-31-
<PAGE> 32
made unless the Corporation shall have received an opinion of independent
counsel to the effect that an act taken by a taxing authority of the United
States results in a substantial probability that it will or may be required to
pay Additional Amounts and the Corporation shall have delivered to the Trustee a
certificate, signed by a duly authorized officer, stating that based on such
opinion the Corporation is entitled to redeem the Debentures pursuant to their
terms.
Upon due presentment for registration of transfer of this Debenture at the
office or agency designated and maintained by the Corporation for such purpose
in the Borough of Manhattan, The City of New York, pursuant to the provisions of
the Indenture, a new Debenture for an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Corporation, the Trustee and any authorized agent of the Corporation or the
Trustee may deem and treat the Holder in whose name this Debenture is registered
as the absolute owner of this Debenture (whether or not this Debenture shall be
overdue) for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and subject to the provisions contained
herein, interest hereon, and for all other purposes, and neither the Corporation
nor the Trustee nor any authorized agent of the Corporation or the Trustee shall
be affected by any notice to the contrary. Debentures so issued in definitive
form will be issued as registered Debentures without coupons in denominations of
$1,000 and integral multiples of $1,000.
No recourse under or upon any obligation, covenant or agreement of the
Corporation in the Indenture or any indenture supplemental thereto or in any
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any past, present or future incorporator, stockholder,
officer or director, as such, of the Corporation or of any successor entity,
either directly or through the Corporation or any successor entity, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
The Corporation shall have no obligation to redeem, purchase or repay this
Debenture pursuant to any sinking fund or analogous provision or at the option
of the Holder hereof.
At the option of the Corporation and upon satisfaction of certain conditions
specified in the Indenture, either (a) the Corporation shall be deemed to have
paid and discharged the entire indebtedness on the Debentures or (b) the
Corporation shall cease to be under any obligation to comply with any term,
provision, condition or covenant contained in the Indenture, in each case upon
the deposit by the Corporation with the Trustee in trust for the Holders of the
Debentures of an amount of funds or obligations issued or guaranteed by the
United States of America sufficient to pay and discharge upon the stated
maturity thereof the entire indebtedness evidenced by the Debentures, all as
provided in the Indenture.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Corporation has caused a CUSIP number to be
printed on this
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<PAGE> 33
Debenture as a convenience to the Holders of this Debenture. No representation
is made as to the accuracy of such number as printed on this Debenture and
reliance may be placed only on the other identification numbers printed hereon.
Terms used herein which are defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture.
This Debenture shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee in
accordance with the Indenture.
WITNESS THE SEAL OF THE CORPORATION AND THE SIGNATURES OF ITS DULY AUTHORIZED
OFFICERS.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
Dated: May 4, 1999
By:
-----------------------------------
Name: John G. Blahnik
Title: Vice President and Treasurer
[SEAL]
By:
-----------------------------------
Name: Diane L. Kaye
Title: Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES OF THE
SERIES DESIGNATED THEREIN REFERRED TO
IN THE WITHIN-MENTIONED INDENTURE.
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By:
----------------------------------
Authorized Signatory
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<PAGE> 34
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Debenture of DELPHI AUTOMOTIVE SYSTEMS CORPORATION and hereby
irrevocably constitutes and appoints
_______________________________ attorney to transfer said Debenture on the
books of the within-named Corporation, with full power of substitution in the
premises.
Dated:
SIGN HERE
-----------------------------------
NOTICE: THE SIGNATURE OF THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF
THE WITHIN INSTRUMENT IN EVERY
PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE GUARANTEED
-34-
<PAGE> 1
EXHIBIT 5.1
[Drinker Biddle & Reath LLP letterhead]
May 3, 1999
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, Michigan 48098
Re: Delphi Automotive Systems Corporation
Registration Statement on Form S-3
(Registration No. 333-73285)
-------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Delphi Automotive Systems Corporation, a
Delaware corporation (the "Company"), in connection with (i) the preparation and
filing with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), of the Company's Registration
Statement on Form S-3 (Registration No. 333-73285), as amended by Amendment No.
1 filed March 25, 1999 (the "Registration Statement"), (ii) the preparation of a
Prospectus Supplement dated April 28, 1999 (the "Prospectus Supplement") to the
prospectus included in the Registration Statement, relating to the public
offering of $500,000,000 principal amount of the Company's 6 1/8% Notes due
2004, $500,000,000 principal amount of the Company's 6 1/2% Notes due 2009 and
$500,000,000 principal amount of the Company's 7 1/8% Debentures due 2029
(collectively, the "Securities") pursuant to the Indenture between the Company
and The First National Bank of Chicago, as trustee (the "Trustee"), dated April
28, 1999 (the "Indenture"), and (iii) the execution and delivery of an
Underwriting Agreement dated as of April 28, 1999 by and among the Company and
the several underwriters named therein (the "Agreement") relating to the
issuance and sale of the Securities.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records and other
agreements, documents and instruments, the Restated Certificate of Incorporation
and Bylaws of the Company, the Indenture, the Agreement, the Registration
Statement, the Prospectus Supplement and such certificates or comparable
documents of public officials and officers and representatives of the Company,
and have made such inquiries of such officers and representatives and have
considered such matters of law as we have deemed appropriate as the basis for
the opinions hereinafter set forth.
In rendering this opinion, we have assumed the authenticity of
documents submitted to us as originals, the genuineness of signatures, the legal
capacity of natural persons, the conformity to authentic original documents of
documents submitted to us as copies and the accuracy and
<PAGE> 2
Delphi Automotive Systems Corporation
April 30, 1999
Page 2
completeness of all corporate records and other information made available to us
by the Company.
As to questions of fact material to this opinion, we have relied upon
the accuracy of the certificates and other comparable documents of officers and
representatives of the Company, upon statements made to us in discussions with
the Company's management and upon certificates of public officials. Except as
otherwise expressly indicated, we have not undertaken any independent
investigation of factual matters.
Based on the foregoing, and subject to the qualifications, limitations
and assumptions stated herein, we are of the opinion that the Securities, when
duly executed, authenticated, issued, paid for and delivered in accordance with
the provisions of both the Indenture and the Agreement, will have been validly
issued, fully paid and nonassessable by the Company and will constitute valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the rights of creditors generally and
by general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding at law or in equity.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K dated May 3, 1999, to the incorporation by
reference of this opinion in the Registration Statement and to the use of our
name under the heading "Legal Matters" in the Prospectus Supplement. In
consenting to such filing and to such references to our firm, we do not admit
that our consent establishes that we come within the categories of persons whose
consent is required under Section 7 of the Act or the Rules and Regulations of
the Commission thereunder.
Very truly yours,
/s/ Drinker Biddle & Reath LLP
DRINKER BIDDLE & REATH LLP
<PAGE> 1
EXHIBIT 8.1
[Drinker Biddle & Reath LLP letterhead]
May 3, 1999
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, Michigan 48098
Re: Delphi Automotive Systems Corporation
Registration Statement on Form S-3
Registration No. 333-73285
-------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Delphi Automotive Systems Corporation, a
Delaware corporation (the "Company"), in connection with (i) the preparation and
filing with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), of the Company's Registration
Statement on Form S-3 (Registration No. 333-73285), as amended by Amendment No.
1 filed March 25, 1999 (the "Registration Statement") and (ii) the preparation
of a Prospectus Supplement dated April 28, 1999 (the "Prospectus Supplement") to
the prospectus included in the Registration Statement, relating to the public
offering of $500,000,000 principal amount of the Company's 6 1/8% Notes due
2004, $500,000,000 principal amount of the Company's 6 1/2% Notes due 2009 and
$500,000,000 principal amount of the Company's 7 1/8% Debentures due 2029
(collectively, the "Securities") pursuant to the Indenture between the Company
and The First National Bank of Chicago, as trustee, dated April 28, 1999.
Based on and subject to the assumptions and limitations contained
herein, we are of the opinion that the statements as to United States Federal
tax law set forth under the heading "CERTAIN UNITED STATES FEDERAL TAX MATTERS"
in the Prospectus Supplement are accurate in all material respects. This opinion
is based upon provisions of the Internal Revenue Code of 1986, as amended,
applicable Treasury Department regulations, current published administrative
positions of the Internal Revenue Service contained in revenue rulings and
procedures, and judicial decisions, in each case as in effect as of the date
hereof.
This opinion represents our legal judgment, but has no binding effect
or official status of any kind, and no assurance can be given that contrary
positions may not be taken by the Internal Revenue Service or a court concerning
the issues. We express no opinion as to any tax consequences under any foreign,
state or local laws. In issuing our opinion, we have relied solely upon existing
provisions of the Code, existing proposed regulations thereunder, and current
administrative positions and judicial decisions. Such laws, regulations,
administrative positions and judicial decisions are subject to change at any
time. Also, future changes in
<PAGE> 2
April 30, 1999
Page 2
Federal income tax laws and the interpretation thereof can have retroactive
effect. Any such changes could affect the validity of the opinion set forth
above.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K dated April 30, 1999, to the incorporation
by reference of this opinion in the Registration Statement and to the use of our
name in the Prospectus Supplement under the headings "CERTAIN UNITED STATES
FEDERAL TAX MATTERS" and "LEGAL MATTERS." In consenting to such filing and to
such references to our firm, we do not admit that our consent establishes that
we come within the categories of persons whose consent is required under Section
7 of the Act or under the rules and regulations of the SEC issued thereunder.
Very truly yours,
/s/ Drinker Biddle & Reath LLP
DRINKER BIDDLE & REATH LLP
