AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON SEPTEMBER 19, 1996
REGISTRATION NO. 333-12023
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENERAL MOTORS ACCEPTANCE CORPORATION
A NEW YORK CORPORATION -- I.R.S. EMPLOYER NO. 38-0572512
3044 WEST GRAND BOULEVARD 767 FIFTH AVENUE
DETROIT, MICHIGAN 48202 NEW YORK, NEW YORK 10153
(313-556-5000) (212-418-6120)
AGENT FOR SERVICE
JEROME B. VAN ORMAN, VICE PRESIDENT
GENERAL MOTORS ACCEPTANCE CORPORATION
3044 WEST GRAND BOULEVARD, DETROIT, MICHIGAN 48202 (313-556-1508)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable on or after the effective date of this Registration Statement.
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IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX.
/ /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED
ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT
OF 1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR
INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Proposed Proposed
Each Class Maximum Maximum
of Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered* Per Unit Price (1) Fee
- ------------------------------------------------------------------------------
SmartNotes(SM), Due from
Nine Months to Thirty Years
from Date of Issue $500,000,000 100% $500,000,000 $172,414
================================================================================
*Or, if any Debt Securities are issued at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering price
of $500,000,000.
(1) Estimated solely for the purpose of determining the amount of the
registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
- ---------------
(SM)Service Mark of General Motors Acceptance Corporation
<PAGE>
PROSPECTUS
U.S.$500,000,000
GENERAL MOTORS ACCEPTANCE CORPORATION
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
General Motors Acceptance Corporation (the "Company") may offer from time
to time its SmartNotes(SM) Due from Nine Months to Thirty Years from Date of
Issue (the "Notes"). The Notes offered by this Prospectus will be limited to up
to $500,000,000 aggregate initial offering price. The Notes will be offered at
varying maturities due from nine months to thirty years from the date of issue
(the "Issue Date"), as selected by the purchaser and agreed to by the Company.
Unless otherwise described herein, the interest rate, issue price, stated
maturity, interest payment dates, whether the Notes are subject to redemption at
the option of the Company or replacement at the option of the holder prior to
the maturity date thereof (as further defined herein, the "Maturity Date") and
certain other terms (including, if applicable, a Survivor's Option (as such term
is defined in "Repayment Upon Death")) with respect to each Note will be
established at the time of issuance and set forth in a pricing supplement to
this Prospectus (a "Pricing Supplement"). Unless otherwise specified in the
applicable Pricing Supplement, Notes will be issued only in denominations of
$1,000 or any amount in excess thereof which is an integral multiple of $1,000.
See "Description of Notes." The Notes are unsecured and unsubordinated
obligations of the Company and will rate equally and ratably with all other
unsecured and unsubordinated indebtedness of the Company (other than obligations
preferred by mandatory provisions of law).
The interest rate on each Note will be a fixed rate established by the
Company at the Issue Date of such Note, which may be zero in the case of certain
Notes issued at a price representing a discount from the principal amount
payable upon the Maturity Date. See "Description of Notes."
The Notes may be issued in whole or in part in the form of one or more
global Notes to be deposited with or on behalf of The Depository Trust Company
("DTC") or other depositary (DTC or such other depositary as is specified in the
applicable Pricing Supplement is herein referred to as the "Depositary") and
registered in the name of the Depositary's nominee. Beneficial interests in the
Notes will be shown on, and transfers thereof will be effected only through,
records maintained by the Depositary and, with respect to the beneficial owners'
interests, by the Depositary's participants. Notes will not be issuable as
certificated Notes except under the limited circumstances described herein. See
"Description of Notes-Delivery and Form."
The Interest Payment Dates for a Note that provides for monthly interest
payments shall be the fifteenth day of each calendar month commencing in the
calendar month that next succeeds the month in which the Note is issued. In the
case of a Note that provides for quarterly interest payments, the Interest
Payment Dates shall be the fifteenth day of each of the months specified in the
Pricing Supplement, commencing in the third succeeding calendar month following
the month in which the Note is issued. In the case of a Note that provides for
semi-annual interest payments, the Interest Payment dates shall be the fifteenth
day of each of the months specified in the Pricing Supplement, commencing in the
sixth succeeding calendar month following the month in which the Note is issued.
In the case of a Note that provides for annual interest payments, the Interest
Payment Date shall be the fifteenth day of the month specified in the Pricing
Supplement, commencing in the twelfth succeeding calendar month following the
month in which the Note is issued. The Regular Record Date with respect to any
Interest Payment Date shall be the first day of the calendar month in which such
Interest Payment Date occurs, except that the Regular Record Date with respect
to the final Interest Payment Date shall be the final Interest Payment Date.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PRICING SUPPLEMENT
HERETO. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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PRICE TO AGENT'S DISCOUNTS PROCEEDS TO
PUBLIC (1)(2) AND COMMISSIONS (2) COMPANY (2)(3)
Per 100.00% .20% - 2.50% 97.50% - 99.80%
Note
Total $500,000,000 $1,000,000 - $12,500,000 $487,500,000-$499,000,000
================================================================================
(1) Unless otherwise specified in the applicable Pricing Supplement, Notes
will be issued at 100% of their principal amount.
(2) The commission payable for each Note sold through The Chicago Corporation
(the "Purchasing Agent") will be computed based upon the non-discounted
price paid by the public (the "Price to Public") for such Note and will
depend on such Note's Maturity Date. The Company has agreed to indemnify
each of the agents listed below (the "Agents") against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Plan of Distribution."
(3) Before deducting expenses payable by the Company estimated at $400,000.
The Notes are being offered on a continuous basis for sale by the Company
through one or more of the Agents listed below and each of the Agents has agreed
to use its reasonable best efforts to solicit offers to purchase the Notes.
Unless otherwise specified in an applicable Pricing Supplement, the Notes will
not be listed on any securities exchange, and there can be no assurance that the
Notes offered hereby will be sold or that there will be a secondary market for
the Notes. The Agents have advised the Company that they may from time to time
purchase and sell Notes in the secondary market, but the Agents are not
obligated to do so. No termination date for the offering of the Notes has been
established. The Company reserves the right to withdraw, cancel or modify the
offer made hereby without notice. The Company or the Agent that solicits any
offer may reject such offer in whole or in part. See "Plan of Distribution."
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THE CHICAGO CORPORATION
A.G. EDWARDS & SONS, INC.
EDWARD D. JONES & CO., L.P.
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
September 24, 1996.
<PAGE>
No dealer, salesman or any other person has been authorized to give any
information or to make any representation not contained or incorporated by
reference in this Prospectus and any Pricing Supplement in connection with the
offer contained in this Prospectus and any Pricing Supplement and, if given or
made, such information or representation must not be relied upon as having been
authorized by the Company or by any Agent. Neither the delivery of this
Prospectus and any Pricing Supplement nor any sale made thereunder shall, under
any circumstances, create any implication that the information therein is
correct at any time subsequent to the date thereof. This Prospectus and any
Pricing Supplement shall not constitute an offer to sell or a solicitation of an
offer to buy any of the Notes offered hereby by anyone in any jurisdiction in
which such offer or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to any person to whom it
is unlawful to make such offer or solicitation.
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IN CONNECTION WITH THIS OFFERING, THE AGENTS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE NOTES OFFERED
HEREBY AT LEVELS ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER MARKET OR OTHERWISE.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information filed by the
Company with the Commission can be inspected, and copies may be obtained at
prescribed rates, at the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as at the following Regional
Offices of the Commission at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511 and Seven World Trade Center, New York, New
York 10048. Reports and other information concerning the Company can also be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (including all amendments thereto, the "Registration Statement") under the
Securities Act of 1933, as amended, with respect to the Notes. As permitted by
the rules and regulations of the Commission, this Prospectus does not contain
all the information set forth in the Registration Statement and the exhibits
thereto and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1995 and Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996
and June 30, 1996 filed with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act are incorporated by reference in this Prospectus.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Notes shall
be deemed to be incorporated by reference in this Prospectus and to be a part
thereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE UPON WRITTEN OR ORAL REQUEST, TO EACH
PERSON TO WHOM THIS PROSPECTUS IS DELIVERED, A COPY OF ANY OR ALL OF THE
DOCUMENTS DESCRIBED ABOVE WHICH HAVE BEEN INCORPORATED BY REFERENCE IN THIS
PROSPECTUS, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. SUCH REQUEST SHOULD BE
DIRECTED TO:
G. E. GROSS, COMPTROLLER
GENERAL MOTORS ACCEPTANCE CORPORATION
3044 WEST GRAND BOULEVARD, ANNEX 103
DETROIT, MICHIGAN 48202
(313) 556-1240
DESCRIPTION OF GENERAL MOTORS ACCEPTANCE CORPORATION
General Motors Acceptance Corporation, a wholly-owned subsidiary of
General Motors Corporation, was incorporated in 1919 under the New York Banking
Law relating to investment companies. Operating directly and through
subsidiaries and associated companies in which it has equity investments, the
Company offers a wide variety of automotive financial services to and through
franchised General Motors dealers in many countries throughout the world.
Financial services also are offered to other automobile dealerships and to the
customers of those dealerships. Other financial services offered by the Company
or its subsidiaries include insurance, mortgage banking and investment services.
The principal business of the Company and its subsidiaries is to finance
the acquisition by franchised General Motors dealers for resale of various new
automotive and nonautomotive products manufactured by General Motors Corporation
or certain of its subsidiaries and associates, and to acquire from such dealers,
either directly or indirectly, installment obligations covering retail sales and
leases of new General Motors products as well as used units of any make. In
addition, new products of other manufacturers are financed. The Company also
leases motor vehicles and certain types of capital equipment to others.
The automotive financing industry is highly competitive. The Company's
principal competitors are affiliated finance subsidiaries of other major
manufacturers as well as a large number of banks, commercial finance companies,
savings and loan associations and credit unions. The business of the Company is
influenced by its ability to offer competitive financing rates which in turn is
directly affected by its access to capital markets.
PRINCIPAL EXECUTIVE OFFICES
General Motors Acceptance Company has its principal office at 767 Fifth
Avenue, New York, New York 10153 (Tel. No. 212-418-6120) and administrative
offices at 3044 West Grand Boulevard, Detroit, Michigan 48202 (Tel. No.
313-556-5000).
RATIO OF EARNINGS TO FIXED CHARGES
SIX MONTHS ENDED
JUNE 30 YEARS ENDED DECEMBER 31
- ---------------- -----------------------------------------
1996 1995 1995 1994 1993 1992 1991
1.43 1.35 1.36 1.33 1.33 1.35 1.23
The ratio of earnings to fixed charges has been computed by dividing
earnings before income taxes and fixed charges by the fixed charges. This ratio
includes the earnings and fixed charges of the Company and its consolidated
subsidiaries; fixed charges consist of interest, debt discount and expense and
the portion of rentals for real and personal properties in an amount deemed to
be representative of the interest factor.
USE OF PROCEEDS
The net proceeds from the sale of the Notes will be added to the general
funds of the Company and will be available for the purchase of receivables, the
making of loans or the repayment of debt. Such proceeds initially may be used to
reduce short-term borrowings or invested in short-term securities.
DESCRIPTION OF NOTES
The terms and conditions set forth herein will apply to each Note unless
otherwise specified herein or in the applicable Pricing Supplement and in such
Note.
GENERAL
The Notes will be limited to $500,000,000 aggregate initial offering price,
on terms to be determined at the time of sale. The Notes will be issued under an
Indenture dated as of September 24, 1996 between the Company and The Chase
Manhattan Bank, as Trustee, as supplemented from time to time (the "Indenture").
The Indenture does not limit the amount of additional unsecured indebtedness
ranking equally and ratably with the Notes that the Company may incur and the
Company may, from time to time, without the consent of the holders of the Notes,
provide for the issuance of Notes under the Indenture in addition to the
$500,000,000 aggregate initial offering price of the Notes offered hereby. The
statements herein concerning the Notes and the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Indenture, including the definitions therein of
certain terms. Whenever particular provisions of the Indenture or defined terms
contained in the Indenture are referred to, such provisions and defined terms
are incorporated herein by reference as a part of the statements made, and the
statements are qualified in their entirety by such reference.
The Notes will constitute unsecured and unsubordinated indebtedness of the
Company and will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company (other than obligations preferred by
mandatory provisions of law).
Notes will be offered on a continuing basis and will mature on any day
nine months to thirty years from the Issue Date, as selected by the purchaser
and agreed to by the Company. Each Note will bear interest from the Issue Date
(as defined below) at a fixed rate, which may be zero in the case of a Note
issued at an Issue Price (as defined below) representing a substantial discount
from the principal amount payable upon the Maturity Date (a "Zero-Coupon Note").
Each Note will be issued in fully registered form without coupons and will
be represented by a global Note registered in the name of a nominee of the
Depositary. Except as set forth herein, Notes will be issuable only in global
form. See "Description of Notes-Delivery and Form" below. All Notes issued on
the same day and having the same terms (including, but not limited to, the same
designation, the same currency, Interest Payment Dates (as defined below), rate
of interest, Maturity Date and redemption or repayment provisions) may be
represented by a single Note. A beneficial interest in a Note will be shown on,
and transfers thereof will be effected only through, records maintained by the
Depositary or its participants. Payments of the principal of, premium, if any,
and interest, if any, on, Notes represented by a Note will be made by the
Company or its paying agent to the Depositary or its nominee. Unless otherwise
specified in the applicable Pricing Supplement, DTC will be the Depositary. See
"Description of Notes-Delivery and Form."
Unless otherwise specified in the applicable Pricing Supplement, the
authorized denominations of the Notes will be $1,000 and any amount in excess
thereof that is an integral multiple of $1,000.
The principal amount of the Notes will be payable at Maturity at the
Corporate Trust Office of The Chase Manhattan Bank, Corporate Trust Services,
450 West 33rd Street, 15th Floor, New York, New York 10001, or at such other
place as the Company may designate.
Unless otherwise specified in the applicable Pricing Supplement, the Notes
may not be redeemed by the Company, or repaid at the option of the holder, or
both, prior to their Maturity Date. Unless otherwise specified in the applicable
Pricing Supplement, the Notes will not be subject to any sinking fund. See
"Description of Notes-Redemption and Repayment."
Unless otherwise specified in the applicable Pricing Supplement, the
amount of any Original Issue Discount Note (as such term is defined in
"Description of Notes - Original Issue Discount Notes") payable in the event of
redemption by the Company, repayment at the option of the holder or acceleration
of Maturity (as such term is defined in "Glossary"), in lieu of the stated
principal amount due at the Maturity Date, will be the Amortized Face Amount of
such Original Issue Discount Note as of the date of such redemption, repayment
or acceleration. For the purposes of determining whether holders of the
requisite amount of Notes outstanding under the Indenture have made a demand or
given a notice or waiver or taken any other action, the outstanding principal
amount of any Original Issue Discount Note shall be deemed to be the Amortized
Face Amount. The "Amortized Face Amount" of an Original Issue Discount Note
shall be the amount equal to (a) the Issue Price of an Original Issue Discount
Note set forth in the applicable Pricing Supplement plus (b) the portion of the
difference between the Issue Price and the principal amount of such Original
Issue Discount Note that has accrued at the yield to maturity set forth in the
Pricing Supplement (computed in accordance with generally accepted United States
bond yield computation principles) at the date as of which the Amortized Face
Amount is calculated, but in no event shall the Amortized Face Amount of such
Original Issue Discount Note exceed its stated principal amount. See also
"United States Federal Taxation - Tax Consequences to U.S. Holders-Original
Issue Discount Notes."
Unless otherwise specified herein, the Pricing Supplement relating to each
Note or Notes will describe the following terms, as applicable: (1) whether such
Note is a Zero-Coupon Note or other Original Issue Discount Note; (2) the price
(which may be expressed as a percentage of the aggregate initial public offering
price thereof) at which such Note will be issued to the public (the "Issue
Price"); (3) the date on which such Note will be issued to the public (the
"Issue Date"); (4) the Maturity Date of such Note; (5) the rate per annum at
which such Note will bear interest, if any (the "Interest Rate"); (6) whether
the holder of such Note will have the Survivor's Option; (7) whether such Note
may be redeemed at the option of the Company, or repaid at the option of the
holder, prior to its Maturity Date, and if so, the provisions relating to such
redemption or repayment; (8) certain special United States Federal income tax
consequences of the purchase, ownership and disposition of certain Notes, if
any; and (9) any other terms of such Note not inconsistent with the provisions
of the Indenture.
GLOSSARY
Reference is made to the Indenture and the forms of Notes filed as
exhibits to the Registration Statement to which this Prospectus relates for the
full definition of certain of the terms used in this Prospectus, as well as any
capitalized terms used herein for which no definition is provided. Set forth
below are definitions of certain terms used in this Prospectus with respect to
the Notes.
"Business Day" with respect to any Note means, unless otherwise specified
in the applicable Pricing Supplement, any day, other than a Saturday or Sunday,
that meets the following applicable requirement: such day is not a day on which
banking institutions are authorized or required by law, regulation or executive
order to be closed in The City of New York;
"Interest Payment Date" with respect to any Note means a date (other than
at Maturity) on which, under the terms of such Note, regularly scheduled
interest shall be payable;
"Maturity Date" with respect to any Note means the date on which such Note
will mature, as specified thereon, and "Maturity" means the date on which the
principal of a Note or an installment of principal becomes due and payable in
full in accordance with its terms and the terms of the Indenture, whether at its
Maturity Date or by declaration of acceleration, call for redemption at the
option of the Company, repayment at the option of the holder, or otherwise.
DELIVERY AND FORM
Upon issue, all Notes having the same Issue Date, interest rate, if any,
amortization schedule, if any, Maturity Date and other terms, if any, will be
represented by one or more fully registered global Notes (the "Global Notes");
provided, however, that no single Global Note shall exceed $200,000,000. Each
such Global Note representing Notes will be deposited with, or on behalf of, the
Depositary and registered in the name of the Depositary or a nominee thereof.
The Depository Trust Company ("DTC") will be the initial Depositary with
respect to the Notes. DTC has advised the Company and the Agents that it is a
limited-purpose trust company organized under the laws of the State of New York,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under the Exchange Act. The Depositary was created to hold securities
of its participants and to facilitate the clearance and settlement of securities
transactions among its participants in such securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the need
for physical movement of securities certificates. DTC's participants include
securities brokers and dealers (including the Agents), banks, trust companies,
clearing corporations and certain other organizations, some of whom (and/or
their representatives) own DTC. Access to DTC's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly. Persons who are not participants may beneficially own
securities held by DTC only through participants. The rules applicable to DTC
and its participants are on file with the Commission.
Upon the issuance by the Company of Notes represented by a Global Note,
the Depositary will credit, on its book-entry registration and transfer system,
the participants' accounts with the respective principal amounts of the Notes
represented by such Global Note beneficially owned by such participants. The
accounts to be credited shall be designated by the Agents of such Notes.
Ownership of beneficial interests in a Global Note will be limited to
participants or persons that hold interests through participants. Ownership of
beneficial interests in Notes represented by a Global Note or Notes will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary (with respect to interests of participants
in the Depositary), or by participants in the Depositary or persons that may
hold interests through such participants (with respect to persons other than
participants in the Depositary). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such limits and such laws may impair the ability to transfer beneficial
interests in a Global Note.
So long as the Depositary for a Global Note, or its nominee, is the
registered owner of the Global Note, the Depositary or its nominee, as the case
may be, will be considered the sole owner or holder of the Notes represented by
such Global Note for all purposes under the Indenture. Except as provided below,
owners of beneficial interests in Notes represented by a Global Note or Notes
will not be entitled to have Notes represented by such Global Note registered in
their names, will not receive or be entitled to receive physical delivery of
Notes in definitive form and will not be considered the owners or holders
thereof under the Indenture.
Accordingly, each person owning a beneficial interest in a Global Note
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder under the Indenture or a Global
Note. The Company understands that under existing policy of the Depositary and
industry practices, in the event that the Company requests any action of holders
or that an owner of a beneficial interest in such a Global Note desires to give
any notice or take any action which a holder is entitled to give or take under
the Indenture or a Global Note, the Depositary would authorize the participants
holding the relevant beneficial interests to give such notice or take such
action. Any beneficial owner that is not a participant must rely on the
contractual arrangements it has directly, or indirectly through its financial
intermediary, with a participant to give such notice or take such action.
Payments of principal of, premium, if any, and interest, if any, on, the
Notes represented by a Global Note registered in the name of the Depositary or
its nominee will be made by the Company through the Trustee to the Depositary or
its nominee, as the case may be, as the registered owner of a Global Note. None
of the Company, the Trustee, any Paying Agent or any other agent of the Company
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global
Note or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. The Company expects that the Depositary, upon
receipt of any payment of principal, premium, if any, or interest, if any, in
respect of a Global Note, will immediately credit the accounts of the related
participants with payment in amounts proportionate to their respective holdings
in principal amount of beneficial interest in such Global Note as shown on the
records of the Depositary. The Company also expects that payments by
participants to owners of beneficial interests in a Global Note will be governed
by standing customer instructions and customary practices as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name" and will be the responsibility of such participants.
If the Depositary is at any time unwilling or unable to continue as
depository or ceases to be a clearing agency registered under the Exchange Act
and a successor depository registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, the Company will issue
certificated Notes in exchange for all the Global Notes. In addition, the
Company may at any time and in its sole discretion determine not to have the
Notes represented by the Global Note and, in such event, will issue certificated
Notes in exchange for all the Global Notes. In either instance, an owner of a
beneficial interest in a Global Note will be entitled to have certificated Notes
equal in principal amount to such beneficial interest registered in its name and
will be entitled to physical delivery of such certificated Notes. Such
certificated Notes shall be registered in such name or names as the Depositary
shall instruct the Trustee. It is expected that such instructions may be based
upon directions received by the Depositary from participants with respect to
beneficial interests in such Global Notes. Certificated Notes so issued will be
issued in denominations of $1,000 or more (in multiples of $1,000) and will be
issued in registered form only, without coupons. No service charge will be made
for any transfer or exchange of such certificated Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Section 2.07 of the Indenture.)
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be reliable, but the
Company takes no responsibility for the accuracy thereof.
INTEREST AND PRINCIPAL PAYMENTS
Owners of beneficial interests in a Note will be paid in accordance with
the Depositary's and the participant's procedures in effect from time to time as
described under "Description of Notes - Delivery and Form." Unless otherwise
specified in the applicable Pricing Supplement, payments of principal, and
premium, if any, and interest, if any, at Maturity will be made in immediately
available funds upon surrender of the Note at the office of the Paying Agent,
provided that the Note is presented to the Paying Agent in time for the Paying
Agent to make such payments in such funds in accordance with its normal
procedures. Unless otherwise specified in the applicable Pricing Supplement,
principal and, premium, if any, and interest, if any, payable at Maturity of a
Note will be paid by the Paying Agent by wire transfer in immediately available
funds to an account specified by the Depositary. Unless otherwise specified in
the applicable Pricing Supplement, payments of interest on a Note (other than at
Maturity) will be made in same-day funds in accordance with existing
arrangements between the Paying Agent and the Depositary. The Company will pay
any administrative costs imposed by banks in connection with making payments in
immediately available funds, but any tax, assessment or governmental charge
imposed upon payments, including, without limitation, any withholding tax, will
be borne by the holders of the Notes in respect of which such payments are made.
Certain Notes, including Original Issue Discount Notes, may be considered
to be issued with original issue discount which must be included in income for
United States Federal income tax purposes at a constant rate, prior to the
receipt of the cash attributable to that income. See "Tax Consequences to U.S.
Holders-Original Issue Discount Notes." Unless otherwise specified in the
applicable Pricing Supplement, if the principal of any Original Issue Discount
Note is declared to be due and payable immediately as described under
"Description of Debt Securities-Events of Default," the amount of principal due
and payable with respect to such Note shall be limited to the aggregate
principal amount of such Note multiplied by the sum of its Issue Price
(expressed as a percentage of the aggregate principal amount) plus the original
issue discount amortized from the Issue Date to the date of declaration which
amortization shall be calculated using the "interest method" (computed in
accordance with generally accepted accounting principles in effect on the date
of declaration). Special considerations applicable to any such Notes will be set
forth in the applicable Pricing Supplement.
Each Note will bear interest from and including its Issue Date at the rate
per annum set forth thereon and in the applicable Pricing Supplement until the
principal amount thereof is paid, or made available for payment, in full. Unless
otherwise specified in the applicable Pricing Supplement, interest on each Note
(other than a Zero-Coupon Note) will be payable either monthly, quarterly,
semi-annually or annually on each Interest Payment Date and at Maturity (or on
the date of redemption or repayment if a Note is repurchased by the Company
prior to Maturity pursuant to mandatory or optional redemption provisions or the
Survivor's Option). Interest will be payable to the person in whose name a Note
is registered at the close of business on the Regular Record Date next preceding
each Interest Payment Date; provided, however, interest payable at Maturity, on
a date of redemption or in connection with the exercise of the Survivor's Option
will be payable to the person to whom principal shall be payable.
Any payment of principal, and premium, if any, or interest required to be
made on a Note on a day which is not a Business Day need not be made on such
day, but may be made on the next succeeding Business Day with the same force and
effect as if made on such day, and no additional interest shall accrue as a
result of such delayed payment. Unless otherwise specified in the applicable
Pricing Supplement, any interest on the Notes will be computed on the basis of a
360-day year of twelve 30-day months. The interest rates the Company will agree
to pay on newly-issued Notes are subject to change without notice by the Company
from time to time, but no such change will affect any Notes already issued or as
to which an offer to purchase has been accepted by the Company.
The Interest Payment Dates for a Note that provides for monthly interest
payments shall be the fifteenth day of each calendar month commencing in the
calendar month that next succeeds the month in which the Note is issued. In the
case of a Note that provides for quarterly interest payments, the Interest
Payment Dates shall be the fifteenth day of each of the months specified in the
Pricing Supplement, commencing in the third succeeding calendar month following
the month in which the Note is issued. In the case of a Note that provides for
semi-annual interest payments, the Interest Payment dates shall be the fifteenth
day of each of the months specified in the Pricing Supplement, commencing in the
sixth succeeding calendar month following the month in which the Note is issued.
In the case of a Note that provides for annual interest payments, the Interest
Payment Date shall be the fifteenth day of the month specified in the Pricing
Supplement, commencing in the twelfth succeeding calendar month following the
month in which the Note is issued. The Regular Record Date with respect to any
Interest Payment Date shall be the first day of the calendar month in which such
Interest Payment Date occurs, except that the Regular Record Date with respect
to the final Interest Payment Date shall be the final Interest Payment Date.
Each payment of interest on a Note shall include accrued interest from and
including the Issue Date or from and including the last day in respect of which
interest has been paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or Maturity Date, as the case may be.
<PAGE>
ORIGINAL ISSUE DISCOUNT NOTES
Notes may be issued at a price less than their stated redemption price at
maturity, other than by an amount which is less than a DE MINIMIS amount (0.25%
of the stated redemption price at maturity multiplied by the number of complete
years to maturity) resulting in such Notes being treated as if they were issued
with original issue discount for United States Federal income tax purposes
("Original Issue Discount Notes"). Such Original Issue Discount Notes may
currently pay no interest or interest at a rate which at the time of issuance is
below market rates. See "United States Federal Taxation - Tax Consequences to
U.S. Holders - Original Issue Discount Notes." Certain additional considerations
relating to any Original Issue Discount Notes will be described in the Pricing
Supplement relating thereto.
REDEMPTION AND REPAYMENT
Unless otherwise provided in the applicable Pricing Supplement, the Notes
will not be redeemable prior to the Maturity Date at the option of the Company
or repayable prior to the Maturity Date at the option of the holder. Unless
otherwise specified in the applicable Pricing Supplement, the Notes will not be
subject to any sinking fund.
If applicable, the Pricing Supplement relating to each Note will indicate
that the Note will be redeemable at the option of the Company or repayable at
the option of the holder on a date or dates specified prior to its Maturity Date
and, unless otherwise specified in such Pricing Supplement, at a price equal to
100% of the principal amount thereof, together with accrued interest to the date
of redemption or repayment, unless such Note was issued with original issue
discount, in which case the Pricing Supplement will specify the amount payable
upon such redemption or repayment.
The Company may redeem any of the Notes that are redeemable and remain
outstanding either in whole or from time to time in part, upon not less than 30
nor more than 60 days' notice. Unless otherwise specified in the applicable
Pricing Supplement, if less than all of the Notes with like tenor and terms are
to be redeemed, the Notes to be redeemed shall be selected by the Trustee by
such method as the Trustee shall deem fair and appropriate.
Unless otherwise specified in the applicable Pricing Supplement, in order
for a Note which is prepayable at the option of the holder to be so prepaid, the
Company must receive at least 30 days but not more than 45 days prior to the
repayment date, the global Note with the form entitled "Option to Elect
Repayment" duly completed. Exercise of the repayment option by the holder of a
Note shall be irrevocable. With respect to the Notes, the Depositary's nominee
is the holder of such Notes and therefore will be the only entity that can
exercise a right to repayment. See "Description of Notes-Delivery and Form." In
order to ensure that the Depositary's nominee will timely exercise a right to
repayment with respect to a particular beneficial interest in a Note, the
beneficial owner of such interest must instruct the broker or other direct or
indirect participant through which it holds a beneficial interest in such Note
to notify the Depositary of its desire to exercise a right to repayment.
Different firms have different cut-off times for accepting instructions from
their customers and, accordingly, each beneficial owner should consult the
broker or other direct or indirect participant through which it holds an
interest in a Note in order to ascertain the cut-off time by which such an
instruction must be given in order for timely notice to be delivered to the
Depositary. Conveyance of notices and other communications by the Depositary to
participants, by participants to indirect participants and by participants and
indirect participants to beneficial owners of the Notes will be governed by
agreements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
If applicable, the Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws or regulations in
connection with any such repurchase.
The Company may at any time purchase Notes at any price or prices in the
open market or otherwise. Notes so purchased by the Company may, at the
discretion of the Company, be held or resold or surrendered to the Trustee for
cancellation.
REPAYMENT UPON DEATH
The Pricing Supplement relating to any Note will indicate whether the
holder of such Note will have the right to require the Company to repay a Note
prior to its Maturity Date upon the death of the owner of such Note as described
below (the "Survivor's Option"). SEE THE PRICING SUPPLEMENT TO DETERMINE WHETHER
THE SURVIVOR'S OPTION APPLIES TO ANY PARTICULAR NOTE.
Pursuant to exercise of the Survivor's Option, if applicable, the Company
will repay any Note (or portion thereof) properly tendered for repayment by or
on behalf of the person (the "Representative") that has authority to act on
behalf of the deceased owner of the beneficial interest in such Note under the
laws of the appropriate jurisdiction (including, without limitation, the
personal representative, executor, surviving joint tenant or surviving tenant by
the entirety of such deceased beneficial owner) at a price equal to 100% of the
principal amount of the beneficial interest of the deceased owner in such Note
plus accrued interest to the date of such repayment (or at a price equal to the
Amortized Face Amount for Original Issue Discount Notes and Zero-Coupon Notes on
the date of such repayment), subject to the following limitations. The Company
may, in its sole discretion, limit the aggregate principal amount of Notes as to
which exercises of the Survivor's Option will be accepted in any calendar year
(the "Annual Put Limitation") to one percent (1%) of the outstanding principal
amount of the Notes as of the end of the most recent fiscal year, but not less
than $1,000,000 in any such calendar year, or such greater amount as the Company
in its sole discretion may determine for any calendar year, and may limit to
$200,000, or such greater amount as the Company in its sole discretion may
determine for any calendar year, the aggregate principal amount of Notes (or
portions thereof) as to which exercise of the Survivor's Option will be accepted
in such calendar year with respect to any individual deceased owner or
beneficial interests in such Notes (the "Individual Put Limitation"). Moreover,
the Company will not make principal repayments pursuant to exercise of the
Survivor's Option in amounts that are less than $1,000, and, in the event that
the limitations described in the preceding sentence would result in the partial
repayment of any Note, the principal amount of such Note remaining outstanding
after repayment must be at least $1,000 (the minimum authorized denomination of
the Notes). Any Note (or portion thereof) tendered pursuant to exercise of the
Survivor's Option may be withdrawn by a written request by the Representative of
the deceased owner received by the Trustee prior to its repayment.
Each Note (or portion thereof) that is tendered pursuant to valid exercise
of the Survivor's Option will be accepted promptly in the order all such Notes
are tendered, except for any Note (or portion thereof) the acceptance of which
would contravene (i) the Annual Put Limitation, if applied, or (ii) the
Individual Put Limitation, if applied, with respect to the relevant individual
deceased owner of beneficial interests therein. If, as of the end of any
calendar year, the aggregate principal amount of Notes (or portions thereof)
that have been accepted pursuant to exercise of the Survivor's Option during
such year has not exceeded the Annual Put Limitation, if applied, for such year,
any exercise(s) of the Survivor's Option with respect to Notes (or portions
thereof) not accepted during such calendar year because such acceptance would
have contravened the Individual Put Limitation, if applied, with respect to an
individual deceased owner of beneficial interests therein will be accepted in
the order all such Notes (or portions thereof) were tendered, to the extent that
any such exercise would not trigger the Annual Put Limitation for such calendar
year. Any Note (or portion thereof) accepted for repayment pursuant to exercise
of the Survivor's Option will be repaid no later than the first Interest Payment
Date that occurs 20 or more calendar days after the date of such acceptance.
Each Note (or any portion thereof) tendered for repayment that is not accepted
in any calendar year due to the application of the Annual Put Limitation will be
deemed to be tendered in the following calendar year in the order in which all
such Notes (or portions thereof) were originally tendered, unless any such Note
(or portion thereof) is withdrawn by the Representative for the deceased owner
prior to its repayment. In the event that a Note (or any portion thereof)
tendered for repayment pursuant to valid exercise of the Survivor's Option is
not accepted, the Trustee will deliver a notice by first-class mail to the
registered holder thereof at its last known address as indicated in the Note
Register, that states the reason such Note (or portion thereof) has not been
accepted for payment.
Subject to the foregoing, in order for a Survivor's Option to be validly
exercised with respect to any Note (or portion thereof), the Trustee must
receive from the Representative of the deceased owner (i) a written request for
repayment signed by the Representative, and such signature must be guaranteed by
a member firm of a registered national securities exchange or of the National
Association of Securities Dealers, Inc. (the "NASD") or a commercial bank or
trust company having an office or correspondent in the United States, (ii)
tender of the Note (or portion thereof) to be repaid, (iii) appropriate evidence
satisfactory to the Trustee that (A) the Representative has authority to act on
behalf of the deceased beneficial owner, (B) the death of such beneficial owner
has occurred and (C) the deceased was the owner of a beneficial interest in such
Note at the time of death, (iv) if applicable, a properly executed assignment or
endorsement, and (v) if the beneficial interest in such Note is held by a
nominee of the deceased beneficial owner, a certificate satisfactory to the
Trustee from such nominee attesting to the deceased's ownership of a beneficial
interest in such Note. Subject to the Company's right hereunder to limit the
aggregate principal amount of Notes as to which exercises of the Survivor's
Option shall be accepted in any one calendar year, all questions as to the
eligibility or validity of any exercise of the Survivor's Option will be
determined by the Trustee, in its sole discretion, which determination will be
final and binding on all parties.
The death of a person owning a Note in joint tenancy or tenancy by the
entirety with another or others will be deemed the death of the holder of the
Note, and the entire principal amount of the Note so held will be subject to
repayment, together with interest accrued thereon to the repayment date. The
death of a person owning a Note by tenancy in common will be deemed the death of
a holder of a Note only with respect to the deceased holder's interest in the
Note so held by tenancy in common; except that in the event a Note is held by
husband and wife as tenants in common, the death of either will be deemed the
death of the holder of the Note, and the entire principal amount of the Note so
held will be subject to repayment. The death of a person who, during his or her
lifetime, was entitled to substantially all of the beneficial interests of
ownership of a Note, will be deemed the death of the holder thereof for purposes
of this provision, regardless of the registered holder, if such beneficial
interest can be established to the satisfaction of the Trustee. Such beneficial
interest will be deemed to exist in typical cases of nominee ownership,
ownership under the Uniform Gifts to Minors Act, community property or other
joint ownership arrangements between a husband and wife and trust arrangements
where one person has substantially all of the beneficial ownership interest in
the Note during his or her lifetime.
For Notes represented by a Global Note, the Depository or its nominee will
be the holder of such Note and therefore will be the only entity that can
exercise the Survivor's Option for such Note. To obtain repayment pursuant to
exercise of the Survivor's Option with respect to such Note, the Representative
must provide to the broker or other entity through which the beneficial interest
in such Note is held by the deceased owner (i) the documents described in
clauses (i) and (iii) of the second preceding paragraph and (ii) instructions to
such broker or other entity to notify the Depository of such Representative's
desire to obtain repayment pursuant to exercise of the Survivor's Option. Such
broker or other entity will provide to the Trustee (i) the documents received
from the Representative referred to in clause (i) of the preceding sentence and
(ii) a certificate satisfactory to the Trustee from such broker or other entity
stating that it represents the deceased beneficial owner. Such broker or other
entity will be responsible for disbursing any payments it receives pursuant to
exercise of the Survivor's Option to the appropriate Representative. See
"Description of Notes - Delivery and Form."
A REPRESENTATIVE MAY OBTAIN THE FORMS USED TO EXERCISE THE SURVIVOR'S
OPTION FROM THE CHASE MANHATTAN BANK, THE TRUSTEE, AT 450 WEST 33RD STREET, 15TH
FLOOR, NEW YORK, NEW YORK 10001, DURING NORMAL BUSINESS HOURS.
UNITED STATES FEDERAL TAXATION
GENERAL
In the opinion of the Company's tax counsel, the following general summary
describes all material United States Federal income tax consequences of the
ownership and disposition of the Notes. This summary provides general
information only and is directed solely to original holders purchasing Notes at
the "issue price" (as defined below) and who hold the Notes as capital assets
within the meaning of Section 1221 of the Internal Revenue Code of 1986, as
amended (the "Code"), and does not purport to discuss all United States Federal
income tax consequences that may be applicable to particular categories of
investors that may be subject to special rules, such as banks, insurance
companies, dealers in securities, persons holding Notes as part of a "straddle"
conversion transaction, hedging, or other integrated transaction. In addition,
the United States Federal income tax consequences of holding a particular Note
will depend, in part, on the particular terms of such Note as set forth in the
applicable Pricing Supplement. Finally, this summary does not discuss Original
Issue Discount Notes which qualify as "applicable high-yield discount
obligations" under Section 163(i) of the Code. Holders of Original Issue
Discount Notes which are "applicable high-yield discount obligations" may be
subject to special rules which will be set forth in an applicable Pricing
Supplement. Holders are advised to consult their own tax advisors with regard to
the application of the United States Federal income tax laws to their particular
situations as well as any tax consequences arising under the laws of any state,
local or foreign tax jurisdiction.
This summary is based on the Code, United States Treasury Regulations
(including proposed regulations and temporary regulations) promulgated
thereunder, rulings, official pronouncements and judicial decisions as of the
date of this Prospectus. The authorities on which this summary is based are
subject to change or differing interpretations, which could apply retroactively,
so as to result in United States Federal income tax consequences different from
those discussed below.
For purposes of the following discussion, "U.S. Holder" means a beneficial
owner of a Note that is (i) for United States Federal income tax purposes a
citizen or resident of the United States, (ii) a corporation, partnership or
other entity created or organized in or under the laws of the United States or
of any political subdivision thereof, (iii) an estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, or (iv) any other Holder whose income is effectively connected with such
Holder's conduct of a United States trade or business. The term also includes
certain former citizens or long-term permanent residents of the United States.
TAX CONSEQUENCES TO U.S. HOLDERS
PAYMENTS OF INTEREST
Interest on a Note that is not an Original Issue Discount Note will
generally be taxable to a U.S. Holder as ordinary interest income at the time it
is accrued or is received in accordance with the U.S. Holder's method of
accounting for tax purposes.
All payments of interest on a Note that matures one year or less from its
date of issuance will be included in the stated redemption price at the maturity
of the Note and will be taxed in the manner described below under "Original
Issue Discount Notes".
Special rules governing the treatment of interest paid with respect to
Original Issue Discount Notes are described under "Original Issue Discount
Notes" below.
ORIGINAL ISSUE DISCOUNT NOTES
The following summary is generally based upon the Treasury Regulations
concerning the treatment of debt instruments issued with original issue discount
(the "OID Regulations"). Under the OID Regulations, a Note that is issued for an
amount less than its stated redemption price at maturity will generally be
considered to have been issued at an original issue discount. The issue price of
a Note is equal to the first price to the public (not including bond houses,
brokers or similar persons or organizations acting in the capacity of
underwriters, placement agents or wholesalers) at which a substantial amount of
the Notes is sold for money. The stated redemption price at maturity of a Note
is generally equal to the sum of all payments to be made on such Note other than
"qualified stated interest" payments. With respect to a Note, "qualified stated
interest" is stated interest unconditionally payable as a series of payments in
cash or property (other than debt instruments of the issuer) at least annually
during the entire term of the Note and equal to the outstanding principal
balance of the Note multiplied by a single fixed rate of interest.
Notwithstanding the general definition of original issue discount above, a
Note will not be considered to have been issued with an original issue discount
if the amount of such original issue discount is less than a DE MINIMIS amount
equal to 0.25% of the stated redemption price at maturity multiplied by the
number of complete years to maturity (or, in the case of a Note providing for
payments prior to maturity of amounts other than qualified stated interest, the
weighted average maturity). Holders of Notes with a DE MINIMIS amount of
original issue discount will include such original issue discount in income, as
capital gain, on a pro rata basis as principal payments are made on the Note.
A U.S. Holder of an Original Issue Discount Note (other than certain U.S.
Holders of Short-Term Original Issue Discount Notes, as defined below) will be
required to include qualified stated interest in income at the time it is
received or accrued in accordance with such U.S. Holder's method of accounting.
A U.S. Holder of an Original Issue Discount Note that matures more than
one year from its date of issuance will be required to include original issue
discount in income as it accrues, in accordance with a constant yield method
based on a compounding of interest, before the receipt of cash payments
attributable to such income. The amount of original issue discount includable in
income is equal to the sum of the "daily portions" of the original issue
discount for each day during the taxable year on which the U.S. Holder held such
Note. The "daily portion" is the original issue discount for the "accrual
period" that is allocated ratably to each day in the accrual period. The
original issue discount for an accrual period is equal to the excess, if any, of
(a) the product of the "adjusted issue price" of an Original Issue Discount Note
at the beginning of such accrual period and its "yield to maturity" over (b) the
amount of any qualified stated interest allocable to the accrual period. The
"accrual period" is the interval (not to exceed one year) that ends no later
than the date of any scheduled payment of principal or interest. The Company
will specify the accrual period it intends to use in the applicable Pricing
Supplement but a U.S. Holder is not required to use the same accrual period for
purposes of determining the amount of original issue discount includable in its
income for a taxable year. The adjusted issue price of a Note at the beginning
of an accrual period is equal to the issue price of such Note, increased by the
aggregate amount of original issue discount with respect to such Note that
accrued in prior accrual periods, and reduced by the amount of any payment on
the Note in prior accrual periods of amounts other than a payment of qualified
stated interest. Under these rules, U.S. Holders generally will have to include
in income increasingly greater amounts of original issue discount in successive
accrual periods.
Under the OID Regulations, a U.S. Holder may make an election (the
"Constant Yield Election") to include in gross income its entire return on a
Note (i.e., the excess of all remaining payments to be received on the Note over
the amount paid for the Note by such Holder) in accordance with a constant yield
method based on the compounding of interest. Special rules apply to elections
made with respect to Notes with amortizable bond premium and U.S. Holders
considering such an election should consult their own tax advisor.
In general, a cash method U.S. Holder of an Original Issue Discount Note
that matures one year or less from its date of issuance (a "Short-Term Original
Issue Discount Note") is not required to accrue original issue discount on such
Note for United States Federal income tax purposes unless it elects to do so.
U.S. Holders who make such an election, U.S. Holders who report income for
United States Federal income tax purposes on the accrual method and certain
other U.S. Holders, including banks and dealers in securities, are required to
include original issue discount in income on such Short-Term Original Issue
Discount Notes as it accrues on a straight-line basis, unless an election is
made to use the constant yield method (based on a daily compounding). In the
case of a U.S. Holder who is not required and does not elect to include original
issue discount in income currently, any gain realized on the sale, exchange or
redemption of the Short-Term Original Issue Discount Note will be ordinary
income to the extent of the original issue discount accrued. In addition, such
U.S. Holder will be required to defer deductions for any interest paid on
indebtedness incurred to purchase or carry Short-Term Original Issue Discount
Notes in an amount not exceeding the deferred interest income, until such
deferred interest income is recognized.
Certain Notes may be redeemable at the option of the Company prior to the
Maturity Date, or repayable at the option of the U.S. Holder prior to the
Maturity Date. Notes containing such features may be subject to rules that
differ from the general rules discussed above. U.S. Holders intending to
purchase Notes with any such features should carefully examine the applicable
Pricing Supplement and should consult with their own tax advisors with respect
to such features, since the tax consequences with respect to original issue
discount will depend, in part, on the particular terms and the particular
features of the purchased Note.
BOND PREMIUM
If a U.S. Holder purchases a Note for an amount that is greater than the
stated redemption price at maturity, such Holder will be considered to have
purchased such Note with "amortizable bond premium" equal in amount to such
excess, and generally will not be required to include any original issue
discount in income. A U.S. Holder may elect (in accordance with applicable Code
provisions) to amortize such premium, using a constant yield method, over the
remaining term of the Note (where such Note is not callable prior to its
maturity date). If such Note may be called prior to maturity after the U.S.
Holder has acquired it, the amount of amortizable bond premium is determined
with reference to either the amount payable on maturity or, if it results in a
smaller premium, attributable to the period through the earlier call date with
reference to the amount payable on the earlier call date. A U.S. Holder who
elects to amortize bond premium must reduce his tax basis in the Note by the
amount of the premium amortized in any year. An election to amortize bond
premium applies to all taxable debt obligations then owned and thereafter
acquired by the U.S. Holder and may be revoked only with the consent of the
Internal Revenue Service. If a Holder makes a Constant Yield Election for a Note
with amortizable bond premium, such election will result in a deemed election to
amortize bond premium for all of the Holder's debt instruments with amortizable
bond premium and may be revoked only with the permission of the Internal Revenue
Service with respect to debt instruments acquired after revocation.
SALE, EXCHANGE OR REDEMPTION OF THE NOTES
Upon the sale, exchange or redemption of a Note, a U.S. Holder will
recognize taxable gain or loss equal to the difference between the amount
realized on the sale, exchange or redemption (except to the extent such amount
is attributable to accrued and unpaid interest) and the U.S. Holder's adjusted
tax basis in the Note. A U.S. Holder's adjusted tax basis in a Note will
generally be the U.S. dollar cost of the Note to such U.S. Holder, increased by
the amount of any original issue discount previously included in income by the
U.S. Holder with respect to such Note and reduced by any amortized premium and
any principal payments received by the U.S. Holder and, in the case of an
Original Issue Discount Note, by the amounts of any other payments that do not
constitute qualified stated interest.
In general, gain or loss realized on the sale, exchange or redemption of a
Note will be capital gain or loss (except in the case of a Short-Term Original
Issue Discount Note, to the extent of any original issue discount not previously
included in such U.S. Holder's taxable income), and will be long-term capital
gain or loss if at the time of sale, exchange or redemption, the Note has been
held for more than one year. Under current law, the excess of net long-term net
capital gains over net short-term capital losses is taxed at a lower rate than
ordinary income for certain non-corporate taxpayers. The distinction between
capital gain or loss is also relevant for purposes of, among other things,
limitations on the deductibility of capital losses.
If a U.S. Holder disposes of only a portion of a Note pursuant to a
redemption or repayment (including the Survivor's Option, if applicable), such
disposition will be treated as a pro rata prepayment in retirement of a portion
of a debt instrument. Generally, the resulting gain or loss would be calculated
by assuming that the original Note being tendered consists of two instruments,
one that is retired (or repaid), and one that remains outstanding. The adjusted
issue price, U.S. Holder's adjusted basis, and the accrued but unpaid original
issue discount of the original Note, determined immediately before the
disposition, would be allocated between these two instruments based on the
portion of the instrument that is treated as retired by the pro rata prepayment.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Backup withholding and information reporting requirements may apply to
certain payments of principal, premium and interest (including original issue
discount) on a Note, and to payments of proceeds of the sale or redemption of a
Note, to certain non-corporate U.S. Holders. The Company, its agent, a broker,
the relevant Trustee or any paying agent, as the case may be, will be required
to withhold from any payment a tax equal to 31 percent of such payment if the
U.S. Holder fails to furnish or certify his correct taxpayer identification
number (social security number or employer identification number) to the payor
in the manner required, fails to certify that such U.S. Holder is not subject to
backup withholding, or otherwise fails to comply with the applicable
requirements of the backup withholding rules. Any amounts withheld under the
backup withholding rules from a payment to a Holder may be credited against such
Holder's United States Federal income tax and may entitle such Holder to a
refund, provided that the required information is furnished to the United States
Internal Revenue Service.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS
INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A
HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS
WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE OWNERSHIP AND DISPOSITION OF
THE NOTES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER
TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
CERTAIN COVENANTS AS TO LIENS
The only financial covenant applicable to the Notes is that described
below. That covenant requires that the Notes be equally and ratably secured in
the circumstances described therein but has no special application merely by
virtue of the occurrence of any transaction or series of transactions resulting
in material changes in the Company's debt-to-equity ratio.
The Company will covenant in the Notes that so long as any of the Notes
remain outstanding, it will not pledge or otherwise subject to any lien any of
its property or assets unless the Notes are secured by such pledge or lien
equally and ratably with any and all other obligations and indebtedness secured
thereby so long as any such other obligations and indebtedness shall be so
secured. Such covenant does not apply to:
(a) the pledge of any assets to secure any financing by the Company of the
exporting of goods to or between, or the marketing thereof in, foreign countries
(other than Canada), in connection with which the Company reserves the right, in
accordance with customary and established banking practice, to deposit, or
otherwise subject to a lien, cash, securities or receivables, for the purpose of
securing banking accommodations or as to the basis for the issuance of bankers'
acceptances or in aid of other similar borrowing arrangements;
(b) the pledge of receivables payable in foreign currencies (other than
Canadian dollars) to secure borrowings in foreign countries (other than Canada);
(c) any deposit of assets of the Company with any surety company or clerk
of any court, or in escrow, as collateral in connection with, or in lieu of, any
bond on appeal by the Company from any judgment or decree against it, or in
connection with other proceedings in actions at law or in equity by or against
the Company;
(d) any lien or charge on any property, tangible or intangible, real or
personal, existing at the time of acquisition of such property (including
acquisition through merger or consolidation) or given to secure the payment of
all or any part of the purchase price thereof or to secure any indebtedness
incurred prior to, at the time of, or within 60 days after, the acquisition
thereof for the purpose of financing all or any part of the purchase price
thereof; and
(e) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any lien, charge or pledge
referred to in the foregoing (a) to (d) inclusive of this paragraph; provided,
however, that the amount of any and all obligations and indebtedness secured
thereby shall not exceed the amount thereof so secured immediately prior to the
time of such extension, renewal or replacement and that such extension, renewal
or replacement shall be limited to all or a part of the property which secured
the charge or lien so extended, renewed or replaced (plus improvements on such
property). (Section 12.01 of the Indenture.)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66-2/3% in aggregate principal
amount of the Notes at the time outstanding under the Indenture, to modify the
Indenture or any supplemental indenture or the rights of the holders of the
Notes; provided that no such modification shall (i) change the fixed maturity of
any such Note, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, without the consent of the
holder of each such Note so affected or (ii) reduce the aforesaid percentage of
Notes of any series outstanding under the Indenture, the consent of the holders
of which is required for any such modification, without the consent of the
holders of all Notes then outstanding under the Indenture. (Section 10.02 of the
Indenture.)
EVENTS OF DEFAULT
An Event of Default with respect to the Notes is defined in the Indenture
as being: (a) default in payment of any principal of, or premium, if any, on,
the Notes; (b) default for 30 days in payment of any interest on any of the
Notes; (c) default for 30 days after notice in performance of any other covenant
in the Indenture; or (d) certain events of bankruptcy, insolvency or
reorganization. (Section 6.01 of the Indenture.)
In case an Event of Default shall occur and be continuing with respect to
the Notes, the Trustee or the holders of not less than 25% in aggregate
principal amount of the Notes then outstanding may declare the principal amount
of the Notes to be due and payable. Any Event of Default with respect to the
Notes may be waived by the holders of a majority in aggregate principal amount
of the outstanding Notes except in a case of failure to pay principal of or
interest on such Notes for which payment had not been subsequently made.
(Section 6.06 of the Indenture.) The Company is required to file with the
Trustee annually a certificate as to the absence of certain defaults under the
terms of the Indenture. (Section 11.04 of the Indenture.)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
shall be under no obligation to exercise any of its rights or powers under the
Indenture at the request, order or direction of any of the Noteholders, unless
such Noteholders shall have offered to the Trustee reasonable indemnity or
security. (Sections 7.01 and 7.02 of the Indenture.)
Subject to such provisions for the indemnification of the Trustee and to
certain other limitations, the holders of a majority in principal amount of the
Notes at the time outstanding shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee. (Section 6.06 of the
Indenture.)
CONCERNING THE TRUSTEE
The Chase Manhattan Bank is the Trustee under the Indenture. The Chase
Manhattan Bank acts as issuing and paying agent for the Company's commercial
paper program, makes loans to, acts as trustee and performs certain other
services for, the Company and certain of its affiliates in the normal course of
its business. As trustee of various trusts, it has purchased securities of the
Company and certain of its affiliates.
CONCERNING THE PAYING AGENTS
The Company shall maintain one or more Paying Agents for the payment of
the principal of, premium, if any, and interest, if any, on, the Notes. (Section
4.02 of the Indenture.) The Company has initially appointed The Chase Manhattan
Bank as the Company's Paying Agent for the Notes.
PLAN OF DISTRIBUTION
Under the terms of the Selling Agent Agreement dated as of September 24,
1996, the Notes are offered on a continuing basis by the Company through The
Chicago Corporation, A.G. Edwards & Sons, Inc., Edward D. Jones & Co., L.P.,
Prudential Securities Incorporated and Smith Barney Inc., who have agreed to use
their reasonable best efforts to solicit purchases of the Notes. The Company may
appoint additional Agents to solicit sales of the Notes; provided, however, that
any such solicitation and sale of the Notes shall be on the same terms and
conditions to which the Agents have agreed. The Company will pay the Agents a
gross selling commission to be divided among themselves as they shall agree. The
commission will be payable to the Purchasing Agent in the form of a discount
ranging from .20% to 2.50% of the non-discounted price for each Note sold. The
Company will have the sole right to accept offers to purchase Notes and may
reject any proposed purchase of Notes in whole or in part. Each Agent will have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes in whole or in part. The Company reserves the right to
withdraw, cancel or modify the offer without notice.
Following the solicitation of orders, the Agents, severally and not
jointly, may purchase Notes from the Company through The Chicago Corporation as
principal for its own account. Unless otherwise set forth in the applicable
Pricing Supplement, such Notes will be resold to one or more investors and other
purchasers at a fixed public offering price. In addition, the Agents may offer
the Notes they have purchased as principal to other dealers. The Agents may sell
Notes to any dealer at a discount and, unless otherwise specified in the
applicable Pricing Supplement, such discount allowed to any dealer will not,
during the distribution of the Notes, be in excess of the discount to be
received by such Agent from the Company. After the initial public offering of
Notes to be resold by an Agent to investors and other purchasers, the public
offering price (in the case of Notes to be resold at a fixed public offering
price), concession and discount may be changed.
Each Agent may be deemed to be an "underwriter" within the meaning of the
Securities Act. The Company has agreed to indemnify the Agents against certain
liabilities, including liabilities under the Securities Act.
No Note will have an established trading market when issued. The Company
does not intend to apply for the listing of the Notes on any securities
exchange, but has been advised by the Agents that the Agents intend to make a
market in the Notes as permitted by applicable laws and regulations. The Agents
are not obligated to do so, however, and the Agents may discontinue making a
market at any time without notice. No assurance can be given as to the liquidity
of any trading market for any Notes.
------------------
LEGAL OPINIONS
The validity of the Notes offered hereby will be passed upon for the
Company by Martin I. Darvick, Esq., Assistant General Counsel of the Company,
and for the Agents by Davis Polk & Wardwell. Mr. Darvick owns shares and holds
options to purchase shares of General Motors Corporation $1-2/3 par value common
stock. Davis Polk & Wardwell acts as counsel to the Executive Compensation
Committee of the Board of Directors of General Motors Corporation and has acted
as counsel to the Company and certain of its affiliates in various matters.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Company's Annual Report on Form 10-K have been audited by Deloitte & Touche
LLP, Detroit, Michigan 48243, independent auditors, as stated in their report,
which is incorporated herein by reference, and has been so incorporated in
reliance upon such report given upon the authority of Deloitte & Touche LLP as
experts in accounting and auditing.
GMAC FINANCIAL SERVICES
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses to be incurred in
connection with the offering described in the Registration Statement:
Securities and Exchange Commission
registration fee.................................... $172,414
Blue Sky filing and counsel fees........................ 25,000
Fees and expenses of Trustee............................ 5,000
Printing and engraving Notes............................ 5,000
Printing Registration Statement, Prospectus
and other documents.................................. 40,000
Underwriter's counsel fees.............................. 15,000
Accountants' fees ...................................... 15,000
Rating Agencies' fees .................................. 100,000
Miscellaneous expenses.................................. 22,586
------
Total................................................ $400,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under sections 7015 and 7018-7023 of the New York Banking Law the Company
may or shall, subject to various exceptions and limitations, indemnify its
directors or officers and may purchase and maintain insurance as follows:
a. If a director or officer is made or threatened to be a party to an
action by or in the right of the Company to procure a judgment in its favor, by
reason of the fact that he is or was a director or officer of the Company or is
or was serving at the request of the Company as a director or officer of some
other enterprise (including, without limitation, an employee benefit plan), the
Company may indemnify him against amounts paid in settlement and reasonable
expenses, including attorney's fees, incurred in the defense or settlement of
such action or an appeal therein, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in (or, in the case of
service for any other enterprise, not opposed to) the best interests of the
Company, except that no indemnification is available under such statutory
provisions in respect of a threatened action or a pending action which is
settled or otherwise disposed of, or any claim or issue or matter as to which
such person is found liable to the Company, unless in each such case a court
determines that such person is fairly and reasonably entitled to indemnity for
such amount as the court deems proper.
b. With respect to any action or proceeding other than one by or in the
right of the Company to procure a judgment in its favor, if a director or
officer is made or threatened to be made a party by reason of the fact that he
was a director or officer of the Company, or served some other enterprise
(including, without limitation, an employee benefit plan) at the request of the
Company, the Company may indemnify him against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorney's fees, incurred as a
result of such action or proceeding or an appeal therein, if he acted in good
faith for a purpose which he reasonably believed to be in (or, in the case of
service for any other enterprise, not opposed to) the best interests of the
Company and, in criminal actions or proceedings, in addition, had no reasonable
cause to believe that his conduct was unlawful.
c. A director or officer who has been wholly successful, on the merits
or otherwise, in the defense of a civil or criminal action or proceeding of
the character described in paragraphs a. or b. above, shall be entitled to
indemnification as authorized in such paragraphs.
d. The Company may purchase and maintain insurance to indemnify directors
and officers in instances in which they may not otherwise be indemnified by the
Company under the provisions of the Banking Law, provided that the contract of
insurance provides for a retention amount and for co-insurance, except that no
such insurance may provide for any payment, other than cost of defense, to or on
behalf of any director or officer if a judgment or other final adjudication
adverse to such director or officer establishes that his acts of active and
deliberate dishonesty were material to the cause of action so adjudicated or
that he personally gained in fact a financial profit or other advantage to which
he was not legally entitled.
The foregoing statement is subject to the detailed provisions of sections
7015 and 7018-7023 of the New York Banking Law.
As a subsidiary of General Motors Corporation, the Company is insured
against liabilities which it may incur by reason of the foregoing provisions of
the New York Banking Law and directors and officers of the Company are insured
against some liabilities which might arise out of their employment and not be
subject to indemnification under said Banking Law.
Pursuant to resolutions adopted by the Board of Directors of General
Motors Corporation, that company to the fullest extent permissible under law
will indemnify, and has purchased insurance on behalf of, directors or officers
of the Company, or any of them, who incur or are threatened with personal
liability, including expenses, under the Employee Retirement Income Security Act
of 1974 or any amendatory or comparable legislation or regulation thereunder.
ITEM 16. EXHIBITS.
1. Form of Selling Agent Agreement.
4. Indenture, dated as of September 24, 1996, between the Company
and The Chase Manhattan Bank, Trustee
4(a)(1) Form of SmartNotes(SM) in global form included in Exhibit 4.
5 Opinion and Consent of Martin I. Darvick, Esq., Assistant General
Counsel of the Company.
8 Opinion and consent of tax counsel.
12 Calculation of Ratio of Earnings to Fixed Charges.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Counsel included in Exhibit 5.
25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of The Chase Manhattan Bank
99 Underwriter representations of compliance with Rule 15c2-8 under
the Securities Exchange Act of 1934, as amended.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(3) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(4) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors and officers of the Company
pursuant to the provisions discussed in Item 15 above, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefor, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director or officer of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director or officer in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, General Motors Acceptance Corporation, certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Detroit,
and State of Michigan, on the 13th day of September, 1996.
<PAGE>
............GENERAL MOTORS ACCEPTANCE CORPORATION
............s/ J. Michael Losh
............----------------------------------------
............(J. Michael Losh, Chairman of the Board)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on September 13, 1996 by the following
persons in the capacities indicated.
SIGNATURE TITLE
s/ J. Michael Losh
- -------------------------
(J. Michael Losh) Chairman of
the Board
and Director
s/ John R. Rines
- -------------------------
(John R. Rines) President and
Director
s/ Eric A. Feldstein
- -------------------------
(Eric A. Feldstein) Executive Vice
President and Chief Financial
Officer
s/ Gerald E. Gross
- ------------------------- Comptroller
(Chief
(Gerald E. Gross) Accounting
Officer)
s/ Richard J. S. Clout
- ------------------------- Executive Vice
(Richard J. S. Clout) President and
Director
<PAGE>
s/ John D. Finnegan
- ------------------------- Director
(John D. Finnegan)
s/ John E. Gibson
- ------------------------- Executive Vice
(John E. Gibson) President and
Director
s/ Leon J. Krain
- ----------------------- Director
(Leon J. Krain)
s/ Harry J. Pearce
- ------------------------- Director
(Harry J. Pearce)
s/ W. Allen Reed
- ------------------------- Director
(W. Allen Reed)
s/ John F. Smith, Jr.
- ------------------------- Director
(John F. Smith, Jr.)
s/ Ronald L. Zarrella
- ------------------------- Director
(Ronald L. Zarrella)
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE NO.
- ------- -------
1 Form of Selling Agent Agreement.........................
4 Indenture, dated as of September 24, 1996, between
the Company and The Chase Manhattan Bank, Trustee.......
4(a)(1) Form of SmartNotes(SM) in global form
included in Exhibit 4...................................
5 Opinion and Consent of Martin I. Darvick, Esq.,
Assistant General Counsel of the Company................
8 Opinion and Consent of Tax Counsel......................
12 Calculation of Ratio of Earnings to Fixed Charges.......
23(a) Consent of Deloitte & Touche LLP. ......................
23(b) Consent of Counsel included in Exhibit 5................
25 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of
The Chase Manhattan Bank................................
99 Underwriter representations of compliance with
Rule 15c2-8 under the Securities Exchange Act of
1934, as amended........................................
Exhibit 1
GENERAL MOTORS ACCEPTANCE CORPORATION
$500,000,000
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
September 24, 1996
The Chicago Corporation
208 South LaSalle Street
Chicago, IL 60604-1003
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, MO 63103
Edward D. Jones & Co., L.P.
12555 Manchester
St. Louis, MO 63131
Prudential Securities Incorporated
One New York Plaza
15th Floor
New York, NY 10292-2015
Smith Barney Inc.
390 Greenwich Street
5th Floor
New York, NY 10013
Dear Sirs:
General Motors Acceptance Corporation, a New York corporation (the
"Company"), proposes to issue and sell up to $500,000,000 aggregate principal
amount of its SmartNotes(SM)Due
- ------------------
(SM)Service Mark of General Motors Acceptance Corporation
from Nine Months to Thirty Years from Date of Issue (the "Notes") to be issued
pursuant to the provisions of an Indenture dated as of September 24, 1996, as
supplemented from time to time, between the Company and The Chase Manhattan
Bank, as Trustee (the "Indenture"). The terms of the Notes are described in the
Prospectus referred to below.
Subject to the terms and conditions contained in this Selling Agent
Agreement (the "Agreement"), the Company hereby (1) appoints you as agent of the
Company ("Agent") for the purpose of soliciting purchases of the Notes from the
Company and you hereby agree to use your reasonable best efforts to solicit
offers to purchase Notes upon terms acceptable to the Company at such times and
in such amounts as the Company shall from time to time specify and in accordance
with the terms hereof, and, after consultation with The Chicago Corporation (the
"Purchasing Agent"), the Company reserves the right to enter into agreements
substantially identical hereto with other agents and (2) agrees that whenever
the Company determines to sell Notes pursuant to this Agreement, such Notes
shall be sold pursuant to a Terms Agreement relating to such sale in accordance
with the provisions of Section V hereof between the Company and the Purchasing
Agent with the Purchasing Agent purchasing such Notes as principal for resale to
others.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement No. 333-12023 relating to the Notes and
the offering thereof, from time to time, in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"). Such registration
statement has been declared effective by the Commission, and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Such registration statement and the prospectus filed pursuant
to Rule 424 under the Securities Act, including all documents incorporated
therein by reference, as from time to time amended or supplemented, including
any Pricing Supplement, are referred to herein as the "Registration Statement"
and the "Prospectus," respectively.
II.
Your obligations hereunder are subject to the following conditions, each
of which shall be met on such date as you and the Company shall subsequently fix
for the commencement of your obligations hereunder (the "Commencement Date"):
(a)(i) No litigation or proceeding shall be threatened or pending to
restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes and (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse change not in the
ordinary course of business in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus; and you shall have received on the
Commencement Date a certificate dated such Commencement Date and signed 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) You shall have received a favorable opinion of Martin I. Darvick,
Esquire, Assistant General Counsel ("Counsel") of the Company, dated such
Commencement 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 New York and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification; (ii) the Indenture
has been duly authorized, executed and delivered by the Company and is a legal,
valid, binding and enforceable agreement of the Company and has been duly
qualified under the Trust Indenture Act; (iii) the issuance and sale of the
Notes has been duly authorized and the Notes, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the purchasers, will be entitled to the benefits of the Indenture and will be
legal, valid, binding and enforceable obligations of the Company; (iv) this
Agreement has been duly authorized, executed and delivered by the Company and is
a legal, valid, binding and enforceable obligation of the Company, provided that
Counsel's opinions in (ii), (iii) and (iv) hereof are subject as to enforcement
to the laws of bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles and that rights to indemnity hereunder may be limited by applicable
law in the United States; (v) no authorization, consent or approval of, or
registration or filing with, any governmental or public body or regulatory
authority in the United States is required on the part of the Company for the
issuance of the Notes in accordance with the Indenture or the sale of the Notes
in accordance with this Agreement other than the registration of the Notes under
the Securities Act, qualification of the Indenture under the Trust Indenture Act
and compliance with the securities or Blue Sky laws of various jurisdictions;
(vi) the execution and delivery of the Indenture, the issuance of the Notes in
accordance with the Indenture and the sale of the Notes pursuant to this
Agreement do not and will not contravene any provision of applicable law or
result in any violation by the Company of any of the terms or provisions of the
Restated Organization Certificate or By-Laws of the Company, or any indenture,
mortgage or other agreement or instrument known to Counsel by which the Company
is bound; (vii) the statements in the Prospectus under "Description of Notes"
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; and (viii) Counsel
(1) is of the opinion that each document, if any, filed pursuant to the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") (except as to
financial statements contained therein, as to which Counsel need not express any
opinion) and incorporated by reference in the Prospectus complied when so filed
as to form in all material respects with the Exchange Act and the rules and
regulations thereunder, (2) is of the opinion that the Registration Statement
and Prospectus, as amended or supplemented, if applicable (except as to
financial statements contained therein, as to which Counsel need not express any
opinion), comply as to form in all material respects with the Securities Act and
the rules and regulations thereunder and (3) to the best of Counsel's knowledge
(except for the financial statements contained therein, as to which Counsel need
not express any belief) the Registration Statement and the Prospectus, as
amended or supplemented, filed with the Commission pursuant to the Securities
Act together with the information incorporated therein, do 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, in light of the
circumstances under which they were made, not misleading, provided that with
respect to (viii) above, Counsel may state that his opinion is based upon the
participation by one or more attorneys, who are members of his staff and report
to him and who participated in the preparation of the Registration Statement and
the Prospectus and the information incorporated therein by reference and review
and discussion of the contents thereof and upon his general review and
discussion of the answers made and information furnished therein with such
attorneys, certain officers of the Company and its auditors, but is without
independent check or verification except as stated therein.
(c) You shall have received on the Commencement Date a letter dated the
Commencement Date from Deloitte & Touche LLP, independent auditors, containing
statements and information of the type ordinarily included in auditors' "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 relating to the Notes.
(d) You shall have received a favorable opinion of Davis Polk & Wardwell,
counsel for the Agents, dated such Commencement Date, to the effect set forth in
clauses (ii), (iii), (iv), (vii) and (viii)(2) and (3) of Section II(b).
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement (as defined in Section V
hereof) are subject to the conditions that (i) no litigation or proceeding shall
be threatened or pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way questions or affects the validity of the Notes and
(ii) no stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission and there shall have been no material adverse
change not in the ordinary course of business in the consolidated financial
condition of the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement and the Prospectus, each of which conditions
shall be met on the corresponding Settlement Date. Further, if specifically
called for by any written agreement by the Purchasing Agent to purchase Notes as
principal, the Purchasing Agent's obligations hereunder and under such
agreement, shall be subject to such of the additional conditions set forth in
clauses (a), as it relates to the executive officer's certificate, and clauses
(b), (c) and (d) above, as agreed to by the parties, each of which such agreed
conditions shall be met on the corresponding Settlement Date.
<PAGE>
III.
In further consideration of your agreements herein contained, the Company
covenants as follows:
(a) To furnish to you, without charge, a copy of (i) the Indenture, (ii)
the resolutions of the Board of Directors (or Executive Committee) of the
Company authorizing the issuance and sale of the Notes, certified by the
Secretary or Assistant Secretary of the Company as having been duly adopted,
(iii) the Registration Statement including exhibits and materials incorporated
by reference therein and (iv) as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus (other than amendments or supplements to change interest rates), to
furnish you a copy of each such proposed amendment or supplement.
(c) To furnish you copies of each amendment to the Registration Statement
and of each amendment and supplement to the Prospectus in such quantities as you
may from time to time reasonably request; and if at any time when the delivery
of a Prospectus shall be required by law in connection with sales of any of the
Notes, either (i) any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact, or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading or (ii) for any other reason it shall be necessary to amend
or supplement the latest Prospectus, as then amended or supplemented, or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, the Company will
(A) notify you to suspend the solicitation of offers to purchase Notes and if
notified by the Company, you shall forthwith suspend such solicitation and cease
using the Prospectus as then amended or supplemented and (B) promptly prepare
and file with the Commission such document incorporated by reference in the
Prospectus or an amendment or supplement to the Registration Statement or the
Prospectus which will correct such statement or omission or effect such
compliance and will provide to you without charge a reasonable number of copies
thereof, which you shall use thereafter.
(d) To endeavor to qualify such Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all reasonable expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of such Notes for investment under the laws of
such jurisdictions as you may designate, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation to do
business, or to file a general consent to service of process, in any
jurisdiction.
(e) The Company will make generally available to its security holders and
to you as soon as practicable earning statements that satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
IV.
(a) You propose to solicit purchases of the Notes upon the terms and
conditions set forth herein and in the Prospectus and upon the terms
communicated to you from time to time by the Company. For the purpose of such
solicitation you will use the Prospectus as then amended or supplemented which
has been most recently distributed to you by the Company, and you will solicit
purchases only as permitted or contemplated thereby and herein and will solicit
purchases of the Notes only as permitted by the Securities Act and the
applicable securities laws or regulations of any jurisdiction. The Company
reserves the right, in its sole discretion, to suspend solicitation of purchases
of the Notes commencing at any time for any period of time or permanently. Upon
receipt of instructions (which may be given orally) from the Company, you will
forthwith suspend solicitation of purchases until such time as the Company has
advised you that such solicitation may be resumed.
You are authorized to solicit orders for the Notes only in denominations
of $1,000 or more (in multiples of $1,000). All Notes shall be sold at a
purchase price equal to 100% of their principal amount plus accrued interest, if
any, unless the Company shall have authorized an offer of Notes at a discount or
premium. You are not authorized to appoint subagents or to engage the service of
any other broker or dealer in connection with the offer or sale of the Notes
without the consent of the Company. Unless otherwise instructed by the Company,
the Purchasing Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes. The Company shall have the sole right to accept
offers to purchase Notes offered through you and may reject any proposed
purchase of Notes as a whole or in part. You shall have the right, in your
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of your
agreements contained herein. The Company agrees to pay the Purchasing Agent, as
consideration for soliciting the sale of the Notes pursuant to a Terms
Agreement, a commission in the form of a discount equal to the percentages of
the initial offering price of each Note sold as set forth in Exhibit A hereto.
The Purchasing Agent and the other Agents will share the above-mentioned
commission in such proportions as they may agree.
(b) Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "Procedures"), as
amended from time to time. The provisions of the Procedures shall apply to all
transactions contemplated hereunder other than those made pursuant to a Terms
Agreement. You and the Company each agree to perform the respective duties and
obligations specifically provided to be performed by each in the Procedures as
amended from time to time. The Procedures may only be amended by written
agreement of the Company and you.
V.
Each sale of Notes shall be made in accordance with the terms of this
Agreement and a separate agreement to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by the
Purchasing Agent as principal. Each such separate agreement (which may be an
oral agreement and confirmed in writing as described below between the
Purchasing Agent and the Company) is herein referred to as a "Terms Agreement."
A Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes by the Purchasing Agent. The Purchasing Agent's agreement to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations, warranties and agreements of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement, whether oral (and confirmed in writing which may be
by facsimile transmission) or in writing, shall describe the Notes to be
purchased pursuant thereto by the Purchasing Agent as principal, and may
specify, among other things, the principal amount of Notes to be purchased, the
interest rate or formula and maturity date or dates of such Notes, the interest
payment dates, if any, the price to be paid to the Company for such Notes, the
initial public offering price at which the Notes are proposed to be reoffered,
and the time and place of delivery of and payment for such Notes (the
"Settlement Date"), whether the Notes provide for a Survivor's Option or for
optional redemption by the Company and on what terms and conditions, and any
other relevant terms. In connection with the resale of the Notes purchased,
without the consent of the Company you are not authorized to appoint subagents
or to engage the service of any other broker or dealer, nor may you reallow any
portion of the discount paid to you by the Company. Terms Agreements, each of
which shall be substantially in the form of Exhibit B hereto, or as otherwise
agreed to between the Company and the Purchasing Agent, may take the form of an
exchange of any standard form of written telecommunication between the
Purchasing Agent and the Company.
VI.
The Company represents and warrants to the Agents that as of each date on
which the Company accepts an offer to purchase Notes (including any purchase by
the Purchasing Agent as principal, pursuant to a Terms Agreement or otherwise),
as of each date the Company issues and sells Notes and as of each date the
Registration Statement or the Prospectus is amended or supplemented: (i) each
document, if any, filed, or to be filed, pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied when so filed, or will
comply, in all material respects with such Act and the rules and regulations
thereunder; (ii) the Registration Statement (including the documents
incorporated by reference therein), filed with the Commission pursuant to the
Securities Act relating to the Notes, when it became effective, did 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; (iii) each Prospectus, if any, filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with such Act
and the applicable rules and regulations thereunder; (iv) the Registration
Statement and each Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations thereunder; and (v) the Registration Statement
and each Prospectus relating to the Notes do not 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 in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by you expressly
for use therein. Each acceptance by the Company of an offer for the purchase of
Notes and each issuance of Notes shall be deemed an affirmation by the Company
that the foregoing representations and warranties are true and correct at the
time, as the case may be, of such acceptance or of such issuance, in each case
as though expressly made at such time. The representations, warranties and
covenants of the Company shall survive the execution and delivery of this
Agreement and the issuance and sale of the Notes.
Each time the Registration Statement shall be amended by the filing of a
post-effective amendment with the Commission, or the filing by the Company of a
Form 10-K or Form 10-Q pursuant to Section 13 of the Exchange Act, or, if so
agreed in connection with a particular transaction, the Company shall furnish
the Agents with (1) a written opinion, dated the date of such amendment, filing
(in the case of a Form 10-Q, if requested in writing), or as otherwise agreed,
of counsel to the Company, in substantially the form previously delivered under
Section II(b), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such date; (2) a
letter, dated the date of such amendment, filing, or as otherwise agreed, of
Deloitte & Touche LLP, independent auditors, in substantially the form
previously delivered under Section II(c), but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented at
such date; and (3) a certificate, dated the date of such amendment, filing, or
as otherwise agreed and signed by an executive officer of the Company, in
substantially the form previously delivered under Section II(a), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended or supplemented at such date.
VII.
The Company agrees to indemnify and hold harmless you, each person, if
any, who controls (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) you and each of your and such person's
officers and directors against any and all losses, liabilities, costs or claims
(or actions in respect thereof) to which any of them may become subject
(including all reasonable costs of investigating, disputing or defending any
such claim or action), insofar as such losses, liabilities, costs or claims (or
actions in respect thereof) arise out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus, or any amendment or supplement
thereto, or 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 provided: (i) that the Company shall not be liable for any such loss,
liability, cost, action or claim arising from any statements or omissions made
in reliance on and in conformity with written information provided by you to the
Company expressly for use in the Registration Statement or Prospectus or any
amendment or supplement thereto; and (ii) that the Company shall not be liable
to you or any person controlling you with respect to the Prospectus to the
extent any such loss, liability, cost, action or claim to you or such
controlling person results from the fact that you sold Notes to a person to whom
there was not sent or given, at or prior to the earlier of either the mailing or
delivery of the written confirmation of such sale or the delivery of such Notes
to such person, a copy of the Prospectus as then amended or supplemented, if the
Company has previously furnished copies thereof to you.
You agree to indemnify and hold harmless the Company, each person, if any,
who controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act), the Company, and the Company's and such
person's officers and directors from and against any and all losses,
liabilities, costs or claims (or actions in respect thereof) to which any of
them may become subject (including all reasonable costs of investigating,
disputing or defending any such claim or action), insofar as such losses,
liabilities, costs or claims (or actions in respect thereof) arise out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or Prospectus, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each
case only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the section of the Prospectus
entitled "Plan of Distribution" or any amendment or supplement thereto in
reliance on and in conformity with written information furnished to the Company
by you expressly for use therein.
If any claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified party in
respect of which indemnity is to be sought against an indemnifying party
pursuant to the preceding paragraphs, the indemnified party shall promptly
notify 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
indemnified party may designate in such proceeding and shall pay the reasonable
fees and expenses 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 and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the indemnifying party has failed within a reasonable time to retain
counsel reasonably satisfactory to such indemnified party 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 agreed that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate law firm (in addition to local counsel where necessary) for all such
indemnified parties. Such firm shall be designated in writing by the indemnified
party. 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 or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The indemnity agreements contained in this Section VII and the
representations and warranties of the Company and you in this Agreement, shall
remain operative and in full force and effect regardless of: (i) any termination
of this Agreement; (ii) any investigation made by an indemnified party or on
such party's behalf or any person controlling an indemnified party or by or on
behalf of the indemnifying party, its directors or officers or any person
controlling the indemnifying party; and (iii) acceptance of and payment for any
of the Notes.
VIII.
Except as provided in Section V hereof, in soliciting purchases of Notes
from the Company, you are acting solely as agent for the Company, and not as
principal. You will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been accepted by
the Company, but you shall not have any liability to the Company in the event
such purchase is not consummated for any reason, other than to repay to the
Company any commission with respect thereto. Except pursuant to a Terms
Agreement, under no circumstances shall you be obligated to purchase any Notes
for your own account.
IX.
This Agreement shall be terminated at any time by either party hereto upon
the giving of five business days written notice of such termination to the other
party hereto. In the event of any such termination, neither party shall have any
liability to the other party hereto, except for obligations hereunder which
expressly survive the termination of this Agreement and except that, if at the
time of termination an offer for the purchase of Notes shall have been accepted
by the Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto shall not yet have occurred, the Company shall
have the obligations provided herein with respect to such Note or Notes.
Any Terms Agreement shall be subject to termination in your absolute
discretion on the terms set forth or incorporated by reference therein. The
termination of this Agreement shall not require termination of any agreement by
the Purchasing Agent to purchase Notes as principal, and the termination of any
such agreement shall not require termination of this Agreement.
If this Agreement is terminated, the last sentence of the second paragraph
of Section IV(a), Section III(c), (d) and (e), Section VII, and the first
paragraph of Section XIV shall survive; provided that if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), Section IV(b) and
Section V shall also survive until time of delivery.
X.
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to you shall be sufficient in all respects
if delivered in person or sent by telex, facsimile transmission (confirmed in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telex, telecopier or registered mail to the
Company at 3044 West Grand Boulevard, Detroit, Michigan 48202, telex number
425543 or telecopier number 313-974-1244, marked for the attention of the
Secretary. All such notices shall be effective on receipt.
XI.
This Agreement shall be binding upon you and the Company, and inure solely
to the benefit of you and the Company and any other person expressly entitled to
indemnification hereunder and the respective personal representatives,
successors and assigns of each, and no other person shall acquire or have any
rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any Federal or New York State court sitting in the Borough of Manhattan, and, by
execution and delivery of this Agreement, such party hereby irrevocably accepts
and submits to the jurisdiction of each of the aforesaid courts in personam,
generally and unconditionally with respect to any such action or proceeding for
itself and in respect of its property, assets and revenues. Each party hereby
also irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any such action or
proceeding brought in any such court and any claim that any such action or
proceeding has been brought in an inconvenient forum.
XIII.
If this Agreement is executed by or on behalf of any party, such person
hereby states that at the time of the execution of this Agreement he has no
notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
XIV.
The Company will pay the expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement; (ii) the preparation, issuance and delivery of the
Notes; (iii) the fees and disbursements of the Company's auditors and of the
Trustee and its counsel; (iv) the printing and delivery to you in quantities as
hereinabove stated of copies of the Registration Statement and the Prospectus;
(v) the reasonable fees and disbursements of Davis Polk & Wardwell, counsel for
the Agents (including "Blue Sky" fees and disbursements; and (vi) any fees
charged by rating agencies for the rating of the Notes.
This Agreement may be executed by each of the parties hereto in any number
of counterparts, and by each of the parties hereto on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
GENERAL MOTORS ACCEPTANCE CORPORATION
By:_________________________________
Title:________________________________
Confirmed and accepted
as of the date first above
written:
THE CHICAGO CORPORATION
By:____________________________
Title:___________________________
The Chicago Corporation
208 South LaSalle Street
Chicago, Illinois 60604-1003
Attention:
Telefax:
<PAGE>
A. G. EDWARDS & SONS, INC.
By:____________________________
Title:___________________________
A. G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Attention:
Telefax:
EDWARD D. JONES & CO., L.P.
By:____________________________
Title:___________________________
Edward D. Jones & Co., L.P.
12555 Manchester
St. Louis, MO 63131
Attention:
Telefax:
PRUDENTIAL SECURITIES INCORPORATED
By:____________________________
Title:___________________________
Prudential Securities Incorporated
One New York Plaza
15th Floor
New York, New York 10292-2015
Attention:
Telefax:
SMITH BARNEY INC.
390 Greenwich Street
5th Floor
New York, New York 10013
<PAGE>
EXHIBIT A
SMARTNOTES(SM)
GMAC
DEALER AGENT PROGRAM
--------------------
The following Selling Commissions are payable as a percentage of the
non-discounted Price to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months . . . . . . . . . %
23 months to less than 35 months. . . . . . . . . %
35 months to less than 47 months. . . . . . . . . %
47 months to less than 59 months. . . . . . . . . %
59 months to less than 71 months. . . . . . . . . %
71 months to less than 83 months. . . . . . . . . %
83 months to less than 95 months. . . . . . . . . %
95 months to less than 107 months . . . . . . . . %
107 months to less than 119 months. . . . . . . . %
119 months to less than 131 months. . . . . . . . %
131 months to less than 143 months. . . . . . . . %
143 months to less than 179 months. . . . . . . . %
179 months to less than 239 months. . . . . . . . %
239 months to 360 months. . . . . . . . . . . . . %
<PAGE>
EXHIBIT B
GENERAL MOTORS ACCEPTANCE CORPORATION
$500,000,000
SMARTNOTES(SM)
DUE FROM NINE MONTHS TO THIRTY YEARS FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
SmartNotes(SM), Due from Nine Months to Thirty Years from Date of Issue are
offered on a continuing basis by General Motors Acceptance Corporation. The
Notes will be offered by The Chicago Corporation (the "Purchasing Agent"),
Edwards & Sons, Inc., Edward D. Jones and Co., L.P., Prudential Securities
Incorporated and A.G. and Smith Barney Inc. (collectively, the "Agents")
pursuant to a Selling Agent Agreement among the Company and the Agents dated as
of the date hereof (the "Selling Agreement") and one or more terms agreements
substantially in the form attached to the Selling Agreement as Exhibit C (each a
"Terms Agreement"). The Notes are being resold by the Purchasing Agent (and by
any Agent that purchases them from the Purchasing Agent) to (i) customers of the
Agents or (ii) selected broker-dealers (the "Selling Group") for distribution to
their customers pursuant to a Master Selected Dealers Agreement (a "Dealers
Agreement") attached hereto as Schedule D. The Agents have agreed to use their
reasonable best efforts to solicit purchases of the Notes. The Notes will be
senior debt and have been registered with the Securities and Exchange Commission
(the "Commission"). The Chase Manhattan Bank is the trustee (the "Trustee")
under an Indenture dated as of September __, 1996, as amended from time to time,
between the Company and the Trustee (the "Indenture") covering the Notes.
Pursuant to the terms of the Indenture, The Chase Manhattan Bank also will serve
as authenticating agent, issuing agent and paying agent.
Each tranche of Notes will be issued in book-entry form ("Notes") and
represented by one or more fully registered global notes without coupons (each,
a "Global Note") held by the Trustee, as agent for the Depository Trust
Corporation ("DTC") and recorded in the book-entry system maintained by DTC.
Each Global Note will have the annual interest rate, maturity and other terms
set forth in the relevant Pricing Supplement (as defined in the Selling
Agreement). Owners of beneficial interests in a Global Note will be entitled to
physical delivery of Notes issued in certificated form equal in principal amount
to their respective beneficial interests only upon certain limited circumstances
described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities will be handled for the Company by its
Borrowings Department; accountable document control and record-keeping
responsibilities will be performed by its Comptroller's Department. The Company
will advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding offers to purchase Notes and the details of their
delivery.
Notes will be issued in accordance with the administrative procedures set forth
in herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreements or the Prospectus and the Pricing Supplement (together, the
"Prospectus"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreements and the Prospectus shall control. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Selling Agent Agreement, the Prospectus in the form most recently filed with the
Commission pursuant to Rule 424 of the Securities Act, or in the Indenture.
ADMINISTRATIVE PROCEDURES FOR NOTES
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated September __, 1996, and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated March 10, 1989,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Maturities: Each Note will mature on a date (the "Maturity Date") not
less than nine months after the date of delivery by the
Company of such Note. Notes will mature on any date
selected by the initial purchaser and agreed to by the
Company. "Maturity" when used with respect to any Note,
means the date on which the outstanding principal amount of
such Note becomes due and payable in full in accordance
with its terms, whether at its Maturity Date or by
declaration of acceleration, call for redemption, repayment
or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note will
be dated and issued as of the date of its authentication by
the Trustee.
All Discount Notes which have the same terms (collectively,
the "Zero-Coupon Terms") will be represented initially by a
single Global Certificate in fully registered form without
coupons.
Each Global Note will bear an Issue Date, which will be (i)
with respect to an original Global Note (or any portion
thereof), its original issuance date (which will be the
Settlement Date for the Notes represented by such Global Note)
and (ii) with respect to any Global Note (or portion thereof)
issued subsequently upon exchange of a Global Note or in lieu
of a destroyed, lost or stolen Global Note, the most recent
Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Note or Notes (or if no
such payment or provision has been made, the original issuance
date of the predecessor Global Note or Notes), regardless of
the date of authentication of such subsequently issued Global
Note.
Identification
Numbers: The Company has received from the CUSIP Service Bureau (the
"CUSIP Service Bureau") of Standard & Poor's Corporation
("Standard & Poor's") one series of CUSIP numbers
consisting of approximately 900 CUSIP numbers for future
assignment to Global Notes. The Company will provide DTC
and the Trustee with a list of such CUSIP numbers. The
Company will assign CUSIP numbers as described below under
Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Notes. The Company will
reserve additional CUSIP numbers when necessary for
assignment to Global Notes and will provide the Trustee
and DTC with the list of additional CUSIP numbers so
obtained.
Registration: Global Notes will be issued only in fully registered
form without coupons. Each Global Note will be registered
in the name of Cede & Co., as nominee for DTC, on the Note
Register maintained under the Indenture by the Trustee.
The beneficial owner of a Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to
such Note, the "Participants") to act as agent or agents
for such owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry form,
in accordance with instructions provided by such
Participants, a credit balance with respect to such
beneficial owner of such Note in the account of such
Participants. The ownership interest of such beneficial
owner in such Note will be recorded through the records of
such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers: Transfers of a Note will be accomplished by book entries made
by DTC and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note .
Exchanges: The Trustee, at the Company's request, may deliver to DTC
and the CUSIP Service Bureau at any time a written notice
of consolidation specifying (a) the CUSIP numbers of two or
more Global Notes outstanding on such date that represent
Notes having the same terms or (except that Issue Dates
need not be the same) and for which interest, if any, has
been paid to the same date and which otherwise constitute
Notes of the same series and tenor under the Indenture, (b)
a date, occurring at least 30 days after such written
notice is delivered and at least 30 days before the next
Interest Payment Date, if any, for the related Notes, on
which such Global Notes shall be exchanged for a single
replacement Global Note; and (c) a new CUSIP number,
obtained from the Company, to be assigned to such
replacement Global Note. Upon receipt of such a notice,
DTC will send to its participants (including the Issuing
Agent) and the Trustee a written reorganization notice to
the effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau written notice setting
forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP numbers
of the Global Notes to be exchanged will no longer be
valid. On the specified exchange date, the Trustee will
exchange such Global Notes for a single Global Note bearing
the new CUSIP number and the CUSIP numbers of the exchanged
Global Notes will, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to be
exchanged exceed $200,000,000 in aggregate principal
amount, one replacement Global Note will be authenticated
and issued to represent each $200,000,000 of principal
amount of the exchanged Global Notes and an additional
Global Note will be authenticated and issued to represent
any remaining principal amount of such Global Notes (See
"Denominations" below).
Denominations: Notes will be issued in denominations of $1,000 or more (in
multiples of $1,000). Global Notes will be denominated in
principal amounts not in excess of $200,000,000. If one or
more Notes having an aggregate principal amount in excess
of $200,000,000 would, but for the preceding sentence, be
represented by a single Global Note, then one Global Note
will be issued to represent each $200,000,000 principal
amount of such Note or Notes and an additional Global Note
will be issued to represent any remaining principal amount
of such Note or Notes. In such case, each of the Global
Notes representing such Note or Notes shall be assigned
the same CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the percentage of
principal amount specified in the Prospectus relating to
such Note.
Interest: GENERAL. Each Note will bear interest at a fixed rate,
which may be zero during all or any part of the term in the
case of certain Notes issued at a price representing a
substantial discount from the principal amount payable at
Maturity. Interest on each Note will accrue from the Issue
Date of such Note for the first interest period and from
the most recent Interest Payment Date to which interest has
been paid for all subsequent interest periods. Except as
set forth hereafter, each payment of interest on a Note
will include interest accrued to but excluding, as the case
may be, the Interest Payment Date or the date of Maturity
(other than a Maturity Date of a Note occurring on the 31st
day of a month in which case such payment of interest will
include interest accrued to but excluding the 30th day of
such month). Any payment of principal, premium or interest
required to be made on a day that is not a Business Day (as
defined below) may be made on the next succeeding Business
Day and no interest shall accrue as a result of any such
delayed payment.
Each pending deposit message described under Settlement
Procedure "C" below will be routed to Standard & Poor's
Corporation, which will use the message to include certain
information regarding the related Notes in the appropriate
daily bond report published by Standard & Poor's Corporation.
Each Note will bear interest from and including its Issue Date
at the rate per annum set forth thereon and in the applicable
Pricing Supplement until the principal amount thereof is paid,
or made available for payment, in full. Unless otherwise
specified in the applicable Pricing Supplement, interest on
each Note (other than a Zero-Coupon Note) will be payable
either monthly, quarterly, semi-annually or annually on each
Interest Payment Date and at Maturity (or on the date of
redemption or repayment if a Note is repurchased by the
Company prior to maturity pursuant to mandatory or optional
redemption provisions or the Survivor's Option). Interest will
be payable to the person in whose name a Note is registered at
the close of business on the Regular Record Date next
preceding each Interest Payment Date; provided, however,
interest payable at Maturity, on a date of redemption or in
connection with the exercise of the Survivor's Option will be
payable to the person to whom principal shall be payable.
Any payment of principal, and premium, if any, or
interest required to be made on a Note on a day which is not a
Business Day need not be made on such day, but may be made on
the next succeeding Business Day with the same force and
effect as if made on such day, and no additional interest
shall accrue as a result of such delayed payment. Unless
otherwise specified in the applicable Pricing Supplement, any
interest on the Notes will be computed on the basis of a
360-day year of twelve 30-day months. The interest rates the
Company will agree to pay on newly-issued Notes are subject to
change without notice by the Company from time to time, but no
such change will affect any Notes already issued or as to
which an offer to purchase has been accepted by the Company.
The Interest Payment Dates for a Note that
provides for monthly interest payments shall be the fifteenth
day of each calendar month commencing in the calendar month
that next succeeds the month in which the Note is issued. In
the case of a Note that provides for quarterly interest
payments, the Interest Payment Dates shall be the fifteenth
day of each of the months specified in the Pricing Supplement,
commencing in the third succeeding calendar month following
the month in which the Note is issued. In the case of a Note
that provides for semi-annual interest payments, the Interest
Payment dates shall be the fifteenth day of each of the months
specified in the Pricing Supplement, commencing in the sixth
succeeding calendar month following the month in which the
Note is issued. In the case of a Note that provides for annual
interest payments, the Interest Payment Date shall be the
fifteenth day of the month specified in the Pricing
Supplement, commencing in the twelfth succeeding calendar
month following the month in which the Note is issued. The
Regular Record date with respect to any Interest Payment Date
shall be the first day of the calendar month in which such
Interest Payment Date occurred, except that the Regular Record
Date with respect to the final Interest Payment Date shall be
the final Interest Payment Date.
Each payment of interest on a Note shall include accrued
interest from and including the Issue Date or from and
including the last day in respect of which interest has been
paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or Maturity Date, as the
case may be.
Calculation
of Interest: Interest on the Notes (including interest for partial
periods) will be calculated on the basis of a 360-day year
of twelve 30-day months. (Examples of interest calculations
are as follows: October 1, 1996 to April 1, 1997 equals 6
months and 0 days, or 180 days; the interest paid equals
180/360 times the annual rate of interest times the
principal amount of the Note. The period from December 3,
1996 to April 1, 1997 equals 4 months and 28 days, or 148
days; the interest payable equals 148/360 times the annual
rate of interest times the principal amount of the Note.)
Business Day: "Business Day" means, unless otherwise specified in
the applicable Pricing Supplement, any day, other than a
Saturday or Sunday, that meets the following applicable
requirement: such day is not a day on which banking
institutions are authorized or required by law, regulation
or executive order to be closed in the City of New York.
Payments of
Principal and
Interest: PAYMENTS OF PRINCIPAL AND INTEREST. Promptly after each
Regular Record Date, the Trustee will deliver to the
Company and DTC a written notice specifying by CUSIP number
the amount of interest, if any, to be paid on each Global
Note on the following Interest Payment Date (other than an
Interest Payment Date coinciding with a Maturity Date) and
the total of such amounts. DTC will confirm the amount
payable on each Global Note on such Interest Payment Date
by reference to the daily bond reports published by
Standard & Poor's. On such Interest Payment Date, the
Company will pay to the Trustee, and the Trustee in turn
will pay to DTC, such total amount of interest due (other
than on the Maturity Date), at the times and in the manner
set forth below under "Manner of Payment." If any Interest
Payment Date for any Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on
such payment for the period from and after such Interest
Payment Date.
PAYMENTS ON THE MATURITY DATE. On or about the first Business
Day of each month, the Trustee will deliver to the Company and
DTC a written list of principal, premium, if any, and interest
to be paid on each Global Note representing Notes maturing or
subject to redemption (pursuant to a sinking fund or
otherwise) or repayment ("Maturity") in the following month.
The Trustee, the Company and DTC will confirm the amounts of
such principal, premium, if any, and interest payments with
respect to each Global Note on or about the fifth Business Day
preceding the Maturity Date of such Global Note. On the
Maturity Date, the Company will pay to the Trustee, and the
Trustee in turn will pay to DTC, the principal amount of such
Global Note, together with interest and premium, if any, due
on such Maturity Date, at the times and in the manner set
forth below under "Manner of Payment." If the Maturity Date of
any Global Note is not a Business Day, the payment due on such
day shall be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period from and
after such Maturity Date. Promptly after payment to DTC of the
principal and interest due on the Maturity Date of such Global
Note and all other Notes represented by such Global Note, the
Trustee will cancel and destroy such Global Note in accordance
with the Indenture and so advise the Company.
MANNER OF PAYMENT. The total amount of any principal, premium,
if any, and interest due on Global Notes on any Interest
Payment Date or at Maturity shall be paid by the Company to
the Trustee in immediately available funds on such date. The
Company will make such payment on such Global Notes by
instructing the Trustee to withdraw funds from an account
maintained by the Company with The Chase Manhattan Bank or by
wire transfer to The Chase Manhattan Bank The Company will
confirm such instructions in writing to the Trustee. Prior to
10:00 a.m., New York City time, on the date of Maturity or as
soon as possible thereafter, the Trustee will make payment to
DTC in accordance with existing arrangements between DTC and
the Trustee, in funds available for immediate use by DTC, each
payment of interest, principal and premium, if any, due on a
Global Note on such date. On each Interest Payment Date (other
than on the Maturity Date) the Trustee will pay DTC such
interest payments in same-day funds in accordance with
existing arrangements between the Trustee and DTC. Thereafter,
on each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds
available for immediate use to the respective Participants
with payments in amounts proportionate to their respective
holdings in principal amount of beneficial interest in such
Global Note as are recorded in the book-entry system
maintained by DTC. Neither the Company nor the Trustee shall
have any direct responsibility or liability for the payment by
DTC of the principal of, or premium, if any, or interest on,
the Notes to such Participants.
WITHHOLDING TAXES. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Note will be determined and withheld by the Participant,
indirect participant in DTC or other person responsible for
forwarding payments and materials directly to the beneficial
owner of such Note.
Procedure for
Rate Setting
and Posting: The Company and the Agents will discuss, from time to
time, the aggregate principal amounts of, the Maturities,
the Issue Price and the interest rates to be borne by Notes
that may be sold as a result of the solicitation of orders
by the Agents. If the Company decides to set interest
rates borne by any Notes in respect of which the Agents are
to solicit orders (the setting of such interest rates to be
referred to herein as "Posting") or if the Company decides
to change interest rates previously posted by it, it will
promptly advise the Agents of the prices and interest rates
to be posted.
The Company will assign a separate CUSIP number for each
tranche of Notes to be posted, and will so advise and notify
the Trustee and Purchasing Agent of said assignment by
telephone and/or by telecopier or other form of electronic
transmission. The Purchasing Agent will, in turn, include the
assigned CUSIP number on all Posting notices communicated to
the Agents and Selling Group members.
Offering of Notes:In the event that there is a Posting, the Purchasing
Agent will communicate to each of the Agents and Selling Group
members the aggregate principal amount and Maturities of,
along with the interest rates to be borne by, each tranche of
Note that is the subject of the Posting. Thereafter, the
Purchasing Agent, along with the other Agents and the Selling
Group, will solicit offers to purchase the Notes accordingly.
Purchase of Notes
by the Purchasing
Agent: The Purchasing Agent will, no later than 4:00 p.m.
(New York City time) on the sixth day subsequent to the day
on which such Posting occurs, or if such sixth day is not a
day on which commercial banks in New York City are not
required or authorized to be in operation (not a "Business
Day"), on the preceding Business Day, or on such other
Business Day and time as shall be mutually agreed upon by
the Company and the Agents (any such day, a "Trade Day"),
(i) complete, execute and deliver to the Company a Terms
Agreement that sets forth, among other things, the amount
of each tranche that the Purchasing Agent is offering to
purchase or (ii) inform the Company that none of the Notes
of a particular tranche will be purchased by the Purchasing
Agent.
Acceptance
and Rejection
of Orders: Unless otherwise agreed by the Company and the Agents, the
Company has the sole right to accept orders to purchase
Notes and may reject any such order in whole or in part.
Unless otherwise instructed by the Company, the Purchasing
Agent will promptly advise the Company by telephone of all
offers to purchase Notes received by it, other than those
rejected by it in whole or in part in the reasonable
exercise of its discretion. No order for less than $1,000
principal amount of Notes will be accepted.
Upon receipt of a completed and executed Terms Agreement from
the Purchasing Agent, the Company will (i) promptly execute
and return such Terms Agreement to the Purchasing Agent or
(ii) inform the Purchasing Agent that its offer to purchase
the Notes of a particular tranche has been rejected, in whole
or in part. The Purchasing Agent will thereafter promptly
inform the other Agents and participating Selling Group
members of the action taken by the Company.
Preparation
of Pricing
Supplement: If any offer to purchase a Note is accepted by or on
behalf of the Company, the Company will provide a Pricing
Supplement reflecting the terms of such Note and will have
filed such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule 424(b)
under the Act and will supply a copy thereof (or additional
copies if requested) to the Purchasing Agent and one copy
to the Trustee. The Purchasing Agent will cause a
Prospectus and Pricing Supplement to be delivered to each
of the other Agents and Selling Group members that
purchased such Notes, and each of these, in turn, will
pursuant to the terms of the Selling Agent Agreement and
the Master Selected Dealer Agreement, cause to be delivered
a copy of the applicable Pricing Supplement to each
purchaser of Notes from such Agent or Selling Group member.
In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to Prospectuses prior
to their use. Outdated Pricing Supplements and the
Prospectuses to which they are attached (other than those
retained for files) will be destroyed.
Delivery of
Confirmation and
Prospectus to
Purchaser by
Presenting
Agent: Subject to "Suspension of Solicitation; Amendment or
Supplement" below, the Agents will deliver a Prospectus and
Pricing Supplement as herein described with respect to each
Note sold by it.
For each offer to purchase a Note solicited by an Agent and
accepted by or on behalf of the Company, the Purchasing Agent
will issue a confirmation to the purchaser, with a copy to the
Company, setting forth the terms of such Note and other
applicable details described above and delivery and payment
instructions. In addition, the Purchasing Agent will deliver
to such purchaser the Prospectus (including the Pricing
Supplement) in relation to such Note prior to or together with
the earlier of any written offer of such Note, delivery of the
confirmation of sale or delivery of the Note.
Settlement: The receipt of immediately available funds by the Company
in payment for Notes and the authentication and issuance of
the Global Note representing such Notes shall constitute
"Settlement" with respect to such Note. All orders
accepted by the Company will be settled within one to three
Business Days pursuant to the timetable for Settlement set
forth below, unless the Company and the purchaser agree to
Settlement on a later date, and shall be specified upon
acceptance of such offer; provided, however, in all cases
the Company will notify the Trustee on the date issuance
instructions are given.
Settlement
Procedures: In the event of a purchase of Notes by any Agent, as
principal, appropriate Settlement details, if different from
those set forth below, will be set forth in the applicable
Terms Agreement to be entered into between such Agent and the
Company pursuant to the Agreement. Settlement Procedures with
regard to each Note sold by an Agent, as agent for the
Company, shall be as follows:
A. After the acceptance of an offer by the Company with
respect to a Note, the Purchasing Agent will communicate
the following details of the terms of such offer (the
"Note Sale Information") to the Company by telephone
confirmed in writing or by facsimile transmission or
other acceptable written means:
1. Principal amount of the purchase;
2. Interest Rate;
3. Interest Payment Dates;
4. Settlement Date;
5. Maturity Date;
6. Purchase Price;
7. Purchasing Agent's commission determined
pursuant to Section IV(a) of the Selling Agent
Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the Company, such of
the following as are applicable:
(i) The date on and after which such
Note may be redeemed (the
"Redemption Commencement Date"),
(ii) Initial redemption price (% of
par), and
(iii) Amount (% of par) that the initial
redemption price shall decline (but
not below par) on each anniversary of
the Redemption Commencement Date;
11. Whether the Note has the Survivor's Option;
12. If a Discount Note, the total amount of
original issue discount, the yield to maturity
and the initial accrual period of original
issue discount;
13. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Global Note; and
14. Such other terms as are necessary to complete
the applicable form of Note.
B. The Company will confirm the previously assigned
CUSIP number to the Global Note representing such
Note and then advise the Trustee and the Purchasing
Agent by telephone (confirmed in writing at any time
on the same date) or by telecopier or other form of
electronic transmission of the information received
in accordance with Settlement Procedure "A" above,
the assigned CUSIP number and the name of the
Purchasing Agent. Each such communication by the
Company will be deemed to constitute a representation
and warranty by the Company to the Trustee and the
Agents that (i) such Note is then, and at the time
of issuance and sale thereof will be, duly authorized
for issuance and sale by the Company; (ii) such Note,
and the Global Note representing such Note, will
conform with the terms of the Indenture; and (iii)
upon authentication and delivery of the Global Note
representing such Note, the aggregate principal
amount of all Notes issued under the Indenture will
not exceed the aggregate principal amount of Notes
authorized for issuance at such time by the Company.
C. The Trustee will communicate to DTC and the Purchasing
Agent through DTC's Participant Terminal System, a
pending deposit message specifying the following
Settlement information:
1. The information received in accordance with
Settlement Procedure "A".
2. The numbers of the participant accounts
maintained by DTC on behalf of the Trustee and
the Purchasing Agent.
3. The initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related DTC record date (which
term means the Regular Record Date), and if
then calculated, the amount of interest payable
on such Initial Interest Payment Date (which
amount shall have been confirmed by the
Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of interest.
6. Whether such Global Note represents any other
Notes issued or to be issued (to the extent
then known).
D. DTC will credit such Note to the participant account
of the Trustee maintained by DTC.
E. The Trustee will complete and deliver a Global Note
representing such Note in a form that has been approved
by the Company, the Agents and the Trustee.
F. The Trustee will authenticate the Global Note
representing such Note and maintain possession of
such Global Note.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
to (i) debit such Note to the Trustee's participant
account and credit such Note to the participant account
of the Agent maintained by DTC and (ii) debit the
settlement account of the Agent and credit the
settlement account of the Trustee maintained by DTC,
in an amount equal to the price of such Note less the
Purchasing Agent's commission. The entry of such a
deliver order shall be deemed to constitute a
representation and warranty by the Trustee to DTC
that (a) the Global Note representing such Note has
been issued and authenticated and (b) the Trustee is
holding such Global Note pursuant to the Certificate
Agreement.
H. The Purchasing Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC to (i) debit such Note to the Purchasing Agent's
participant account and credit such Note to the
participant accounts of the Participants to whom such
Note is to be credited maintained by DTC and (ii)
debit the settlement accounts of such Participants
and credit the settlement account of the Purchasing
Agent maintained by DTC, in an amount equal to the
price of the Note so credited to their accounts.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
J. The Trustee will credit to an account of the Company
maintained at The Chase Manhattan Bank funds available
for immediate use in an amount equal to the amount
credited to the Trustee's DTC participant account in
accordance with Settlement Procedure "G".
K. The Trustee will send a copy of the Global Note
representing such Note by first-class mail to the
Company.
L. The Purchasing Agent will confirm the purchase of
each Note to the purchaser thereof either by
transmitting to the Participant to whose account such
Note has been credited a confirmation order through
DTC's Participant Terminal System or by mailing a
written confirmation to such purchaser. In all cases
the Prospectus as most recently amended or
supplemented must accompany or precede such
confirmation.
M. Each Business Day, the Trustee will send to the Company
a statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth the CUSIP number(s) assigned to, and a
brief description of, any orders which the Company has
advised the Trustee but which have not yet been settled.
Settlement
Procedures
Timetable: In the event of a purchase of Notes by the Purchasing Agent,
as principal, appropriate Settlement details, if different
from those set forth below will be set forth in the applicable
Terms Agreement to be entered into between the Purchasing
Agent and the Company pursuant to the Selling Agent Agreement.
For orders of Notes solicited by an Agent, as agent, and
accepted by the Company, Settlement Procedures "A" through "M"
shall be completed as soon as possible but not later than the
respective times (New York City time) set forth below:
Settlement
PROCEDURE TIME
A 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day before the
Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
J-L 5:00 p.m. on the Settlement Date.
M Weekly or at the request of the Company.
NOTE: The Prospectus as most recently amended or supplemented
must accompany or precede any written confirmation given to
the customer (Settlement Procedure "L"). Settlement Procedure
"I" is subject to extension in accordance with any extension
Fedwire closing deadlines and in the other events specified in
the SDFS operating procedures in effect on the Settlement
Date.
If Settlement of a Note is rescheduled or cancelled, the
Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 p.m., New York City time, on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to
Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note pursuant to Settlement Procedure
"G", the Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Note to
the participant account of the Trustee maintained at DTC.
DTC will process the withdrawal message, provided that such
participant account contains Notes having the same terms
and having a principal amount that is at least equal to the
principal amount of such Note to be debited. If withdrawal
messages are processed with respect to all the Notes issued
or to be issued represented by a Global Note, the Trustee
will cancel such Global Note in accordance with the
Indenture, make appropriate entries in its records and so
advise the Company. The CUSIP number assigned to such
Global Note shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately reassigned.
If withdrawal messages are processed with respect to one or
more, but not all, of the Notes represented by a Global
Note, the Trustee will exchange such Global Note for two
Global Notes, one of which shall represent such Notes and
shall be cancelled immediately after issuance, and the
other of which shall represent the remaining Notes
previously represented by the surrendered Global Note and
shall bear the CUSIP number of the surrendered Global
Note. If the purchase price for any Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the related
Agent may enter SDFS deliver orders through DTC's
participant Terminal System reversing the orders entered
pursuant to Settlement Procedures "G" and "H",
respectively. Thereafter, the Trustee will deliver the
withdrawal message and take the related actions described
in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the Agent in
the performance of its obligations hereunder or under the
Agency Agreement, the Company will reimburse the Agent on
an equitable basis for its loss of the use of funds during
the period when they were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Note, DTC may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of
a failure to settle with respect to one or more, but not all,
of Notes that were to have been represented by a Global Note,
the Trustee will provide, in accordance with Settlement
Procedures "D" and "E", for the authentication and issuance of
a Global Note representing the other Notes to have been
represented by such Global Note and will make appropriate
entries in its records.
Procedure for
Rate Changes: Any decision to change the rate structure will
require the following actions:
1. Each time a decision has been reached to change rates,
the Company will promptly advise the Agents, who will
forthwith suspend solicitation of purchases of Notes at
the prior rates. The Agents will telephone the Company
with recommendations as to the changed interest rates.
2. The Company will prepare and file a Pricing Supplement
to the Prospectus pursuant to Rule 424 showing the new
rates.
3. The Company will deliver the Pricing Supplement to
the Agents in such quantities as they may request and
to the Trustee.
4. The Agents will deliver a copy of the Prospectus and
Pricing Supplement setting forth the new rates in
connection with the settlement of any outstanding orders
for delayed settlement at the old rates.
Until the Agents have been informed of the new rates,
the Agents may only record "indications of interest."
The Company and the Agents will destroy all outdated
Prospectuses, supplements and Pricing Supplements (other
than copies retained for their files) by the close of
business on the day the supplement pursuant to Rule 424
has been mailed to the Commission for filing.
Suspension of
Solicitation
Amendment or
Supplement: Subject to the Company's representations, warranties and
covenants contained in the Selling Agent Agreement, the
Company may instruct the Agents to suspend at any time for
any period of time or permanently, the solicitation of
orders to purchase Notes. Upon receipt of such
instructions (which may be given orally), each Agent will
forthwith suspend solicitation until such time as the
Company has advised it that solicitation of purchases may
be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as in effect at the time
of the suspension may be delivered in connection with the
settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements
which may be made in the event that the Company determines
that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the Registration
Statement or the Prospectus, it will promptly advise the
Agents and furnish the Agents and the Trustee with the
proposed amendment or supplement and with such certificates
and opinions as are required, all to the extent required by
and in accordance with the terms of the Selling Agent
Agreement. Subject to the provisions of the Selling Agent
Agreement, the Company may file with the Commission any
supplement to the Prospectus relating to the Notes. The
Company will provide the Agents and the Trustee with copies of
any such supplement, and confirm to the Agents that such
supplement has been filed with the Commission.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee
to risk or expend its own funds in connection with any payment
to the Company, or the Agents or the purchasers, it being
understood by all parties that payments made by the Trustee to
either the Company or the Agents shall be made only to the
extent that funds are provided to the Trustee for such
purpose.
Advertising
Costs: The Company shall have the sole right to approve the form and
substance of any advertising an Agent may initiate in
connection with such Agent's solicitation to purchase the
Notes. The expense of such advertising will be solely the
responsibility of such Agent, unless otherwise agreed to by
the Company.
<PAGE>
EXHIBIT C
GENERAL MOTORS ACCEPTANCE CORPORATION
SMARTNOTES(SM)
TERMS AGREEMENT
, l99__
General Motors Acceptance Corporation
3044 West Grand Boulevard
Detroit, Michigan 48202
Attention: U.S. Borrowings
The undersigned agrees to purchase the following aggregate principal
amount of Notes: $
The terms of such Notes shall be as follows:
CUSIP Number: _______
Interest Rate: %
Maturity Date:
Price to Public:
Agent's Commission: %
Settlement Date, Time
and Place:
Survivor's Option:_________
Interest Payment Dates:
Optional Redemption, if any: ______
Initial Redemption Date: ___________
Redemption Price: Initially __% of Principal Amount and declining by __%
of the Principal Amount on each anniversary of the Initial Redemption Date until
the Redemption Price is 100% of the Principal Amount.
<PAGE>
[Any other terms and conditions agreed
to by such Agent and the Company]
THE CHICAGO CORPORATION
By:_________________________
Title:______________________
ACCEPTED:
GENERAL MOTORS ACCEPTANCE CORPORATION
By:________________________________
Title:_____________________________
<PAGE>
EXHIBIT D
FORM OF MASTER SELECTED DEALER AGREEMENT
----------------------------------------
[Name of Dealer]
[Dealer's Address]
Dear Selected Dealer:
In connection with public offerings of securities after the date
hereof for which we are acting as manager of an underwriting syndicate or are
otherwise responsible for the distribution of securities to the public by means
of an offering of securities for sale to selected dealers, you may be offered
the right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. APPLICABILITY OF THIS AGREEMENT. The terms and conditions of this
Agreement shall be applicable to any public offering of securities
("Securities"), pursuant to a registration statement filed under the Securities
Act of 1933 (the "Securities Act"), or exempt from registration thereunder
(other than a public offering of Securities effected wholly outside the United
States of America), wherein (The Chicago Corporation) (acting for its own
account or for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected dealers ("Selected Dealers") and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of Securities to you
as a Selected Dealer is hereinafter called an "Offering". In the case of any
Offering where we are acting for the account of any underwriting or similar
group or syndicate ("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. CONDITIONS OF OFFERING; ACCEPTANCE AND PURCHASES. Any Offering will
be subject to delivery of the Securities and their acceptance by us and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. We will
advise you by telegram, telex or other form of written communication ("Written
Communication", which term, in the case of any Offering described in Section
3(a) or 3(b) hereof, may include a prospectus or offering circular) of the
particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof) of any Offering in which you are invited to participate. To
the extent such supplementary terms and conditions are inconsistent with any
provision herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication, acceptances and
other communications by you with respect to an Offering should be sent to The
Chicago Corporation, 208 South LaSalle Street, Chicago, Illinois 60604-1003
(Telecopy: (312) 553-6329). We reserve the right to reject any acceptance in
whole or in part. Unless notified otherwise by us, Securities purchased by you
shall be paid for on such date as we shall determine, on one day's prior notice
to you, by certified or official bank check, in an amount equal to the Public
Offering Prices (as hereinafter defined) or, if we shall so advise you, at such
Public Offering Price less the Concession (as hereinafter defined), payable in
New York Clearing House funds to the order of (*), against delivery of the
Securities. If Securities are purchased and paid for at such Public Offering
Price, such Concession will be paid after the termination of the provisions of
Section 3(c) hereof with respect to such Securities. Notwithstanding the
foregoing, unless notified otherwise by us, payment for and delivery of
Securities purchased by you shall be made through the facilities of The
Depository Trust Company, if you are a member, unless you have otherwise
notified us prior to the date specified in a Written Communication to you from
us or, if you are not a member, settlement may be made through a correspondent
who is a member pursuant to instructions which you will send to us prior to such
specified date.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) REGISTERED OFFERINGS. In the case of any Offering of Securities
that are registered under the Securities Act ("Registered Offering"), we shall
provide you with such number of copies of each preliminary prospectus and of the
final prospectus relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable rules and regulations of the Securities and
Exchange Commission thereunder. You represent and warrant that you are familiar
with Rule 15c2-8 under the Exchange Act relating to the distribution of
preliminary and final prospectuses and agree that you will comply therewith. You
agree to make a record of your distribution of each preliminary prospectus and,
when furnished with copies of any revised preliminary prospectus, you will, upon
our request, promptly forward copies thereof to each person to whom you have
theretofore distributed a preliminary prospectus. You agree that in purchasing
Securities in a Registered Offering you will rely upon no statement whatsoever,
written or oral, other than the statements in the final prospectus delivered to
you by us. You will not be authorized by the issuer or other seller of
Securities offered pursuant to a prospectus or by any Underwriter to give any
information or to make any representation not contained in the prospectus in
connection with the sale of such Securities.
(b) OFFERINGS PURSUANT TO OFFERING CIRCULAR. In the case of any
Offering of Securities, other than a Registered Offering, which is made pursuant
to an offering circular or other document comparable to a prospectus in a
Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
(c) OFFER AND SALE TO THE PUBLIC. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to dealers and the time
when you may commence selling Securities to the public. After such public
offering has commenced, we may change the public offering price, the selling
concession and the reallowance to dealers. The offering price, selling
concession and reallowance (if any) to dealers at any time in effect with
respect to an Offering are hereinafter referred to, respectively, as the "Public
Offering Price", the "Concession" and the "Reallowance". With respect to each
Offering of Securities, until the provisions of this Section 3(c) shall be
terminated pursuant to Section 4 hereof, you agree to offer Securities to the
public only at the Public Offering Price, except that if a Reallowance is in
effect, a reallowance from the Public Offering Price not in excess of such
Reallowance may be allowed as consideration for services rendered in
distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by section
24(c) of Article III of the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. (the "NASD") and who are either members in good
standing of the NASD or foreign banks, dealers or institutions not eligible for
membership in the NASD who represent to you that they will promptly reoffer such
Securities at the Public Offering Price and will abide by the conditions with
respect to foreign banks, dealers and institutions set forth in Section 3(e)
hereof.
(d) OVER-ALLOTMENT; STABILIZATION; UNSOLD ALLOTMENTS. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (i) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in the open market or
otherwise any Securities purchased by you under this Agreement as part of such
Offering, you agree to pay us on demand an amount equal to the Concession with
respect to such Securities (unless you shall have purchased such Securities
pursuant to Section 2 hereof at the Public Offering Price in which case we shall
not be obligated to pay such Concession to you pursuant to Section 2) plus
transfer taxes and broker's commissions or dealer's mark-up, if any, paid in
connection with such purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged in
the investment banking or securities business and either a member in good
standing of the NASD or, if you are not such a member, you are a foreign bank,
dealer or institution not eligible for membership in the NASD which agrees to
make no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein, and in making other sales
to comply with the NASD's interpretation with respect to free riding and
withholding. You further represent, by your participation in an Offering, that
you have provided to us all documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to the supplementary requirements of the NASD's
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a selling concession, discount or other allowance is received
or granted, (1) you will comply with the provisions of section 24 of Article III
of the NASD's Rules of Fair Practice and (2) if you are a non-NASD member broker
or dealer in a foreign country, you will also comply (a), as though you were an
NASD member, with the provision of sections 8 and 36 thereof and (b) with
section 25 thereof as that section applies to a non-NASD member broker or dealer
in a foreign country.
You further agree that, in connection with any purchase of securities
from us that is not otherwise covered by the terms of this Agreement (whether we
are acting as manager, as a member of an underwriting syndicate or a selling
group or otherwise), if a selling concession, discount or other allowance is
granted to you, clauses (1) and (2) of the preceding paragraph will be
applicable.
(f) RELATIONSHIP AMONG UNDERWRITERS AND SELECTED DEALERS. We may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and,
without consent, the Underwriters (if any) and the Selected Dealers may purchase
Securities from and sell Securities to each other at the Public Offering Price
less all or any part of the Concession. You are not authorized to act as agent
for us, any Underwriter or the issuer or other seller of any Securities in
offering Securities to the public or otherwise. Neither we nor any Underwriter
shall be under any obligation to you except for obligations assumed hereby or in
any Written Communication from us in connection with any Offering. Nothing
contained herein or in any Written Communication from us shall constitute the
Selected Dealers an association or partners with us or any Underwriter or with
one another. If the Selected Dealers, among themselves or with the Underwriters,
should be deemed to constitute a partnership for Federal income tax purposes,
then you elect to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A of the Internal Revenue Code of 1986 and agree not to take any
position inconsistent with that election. You authorize us, in our discretion,
to execute and file on your behalf such evidence of that election as may be
required by the Internal Revenue Service. In connection with any Offering, you
shall be liable for your proportionate amount of any tax, claim, demand or
liability that may be asserted against you alone or against one or more Selected
Dealers participating in such Offering, or against us or the Underwriters, based
upon the claim that the Selected Dealers, or any of them, constitute an
association, an unincorporated business or other entity, including, in each
case, your proportionate amount of any expense incurred in defending against any
such tax, claim, demand or liability.
(g) BLUE SKY LAWS. Upon application to us, we shall inform you as to
any advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities or
blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) COMPLIANCE WITH LAW. You agree that in selling Securities pursuant
to any Offering (which agreement shall also be for the benefit of the issuer or
other seller of such Securities) you will comply with all applicable laws, rules
and regulations, including the applicable provisions of the Securities Act and
the Exchange Act, the applicable rules and regulations of the Securities and
Exchange Commission thereunder, the applicable rules and regulations of the
NASD, the applicable rules and regulations of any securities exchange having
jurisdiction over the Offering and the applicable laws, rules and regulations
specified in Section 3(b) hereof.
4. TERMINATION, SUPPLEMENTS AND AMENDMENTS. This Agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and other persons specified
in Section 1 hereof, and the respective successors and assigns of each of
them.
6. GOVERNING LAW. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
Please confirm by signing and returning to us the enclosed copy of
this Agreement that your subscription to, or your acceptance of any reservation
of, any Securities pursuant to an Offering shall constitute (i) acceptance of
and agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
Very truly yours,
The Chicago Corporation
BY:
---------------------------------
Name :
Title:
CONFIRMED: 19
-------------------- --
- -------------------------------------
(Name of Dealer)
By:
---------------------------------
Name:
--------------------------------
(Print name)
Title:
------------------------------
Exhibit 4
GENERAL MOTORS ACCEPTANCE CORPORATION
AND
THE CHASE MANHATTAN BANK
TRUSTEE
-----------------
INDENTURE
DATED AS OF SEPTEMBER 24, 1996
-----------------
SMARTNOTES(SM)
- ---------------
(SM)SERVICE MARK OF GENERAL MOTORS ACCEPTANCE CORPORATION
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
SECTION l.0l
Definitions
Board of Directors........................... 2
Board Resolutions............................ 2
Book-Entry Note.............................. 2
Business Day................................. 2
Company...................................... 2
Company Order................................ 2
Corporate Trust Office....................... 2
corporation.................................. 3
CUSIP Number................................. 3
Depositary................................... 3
Depositary................................... 3
Event of Default............................. 3
Global Note.................................. 3
holder....................................... 3
Indenture.................................... 3
Interest Payment Date........................ 4
Issue Date................................... 4
Maturity Date................................ 4
Notes........................................ 4
Note Register................................ 4
Officers' Certificate........................ 4
Opinion of Counsel........................... 4
Original Issue Discount Notes................ 4
outstanding.................................. 5
Participant.................................. 5
Paying Agent................................. 5
person....................................... 5
Place of Payment............................. 6
Redemption Date.............................. 6
Regular Record Date.......................... 6
responsible officer.......................... 6
Settlement Date.............................. 6
SmartNotes(SM)............................... 6
Survivor's Option............................ 6
Tranche...................................... 7
Trust Indenture Act of l939.................. 7
U.S. Dollar.................................. 7
SECTION 1.02 Notice to Noteholders.............................. 7
ARTICLE TWO
EXECUTION, ISSUE AND EXCHANGE OF NOTES
SECTION 2.0l Amount Unlimited; Issuable in Series............... 7
SECTION 2.02 Form of Notes...................................... 9
SECTION 2.03 Denominations; Record Date......................... 10
SECTION 2.04 Execution and Delivery of Notes.................... 11
SECTION 2.05 Form of Certificate of Authentication.............. 11
SECTION 2.06 Authentication and Delivery of Notes............... 12
SECTION 2.07 Exchange and Registration of Transfer
of Notes........................................... 13
SECTION 2.08 Mutilated, Defaced, Destroyed, Lost
or Stolen Notes.................................... 15
SECTION 2.09 Cancellation....................................... 15
ARTICLE THREE
REDEMPTION OF NOTES, SURVIVOR'S OPTION
SECTION 3.0l Redemption of Notes; Applicability
of Section......................................... 16
SECTION 3.02 Survivor's Option.................................. 17
ARTICLE FOUR
PAYMENT AND PAYING AGENTS
SECTION 4.0l Payment of Principal and Interest................. 19
SECTION 4.02 Paying Agents..................................... 21
SECTION 4.03 Provisions as to Paying Agents.................... 21
SECTION 4.04 Offices for Notices, etc.......................... 22
ARTICLE FIVE
NOTEHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 5.0l Noteholder Lists.................................. 22
SECTION 5.02 Preservation and Disclosure of Lists.............. 23
SECTION 5.03 Reports by the Company............................ 24
SECTION 5.04 Reports by the Trustee............................ 25
ARTICLE SIX
REMEDIES ON DEFAULT
SECTION 6.01 Events of Default................................. 26
SECTION 6.02 Payment of Notes on Default;
Suit Therefor..................................... 28
SECTION 6.03 Application on Moneys Collected
by Trustee........................................ 29
SECTION 6.04 Proceedings by Noteholders........................ 30
SECTION 6.05 Remedies Cumulative and Continuing ............... 31
SECTION 6.06 Direction of Proceedings and Waiver of Default.... 31
SECTION 6.07 Notice of Defaults................................ 32
SECTION 6.08 Undertaking to Pay Costs.......................... 32
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.0l Duties and Responsibilities of Trustee............. 33
SECTION 7.02 Reliance on Documents, Opinions, etc............... 34
SECTION 7.03 No Responsibility for Recitals, etc................ 35
SECTION 7.04 Ownership of Notes................................. 35
SECTION 7.05 Moneys to be Held in Trust......................... 35
SECTION 7.06 Compensation and Expenses of Trustee............... 35
SECTION 7.07 Officers' Certificate as Evidence.................. 36
SECTION 7.08 Conflicting Interest of Trustee.................... 36
SECTION 7.09 Eligibility of Trustee............................. 36
SECTION 7.10 Resignation or Removal of Trustee.................. 36
SECTION 7.11 Acceptance by Successor Trustee.................... 37
SECTION 7.12 Successor by Merger, etc........................... 38
SECTION 7.13 Limitations on Rights of Trustee as Creditor....... 39
<PAGE>
ARTICLE EIGHT
CONCERNING THE NOTEHOLDERS
SECTION 8.0l Action by Noteholders.............................. 39
SECTION 8.02 Proof of Execution by Noteholders.................. 39
SECTION 8.03 Who Are Deemed Absolute Owners..................... 40
SECTION 8.04 Company-Owned Notes Disregarded.................... 40
SECTION 8.05 Revocation of Consents; Future
Noteholders Bound.................................. 40
ARTICLE NINE
NOTEHOLDERS' MEETINGS
SECTION 9.0l Purposes of Meetings................................ 41
SECTION 9.02 Call of Meetings by Trustee......................... 41
SECTION 9.03 Call of Meetings by Company or
Noteholders......................................... 41
SECTION 9.04 Qualification for Voting............................ 41
SECTION 9.05 Regulations......................................... 42
SECTION 9.06 Voting.............................................. 42
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION l0.0l Supplemental Indentures without Consent of
Noteholders...................................... 43
SECTION l0.02 Supplemental Indentures with Consent of
Noteholders...................................... 44
SECTION l0.03 Compliance with Trust Indenture Act;
Effect of Supplemental Indentures.................. 45
SECTION l0.04 Notation on Notes................................... 45
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION ll.0l Company May Consolidate, etc. on
Certain Terms....................................... 46
SECTION ll.02 Successor Corporation to be Substituted for
Company............................................. 46
SECTION ll.03 Opinion of Counsel to be Given Trustee.............. 46
SECTION ll.04 Certificate to Trustee.............................. 47
ARTICLE TWELVE
LIMITATIONS ON LIENS
SECTION l2.0l Limitations on Liens................................ 47
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION l3.0l Discharge of Indenture.............................. 48
SECTION 13.02 Deposited Moneys to be Held in Trust by Trustee..... 48
SECTION 13.03 Paying Agent to Repay Moneys Held................... 48
SECTION l3.04 Return of Unclaimed Moneys.......................... 48
SECTION 13.05 Satisfaction, Discharge and Defeasance of Notes..... 49
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION l4.0l Indenture and Notes Solely Corporate Obligations.... 50
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION l5.0l Benefits of Indenture Restricted to Parties
and Holders...................................... 51
SECTION l5.02 Provisions Binding on Company's Successors.......... 51
SECTION l5.03 Addresses for Notices, etc.......................... 51
SECTION l5.04 Evidence of Compliance with Conditions Precedent.... 51
SECTION l5.05 Legal Holidays...................................... 52
SECTION l5.06 Trust Indenture Act to Control...................... 52
SECTION l5.07 Execution in Counterparts........................... 52
SECTION l5.08 New York Contract................................... 52
SECTION l5.l0 Severability of Provisions.......................... 52
SECTION l5.ll Company Released from Indenture
Requirements Under Certain Circumstances............ 52
Acceptance of Trust by Trustee..................................... 53
Testimonium........................................................ 53
Signatures and Seals............................................... 53
Acknowledgments.................................................... 53
EXHIBITS
Exhibit A Form of Face of Book-Entry Note..................... 55
Exhibit B Option to Elect Repayment........................... 60
<PAGE>
THIS INDENTURE dated as of September 24, 1996, between GENERAL MOTORS
ACCEPTANCE CORPORATION, a corporation duly organized and existing under the laws
of the state of New York (hereinafter sometimes called the "Company"), and THE
CHASE MANHATTAN BANK, a New York banking corporation, as trustee hereunder
(hereinafter sometimes called the "Trustee," which term shall include any
successor trustee appointed pursuant to Article Seven).
WITNESSETH:
WHEREAS, the Company deems it necessary to issue from time to time for its
lawful purposes SmartNotes(SM) Due from Nine Months to Thirty Years from Date of
Issue (hereinafter called the "Notes") and has duly authorized the execution and
delivery of this Indenture to provide for the issuance of the Notes in one or
more series, unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times and to have such other provisions as shall be
fixed as hereinafter provided; and
WHEREAS, the Company has duly authorized the issuance and sale of its
Notes unlimited as to principal amount, and all acts and things necessary to
constitute this Indenture a valid agreement of the Company according to its
terms, have been done and performed;
NOW, THEREFORE:
In order to declare the terms and conditions upon which the Notes are
authenticated, issued and received, and in consideration of the premises, of the
purchase and acceptance of the Notes by the holders thereof and of the sum of
one dollar to it duly paid by the Trustee at the execution of these presents,
the receipt whereof is hereby acknowledged, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of the respective
holders from time to time of the Notes, as follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. DEFINITIONS. The terms defined in this Section (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act of 1939 or
which are by reference therein defined in the Securities Act of 1933, as
amended, shall have the meanings (except as herein otherwise expressly provided
or unless the context otherwise clearly requires) assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed. The words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a whole, including
the Exhibits to this instrument, and not to any particular Article, Section or
other subdivision. Certain terms used wholly or principally within an Article of
this Indenture may be defined in that Article.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the
Company or the Executive Committee of the Board of Directors of the Company.
BOARD RESOLUTIONS:
The term "Board Resolution" shall mean a resolution certified by the
Secretary or Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
BOOK-ENTRY NOTE:
The term "Book-Entry Note" shall have the meaning given such term in
Section 2.03.
BUSINESS DAY:
The term "Business Day" shall mean, with respect to any Note, unless such
Note shall say otherwise, any day other than a Saturday or Sunday that meets the
following applicable requirement: such day is not a day on which banking
institutions are authorized or required by law, regulation or executive order to
be closed in the City of New York.
COMPANY:
The term "Company" shall mean the person named as the "Company" in the
first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
COMPANY ORDER:
The term "Company Order" shall mean any request, order or confirmation of
the Company signed by a person designated pursuant to Section 2.04 to the
Trustee, which may be transmitted by telex, by telecopy or in writing.
CORPORATE TRUST OFFICE:
The term "Corporate Trust Office" shall mean the principal corporate
trust office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of original
execution of the Indenture is located at The Chase Manhattan Bank, 450 West
33rd Street, 15th Floor, New York, New York 10001-2697, Attention: Global
Trust Services.
<PAGE>
CORPORATION:
The term "corporation" shall include corporations, associations, companies
and business trusts.
CUSIP NUMBER:
The term "CUSIP number" shall include all of the series of approximately
900 identification numbers obtained by the Company from the CUSIP Service Bureau
of Standard & Poor's Corporation for assignment to Global Notes representing
Book-Entry Notes.
DEPOSITARY:
The term "Depositary" shall mean, with respect to the Notes of any series
issuable or issued in whole or in part in the form of one or more Global Notes,
the Person designated as Depositary by the Company pursuant to Section 2.01
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Notes of any such
series shall mean the Depositary with respect to the Notes of that series.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified as such in
Section 6.01.
GLOBAL NOTE:
The term "Global Note" shall have the meaning given such term in Section
2.06.
HOLDER:
The terms "holder," when used with respect to any Note, and "Noteholder,"
"holder of Notes," or other similar terms, when used with respect to any Note,
shall mean the person in whose name the Note is registered in the Note Register.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
<PAGE>
INTEREST PAYMENT DATE:
The term "Interest Payment Date," when used with respect to any Note,
means the stated maturity of an installment of interest on such Note.
ISSUE DATE:
The term "Issue Date" shall mean, with respect to Notes of any Tranche the
date such Notes are authenticated pursuant to Section 2.06.
MATURITY DATE:
The term "Maturity Date," when used with respect to any Note, shall mean
the stated maturity of such Note.
NOTES:
The term "Note" or "Notes" shall mean the Notes of the Company issued,
authenticated and delivered under this Indenture.
NOTE REGISTER:
The term "Note Register" shall have the meaning specified in Section 2.07.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board or the Vice Chairman of the Board or the President or any
Executive Vice President or any Vice President and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the Company.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company.
ORIGINAL ISSUE DISCOUNT NOTES:
The term "Original Issue Discount Notes" shall mean any Notes which are
initially sold at a discount from the principal amount thereof and which provide
upon Event of Default for declaration of an amount less than the principal
amount thereof to be due and payable upon acceleration thereof.
<PAGE>
OUTSTANDING:
The term "outstanding," when used with reference to Notes, shall, subject
to the provisions of Section 7.08 and Section 8.04, mean, as of any particular
time, all Notes authenticated and delivered by the Trustee under this Indenture,
except
(a) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any Paying Agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent), provided, that if such Notes
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Notes paid or in lieu of and in substitution for which other
Notes shall have been authenticated and delivered pursuant to the terms of
Article Two, unless proof satisfactory to the Trustee is presented that
any such Notes are held by bona fide holders in due course.
PARTICIPANT:
The term "Participant" shall mean the person or persons designated by
beneficial owners of Book-Entry Notes to act as agent or agents for such owners
in connection with the book-entry system maintained by the Depositary.
PAYING AGENT:
The term "Paying Agent" shall mean, initially, The Chase Manhattan Bank
for the Notes as set forth in Section 4.02, and subsequently, any other paying
agent appointed by the Company from time to time in respect of the Notes.
PERSON:
The term "person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
<PAGE>
PLACE OF PAYMENT:
The term "Place of Payment," when used with respect to Notes of any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on the Notes of that series are payable.
REDEMPTION DATE:
The term "Redemption Date" shall have the meaning given such term in
Section 3.01.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any Interest
Payment Date on the Notes of any series means the date specified for that
purpose as contemplated by Sections 2.01, 2.03 and 4.01.
RESPONSIBLE OFFICER:
The term "responsible officer" when used with respect to the Trustee shall
mean any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular subject.
SETTLEMENT DATE:
The term "Settlement Date" shall mean the date of delivery of an
authenticated Global Note against receipt of immediately available funds by the
Company in payment for such Note, generally to occur within three Business Days
of placement of the order for such Note, unless otherwise agreed by the Company
and the purchaser.
SMARTNOTES(SM):
The term "SmartNotes(SM)" shall mean Notes issued pursuant to this
Indenture due from a minimum of nine months from date of issue.
SURVIVOR'S OPTION:
The term "Survivor's Option means, where applicable, the right of a holder
of such Note to require the Company to repay such Note prior to its Maturity
Date upon the death of the owner of such Note.
TRANCHE:
The term "Tranche" shall have the meaning given such term in Section 2.06.
TRUST INDENTURE ACT OF 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act
of 1939, as amended.
U.S. DOLLAR:
The term "U.S. Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
SECTION 1.02. NOTICE TO NOTEHOLDERS. Except as otherwise expressly
provided herein, where this Indenture provides for notice to holders of Notes of
any event, such notice shall be sufficiently given if in writing and mailed,
first class, postage prepaid, to each holder at such holder's address as it
appears in the Note Register, not later than the latest date, and not earlier
than the earliest date prescribed for such notice.
Neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular holder of a Note shall affect the sufficiency of such
notice with respect to other holders of Notes.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by holders of Notes shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
ARTICLE TWO.
EXECUTION, ISSUE AND EXCHANGE OF NOTES.
SECTION 2.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES. Upon the execution of
this Indenture, or from time to time thereafter, Notes up to the aggregate
principal amount and containing terms and conditions from time to time
authorized by or pursuant to a Board Resolution may be executed and delivered by
the Company. Global Notes will be delivered to the Trustee for authentication,
after execution by the Company, and the Trustee shall thereupon authenticate and
deliver said Notes to or upon the written order of the Company, signed by its
Chairman or Vice Chairman of the Board, President, an Executive Vice President
or a Vice President and by its Treasurer, an Assistant Treasurer, Secretary or
an Assistant Secretary without any further action by the Company, but subject to
the provisions of Section 2.03.
The Notes may be issued in one or more series. The aggregate principal
amount of Notes of all series which may be authenticated and delivered and
outstanding under this Indenture is not limited. The Notes of a particular
series may be issued up to the aggregate principal amount of Notes for such
series from time to time authorized by or pursuant to a Board Resolution.
There shall be established in or pursuant to a Board Resolution, and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Notes of any series:
(1) the designation of the Note of the series (which shall
distinguish the Notes of the series from all other Notes);
(2) any limit upon the aggregate principal amount of the Notes of the
series which may be authenticated and delivered under this Indenture (except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes of the series pursuant to Section 2.07,
2.08, 3.01 or 10.04);
(3) the date or dates on which the principal of the Notes of the
series is payable;
(4) the rate at which Notes of the series shall bear interest, if any, the
date from which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date for the determination
of holders of such Notes to whom interest is payable on any Interest Payment
Date;
(5) the place or places (in addition to such place or places specified in
this Indenture) where the principal of (and premium, if any) and interest, if
any, on Notes of the series shall be payable;
(6) the right, if any, of the Company to redeem Notes, in whole or in
part, at its option and the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Notes of the series may be
redeemed pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or repay
Notes of the series pursuant to any mandatory redemption sinking fund or
analogous provisions or at the option of a holder thereof (including the
Survivor's Option) and the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Notes of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(8) the denominations in which Notes of the series shall be issuable,
if other than $1,000 and integral multiples of $1,000;
(9) if other than the principal amount thereof, the portion of the
principal amount of Notes of the series which shall be payable upon declaration
of acceleration of the maturity thereof or which the Trustee shall be entitled
to claim pursuant to Section 6.02;
(10) whether the Notes of the series shall be issued in whole or in part
in the form of one or more Global Notes and, in such case, the Depositary for
such Note or Notes and whether any Global Notes of the series are to be issuable
initially in temporary form and whether any Global Notes of the series are to be
issuable in definitive form and, if so, whether beneficial owners of interests
in any such definitive Global Notes may exchange such interests for Notes of
such series and of like tenor of any authorized form and denomination and the
circumstances under which and the place or places where any such exchanges may
occur, if other than in the manner provided in Section 2.07;
(11) the provisions, if any, for the defeasance of the Notes of the
series;
(12) if the Notes of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Note of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(13) any trustees, depositories, authenticating or paying agents,
registrars or any other agents with respect to the Notes of such series; and
(14) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Notes of any one series shall be substantially identical except (i) as
to denomination and (ii) as may otherwise be provided in or pursuant to such
Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or any Assistant Secretary of the Company and
delivered to the Trustee at the same time as or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 2.02. FORM OF NOTES. The Notes shall be in the forms referred to
in Section 2.06. Interest on the Notes is payable monthly, quarterly,
semiannually or annually and shall be in the forms approved from time to time by
or pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto. Such forms may have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Notes may be listed, or to conform
to usage.
The Global Notes of any series shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Notes as evidenced by
their execution of such Notes by manual or facsimile signature.
SECTION 2.03. DENOMINATIONS; RECORD DATE. Unless other denominations and
amounts may from time to time be fixed by or pursuant to a Board Resolution, the
Notes of each series shall be issuable in book-entry form ("Book-Entry Notes")
without coupons in denominations of $1,000 or more (and any amount in excess
thereof that is an integral multiple of $1,000).
The term "record date" as used with respect to an Interest Payment Date
(except a date for payment of defaulted interest) shall mean such day or days as
shall be specified in the terms of the Notes of any particular series as
contemplated by Section 2.01.
The person in whose name any Note is registered at the close of business
on the Regular Record Date with respect to an Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any transfer or exchange
thereof subsequent to such Regular Record Date and prior to such Interest
Payment Date; provided, however, that if and to the extent the Company shall
default in the payment of the interest due on such Interest Payment Date, such
defaulted interest shall be paid to the persons in whose names outstanding Notes
are registered on a subsequent record date established by notice given by mail
by or on behalf of the Company to the holders of Notes of the series in default
not less than fifteen days preceding such subsequent record date, such record
date to be not less than five days preceding the date of payment of such
defaulted interest.
Global Notes will be denominated in principal amounts not in excess of
$200,000,000 (or such higher amount as may be permitted by the Depositary). If
one or more Book-Entry Notes having an aggregate principal amount in excess of
$200,000,000 (or such higher amount as may be permitted by the Depositary)
would, but for the preceding sentence, be represented by a single Global Note,
then one Global Note will be issued to represent each $200,000,000 (or such
higher amount as may be permitted by the Depositary) principal amount of such
Book-Entry Note or Notes and an additional Global Note will be issued to
represent any remaining principal amount of such Book-Entry Note or Notes. In
such case, each of the Global Notes representing such Book-Entry Note or Notes
shall be assigned the same CUSIP number.
SECTION 2.04. EXECUTION AND DELIVERY OF NOTES. The Notes shall be signed
on behalf of the Company by its Chairman of the Board, Vice Chairman of the
Board, President, an Executive Vice President, or a Vice President and by its
Treasurer, an Assistant Treasurer, Secretary or an Assistant Secretary, under
its corporate seal. Such signatures may be the manual or facsimile signatures of
the present or any future such officers. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Notes.
Only such Notes as shall bear thereon a certificate of authentication
substantially in the form hereinbelow recited, executed by the Trustee by manual
signature of one of its responsible officers if a Global Note, shall be entitled
to the benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate upon any Note shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Notes
shall cease to be such officer before the Note so signed shall be authenticated
and delivered by the Trustee or the Company or disposed of by the Company, such
Note nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Note had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such officer.
Within five days after the execution and delivery of this Indenture, the
Company shall deliver to the Trustee an Officers' Certificate as to the
incumbency and specimen signatures of officers authorized to execute Notes and
to give Company Orders under this Indenture and, as long as Notes are
outstanding under this Indenture, shall deliver a similar Officers' Certificate
within five days after any change in the officers so authorized. The Trustee may
conclusively rely on the documents delivered pursuant to this Section and
Section 2.02 hereof (unless revoked by superseding comparable documents) as to
the authorization of the Board of Directors of any Notes delivered hereunder,
and the form thereof, and as to the authority of the instructing officers
referred to in this Section so to act.
SECTION 2.05. FORM OF CERTIFICATE OF AUTHENTICATION. The certificate
of authentication as to Notes of any series shall be in the following form:
<PAGE>
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Notes described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By: _________________________
Authorized Signatory
SECTION 2.06. AUTHENTICATION AND DELIVERY OF NOTES. At any time and from
time to time after the execution and delivery of this Indenture, the Company may
deliver Global Notes of any series executed by the Company to the Trustee for
authentication by the Trustee together with a Company Order for the
authentication and delivery of such Notes, and the Trustee shall authenticate
and deliver such Notes in accordance with such Company Order. A Company Order
may specify that instructions to the Trustee as to the authentication and
delivery of Notes may be given on behalf of the Company by any person designated
in such Company Order, and the Trustee may conclusively rely on any such
instructions as if given by the Company until such Company Order is expressly
revoked by a subsequent Company Order.
All Book-Entry Notes of the same series which have the same terms,
including the same Settlement Date, Maturity Date, Interest Rate, Interest
Payment Dates and Redemption Date, if any (all such Notes being collectively
referred to herein as a "Tranche"), will be represented by a single global note,
without interest coupons (a "Global Note"), which shall be substantially in the
form of Exhibit A hereto. Each Global Note will be dated and issued as of the
date of its authentication by the Trustee. Each Global Note will bear an Issue
Date, which will be (i) with respect to an original Global Note (or any portion
thereof), its original issuance date (which will be the Settlement Date for the
Book-Entry Notes represented by such Global Note) and (ii) with respect to any
Global Note (or portion thereof) issued subsequently upon exchange of a Global
Note or in lieu of a destroyed, lost or stolen Global Note, the most recent
Interest Payment Date to which interest has been paid or duly provided for on
the predecessor Global Note or Notes (or if no such payment or provision has
been made, the original issuance date of the predecessor Global Note or Notes),
regardless of the date of authentication of such subsequently issued Global
Note. No Global Note shall represent any Note in certificated form.
Each Global Note, subject to the provisions of Section 2.03, (i) shall
represent and shall be denominated in an authorized aggregate amount equal to
the aggregate principal amount of the Book-Entry Notes outstanding of such
series represented thereby, (ii) shall be registered, in the name of the
Depositary for such Notes in global form or the nominee of such Depositary,
(iii) shall be delivered to such Depositary or pursuant to such Depositary's
instruction and (iv) if the Depositary is Depository Trust Company, shall bear a
legend substantially to the following effect:
Unless this certificate is presented by an authorized representative of
the Depository Trust Company, a New York corporation ("DTC"), to the
issuer 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 requested by an authorized representative of DTC and any
payment is made to Cede & Co., 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.
Each Depositary designated for a Global Note must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation. At all reasonable times, Global Notes will be made
available by the Depositary for inspection by the Company.
SECTION 2.07. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES.
Notwithstanding any other provisions of this Section, unless and until it
is exchanged in whole or in part for the individual Notes represented thereby,
in definitive form, a Global Note may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary of a series notifies the Company that it is
unwilling or unable to continue as Depositary for the Book-Entry Notes of such
series or if at any time the Depositary for the Book-Entry Notes of such series
shall no longer be eligible under Section 2.06, the Company, by Company Order,
shall appoint a successor Depositary with respect to the Notes of such series.
If a successor Depositary for the Notes of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company will execute, authenticate and deliver, Notes
of such series in definitive form in an aggregate principal amount and like
terms and tenor equal to the principal amount of the Book-Entry Note or Notes in
global form representing such series in exchange for such Book-Entry Note or
Notes in global form.
The Company may at any time and in its sole discretion determine that
individual Book-Entry Notes of any series issued in global form shall no longer
be represented by a Global Note. In such event the Company will execute,
authenticate and deliver individual certificated Notes of such series in
definitive form in authorized denominations and in an aggregate principal amount
equal to the principal amount of the Global Note representing such series in
exchange for such Global Note.
If specified by the Company with respect to a series of Book-Entry Notes,
the Depositary for such series of Notes may surrender the Global Note for such
series of Notes in exchange in whole or in part for individual Notes of such
series in definitive form and of like terms and tenor on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon, the
Company shall execute, authenticate and deliver, without service charge:
(a) to the Depositary or to each person specified by such Depositary a new
individual Note or Notes of the same series and of the same tenor, of authorized
denominations, in aggregate principal amount equal to and in exchange for such
person's beneficial interest in the Global Note; and
(b) to such Depositary a new Global Note in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global Note
and the aggregate principal amount of the individual Notes delivered to holders
thereof.
Upon the exchange of a Global Note for Notes in definitive form, such
Global Note shall be cancelled by the Trustee. Certificated Notes issued in
exchange for a Global Note pursuant to this Section shall be registered in such
names and in such authorized denominations as the Depositary for such Global
Note, pursuant to instructions from its direct or indirect Participants or
otherwise, shall instruct the Trustee in writing. The Company shall deliver such
Certificated Notes to the persons in whose names such Notes are so registered or
to the Depositary.
Whenever any Certificated Notes are surrendered for exchange, the Company
shall execute, authenticate and deliver the Notes which the holder making the
exchange is entitled to receive. All Notes issued upon any registration of
transfer or exchange of Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or
exchange.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Notes of any series during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Notes of that
series under Section 3.01 and ending at the close of business on the day of such
selection or (ii) to register the transfer of or exchange any Note selected for
redemption in whole or in part, except in the case of any Note to be redeemed in
part, the portion thereof not to be redeemed.
The beneficial owner of a Book-Entry Note (or one or more indirect
Participants in the Depositary designated by such owner) will designate one or
more participants in the Depositary (with respect to such Book-Entry Note, the
"Participants") to act as agent or agents for such owner in connection with the
book-entry system maintained by the Depositary, and the Depositary will record
in book-entry form, in accordance with instructions provided by such
participants, a credit balance with respect to such beneficial owner in such
Book-Entry Note in the account of such Participants. The ownership interest of
such beneficial owner in such Book-Entry Note will be recorded through the
records of such Participants or through the separate records of such
Participants and one or more indirect participants in the Depositary.
Transfers of a Book-Entry Note will be accomplished by book entries made
by the Depositary and, in turn, by Participants (and in certain cases, one or
more indirect participants in the Depositary) acting on behalf of beneficial
transferors and transferees of such Book-Entry Note.
No service charge shall be made for any exchange of Notes, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
SECTION 2.08. MUTILATED, DEFACED, DESTROYED, LOST OR STOLEN NOTES. In case
any Note shall at any time become mutilated, defaced, destroyed, lost or stolen,
and such Note or satisfactory evidence of the destruction, loss, or theft
thereof (together with the security and indemnity hereinafter referred to and
such other documents or proof required by the Company), shall be delivered to
the Company, then the Company shall execute and the Trustee shall authenticate
and deliver, in lieu of such Note, a new Note bearing a number not
contemporaneously outstanding of the same form, Settlement Date, Interest Rate,
denomination, Maturity Date and Interest Payment Dates. In the case of any
mutilated, defaced, destroyed, lost or stolen Note, an indemnity satisfactory to
the Company and the Trustee may be required of the holder of such Note before a
replacement Note will be issued. All expenses (including taxes and governmental
charges) associated with obtaining such indemnity and in issuing the new Note
shall be borne by the holder of the Note so mutilated, defaced, destroyed, lost
or stolen.
In case any such mutilated, defaced, destroyed, lost or stolen Note has
become or is about to become due and payable in full, the Company in its
discretion, instead of issuing a new Note may pay such Note on the date such
Note is due and payable.
Every substituted Note issued pursuant to the provisions of this Section
by virtue of the fact that any Note is destroyed, lost or stolen shall, with
respect to such Note, constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Note shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
All Notes shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Notes and shall, to the extent
permitted by law, preclude any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.09. CANCELLATION. All Notes surrendered for payment, redemption,
registration of transfer, or exchange, as the case may be, shall, if surrendered
to the Trustee, be cancelled and destroyed by it in accordance with its
customary procedures and a certificate of destruction delivered to the Company,
or shall, if surrendered to any Paying Agent, be delivered to the Trustee and
promptly cancelled and destroyed by the Trustee and a certificate of destruction
delivered to the Company, and no Notes shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy cancelled Notes and deliver a certificate of destruction to the
Company.
ARTICLE THREE.
REDEMPTION OF NOTES; SURVIVOR'S OPTION.
SECTION 3.01. REDEMPTION OF NOTES; APPLICABILITY OF SECTION. Redemption of
Notes of any series as permitted or required by the terms thereof shall be made
in accordance with such terms and this Section; provided, however, that if any
provision of any series of Notes shall conflict with any provision of this
Section, the provision of such series of Notes shall govern.
The Company shall, at least 60 days prior (or any shorter periods which
the parties hereto may agree in writing) to the date designated for redemption
of Notes of any series, give written notice to the Trustee that the Notes of
such series will be redeemed on the redemption date specified in such notice (a
"Redemption Date"). In the case of a partial redemption, if allowable, such
notice shall state the aggregate principal amount of Notes to be redeemed.
Otherwise, such notice shall state that the entire principal amount of Notes of
the series to be redeemed at the time outstanding shall be redeemed. In each
case, such notice shall state the provision of the terms of such Notes under
which such redemption is made, that the conditions precedent, if any, to such
redemption have occurred, shall describe the same and shall state the applicable
redemption price, if other than 100% of the face amount of the Notes to be
redeemed. The Company shall deliver to the Trustee any certificate or notice
required to be so delivered by the terms of the Notes to be redeemed. Notice
given hereunder shall, except as otherwise provided by the terms of the Notes to
be redeemed, be irrevocable.
Upon receipt of notice from the Company that the Notes of a series will be
redeemed, the Trustee shall cause notice of such redemption as required by the
applicable provision of the terms of the Notes of such series to be given in the
manner provided in Section 1.02 in accordance with the customary procedures of
the Depositary. Such notice shall specify the date fixed for redemption and the
applicable redemption price, the Place of Payment that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that on and
after said date interest thereon will cease to accrue and, if less than all the
Notes of a given series are to be redeemed, the identification and, in the case
of partial redemptions, the principal amounts of the particular Notes to be
redeemed. In the case of a redemption pursuant to any provisions of the terms of
Notes specifying conditions precedent to redemption of the Notes of such series,
such notice shall also state that the conditions precedent to such redemption
have occurred and shall describe them. In the case of a partial redemption (if
allowable) pursuant to the terms of the Notes to be redeemed, such notice shall
indicate the serial numbers of the Notes to be redeemed (which shall be selected
by the Trustee by lot or in such other manner as it shall deem appropriate and
fair). Otherwise, such notice shall state that the entire principal amount of
the Notes of the series to be redeemed at the time outstanding shall be
redeemed.
The Trustee shall promptly send a copy of the notice of redemption issued
pursuant to this Section 3.01 to the Company, each other Paying Agent, and the
Depositary.
SECTION 3.02. SURVIVOR'S OPTION. If so specified in any Note, the
beneficial holder of such Note shall have the Survivor's Option to elect
repayment of such Note in the event of the death of the beneficial owner of such
Note.
Pursuant to exercise of the Survivor's Option, the Company shall repay any
Note (or portion thereof) properly tendered for repayment by or on behalf of the
person (the "Representative") that has authority to act on behalf of the
deceased owner of the beneficial interest in such Note under the laws of the
appropriate jurisdiction (including, without limitation, the personal
representative, executor, surviving joint tenant or surviving tenant by the
entirety of such deceased beneficial owner) at a price equal to 100% of the
principal amount of the beneficial interest of the deceased owner in such Note
plus accrued interest to the date of such repayment (or at a price equal to the
Amortized Face Amount for Original Issue Discount Notes and Zero-Coupon Notes on
the date of such repayment), subject to the following limitations. The Company
may, in its sole discretion, limit the aggregate principal amount of Notes as to
which exercises of the Survivor's Option shall be accepted in any calendar year
(the "Annual Put Limitation") to one percent (1%) of the outstanding principal
amount of the Notes as of the end of the most recent fiscal year, but not less
than $1,000,000 in any such calendar year, or such greater amount as the Company
in its sole discretion may determine for any calendar year, and may limit to
$200,000, or such greater amount as the Company in its sole discretion may
determine for any calendar year, the aggregate principal amount of Notes (or
portions thereof) as to which exercise of the Survivor's Option will be accepted
in such calendar year with respect to any individual deceased owner or
beneficial interests in such Notes (the "Individual Put Limitation"). Moreover,
the Company shall not make principal repayments pursuant to exercise of the
Survivor's Option in amounts that are less than $1,000, and, in the event that
the limitations described in the preceding sentence would result in the partial
repayment of any Note, the principal amount of such Note remaining outstanding
after repayment must be at least $1,000 (the minimum authorized denomination of
the Notes). Any Note (or portion thereof) tendered pursuant to exercise of the
Survivor's Option may be withdrawn by a written request by the Representative of
the deceased owner received by the Trustee prior to its repayment.
Each Note (or portion thereof) that is tendered pursuant to valid exercise
of the Survivor's Option shall be accepted promptly in the order all such Notes
are tendered, except for any Note (or portion thereof) the acceptance of which
would contravene (i) the Annual Put Limitation, if applied, or (ii) the
Individual Put Limitation, if applied, with respect to the relevant individual
deceased owner of beneficial interests therein. If, as of the end of any
calendar year, the aggregate principal amount of Notes (or portions thereof)
that have been accepted pursuant to exercise of the Survivor's Option during
such year has not exceeded the Annual Put Limitation, if applied, for such year,
any exercise(s) of the Survivor's Option with respect to Notes (or portions
thereof) not accepted during such calendar year because such acceptance would
have contravened the Individual Put Limitation, if applied, with respect to an
individual deceased owner of beneficial interests therein shall be accepted in
the order all such Notes (or portions thereof) were tendered, to the extent that
any such exercise would not trigger the Annual Put Limitation for such calendar
year. Any Note (or portion thereof) accepted for repayment pursuant to exercise
of the Survivor's Option shall be repaid no later than the first Interest
Payment Date that occurs 20 or more calendar days after the date of such
acceptance. Each Note (or any portion thereof) tendered for repayment that is
not accepted in any calendar year due to the application of the Annual Put
Limitation shall be deemed to be tendered in the following calendar year in the
order in which all such Notes (or portions thereof) were originally tendered,
unless any such Note (or portion thereof) is withdrawn by the Representative for
the deceased owner prior to its repayment. In the event that a Note (or any
portion thereof) tendered for repayment pursuant to valid exercise of the
Survivor's Option is not accepted, the Trustee shall deliver a notice by
first-class mail to the registered holder thereof at its last known address as
indicated in the Note Register, that states the reason such Note (or portion
thereof) has not been accepted for payment.
Subject to the foregoing, in order for a Survivor's Option to be validly
exercised with respect to any Note (or portion thereof), the Trustee must
receive from the Representative of the deceased owner (i) a written request for
repayment signed by the Representative, and such signature must be guaranteed by
a member firm of a registered national securities exchange or of the National
Association of Securities Dealers, Inc. (the "NASD") or a commercial bank or
trust company having an office or correspondent in the United States, (ii)
tender of the Note (or portion thereof) to be repaid, (iii) appropriate evidence
satisfactory to the Trustee that (A) the Representative has authority to act on
behalf of the deceased beneficial owner, (B) the death of such beneficial owner
has occurred and (C) the deceased was the owner of a beneficial interest in such
Note at the time of death, (iv) if applicable, a properly executed assignment or
endorsement, and (v) if the beneficial interest in such Note is held by a
nominee of the deceased beneficial owner, a certificate satisfactory to the
Trustee from such nominee attesting to the deceased's ownership of a beneficial
interest in such Note. Subject to the Company's right hereunder to limit the
aggregate principal amount of Notes as to which exercises of the Survivor's
Option shall be accepted in any one calendar year, all questions as to the
eligibility or validity of any exercise of the Survivor's Option will be
determined by the Trustee, in its sole discretion, which determination shall be
final and binding on all parties.
The death of a person owning a Note in joint tenancy or tenancy by the
entirety with another or others shall be deemed the death of the holder of the
Note, and the entire principal amount of the Note so held shall be subject to
repayment, together with interest accrued thereon to the repayment date. The
death of a person owning a Note by tenancy in common shall be deemed the death
of a holder of a Note only with respect to the deceased holder's interest in the
Note so held by tenancy in common; except that in the event a Note is held by
husband and wife as tenants in common, the death of either shall be deemed the
death of the holder of the Note, and the entire principal amount of the Note so
held shall be subject to repayment. The death of a person who, during his or her
lifetime, was entitled to substantially all of the beneficial interests of
ownership of a Note, shall be deemed the death of the holder thereof for
purposes of this provision, regardless of the registered holder, if such
beneficial interest can be established to the satisfaction of the Trustee. Such
beneficial interest shall be deemed to exist in typical cases of nominee
ownership, ownership under the Uniform Gifts to Minors Act, community property
or other joint ownership arrangements between a husband and wife and trust
arrangements where one person has substantially all of the beneficial ownership
interest in the Note during his or her lifetime.
For Notes represented by a Global Note, the Depository or its nominee
shall be the holder of such Note and therefore shall be the only entity that can
exercise the Survivor's Option for such Note. To obtain repayment pursuant to
exercise of the Survivor's Option with respect to such Note, the Representative
must provide to the broker or other entity through which the beneficial interest
in such Note is held by the deceased owner (i) the documents described in
clauses (i) and (iii) of the second preceding paragraph and (ii) instructions to
such broker or other entity to notify the Depository of such Representative's
desire to obtain repayment pursuant to exercise of the Survivor's Option. Such
broker or other entity shall provide to the Trustee (i) the documents received
from the Representative referred to in clause (i) of the preceding sentence and
(ii) a certificate satisfactory to the Trustee from such broker or other entity
stating that it represents the deceased beneficial owner. Such broker or other
entity shall be responsible for disbursing any payments it receives pursuant to
exercise of the Survivor's Option to the appropriate Representative.
ARTICLE FOUR.
PAYMENT AND PAYING AGENTS.
SECTION 4.01. PAYMENT OF PRINCIPAL AND INTEREST. The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and
interest, if any, on each of the Notes at the place, at the respective times and
in the manner provided in the terms of the Notes and in this Indenture.
Each Note will bear interest from and including its Issue Date at the rate
per annum set forth in such Note and until the principal amount thereof is paid,
or made available for payment, in full. Interest on each Note (other than a
Zero-Coupon Note) will be payable either monthly, quarterly, semi-annually or
annually on each Interest Payment Date as set forth in such Note and at Maturity
(or on the date of redemption or repayment if a Note is repurchased by the
Company prior to Maturity pursuant to mandatory or optional redemption
provisions or the Survivor's Option). Interest will be payable to the person in
whose name a Note is registered at the close of business on the Regular Record
Date next preceding each Interest Payment Date; provided, however, interest
payable at Maturity, on a date of redemption or in connection with the exercise
of the Survivor's Option will be payable to the person to whom principal shall
be payable.
Any payment of principal, and premium, if any, or interest required to be
made on a Note on a day which is not a Business Day need not be made on such
day, but may be made on the next succeeding Business Day with the same force and
effect as if made on such day, and no additional interest shall accrue as a
result of such delayed payment. Unless otherwise specified in a Note, any
interest on the Notes will be computed on the basis of a 360-day year of twelve
30-day months.
The Interest Payment Dates for a Note that provides for monthly interest
payments shall be the fifteenth day of each calendar month commencing in the
calendar month that next succeeds the month in which the Note is issued. In the
case of a Note that provides for quarterly interest payments, the Interest
Payment Dates shall be the fifteenth day of each of the months specified in the
Pricing Supplement, commencing in the third succeeding calendar month following
the month in which the Note is issued. In the case of a Note that provides for
semi-annual interest payments, the Interest Payment Dates shall be the fifteenth
day of each of the months specified in the Pricing Supplement, commencing in the
sixth succeeding calendar month following the month in which the Note is issued.
In the case of a Note that provides for annual interest payments, the Interest
Payment Date shall be the fifteenth day of the month specified in the Pricing
Supplement, commencing in the twelfth succeeding calendar month following the
month in which the Note is issued. The Regular Record Date with respect to any
Interest Payment Date shall be the first day of the calendar month in which such
Interest Payment Date occurs, except that the Regular Record Date with respect
to the final Interest Payment Date shall be the final Interest Payment Date.
Each payment of interest on a Note shall include accrued interest from and
including the Issue Date or from and including the last day in respect of which
interest has been paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or Maturity Date, as the case may be.
Promptly after each Regular Record Date, the Trustee will deliver to the
Company and the Depositary a written notice specifying by CUSIP number the
amount of interest to be paid on each Global Note (other than an Interest
Payment Date coinciding with the Maturity Date) and the total of such amounts.
On such Interest Payment Date, the Company will pay to the Trustee, and the
Trustee in turn will pay to the Depositary in accordance with procedures agreed
to by the Depositary, such total amount of interest due. All interest payments
on a certificated Note (other than interest on the Maturity Date) will be made
by check and mailed by the Company to the person entitled thereto as listed on
the Note Register.
All interest payments on Book-Entry Notes will be paid by the Trustee to
the Depositary in accordance with existing arrangements between the Trustee and
the Depositary. Thereafter, on each Interest Payment Date, the Depositary will
pay, in accordance with its operating procedures then in effect, such amounts in
funds available for immediate use to the respective Participants with payments
in amounts proportionate to their respective holdings in principal amount of
beneficial interest in such Global Note as are recorded in the book-entry system
maintained by the Depositary. Neither the Company nor the Trustee shall have any
direct responsibility or liability for the payment by the Depositary of the
principal of or interest on, the Book-Entry Notes to such Participants. If any
Interest Payment Date for any Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such Interest Payment Date.
On or about the first Business Day of each month, the Trustee will deliver
to the Company and the Depositary a written list of principal and interest to be
paid on each Global Note representing Book-Entry Notes maturing in the following
month. The Trustee, the Company and the Depositary will confirm the amounts of
such principal and interest payments with respect to each Global Note on or
about the fifth Business Day preceding the Maturity Date of such Global Note. On
the Maturity Date, the Company will pay to the Trustee, and the Trustee in turn
will pay to the Depositary, the principal amount of such Global Note, together
with interest due on such Maturity Date.
If any Maturity Date of a Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such Maturity Date.
Promptly after payment to the Depositary of the principal and interest due on
the Maturity Date of such Global Note and all Book-Entry Notes represented by
such Global Note, the Trustee will cancel and destroy such Global Note in
accordance with the Indenture and deliver a certificate of destruction to the
Company.
The amount of any taxes required under applicable law to be withheld from
any interest payment on a Book-Entry Note will be determined and withheld by the
Participant, indirect participant in the Depositary or other person responsible
for forwarding payments and materials directly to the beneficial owner of such
Note.
Except as otherwise specified as contemplated by Section 2.01 for Notes of
any series, interest on the Notes of each series shall be computed on the basis
of a 360-day year of twelve 30-day months.
SECTION 4.02. PAYING AGENTS. The Company shall maintain one or more Paying
Agents for the payment of the principal of (and premium, if any) and interest,
if any, on the Notes of each series as provided in the terms of the Notes of
such series. The Company agrees to keep the Trustee advised of the name and
location of each Paying Agent if such Paying Agent is not the Trustee. The
Paying Agents shall arrange for the payment, from funds furnished by the Company
pursuant to this Indenture, of the principal and interest with respect to the
Notes.
The Company hereby initially appoints The Chase Manhattan Bank as the
Company's Paying Agent for the Book-Entry Notes (the "Paying Agent," which term
shall include any successor as Paying Agent for the Book-Entry Notes). The
Company reserves the right, subject to the terms of the Notes of any series, to
terminate any such appointment at any time as to such series and to appoint any
other Paying Agents in respect of the Notes of such series in such places as it
may deem appropriate.
SECTION 4.03. PROVISIONS AS TO PAYING AGENTS. (a) Whenever the Company
shall appoint a Paying Agent other than the Trustee with respect to the Notes of
any series, it will cause such Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold sums held by it as such agent for the payment of
the principal of (premium, if any) and interest, if any, on the
Notes of such series (whether such sums have been paid to it by the
Company or by any other obligor on the Notes of such series) in
trust for the benefit of the holders of the Notes of such series
entitled thereto, and will notify the Trustee of the receipt of sums
to be so held, and
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Notes of such series) to make any
payment of the principal of (premium, if any) or interest, if any,
on the Notes of such series when the same shall be due and payable.
(b) Anything in this Section to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Notes hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for such
series by it or any Paying Agent hereunder as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained.
(c) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 13.03 and 13.04.
SECTION 4.04. OFFICES FOR NOTICES, ETC. As long as any of the Notes remain
outstanding, the Company will designate and maintain an office or agency where
the Notes may be presented for registration of transfer and for exchange as
provided in this Indenture and where notices and demands to or upon the Company
in respect of the Notes or of this Indenture may be served, other than demands
for payment. The Company will give to the Trustee notice of the location of each
such office or agency and of any change in the location thereof. In case the
Company shall fail to maintain any such office or agency, or shall fail to give
such notice of the location or of any change in the location thereof, such
notices and demands may be served at the corporate trust office of the Trustee
specified in Section 15.03 hereof.
The Company hereby initially designates the corporate trust office of the
Trustee specified in Section 15.03 hereof as the office of the Company where the
Book-Entry Notes only may be presented for registration or transfer and for
exchange as provided in this Indenture and where notices and demands to or upon
the Company in respect of the Book-Entry Notes or of this Indenture may be
served.
ARTICLE FIVE.
NOTEHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE.
SECTION 5.01. NOTEHOLDER LISTS. The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee, semiannually, not later
than March 15 and September 15 in each year and at such other times as the
Trustee may request in writing, within thirty days after receipt by the Company
of any such request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company or
any of its Paying Agents (other than the Trustee in its capacity as a Paying
Agent), as to the names and addresses of the holders of Notes of particular
series specified by the Trustee as of a date not more than fifteen days prior to
the time such information is furnished, provided, however, that if and so long
as the Trustee shall be the Note Registrar, such list shall not be required to
be furnished.
SECTION 5.02. PRESERVATION AND DISCLOSURE OF LISTS. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the holders of each series of Notes (i) contained
in the most recent list furnished to it as provided in Section 5.01, (ii)
received by the Trustee in its capacity as Note Registrar or a Paying Agent or
(iii) filed with it within the preceding two years pursuant to Section 5.04(c).
The Trustee may destroy any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.
(b) In case three or more holders of Notes (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Note of such series for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Notes of a particular series (in which case the applicants must hold Notes of
such series) or with holders of all Notes with respect to their rights under
this Indenture or under such Notes and it is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then
the Trustee shall, within five business days after the receipt of such
application, at its election, either:
(1) afford to such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection
(a) of this Section, or
(2) inform such applicants as to the approximate number of holders of
Notes of such series or all Notes, as the case may be, whose names
and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such
Noteholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each holder of Notes of such series or all Notes, as the case may be,
whose name and address appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Securities and Exchange
Commission (the "Commission"), together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the holders of Notes of
such series or all Notes, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any Paying Agent, Note Registrar, or any agent of the Company or of the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of Notes in accordance
with the provisions of subsection (b) of this Section, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 5.03. REPORTS BY THE COMPANY. The Company shall:
(a) file with the Trustee within fifteen days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with the Trustee
and the Commission, in accordance with rules and regulations prescribed from
time to time by said Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the rules
and regulations prescribed from time to time by the Commission, such additional
information, documents, and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit by mail to all the holders of Notes of each series in the
manner and to the extent provided in Section 5.04(c) with respect to reports
pursuant to Section 5.04(a), within thirty days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by the Company with respect to each such series of Notes pursuant to
subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 5.04. REPORTS BY THE TRUSTEE. (a) On or before July 15, 1997 and
on or before July 15 of each year thereafter, so long as any Notes are
outstanding hereunder, the Trustee shall transmit to the Noteholders, as
provided in subsection (b) of this Section, a brief report dated as of the
preceding May 15, with respect to any of the following events which may have
occurred within the previous 12 months (but if no such event has occurred within
such period, no report need be transmitted):
(1) its eligibility under Section 7.09, and its qualifications
under Section 7.08, or in lieu thereof, if to the best of its
knowledge it has continued to be eligible and qualified under
such Sections, a written statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on
the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Notes, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but
may elect) to report such advances if such advances so
remaining unpaid aggregate not more than one-half of one
percent of the principal amount of the Notes for any series
outstanding on the date of such report;
(3) any change to the amount, interest rate, and maturity date of
all other indebtedness owing by the Company (or by any other
obligor on the Notes) to the Trustee in its individual
capacity, on the date of such report, with a brief description
of any property held as collateral security therefor, except
an indebtedness based upon a creditor relationship arising in
any manner described in paragraphs (2), (3), (4), or (6) of
subsection (b) of Section 7.13;
(4) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such
report;
(5) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of
the Trust Indenture Act of 1939;
(6) any additional issue of Notes which it has not previously
reported; and
(7) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously
reported and which in its opinion materially affects the
Notes, except action in respect of a default, notice of which
has been or is to be withheld by it in accordance with the
provisions of Section 6.07.
(b) Reports pursuant to this Section shall be transmitted by mail to all
holders of Notes at their addresses as the same appear upon the Note Register.
(c) A copy of each such report shall, at the time of such transmission to
Noteholders, be filed by the Trustee with each stock exchange upon which the
Notes are listed and also with the Commission. The Company agrees to notify the
Trustee when and as the Notes become listed on any stock exchange.
ARTICLE SIX.
REMEDIES ON DEFAULT.
SECTION 6.01. EVENTS OF DEFAULT. In case one or more of the following
Events of Default with respect to a particular series of Notes shall have
occurred and be continuing, that is to say:
(a) default in the payment of the principal of (or premium, if any) on any
of the Notes of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest, if any, upon
any of the Notes of such series as and when the same shall become due and
payable, and continuance of such default for a period of thirty days; or
(c) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the Notes of
such series or in this Indenture for a period of thirty days after the date on
which written notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee, or to the Company and the
Trustee by the holders of at least twenty-five percent in aggregate principal
amount of the Notes of such series at the time outstanding; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official of the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors;
then if an Event of Default described in clause (a), (b) or (c) shall have
occurred and be continuing and in each and every such case, unless the principal
amount of all the Notes of such series shall have already become due and
payable, either the Trustee or the holders of not less than twenty-five percent
in aggregate principal amount of the Notes of all series affected hereby then
outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Noteholders) may declare the principal amount of all the Notes (or,
with respect to Original Issue Discount Notes, such lesser amount as may be
specified in the terms of such Notes) of the series affected thereby to be due
and payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, any provision of this Indenture or the
Notes of such series contained to the contrary notwithstanding, or, if an Event
of Default described in clause (d) or (e) shall have occurred and be continuing,
and in each and every such case, either the Trustee or the holders of not less
than twenty-five per cent in aggregate principal amount of all the Notes then
outstanding hereunder (voting as one class), by notice in writing to the Company
(and to the Trustee if given by holders of Notes), may declare the principal of
all the Notes not already due and payable (or, with respect to Original Issue
Discount Notes, such lesser amount as may be specified in the terms of such
Notes) to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, any provision in this
Indenture or in the Notes to the contrary notwithstanding. The foregoing
provisions, however, are subject to the conditions that if, at any time after
the principal of the Notes of any one or more or all series, as the case may be,
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any, due upon all
the Notes of such series or of all the Notes, as the case may be, and the
principal of (and premium, if any, on) all Notes of such series or of all the
Notes, as the case may be (or, with respect to Original Issue Discount, such
lesser amount as may be specified in the terms of such Notes), which shall have
become due otherwise than by acceleration (with interest, if any, upon such
principal (and premium, if any) and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, if
any, at the same rate as the rate of interest specified in the Notes of such
series, as the case may be (or, with respect to Original Issue Discount Notes at
the rate specified in the terms of such Notes for interest on overdue principal
thereof upon maturity, redemption or acceleration of such series, as the case
may be), to the date of such payment or deposit), and such amount as shall be
payable to the Trustee pursuant to Section 7.06, and any and all defaults under
the Indenture shall have been remedied, then and in every such case the holders
of a majority in aggregate principal amount of the Notes of such series (or of
all the Notes, as the case may be) then outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to that series
or with respect to all Notes, as the case may be, and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon. If the principal of all Notes shall have been declared to be
payable pursuant to this Section 6.01, in determining whether the holders of a
majority in aggregate principal amount thereof have waived all defaults and
rescinded and annulled such declaration, all series of Notes shall be treated as
a single class and the principal amount of Original issue Discount Notes shall
be deemed to be the amount declared payable under the terms applicable to such
Original Issue Discount Notes.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission and annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the Noteholders, as the case may be, shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the Noteholders, as the case
may be, shall continue as though no such proceedings had been taken.
SECTION 6.02. PAYMENT OF NOTES ON DEFAULT; SUIT THEREFOR. The Company
covenants that (1) in case default shall be made in the payment of any
installment of interest, if any, on any of the Notes of any series, as and when
the same shall become due and payable, and such default shall have continued for
a period of thirty days or (2) in case default shall be made in the payment of
the principal of (or premium, if any, on) the Notes of any series, as and when
the same shall have become due and payable, whether upon maturity of the Notes
of such series or upon redemption or upon declaration or otherwise -- then upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit of
the holders of the Notes of such series, the whole amount that then shall have
become due and payable on all such Notes of such series for principal (and
premium, if any) or interest, if any, as the case may be, with interest upon the
overdue principal (and premium, if any) and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue installments of
interest, if any, at the same rate as the rate of interest specified in the
Notes of such series (or, with respect to Original Issue Discount Notes, at the
rate specified in the terms of such Notes for interest on overdue principal
thereof upon maturity, redemption or acceleration); and, in addition thereto,
such further amounts as shall be payable to the Trustee pursuant to Section
7.06.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon such Notes
and collect in the manner provided by law out of the property of the Company or
other obligor upon such Notes wherever situated the moneys adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon Notes of any series
under Title 11 of the United States Code or any other applicable law, or in case
a receiver or trustee shall have been appointed for the property of the Company
or such other obligor, or in case of any other judicial proceedings relative to
the Company or such other obligor, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes of such series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal (and premium,
if any) (or, with respect to Original Issue Discount Notes, such portion of the
principal amount as may be specified in the terms of that series) and interest,
if any, owing and unpaid in respect of the Notes of such series, and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee under Section 7.06 and of the holders of Notes of such
series allowed in any such judicial proceedings relative to the Company or other
obligor upon the Notes of such series, or to the creditors or property of the
Company or such other obligor, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the holders of such series and of
the Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the holders of Notes of such
series to make payments to the Trustee and, in the event that the Trustee shall
consent to the making of payments directly to such holders of Notes of such
series, to pay to the Trustee such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any holder thereof, or to authorize the Trustee to vote in respect
of the claim of any holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Notes of any series may be enforced by the Trustee without the
possession of any of such Notes, or the production thereof on any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the holders of
the Notes of such series.
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 6.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to Section 6.02 with respect to a series of
Notes shall be applied in the order following, at the date or dates fixed by the
Trustee and, in the case of the distribution of such moneys on account of
principal (or premium, if any) or interest, if any, upon presentation of the
several Notes of such series, as the case may be, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of amounts payable to the Trustee pursuant
to Section 7.06;
SECOND: In case the principal of the Notes in respect of which
moneys have been collected shall not have become due, to the payment of
interest, if any, on the Notes of such series in the order of the maturity
of the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest, if any,
specified in the Notes of such series (or, with respect to Original Issue
Discount Notes, at the rate specified in the terms of such Notes for
interest on overdue principal thereof upon maturity, redemption or
acceleration), such payments to be made ratably to the persons entitled
thereto, without discrimination or preference; and
THIRD: In case the principal of the Notes in respect of which moneys
have been collected shall have become due, by declaration or otherwise, to
the payment of the whole amount then owing and unpaid upon the Notes of
such series for principal (and premium, if any), interest, if any, and (to
the extent that such interest has been collected by the Trustee) upon
overdue installments of interest, if any, at the same rate as the rate of
interest specified in the Notes of such series (or, with respect to
Original Issue Discount Notes, at the rate specified in the terms of such
Notes for interest on overdue principal thereof upon maturity, redemption
or acceleration); and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the Notes of such series,
then to the payment of such principal (and premium, if any), interest, if
any, without preference or priority of principal (and premium, if any),
over interest, if any, or of interest, if any, over principal (and
premium, if any), or of any installment of interest, if any, over any
other installment of interest, if any, or of any Note of such series over
any other Note of such series, ratably to the aggregate of such principal
(and premium, if any), and accrued and unpaid interest, if any.
SECTION 6.04. PROCEEDINGS BY NOTEHOLDERS. No holder of any Note of any
series shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceedings at law or in equity or in
bankruptcy or otherwise, upon or under or with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (a) such holder previously shall have given to the Trustee written notice
of an Event of Default and of the continuance thereof, as hereinbefore provided;
(b) the holders of not less than twenty-five percent in aggregate principal
amount of the Notes of such series then outstanding shall have made written
request upon the Trustee to institute such action or proceedings in its own name
as trustee hereunder; (c) such holder or holders shall have offered to the
Trustee such indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred therein or thereby; (d) the Trustee for sixty days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceedings; and (e) no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 6.06; it being understood and intended, and being expressly
covenanted by the taker and holder of every Note with every other taker and
holder and the Trustee, that no one or more holders of Notes of any series,
shall have any right in any manner whatever by virtue or by availing himself of
any provision of this Indenture to affect, disturb or prejudice the rights of
any other holder of Notes of such series, or to obtain or seek to obtain
priority over or preference to any other such holder or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Notes of such series. For the
protection and enforcement of the provisions of this Section, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Note to receive payment of the principal of (and premium,
if any) and interest, if any, on such Note, on or after the respective due dates
expressed in such Note, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such holder. With respect to Original Issue Discount
Notes, principal shall mean such amount as shall be due and payable as specified
in the terms of the Notes.
SECTION 6.05. REMEDIES CUMULATIVE AND CONTINUING. All powers and remedies
given by this Article Six to the Trustee or to the holders of Notes shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or such
holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any holder of any of the Notes, if any,
to exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article Six or by law to the Trustee or to such holders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by such holders.
SECTION 6.06. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULT. The holders
of a majority in aggregate principal amount of the Notes of any or all series
affected (voting as one class) at the time outstanding shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Notes of such series; provided, however, that
(subject to the provisions of Section 7.01) the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action or proceedings so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors or executive committee
or a trust committee of directors or trustees and/or a responsible officer shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability.
Prior to any declaration accelerating the maturity of the Notes of any
series, the holders of a majority in aggregate principal amount of the Notes of
such series at the time outstanding may on behalf of the holders of all of the
Notes of such series waive any past default or Event of Default hereunder and
its consequences except a default in the payment of principal of (premium, if
any) or interest, if any, on any Notes of such series. Upon any such waiver the
Company, the Trustee and the holders of the Notes of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 6.06, said default
or Event of Default shall for all purposes of the Notes of such series and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 6.07. NOTICE OF DEFAULTS. The Trustee shall, within ninety days
after the occurrence of a default with respect to any series of Notes, give to
the holders of Notes of such series notice of all defaults known to a
responsible officer of the Trustee in the manner set forth in Section 1.02 and
also by mail in the manner and to the extent provided in Section 5.04(c) with
respect to reports pursuant to Section 5.04(a), unless such defaults shall have
been cured before the giving of such notice (the term "default" or "defaults"
for the purposes of this Section being hereby defined to be any event or events,
as the case may be, specified in clauses (a), (b), (c), (d) and (e) of Section
6.01, not including periods of grace, if any, provided for therein and
irrespective of the giving of the notice specified in clause (c) of Section
6.01); provided that, except in the case of default in the payment of the
principal of (premium, if any) or interest, if any, on any of the Notes of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors or executive committee or a trust committee of
directors or trustees and/or responsible officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
holders of Notes of such series.
SECTION 6.08. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any holder of Notes of any
series, or group of such holders, holding in the aggregate more than ten percent
in principal amount of the Notes of such series outstanding, or to any suit
instituted by any holder of Notes of such series appertaining thereto, for the
enforcement of the payment of the principal of (or premium, if any) or interest,
if any, on any Note on or after the due date expressed in such Note.
<PAGE>
ARTICLE SEVEN.
CONCERNING THE TRUSTEE.
SECTION 7.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The Trustee, prior
to the occurrence of an Event of Default of which a responsible officer has
knowledge with respect to Notes of a particular series and after the curing of
all Events of Default with respect to Notes of such series which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to Notes of a particular series has occurred (which has not been cured
or waived) the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to a particular
series and after the curing of all Events of Default with respect to Notes of
such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to Notes of
such series shall be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a responsible officer or officers, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of Notes pursuant to Section 6.06 relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;
and
(d) No provision of this Indenture shall be construed as requiring the
Trustee to expend or risk its own funds or otherwise to incur any personal
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or indemnity satisfactory to it
against such risk or liability is not reasonably assured to it.
SECTION 7.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Subject to the
provisions of Section 7.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by a Company Order; and any Board Resolution may
be evidenced to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and the written advice of counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by it hereunder in good
faith and in accordance with such written advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Noteholders, pursuant to the provisions of this Indenture, unless
such Noteholders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company pertaining to the Notes, personally or by agent or attorney;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(g) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 7.03. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals contained
herein and in the Notes other than the Trustee's certificate of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes provided that the Trustee shall not be relieved of its duty to
authenticate Notes only as authorized by this Indenture. The Trustee shall not
be accountable for the use or application by the Company of Notes or the
proceeds thereof.
SECTION 7.04. OWNERSHIP OF NOTES. The Trustee, or any agent of the Company
or of the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Notes with the same rights it would have if it were not Trustee or
an agent of the Company or of the Trustee.
SECTION 7.05. MONEYS TO BE HELD IN TRUST. Subject to the provisions of
Section 13.04 hereof, all moneys received by the Trustee or any Paying Agent
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any Paying
Agent shall be under any liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to pay thereon. So long
as no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by its Chairman of the Board or its Vice Chairman
of the Board or its President or an Executive Vice President or a Vice President
or its Treasurer or an Assistant Treasurer.
SECTION 7.06. COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation, and, except as otherwise expressly
provided, the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. If any
property other than cash shall at any time be subject to the lien of this
Indenture, the Trustee, if and to the extent authorized by a receivership or
bankruptcy court of competent jurisdiction or by the supplemental instrument
subjecting such property to such lien, shall be entitled to make advances for
the purpose of preserving such property or of discharging tax liens or other
prior liens or encumbrances thereon. The Company also covenants to indemnify the
Trustee, its officers, directors and employees for, and to hold them harmless
against, any loss, liability or reasonable expense incurred without negligence
or bad faith on the part of the Trustee or such officer, director and employee
arising out of or in connection with the acceptance or administration of this
trust or the performance of their duties hereunder, including the reasonable
costs and expenses of defending themselves against any claim of liability in the
premises. The obligations of the Company under this Section to compensate the
Trustee and to pay or reimburse the Trustee for reasonable expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the resignation or removal of the Trustee and/or the
termination of the Indenture.
SECTION 7.07. OFFICERS' CERTIFICATE AS EVIDENCE. Subject to the provisions
of Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. CONFLICTING INTEREST OF TRUSTEE. The Trustee shall
comply with Section 310(b) of the Trust Indenture Act of 1939.
SECTION 7.09. ELIGIBILITY OF TRUSTEE. There shall at all times be a Trustee
hereunder which shall be a corporation organized and doing business under the
laws of the United States or of any State or Territory thereof or of the
District of Columbia, which (a) is authorized under such laws to exercise
corporate trust powers and (b) is subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority and (c) shall have
at all times a combined capital and surplus of not less than five million
dollars. If such corporation publishes reports of condition at least annually,
pursuant to law, or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation at any time shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. RESIGNATION OR REMOVAL OF TRUSTEE. (a) The Trustee, or any
trustee or trustees hereafter appointed, may at any time resign with respect to
one or more or all series of Notes by giving written notice of resignation to
the Company. Upon receiving such notice of resignation the Company shall
promptly appoint a successor trustee with respect to the applicable series of
Notes by written instrument, in duplicate, executed by order of the Board of
Directors of the Company, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within thirty days
after the receipt of such notice of resignation by the Company, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any holder of Notes who has been a bona fide holder of a
Note or Notes of the applicable series for at least six months may subject to
the provisions of Section 6.08, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 with respect to any series of Notes after written request therefor by
the Company or by any Noteholder who has been a bona fide holder of a Note
or Notes of such series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 with respect to any series of Notes and shall
fail to resign after written request therefor by the Company or by any such
Noteholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Notes, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee with respect to the
applicable series of Notes and appoint a successor trustee with respect to such
series by written instrument, in duplicate, executed by order of the Board of
Directors of the Company, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.08, any Noteholder of such series who has been a bona
fide holder of a Note or Notes of the applicable series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the Notes of
all series (voting as one class) at the time outstanding may at any time remove
the Trustee with respect to Notes of all series and appoint a successor trustee
with respect to the Notes of all series.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
(e) The Trustee shall be paid all amounts owed to it upon its removal
or resignation.
SECTION 7.11 ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 7.06, execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the trustee so ceasing to act.
Upon request of any such successor trustee, the Company shall execute any and
all instruments in writing in order more fully and certainly to vest in and
confirm to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected by such trustee to secure any amounts then due it pursuant to
the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee with respect to
the Notes of one or more (but not all) series, the Company, the predecessor
Trustee and each successor trustee with respect to the Notes of any applicable
series shall execute and deliver an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor Trustee with
respect to the Notes of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such trustee. The Trustee shall not be liable for the acts or omissions of any
successor trustee.
No successor trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 7.08 and eligible under the provisions of
Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section, the Company shall give notice of the succession of such trustee
hereunder to all holders of Notes of any applicable series in the manner
provided in Section 1.02. If the Company fails to give such notice in the
prescribed manner within ten days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be so given
at the expense of the Company.
SECTION 7.12. SUCCESSOR BY MERGER, ETC. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 7.13. LIMITATIONS ON RIGHTS OF TRUSTEE AS CREDITOR. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939.
ARTICLE EIGHT.
CONCERNING THE NOTEHOLDERS.
SECTION 8.01. ACTION BY NOTEHOLDERS. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by Noteholders in person or by agent or proxy appointed in writing, or
(b) by the record of the holders of Notes voting in favor thereof at any meeting
of Noteholders duly called and held in accordance with the provisions of Article
Nine, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Noteholders.
In determining whether the holders of a specified percentage in aggregate
principal amount of the Notes have taken any action (including the making of any
demand or request, the waiving of any notice, consent or waiver or the taking of
any other action), the principal amount of any Original Issue Discount Note that
may be counted in making such determination and that shall be deemed to be
outstanding for such purposes shall be equal to the amount of the principal
thereof that could be declared to be due and payable upon an Event of Default
pursuant to the terms of such Original Issue Discount Note at the time the
taking of such action is evidenced to the Trustee.
SECTION 8.02. PROOF OF EXECUTION BY NOTEHOLDERS. Subject to the provisions
of Sections 7.01, 7.02 and 9.05, proof of the execution of any instrument by a
Noteholder or its agent or proxy shall be sufficient if made in accordance with
this Section 8.02. The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public, or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths, that the person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer or by a certificate of any
officer of any trust company, bank, banker or recognized securities dealer,
satisfactory to the Trustee, who witnessed such execution. If such execution is
by an officer of a corporation, association or trust, a trustee of a trust or a
member of a partnership on behalf of such corporation, association, trust or
partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority.
The ownership of the Notes shall be proved by the Note Register or by a
certificate of the Note Registrar.
The record of any Noteholders' meeting shall be proved in the manner
provided in Section 9.06.
SECTION 8.03. WHO ARE DEEMED ABSOLUTE OWNERS. The Company, the Trustee and
any agent of the Company or of the Trustee may deem the holder of any Note to
be, and may treat him as, the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other
writing thereon), for the purpose of receiving payment of or on account of the
principal of and interest on such Note and for all other purposes; and neither
the Company nor the Trustee nor any agent of the Company or of the Trustee shall
be affected by any notice to the contrary. All such payments so made to any
holder for the time being, or upon his order, shall be valid and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Note.
SECTION 8.04. COMPANY-OWNED NOTES DISREGARDED. In determining whether the
holders of the required aggregate principal amount of Notes have concurred in
any direction, consent or waiver under this Indenture, Notes which are owned by
the Company or any other obligor on the Notes, or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Notes, shall be disregarded
and deemed not to be outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver only Notes which a
responsible officer of the Trustee knows are so owned shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right to vote such Notes and that
the pledgee is not a person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 8.05. REVOCATION OF CONSENTS; FUTURE NOTEHOLDERS BOUND. At any time
prior to the taking of any action by the holders of the percentage in aggregate
principal amount of the Notes specified in this Indenture in connection with
such action, any holder of a Note the identifying number of which is shown by
the evidence to be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee at its office and
upon proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Note. Except as aforesaid any such action taken by the holder of
any Note shall be conclusive and binding upon such holder and upon all future
holders and owners of such Note and of any Note issued in exchange or
substitution therefor irrespective of whether or not any notation in regard
thereto is made upon such Note. Any action taken by the holders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Notes of each series affected
thereby.
<PAGE>
ARTICLE NINE.
NOTEHOLDERS' MEETINGS.
SECTION 9.01. PURPOSES OF MEETINGS. A meeting of Noteholders of any or all
series may be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive any default or Event of Default
hereunder and its consequences, or to take any other action authorized to
be taken by Noteholders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee pursuant
to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Notes of any
or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
SECTION 9.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call
a meeting of Noteholders of any or all series to take any action specified in
Section 9.01, to be held at such time and at such place in New York City as the
Trustee shall determine. Notice of every meeting of the Noteholders of any or
all series, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 102, not less than twenty nor more than one hundred
and eighty days prior to the date fixed for the meeting.
SECTION 9.03. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. In case at any
time the Company, pursuant to a Board Resolution, or the holders of at least ten
percent in aggregate principal amount of the Notes of any or all series, as the
case may be, then outstanding, shall have requested the Trustee to call a
meeting of Noteholders of any or all series to take any action authorized in
Section 9.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within thirty days after receipt
of such request, then the Company or the holders of such Notes in the amount
above specified may determine the time and the place for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
Section 9.02.
SECTION 9.04. QUALIFICATION FOR VOTING. To be entitled to vote at any
meeting of Noteholders a person shall be a holder of one or more Notes of a
series with respect to which a meeting is being held or a person appointed by an
instrument in writing as proxy by such a holder. The only persons who shall be
entitled to be present or to speak at any meeting of the Noteholders shall be
the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 9.05. REGULATIONS. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 9.03, in which case the Company
or the Noteholders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting each
Noteholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Notes held or represented by him, provided, however, that no vote
shall be cast or counted at any meeting in respect of any Note challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote except as a Noteholder or
proxy. Any meeting of Noteholders duly called pursuant to the provisions of
Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be
held as so adjourned without further notice.
SECTION 9.06. VOTING. The vote upon any resolution submitted to any meeting
of Noteholders shall be by written ballot on which shall be subscribed the
signatures of the Noteholders or proxies and on which shall be inscribed the
identifying number or numbers or to which shall be attached a list of
identifying numbers of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 9.02. The record shall be signed and verified by the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE TEN.
SUPPLEMENTAL INDENTURES.
SECTION 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS. The
Company, when authorized by Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939) for
one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article Eleven hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the holders of Notes,
and to make the occurrence, or the occurrence and continuance, of a default
in any of such additional covenants, restrictions, conditions or provisions
a default or an Event of Default with respect to Notes of any or all series
permitting the enforcement of all or any of the several remedies provided
in this Indenture as herein set forth, with such period of grace, if any,
and subject to such conditions as such supplemental indenture may provide;
(c) to add to or change any of the provisions of this Indenture to
provide for the issuance under this Indenture of Notes, whether or not then
outstanding, in bearer form, to add, modify or eliminate any restrictions
on the payment of principal of Notes in registered form, and to provide for
exchangeability of such Notes with Notes issued hereunder and to make all
appropriate changes for such purpose to permit or facilitate the issuance
of Notes in uncertificated form, provided any such action shall not
adversely affect the interests of the holders of Notes of any series in any
material respect;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or to make such other provisions in regard
to matters or questions arising under this Indenture as shall not adversely
affect the interests of the holders of the Notes;
(e) to evidence and provide for the acceptance and appointment
hereunder by a successor trustee with respect to the Notes of one or more
series and to add or change any provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to Section 7.11;
(f) to change or eliminate any provision of this Indenture, provided
that any such change or elimination (i) shall become effective only when
there is no Note outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provision or (ii) shall not apply to any Note outstanding;
(g) to establish the form or terms of Notes of any series as
permitted by Sections 2.01 and 2.06;
(h) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not adversely affect the
interests of the holders of Notes of any series in any material respect.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which adversely affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders of
any of the Notes at the time outstanding, notwithstanding any of the provisions
of Section 10.02.
SECTION 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. With
the consent (evidenced as provided in Section 8.01) of the holders of not less
than 66 2/3% in aggregate principal amount of the Notes of all series at the
time outstanding affected by such supplemental indenture (voting as one class),
the Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Notes of each such series; provided that no
such supplemental indenture shall (i) change the fixed maturity of any Notes, or
reduce the principal amount thereof (and premium, if any) or reduce the rate or
extend the time of payment of any interest thereon, without the consent of the
holder of each Note so affected, (ii) impair the right to institute enforcement
of any such payment on or after the stated maturity thereof (or, in the case of
redemption, on or after the redemption date therefor) or (iii) reduce the
aforesaid percentage of Notes, the consent of the holders of which is required
for any such supplemental indenture, or the percentage required for the consent
of the holders pursuant to Section 6.01 to waive defaults, without the consent
of the holders of each Note so affected.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Noteholders as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice thereof in the manner provided in Section 1.02, setting forth
in general terms the substance of such supplemental indenture. Any failure of
the Company so to give such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL
INDENTURES. Any supplemental indenture executed pursuant to the provisions of
this Article Ten shall comply with the Trust Indenture Act of 1939. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article Ten, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the provisions of this Article Ten.
SECTION 10.04. NOTATION ON NOTES. Notes of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Ten may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. New Notes
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Company, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered, without charge to the Noteholders,
in exchange for the Notes of such series then outstanding.
<PAGE>
ARTICLE ELEVEN.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 11.01. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. The Company
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets to any person unless (i)
either the Company shall be the continuing corporation, or the successor
corporation (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a state thereof and
such corporation shall expressly assume the due and punctual payment of the
principal of and interest on all the Notes, according to their tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation and (ii) the Company or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
condition.
SECTION 11.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED FOR COMPANY. In case
of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of General Motors Acceptance Corporation, any or all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Notes which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Notes which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Notes, so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Notes, if any,
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Notes had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
SECTION 11.03. OPINION OF COUNSEL TO BE GIVEN TRUSTEE. The Trustee, subject
to the provisions of Sections 7.01 and 7.02, may receive an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, sale or conveyance,
and any such assumption, complies with the provisions of this Article Eleven.
SECTION 11.04. CERTIFICATE TO TRUSTEE. On or before April l, 1997, and on
or before April l in each year thereafter, the Company will deliver to the
Trustee a brief certificate of the Company's principal executive officer,
principal financial officer or principal accounting officer as to such officer's
knowledge of the Company's compliance with all conditions and covenants under
this Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under this Indenture).
ARTICLE TWELVE.
LIMITATIONS ON LIENS.
SECTION 12.01. LIMITATIONS ON LIENS. Except as hereinbelow in this Section
provided, the Company will not at any time pledge or otherwise subject to any
lien any of its property or assets without thereby expressly securing the due
and punctual payment of the principal of and interest on the Notes equally and
ratably with any and all other obligations and indebtedness secured by such
pledge or other lien, so long as any such other obligations and indebtedness
shall be so secured, and the Company covenants that if and when any such pledge
or other lien is created, the Notes will be so secured thereby; provided,
however, that this restriction shall not apply to (1) the pledge of any assets
to secure any financing by the Company of the exporting of goods to or between,
or the marketing thereof in, foreign countries (other than Canada), in
connection with which the Company reserves the right, in accordance with
customary and established banking practice, to deposit, or otherwise subject to
a lien, cash, securities or receivables, for the purpose of securing banking
accommodations or as the basis for the issuance of bankers' acceptances or in
aid of other similar borrowing arrangements; (2) the pledge of receivables
payable in foreign currencies (other than Canadian dollars) to secure borrowings
in foreign countries (other than Canada); (3) any deposit of assets of the
Company with any surety company or clerk of any court, or in escrow, as
collateral in connection with, or in lieu of, any bond on appeal by the Company
from any judgment or decree against it, or in connection with other proceedings
in actions at law or in equity by or against the Company; (4) any lien or charge
on any property, tangible or intangible, real or personal, existing at the time
of acquisition of such property (including acquisition through merger or
consolidation) or given to secure the payment of all or any part of the purchase
price thereof or to secure any indebtedness incurred prior to, at the time of,
or within 60 days after, the acquisition thereof for the purpose of financing
all or any part of the purchase price thereof; and (5) any extension, renewal or
replacement (or successive extensions, renewals or replacements), in whole or in
part, of any lien, charge or pledge referred to in the foregoing clauses (1) to
(4) inclusive of this Section, provided, however, that the amount of any and all
obligations and indebtedness secured thereby shall not exceed the amount thereof
so secured immediately prior to the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be limited to
all or a part of the property which secured the charge or lien so extended,
renewed or replaced (plus improvements on such property).
<PAGE>
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.
SECTION 13.01. DISCHARGE OF INDENTURE. If at any time (a) the Company shall
have delivered to the Trustee for cancellation all Notes of any series
theretofore authenticated (other than any Notes of such series appertaining
thereto which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.08) or (b) all such Notes of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit or cause to be deposited with the Trustee as trust funds
the entire amount (other than moneys repaid by the Trustee or any paying agent
to the Company in accordance with Section 13.04) sufficient to pay at maturity
or upon redemption all Notes of such series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and
interest, if any, due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if in either case the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company with
respect to such series, then this Indenture shall cease to be of further effect
with respect to the Notes of such series, and the Trustee, on demand of and at
the cost and expense of the Company and subject to Section 15.04, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to the Notes of such series. The Company agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee in connection with this Indenture or the Notes of such series.
SECTION 13.02. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. All moneys
deposited with the Trustee pursuant to Section 13.01 shall be held in trust and
applied by it to the payment, either directly or through any Paying Agent
(including the Company if acting as its own Paying Agent), to the holders of the
particular Notes for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal (and premium, if any) and interest, if any.
SECTION 13.03. PAYING AGENT TO REPAY MONEYS HELD. In connection with the
satisfaction and discharge of this Indenture with respect to Notes of any
series, all moneys with respect to such Notes then held by any Paying Agent
under the provisions of this Indenture shall, upon demand of the Company, be
repaid to it or paid to the Trustee and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 13.04. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or
paid to the Trustee or any Paying Agent for the payment of the principal of or
interest, if any, on any Note and not applied but remaining unclaimed for two
years after the date upon which such principal (and premium, if any) or
interest, if any, shall have become due and payable, shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Company by the Trustee or such Paying Agent on
demand, and the holder of such Note shall thereafter look only to the Company
for any payment which such holder may be entitled to collect and all liability
of the Trustee or any Paying Agent with respect to such moneys shall thereupon
cease.
SECTION 13.05. SATISFACTION, DISCHARGE AND DEFEASANCE OF NOTES OF ANY
SERIES. If pursuant to Section 2.01 provision is made for the defeasance of
Notes of a series, then the provisions of this Section 13.05 shall be applicable
except as otherwise specified as contemplated by Section 2.01 for Notes of such
series. At the Company's option, either (a) the Company shall be deemed to have
paid and discharged the entire indebtedness on all the outstanding Notes of any
such series and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of such indebtedness or (b)
the Company shall cease to be under any obligation to comply with any term,
provision, condition or covenant specified as contemplated by Section 2.01, when
(1) either
(A) with respect to all outstanding Notes of such series,
(i) the Company has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an
amount (in such currency in which such outstanding Notes
are then specified as payable at stated maturity)
sufficient to pay and discharge the entire indebtedness of
all outstanding Notes of such series for principal (and
premium, if any) and interest, if any, to the stated
maturity or any redemption date as contemplated by the last
paragraph of this Section 13.05, as the case may be; or
(ii) the Company has deposited or caused to be deposited
with the Trustee as obligations in trust for the purpose
such amount of direct noncallable obligations of, or
noncallable obligations the payment of principal of and
interest on which is fully guaranteed by, the United States
of America, or to the payment of which obligations or
guarantees the full faith and credit of the United States
of America is pledged, maturing as to principal and
interest in such amounts and at such times as will,
together with the income to accrue thereon (but without
reinvesting any proceeds thereof), be sufficient to pay and
discharge the entire indebtedness on all outstanding Notes
of such series for principal (and premium, if any),
interest, if any, to the stated maturity or any redemption
date as contemplated by the last paragraph of this Section
13.05, as the case may be; or
(B) the Company has properly fulfilled such other terms and
conditions to the satisfaction and discharge as is specified, as contemplated by
Section 2.01, as applicable to the Notes of such series, and
(2) The Company has paid or caused to be paid all other sums payable
with respect to the outstanding Notes of such series, and
(3) The Company has delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the holders of the outstanding Notes of such series
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amounts and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred, and
(4) The Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire
indebtedness on all outstanding Notes of any such series have been complied
with.
Any deposits with the Trustee referred to in Section 13.05(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any outstanding
Notes of such series are to be redeemed prior to their stated maturity, whether
pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement or otherwise, the applicable escrow trust
agreement shall provide therefore and the Company shall make such arrangements
as are satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS. No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Note, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, or against any past, present or future
stockholder, officer or director, as such, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, 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 of the Notes by the holders thereof and as part of the consideration
for the issue of the Notes.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. BENEFITS OF INDENTURE RESTRICTED TO PARTIES AND Holders.
Nothing in this Indenture or in the Notes, expressed or implied, shall give or
be construed to give to any person, other than the parties hereto and their
successors and the holders of the Notes, any legal or equitable right, remedy or
claim under this Indenture or under any covenant or provision herein contained,
all such covenants and provisions being for the sole benefit of the parties
hereto and their successors and of the holders of the Notes.
SECTION 15.02. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or in behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 15.03. ADDRESSES FOR NOTICES, ETC. Subject to the provisions of
Section 4.01 with respect to demands for payment, any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Notes to or on the Company may be given or
served by being deposited postage prepaid first class mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee), as follows: General Motors Acceptance Corporation, Attention:
Corporate Secretary, 3044 West Grand Blvd., Detroit, Michigan 48202. Subject to
such provisions of Section 4.01 any notice, direction, request or demand by any
Noteholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the corporate
trust office of the Trustee, which as of the date of this Indenture is 450 West
33rd Street, 15th Floor, New York, New York 10001-2697.
SECTION 15.04. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Upon any
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 15.05. LEGAL HOLIDAYS. In any case where the date of maturity of
any interest or premium on or principal of any Note or the date fixed for
redemption of any Note shall not be a Business Day in the Place of Payment, then
payment of any interest or premium on or principal of such Notes, need not be
made on such date but may be made on the next succeeding Business Day with the
same force and effect as if made on the date of maturity or the date fixed for
redemption, and no interest shall accrue for the period after such date.
SECTION 15.06. TRUST INDENTURE ACT TO CONTROL. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939 (an "incorporated provision"),
such incorporated provision shall control.
SECTION 15.07. EXECUTION IN COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 15.08. NEW YORK CONTRACT. This Indenture and each Note shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State, regardless of the laws that might otherwise govern under applicable
New York principles of conflicts of law and except as may otherwise be required
by mandatory provisions of law.
Section 15.09 SEVERABILITY OF PROVISIONS. Any prohibition, invalidity or
unenforceability of any provision of this Indenture in any jurisdiction shall
not invalidate or render unenforceable the remaining provisions hereto in such
jurisdiction and shall not invalidate or render unenforceable such provisions in
any other jurisdiction.
Section 15.10 COMPANY RELEASED FROM INDENTURE REQUIREMENTS UNDER CERTAIN
CIRCUMSTANCES. Whenever in this Indenture the Company shall be required to do or
not to do anything so long as any of the Notes of any series shall be
outstanding, the Company shall, notwithstanding any such provision, not be
required to comply with such provisions if it shall be entitled to have this
Indenture satisfied and discharged pursuant to the provisions hereof, even
though in either case the holders of any of the Notes of that series shall have
failed to present and surrender them for payment pursuant to the terms of this
Indenture.
The Chase Manhattan Bank hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, GENERAL MOTORS ACCEPTANCE CORPORATION has caused this
Indenture to be signed and acknowledged by its Chairman of the Board or its Vice
Chairman of the Board or its President or one of its Executive Vice Presidents
or one of its Vice Presidents, and its corporate seal to be affixed hereunto,
and the same to be attested by its Secretary or an Assistant Secretary; and The
Chase Manhattan Bank has caused this Indenture to be signed, and its corporate
seal to be affixed hereunto, and the same to be attested by its duly authorized
officers, all as of the day and year first above written.
GENERAL MOTORS ACCEPTANCE CORPORATION
[Corporate Seal]
By: ____________________________
Vice President
Attest:
- ----------------------
[Corporate Seal] THE CHASE MANHATTAN BANK
By: _____________________________
Attest:
- -------------------------
STATE OF MICHIGAN )
) SS.
COUNTY OF WAYNE )
On the ___ day of September, 1996, before me personally came __________, to
me known, who, being by me duly sworn, did depose and say that he resides at
____________________________; that he is a Vice President of GENERAL MOTORS
ACCEPTANCE CORPORATION, one of the parties described in and which executed the
above instruments; that he knows the corporate seal of said Company; that the
seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said Company and that he
signed his name thereto by like authority.
[Notarial Seal] __________________________
Notary Public
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On the ___ day of September, 1996, before me personally came _____________,
to me known, who, being by me duly sworn, did depose and say that he/she resides
at ______________________________________; that he/she is a of The Chase
Manhattan Bank, one of the parties described in and which executed the above
instrument; that he/she knows the corporate seal of said Corporation; that the
seal affixed to the said instrument is such corporate seal; that it was affixed
by authority of the Board of Directors of said Corporation, and that he/she
signed his/her name thereto by like authority.
[Notarial Seal] _________________________
Notary Public
<PAGE>
Exhibit A
(Form of Face of Book-Entry Note)
Unless this certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to the issuer 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 requested
by an authorized representative of DTC and any payment is made to Cede & Co.,
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.
REGISTERED NO. CUSIP NO.__________
Interest Rate:__________ Principal Amount: $_____________
Issue Date:_____________
Maturity Date:__________
Interest Payment Date(s):_________
Redemption Provisions:____________
Repayment Provisions:_____________
Survivor's Option:________________
<PAGE>
GENERAL MOTORS ACCEPTANCE CORPORATION
SMARTNOTES(SM)
For value received, GENERAL MOTORS ACCEPTANCE CORPORATION, a corporation
duly organized and existing under the laws of the State of New York (hereinafter
called the "Company"), hereby promises to pay to Cede & Co., or registered
assigns, at the office of The Chase Manhattan Bank, 450 West 33rd Street, New
York, N.Y., the principal amount stated above on the Maturity Date stated above,
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 thereon at the Interest Rate per annum stated above (on the
basis of a 360 day year - 30 day month), in like coin or currency, and on the
Maturity Date (or on the date of redemption or repayment by the Company prior to
maturity pursuant to mandatory or optional redemption provisions or the
Survivor's Option, if provided herein). The interest so payable on any Interest
Payment Date 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 first day of the calendar month in which such
Interest Payment Date occurs, except that the Redemption Record Date with
respect to the final Initial Payment Date will be the final Interest Payment
Date. At the option of the Company, interest may be paid by check to the
registered holder hereof entitled thereto at his last address as it appears on
the registry books, and principal may be paid by check to the registered holder
hereof or other person entitled thereto against surrender of this Note.
Each payment of interest on a Note shall include accrued interest from and
including the Issue Date or from and including the late day in respect of which
interest has been paid (or duly provided for), as the case may be, to, but
excluding, the Interest Payment Date or Maturity Date, as the case may be.
This Global Note is one of a duly authorized issue of Notes of the Company
designated as its SmartNotes(SM) Due from Nine Months to Thirty Years from Date
of Issue (hereinafter called the "Notes"), all issued or to be issued under and
pursuant to an indenture dated as of September__, 1996 (herein called the
"Indenture") duly executed by the Company to The Chase Manhattan Bank, Trustee
(hereinafter called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
duties and immunities thereunder of the Trustee and the rights thereunder of the
holders of the Notes.
In case an Event of Default, as defined in the Indenture, 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 Company and the Trustee, with
the consent of the holders of not less than 66 2/3% in aggregate principal
amount of the Notes at the time outstanding, evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
any supplemental indenture or modifying in any manner the rights of the holders
of the Notes; provided, that no such supplemental indenture shall (i) extend the
fixed maturity of any Note, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, without the consent
of the holder of each Note so affected or (ii) reduce the aforesaid percentage
of Notes, the consent of the holders of which is required for any supplemental
indenture, without the consent of the holders of all Notes then outstanding.
No reference herein to the Indenture and no provision of this Global Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Global
Note at the places, at the respective times, at the rate, and in the coin or
currency, herein prescribed.
Upon due presentment for registration of transfer of this Global Note at the
office or agency of the Company in the Borough of Manhattan, the City of New
York, a new Global 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 Company and the Trustee may deem and treat the registered holder hereof as
the absolute owner hereof (whether or not this Global Note shall be overdue),
for the purpose of receiving payment of or on account of the principal hereof
and interest hereon and for all other purposes, and neither the Company nor the
Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Company
in the Indenture or any indenture supplemental thereto or in any Note, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, or against any past, present or future stockholder, officer or
director, as such, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, 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 personal
liability of every incorporator, stockholder, officer and director, as such,
being expressly waived and released by the acceptance hereof and as a condition
of and as part of the consideration for the issuance of this Global Note.
The Company may at any time and in its sole discretion determine not to have the
Notes represented by Global Notes and, in such event, the Company will issue
Notes in definitive form in exchange for the Global Notes. In such event, an
owner of a beneficial interest in the Global Notes will be entitled to have
Notes equal in aggregate principal amount to such beneficial interests
registered in its name and will be entitled to physical delivery of such Notes
in definitive form. Notes so issued in definitive form will be issued as
registered Notes without coupons in denominations of $1,000 or more (and any
amount in excess thereof that is an integral multiple of $l,000).
Terms used herein which as defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture.
This Global Note shall not be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by the Trustee
under the Indenture.
WITNESS THE SEAL OF THE COMPANY AND THE SIGNATURES OF ITS DULY AUTHORIZED
OFFICERS.
GENERAL MOTORS ACCEPTANCE CORPORATION
Dated:___________ By:__________________________________
Title:
[SEAL]
By: :__________________________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE NOTES DESCRIBED
IN THE WITHIN-MENTIONED INDENTURE.
THE CHASE MANHATTAN BANK, AS TRUSTEE
By:______________________
Authorized Signatory
<PAGE>
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 Global Note of GENERAL
MOTORS ACCEPTANCE CORPORATION and hereby does irrevocably constitute and
appoint__________________________Attorney to transfer the said Global Note on
the books of the within-mentioned Company, 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 THIS GLOBAL NOTE IN EVERY
PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE
WHATEVER.
<PAGE>
Exhibit B
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to repay
this Note (or portion hereof specified below) pursuant to its terms at a price
equal to the principal amount hereof together with interest to the Repayment
Date (or at a price equal to the Amortized Face Amount for Original Issue
Discount Notes and Zero-Coupon Notes on the date of repayment), to the
undersigned, at_____________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of this Note is to be repaid, specify
the portion thereof which the holder elects to have repaid:__________________;
and specify the denomination or denominations (which shall not be less than
the minimum authorized denomination of the Notes to be issued to the holder
for the portion of this Note not being repaid) (in the absence of any such
specification, one such Note will be issued for the portion which is being
repaid):_____________ .
$______________
_____________________________________
Dated: ________ NOTICE: Signature of legal
representative of estate of deceased
beneficial owner required.
Legal representative must also provide
copy of death certificate and proof of
appointment as legal representative of
estate of deceased beneficial owner.
EXHIBIT 5
GENERAL MOTORS ACCEPTANCE CORPORATION
3031 WEST GRAND BOULEVARD
DETROIT, MICHIGAN 48202
September 19, 1996
GENERAL MOTORS ACCEPTANCE CORPORATION
3044 WEST GRAND BOULEVARD
DETROIT, MICHIGAN 48202
Dear Sirs:
As Assistant General Counsel of General Motors Acceptance Corporation (the
"Company") in connection with the proposed issue and sale of SmartNotestm Due
Nine Months to Thirty Years from Date of Issue (the "Notes") pursuant to a
Registration Statement filed this date, I advise that in my opinion you have
full power and authority under the laws of New York, the State of your
incorporation, and under your Restated Organization Certificate to borrow the
money and to contract the indebtedness to be evidenced by the said Notes.
It is my further opinion that the Indenture, dated as of September 24,
1996, with The Chase Manhattan Bank, Trustee has been duly authorized, executed
and delivered and that the Notes, when duly executed and authenticated as
provided in the Indenture, issued and paid for, will be valid and legally
binding obligations of the Company in accordance with and subject to the terms
thereof and of the Indenture.
I hereby consent to the use of the foregoing opinion as Exhibit 5 of your
Registration Statement filed with the United States Securities and Exchange
Commission under the Securities Act of 1933, as amended, with respect to the
above mentioned Notes and to the use of my name in such Registration Statement
and in the related Prospectus under the heading "Legal Opinions".
Very truly yours,
s/ Martin I. Darvick
-------------------------
Martin I. Darvick
Assistant General Counsel
EXHIBIT 8
September 13, 1996
General Motors Acceptance Corporation
3031 West Grand Boulevard
P.O. Box 33123
Detroit, MI 48232
Dear Sirs:
In connection with the General Motors Acceptance Corporation (the "Company")
Prospectus for the proposed issue and sale of SmartNotestm Due Nine Months to
Thirty Years from Date of Issue (the "Notes"), I have acted as tax counsel to
the Company, and in that capacity have furnished certain opinions to it. I
hereby confirm to you that the opinion as set forth under the heading "United
States Federal Taxation" in the Prospectus covering such Notes which is part of
the registration statement to which this letter is attached as an exhibit. As
indicated in the opinion, the discussion sets forth a general summary of certain
United States Federal income tax consequences of the ownership and disposition
of the Notes as applied to original holders purchasing Notes at the issue price.
Holders are advised to consult their own tax advisors with regard to the
application of the income tax laws to their particular situations as well as any
tax consequences arising under the laws of any state, local or foreign tax
jurisdiction.
I hereby consent to the filing with the Securities and Exchange Commission of
this opinion as an exhibit to the Registration Statement, as amended, and to the
reference to tax counsel under the heading "United States Federal Taxation" in
the Prospectus. By providing the foregoing consent, I do not admit that tax
counsel fall within the category of persons whose consent is required under
section 7 of the Securities Act of 1933, as amended.
Yours very truly,
s/ Robert N. Deitz
------------------
Robert N. Deitz
Senior Tax Counsel
EXHIBIT 12
GENERAL MOTORS ACCEPTANCE CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(In millions of dollars)
Six Months Ended
June 30
-------------------
1996 1995
---- ----
Consolidated net income*........................... $ 659.1 $ 514.1
Provision for income taxes......................... 409.3 371.3
-------- --------
Consolidated income before income taxes............ 1,068.4 885.4
-------- --------
Fixed charges
Interest, debt discount and expense.......... 2,464.3 2,495.1
Portion of rentals representative of the
interest factor............................. 27.6 25.5
-------- --------
Total fixed charges................................ 2,491.9 2,520.6
-------- --------
Earnings available for fixed charges............... $3,560.3 $3,406.0
======== ========
Ratio of earnings to fixed charges................. 1.43 1.35
======== ========
Years Ended December 31
--------------------------------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
Consolidated net income* $1,031.0 $ 927.1 $ 981.1 $1,218.7 $1,038.2
Provision for income taxes 752.2 512.7 591.7 882.3 610.0
-------- -------- -------- -------- --------
Consolidated income before
income taxes . . . . . 1,783.2 1,439.8 1,572.8 2,101.0 1,648.2
-------- -------- -------- -------- --------
Fixed Charges
Interest, debt discount
and expense . . . . . 4,936.3 4,230.9 4,721.2 5,828.6 6,844.7
Portion of rentals
representative of the
interest factor . . . 54.5 51.2 43.6 31.7 30.3
-------- -------- -------- -------- --------
Total fixed charges . . . 4,990.8 4,282.1 4,764.8 5,860.3 6,875.0
-------- -------- -------- -------- --------
Earnings available for
fixed charges . . . . . $6,774.0 $5,721.9 $6,337.6 $7.961.3 $8,523.2
======== ======== ======== ======== ========
Ratio of earnings to
fixed charges . . . . . 1.36 1.33 1.33 1.35 1.23
======== ======== ======== ======== ========
* Before cumulative effect of accounting change of ($7.4) million in 1994,
($282.6) million in 1992 and $331.5 million in 1991.
EXHIBIT 23(a)
INDEPENDENT AUDITOR'S CONSENT
General Motors Acceptance Corporation
We consent to the incorporation by reference in this Registration Statement of
General Motors Acceptance Corporation on Form S-3 of our report dated January
29, 1996, appearing in the Annual Report on Form 10-K of General Motors
Acceptance Corporation for the year ended December 31, 1995 and to the reference
to us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ DELOITTE & TOUCHE LLP
- -------------------------
DELOITTE & TOUCHE LLP
Detroit, Michigan
September 13, 1996
Exhibit 25
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
GENERAL MOTORS ACCEPTANCE CORPORATION.
(Exact name of obligor as specified in its charter)
NEW YORK 38-0572512
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
3031 WEST GRAND BOULEVARD
NEW CENTER ONE, SUITE 695
DETROIT, MICHIGAN 48202
(Address of principal executive offices) (Zip Code)
-------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-----------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551.
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement No. 33-84460,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 26th day of August, 1996.
THE CHASE MANHATTAN BANK
By: S/MARY LEWICKI
------------------------------
MARY LEWICKI
Second Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1996, in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin........................................ $ 3,391
Interest-bearing balances................................ 2,075
Securities:
Held to maturity securities................................. 3,607
Available for sale securities............................... 29,029
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold....................................... 1,264
Securities purchased under agreements to resell.......... 354
Loans and lease financing receivables:
Loans and leases, net of unearned income $73,216
Less: Allowance for loan and lease losses 1,854
Less: Allocated transfer risk reserve.......... 104
-------
Loans and leases, net of unearned income,
allowance, and reserve .................................. 71,258
Trading Assets ............................................. 25,919
Premises and fixed assets (including capitalized leases).... 1,337
Other real estate owned .................................... 30
Investments in unconsolidated subsidiaries and
associated companies..................................... 187
Customer's liability to this bank on acceptances
outstanding ............................................. 1,082
Intangible assets .......................................... 419
Other assets................................................ 7,406
--------
TOTAL ASSETS ............................................... $147,358
========
<PAGE>
LIABILITIES
Deposits
In domestic offices ...................................... $45,786
Noninterest-bearing .......................... $14,972
Interest-bearing ............................. 30,814
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's................................................. 36,550
Noninterest-bearing .......................... $ 202
Interest-bearing ............................. 36,348
-------
Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ..................................... 11,412
Securities sold under agreements to repurchase ........... 2,444
Demand notes issued to the U.S. Treasury .................... 699
Trading liabilities
............................................................. 19,998
Other Borrowed money:
With a remaining maturity of one year or less ............ 11,305
With a remaining maturity of more than one year .......... 130
Mortgage indebtedness and obligations under capitalized
leases.................................................... 13
Bank's liability on acceptances executed and outstanding..... 1,089
Subordinated notes and debentures ........................... 3,411
Other liabilities ........................................... 6,778
TOTAL LIABILITIES ........................................... 139,615
--------
EQUITY CAPITAL
Common stock................................................. 620
Surplus
............................................................. 4,664
Undivided profits and capital reserves ...................... 3,058
Net unrealized holding gains (Losses)
on available-for-sale securities ............................ (607)
Cumulative foreign currency translation adjustments ......... 8
TOTAL EQUITY CAPITAL ........................................ 7,743
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL ................................. $147,358
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
EXHIBIT 99
The Chicago Corporation
208 South LaSalle Street
Chicago, IL 60604-1003
September 11, 1996
Mr. Martin Darvick
Assistant General Counsel
General Motors Acceptance Corporation
3031 West Grand Boulevard
New Center One, Suite 695
Detroit, MI 48202
Dear Mr. Darvick:
We confirm that The Chicago Corporation, a dealer in the General Motors
Acceptance Corporation SmartNotes Program (the "Program"), has acted in
compliance with Rule 15c2-8 (the "Rule") under the Securities Exchange Act of
1934, as amended, solely to the extent the Rule is applicable in the offering of
SmartNotes under the Program.
Yours very truly,
s/Jeffrey P. Novack
- -------------------
Senior Vice President
JPN:lf
<PAGE>
A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
August 26, 1996
General Motors Acceptance Corporation
Attn: Lisa Gracin, Senior Financial Analyst
3031 West Grand Boulevard
New Center One, Suite 695
Detroit, MI 48202
Dear Ms. Gracin:
We confirm that A.G. Edwards & Sons, Inc., a dealer in the General Motors
Acceptance Corporation SmartNotes Program (the "Program"), has acted in
compliance with Rule 15c2-8 (the "Rule") under the Securities Exchange Act of
1934, as amended, solely to the extent the Rule is applicable in the offering of
SmartNotes under the Program.
Sincerely,
s/John E. Meiners
- -----------------
Vice President
JEM/tmw
<PAGE>
Edward D. Jones & Co.
12555 Manchester Road
St. Louis, MO 63131-3729
September 12, 1996
Lisa Gracin
General Motors Acceptance Corporation
3031 West Grand Boulevard
New Center One, Suite 695
Detroit, MI 48202
Dear Ms. Gracin:
We confirm that Edward D. Jones & Co., a dealer in the General Motors Acceptance
Corporation SmartNotes Program (the "Program"), has acted in compliance with
Rule 15c2-8 (the "Rule") under the Securities Exchange Act of 1934, as amended,
solely to the extent the Rule is applicable in the offering of SmartNotes under
the Program.
Sincerely yours,
s/Phil Schwab
- -------------
Principal
<PAGE>
Prudential Securities Incorporated
One New York Plaza
15th Floor
New York, NY 10292-2015
September 12, 1996
Mr. Martin Darvick
Assistant General Counsel
General Motors Acceptance Corporation
3031 West Grand Boulevard
New Center One, Suite 695
Detroit, MI 48202
Dear Mr. Darvick:
We confirm that Prudential Securities Incorporated, a dealer in the General
Motors Acceptance Corporation SmartNotes Program (the "Program"), has acted in
compliance with Rule 15c2-8 (the "Rule") under the Securities Exchange Act of
1934, as amended, solely to the extent the Rule is applicable in the offering of
SmartNotes under the Program.
Yours very truly,
s/Frank P. Sinatra
- ------------------
Managing Director
<PAGE>
Smith Barney Inc.
390 Greenwich Street
5th Floor
New York, NY 10013
September 12, 1996
General Motors Acceptance Corporation
3031 West Grand Boulevard
New Center One, Suite 695
Detroit, MI 48202
We confirm that Smith Barney Inc., a dealer in the General Motors Acceptance
Corporation SmartNotes Program (the "Program"), has acted in compliance with
Rule 15c2-8 (the "Rule") under the Securities Exchange Act of 1934, as amended,
solely to the extent the Rule is applicable in the offering of SmartNotes under
the Program.
Sincerely,
s\Joseph M. Donovan
- -------------------
Managing Director
