FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 14, 1995
REGISTRATION NO.33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GENERAL MOTORS CORPORATION
--------------
State of Delaware 38-0572515
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
No.)
767 Fifth Avenue, New York, New York 10153-0075; (212) 418-6100
3044 West Grand Boulevard, Detroit, Michigan 48202-3091; (313) 556-5000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
J. Michael Losh
Executive Vice President
General Motors Corporation
3044 West Grand Boulevard
Detroit, Michigan 48202-3091
(313) 556-3549
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Martin I. Darvick, Esq. Francis J. Morison, Esq.
General Motors Corporation Davis Polk & Wardwell
3031 West Grand Boulevard 450 Lexington Avenue
Detroit, Michigan 48202-3091 New York, New York 10017-3904
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please 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
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED*(1)(2) UNIT PRICE(3) FEE
- -------------------------------------------------------------------------------
Debt Securities $2,000,000,000 Various $2,000,000,000 $400,000
- -------------------------------------------------------------------------------
Debt Warrants (2)
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*Or, if any Debt Securities (1) are denominated or payable in a foreign or
composite currency or currencies, such principal amount as shall result in an
aggregate initial offering price equivalent to $2,090,500,000, at the time of
initial offering, (2) are issued at an original issue discount, such greater
principal amount as shall result in an aggregate initial offering price of
$2,090,500,000, or (3) are issued with their principal amount payable at
maturity to be determined with reference to a currency exchange rate or other
index, such principal amount as shall result in an aggregate initial offering
price of $2,090,500,000.
(1) The amount of Debt Securities and Debt Warrants (the "Securities")
being registered together with $90,500,000 remaining Debt Securities registered
on November 16, 1990 (Registration No. 33-37737), represents the maximum
aggregate principal amount of Securities which, on or after November 14, 1995,
are expected to be offered for sale.
(2) Debt Warrants may be offered and sold entitling the holder to purchase
any of the Debt Securities as permitted by Rule 457(g); no registration fee is
attributable to the Debt Warrants registered hereby.
(3) Estimated solely for the purpose of determining the amount of the
registration fee.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
included in this Registration Statement also relates to debt securities of the
registrant registered and remaining unissued under Registration Statement No.
33-37737
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.
<PAGE>
PROSPECTUS
GENERAL MOTORS CORPORATION
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
General Motors Corporation (the "Corporation" or "General Motors"),
directly, through agents designated from time to time, or through dealers or
underwriters also to be designated, may offer from time to time its debt
securities (the "Debt Securities") or its warrants to purchase any of the Debt
Securities (the "Debt Warrants"), for issuance and sale, at an aggregate initial
offering price not to exceed $2,000,000,000 or the equivalent thereof in other
currencies, including composite currencies such as the European Currency Unit
("ECU") (the "Specified Currency"), on terms to be determined at the time of
sale. The Debt Securities and the Debt Warrants are herein collectively called
the "Offered Securities." The Securities may be offered either together or
separately and in one or more series, in amounts, at prices and on terms to be
set forth in supplements to this Prospectus. The Securities may be sold for U.S.
dollars or the Specified Currency and the principal of and any premium and
interest on the Securities may likewise be payable in U.S. dollars or the
Specified Currency. The Specified Currency for which the Securities may be
purchased and the Specified Currency in which principal of and any premium and
interest on the Securities may be payable are set forth in the accompanying
Prospectus Supplement (the "Prospectus Supplement").
The Debt Securities will be issued in fully registered definitive form
("Certificated Securities") or in the form of global securities which may be
held and registered only in the name of a depositary institution ("Book-Entry
Securities").
The terms of the Debt Securities, including the specific designation,
aggregate principal amount, authorized denominations, purchase price, maturity,
interest rate (which may be fixed or variable) and time of payment of interest,
if any, any redemption or repayment terms, and the Specified Currency in which
the Debt Securities shall be payable (and similar information with respect to
the Debt Securities purchasable upon exercise of each Debt Warrant), are set
forth in the accompanying Prospectus Supplement (the "Prospectus Supplement").
Where Debt Warrants are to be offered, a Prospectus Supplement shall set forth
the offering price and terms of the Debt Warrants, including the purchase price,
exercise price or prices, detachability, expiration date or dates, exercise
period or periods, the Specified Currency in which such Debt Warrants are
exercisable, the price or prices, if any, at which the Debt Warrants may be
redeemed at the option of the holder or will be redeemed upon expiration, and
the Warrant Agent acting under the Warrant Agreement pursuant to which the Debt
Warrants are to be issued.
The Securities may be sold directly by the Corporation, through agents of
the Corporation designated from time to time, or through underwriters or
dealers, or through a combination of such methods. If any agents, underwriters
or dealers are involved in the sale of the Offered Securities, the names of such
agents, underwriters or dealers and any applicable commissions or discounts are
set forth in the accompanying Prospectus Supplement. Any Agents, underwriters or
dealers participating in the offering may be deemed "underwriters" within the
meaning of the Securities Act of 1933, as amended. See "Plan of Distribution"
for possible indemnification arrangements for the agents, underwriters and
dealers. The Corporation reserves the sole right to accept and, together with
its agents from time to time, to reject in whole or in part any proposed
purchase of Securities to be made directly or through agents.
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. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is December ___, 1995
<PAGE>
No dealer, salesman or any other person has been authorized to give any
information or to make any representations not contained or incorporated by
reference in this Prospectus, Prospectus Supplement, and Pricing Supplement, if
any, and, if given or made, such information or representation must not be
relied upon as having been authorized by the Corporation or by any agent,
underwriter or dealer. Neither the delivery of this Prospectus, Prospectus
Supplement and Pricing Supplement, if any, 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, Prospectus
Supplement and Pricing Supplement, if any, shall not constitute an offer to sell
or a solicitation of an offer to buy any of the Securities 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.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected, and copies may be obtained at
the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates, as well as at the following
Regional Offices of the Commission: Citicorp Center, 500 Madison Street, Suite
1400, Chicago, Illinois 60661-2511 and Seven World Trade Center, Suite 1300, New
York, New York 10048. The Corporation's Common Stock, $1-2/3 Par Value, is
listed on the New York, Chicago, Pacific and Philadelphia Stock Exchanges.
Reports, proxy statements and other information concerning the Corporation can
also be inspected at the offices of the New York Stock Exchange, Inc., 11 Wall
Street, New York, New York 10005, where the Corporation's Common Stock, $1-2/3
Par Value, Class H Common Stock, $.10 par value, and Class E Common Stock, $.10
par value, are listed and at the offices of the following other stock exchanges
where the Common Stock, $1-2/3 Par Value, is listed in the United States: the
Chicago Stock Exchange, Inc., One Financial Place, 440 South LaSalle Street,
Chicago, Illinois 60605, the Pacific Stock Exchange, Inc., 233 South Beaudry
Avenue, Los Angeles, California 90012 and 301 Pine Street, San Francisco,
California 94104, and the Philadelphia Stock Exchange, Inc., 1900 Market Street,
Philadelphia, Pennsylvania 19103.
The Prospectus constitutes a part of a Registration Statement filed by the
Corporation with the Commission under the Securities Act of 1933, as amended
(the "Securities Act of 1933"). This Prospectus omits certain of the information
contained in the Registration Statement in accordance with the rules and
regulations of the Commission. Reference is hereby made to the Registration
Statement and related exhibits for further information with respect to the
Corporation and the Offered Securities. Statements contained herein concerning
the provisions of any document are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation's Annual Report on Form 10-K for the year ended December
31, 1994, Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995,
June 30, 1995 and September 30, 1995, 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 Corporation 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 Securities
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 CORPORATION 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 OR MAY BE INCORPORATED BY REFERENCE IN
THIS PROSPECTUS, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. SUCH REQUEST SHOULD BE
DIRECTED TO:
GENERAL MOTORS CORPORATION
3044 WEST GRAND BOULEVARD, ROOM 11-243
DETROIT, MICHIGAN 48202-3091
(TELEPHONE NUMBER: (313) 556-2044)
GENERAL MOTORS CORPORATION
While the major portion of General Motors' operations is derived from the
automotive products industry segment, General Motors also has financing and
insurance operations and produces products and provides services in other
industry segments. The automotive products segment consists of the design,
manufacture, assembly and sale of automobiles, trucks and related parts and
accessories. General Motors financing and insurance operations assist in the
merchandising of General Motors' products as well as other products. General
Motors Acceptance Corporation ("GMAC") and its subsidiaries offer financial
services and certain types of insurance to dealers and customers. In addition,
GMAC and its subsidiaries are engaged in mortgage banking and investment
services. General Motors' other products segment consists of military vehicles,
radar and weapon control systems, guided missile systems and defense and
commercial satellites; the design, installation and operation of business
information and telecommunications systems; as well as the design, development
and manufacture of locomotives. For additional information on General Motors,
see the General Motors Annual Report on Form 10-K for the year ended December
31, 1994 which is incorporated herein by reference, and the other documents
incorporated herein by reference.
General Motors principal executive offices are located at 3044 West Grand
Boulevard, Detroit, Michigan 48202-3091 (Telephone Number (313) 556-5000), and
767 Fifth Avenue, New York, New York 10153-0075 (Telephone Number (212)
418-6100).
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, net
proceeds from the sale of the Securities will be used for general Corporate
purposes, including the repayment of existing
indebtedness.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings to fixed
charges for the Corporation for the periods indicated.
Nine Months
Ended
SEPTEMBER 30 YEARS ENDED DECEMBER 31
------------ -----------------------
1995 1994 1994 1993 1992 1991 1990
------------ ---- ---- ---- ---- ----
2.57 2.50 2.51 1.43 * * *
*In the years 1992, 1991 and 1990, earnings were inadequate to cover fixed
charges by $3,112.6 million, $5,522.9 million and $2,121.7 million,
respectively.
For purposes of computing the ratio of earnings to fixed charges,
"earnings" consist of consolidated income (loss) before cumulative effect of
accounting change plus income taxes (credit) and fixed charges included in net
income (loss) after eliminating the amortization of capitalized interest and the
undistributed (earnings) losses of associates; "fixed charges" consist of
interest and related charges on debt, that portion of rentals deemed to be
interest, and interest capitalized in the period.
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities in
respect of which this Prospectus is being delivered and the extent, if any, to
which such general provisions may not apply thereto will be described in the
Prospectus Supplement relating to such Debt Securities.
The Debt Securities offered hereby are to be issued under an Indenture
(the "Indenture"), dated as of December ___, 1995, between the Corporation and
Citibank, N.A., as Trustee (the "Trustee"), a copy of which is filed as an
exhibit to the Registration Statement. The following statements are subject to
the detailed provisions of the Indenture, a copy of which is filed as an exhibit
to the Registration Statement. Numerical references in parentheses below are to
sections in the Indenture. Wherever particular provisions of the Indenture are
referred to, such provisions are incorporated by reference as a part of the
statements made, and the statements are qualified in their entirety by such
reference. Capitalized terms used in this description but not defined herein
have the meanings provided in the Indenture.
GENERAL
The Indenture does not limit the amount of Debt Securities that can be
issued thereunder and provides that Debt Securities may be issued thereunder up
to the aggregate principal amount which may be authorized from time to time by
the Corporation.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms of the Debt
Securities (to the extent such terms are applicable to such Debt Securities):
(i) the designation of such Debt Securities;
(ii) the authorized denominations and the aggregate principal
amount of such Debt Securities;
(iii) the percentage of their principal amount at which such Debt
Securities will be issued;
(iv) the date or dates on which such Debt Securities will mature
(or the manner of determining the same);
(v) the rate or rates per annum, if any, which may be fixed or
variable, at which such Debt Securities will bear interest, if
any, and, if the rate is variable, the manner of calculation
thereof;
(vi) the date or dates from which interest, if any, shall accrue or
the method by which such date or dates shall be determined and
the date or dates at which such interest, if any, will be
payable and the record dates therefor;
(vii) the period or periods within which, the terms and
conditions upon which, such Debt Securities may be redeemed
and the redemption price or prices;
(viii) any mandatory or optional sinking fund or analogous
provisions;
(ix) the provisions, if any, for the defeasance of the
Debt Securities;
(x) the form (registered or bearer) in which Debt Securities may
be issued, any restrictions applicable to the exchange of one
form for another and to the offer, sale and delivery of Debt
Securities in either form;
(xi) whether and under what circumstances the Corporation will
pay additional amounts (the "Additional Amounts") on Debt
Securities held by a person who is not a United States
person (as defined in the Prospectus Supplement) in respect
of specified taxes, assessments or other governmental
charges withheld or deducted, and if so, whether the
Corporation has the option to redeem the affected Debt
Securities rather than pay such Additional Amounts;
(xii) the Specified Currency for which such Debt Securities may be
purchased and the Specified Currency in which the principal
of, and premium, if any, and interest, if any, on, such Debt
Securities may be payable;
(xiii) the exchanges, if any, on which such Debt Securities
may be listed;
(xiv) whether such Debt Securities are to be issued in book-entry
form and, if so, the identify of the Depositary for such
book-entry Securities;
(xv) the place or places where the principal of, premium, if
any, and interest, if any, on the Debt Securities will be
payable; and
(xvi) any other specific terms of the Debt Securities, including any
additional covenants applicable to such Debt Securities and
any terms which may be required or advisable under applicable
laws or regulations. (Sections 2.04 and 4.02 of the
Indenture.)
The Securities will be unsecured and will rank equally and ratably with
all other unsecured and unsubordinated indebtedness of the Corporation (other
than obligations preferred by mandatory provisions of law).
Unless otherwise specified in a Prospectus Supplement, principal, premium,
if any, interest, if any, and Additional Amounts, if any, will be payable, and,
unless the Debt Securities are issued in book-entry form, the Debt Securities
offered hereby will be transferable, at the office of the Trustee, 111 Wall
Street, New York, New York 10043, provided that payment of interest may be made
at the option of the Corporation by check mailed to the address of the person
entitled thereto. Principal of and premium, if any, interest, if any, and
Additional Amounts, if any, on Debt Securities in bearer form, and coupons
appertaining thereto (the "Coupons"), if any, will be payable against surrender
of such Debt Securities or Coupons, as the case may be, subject to any
applicable laws and regulations, at such paying agencies outside the United
States as the Corporation may appoint from time to time at the places and
subject to the restrictions set forth in the Indenture, the Debt Securities and
the Prospectus Supplement. (Section 4.02 of the Indenture.) Debt Securities in
bearer form and the Coupons, if any, appertaining thereto will be transferable
by delivery. No service charge will be made for any transfer or exchange of such
Debt Securities, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(Section 2.05 of the Indenture.)
Debt Securities may be issued, from time to time, with the principal
amount payable on any principal payment date, or the amount of interest payable
on any interest payment date, to be determined by reference to one or more
currency exchange rates, commodity prices, equity indices or other factors.
Holders of such Debt Securities may receive a principal amount on any principal
payment date, or a payment of interest on any interest payment date, that is
greater than or less than the amount of principal or interest otherwise payable
on such dates, depending upon the value on such dates of the applicable
currencies, commodities, equity indices or other factors. Information as to the
methods for determining the amount of principal or interest payable on any date,
the currencies, commodities, equity indices or other factors to which the amount
payable on such date is linked and certain additional United States Federal
income tax considerations will be set forth in the Prospectus Supplement
relating thereto.
As used herein, the term Debt Securities shall include Debt Securities
denominated in United States dollars or, at the option of the Corporation if so
specified in the applicable Prospectus Supplement, in any other freely
transferable currency or units based on or relating to foreign currencies,
including European Currency Units.
If a Prospectus Supplement specifies that Debt Securities are denominated
in a currency or currency unit other than United States dollars, such Prospectus
Supplement shall also specify the denominations in which such Debt Securities
will be issued and the coin or currency in which the principal, premium, if any,
and interest, if any, on such Debt Securities, will be payable, which may be
United States dollars based upon the exchange rate for such other currency
existing on or about the time a payment is due.
Some of the Debt Securities may be issued as discounted Debt Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount. Special considerations applicable to the Debt Securities of
any series, including any special United States Federal income tax consequences
applicable to any discounted Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at discount or to Debt
Securities denominated or payable in foreign currencies or currency units, will
be described in the Prospectus Supplement relating thereto.
If a Prospectus Supplement specifies that the Debt Securities will have a
redemption option, the "Option to Elect Repurchase" constitutes an issuer tender
offer under the Exchange Act. The Corporation will comply with all issuer tender
offer rules and regulations under the Exchange Act, including Rule 14e-1, if
such redemption option is elected, including making any required filings with
the Commission and the furnishing of certain information to the holders of the
Debt Securities.
BOOK-ENTRY SECURITIES - DELIVERY AND FORM
Unless otherwise indicated in the Prospectus Supplement, the Debt
Securities will be issued in the form of one or more fully registered global
securities (collectively, the "Registered Global Debt Securities") which will be
deposited with or on behalf of The Depository Trust Corporation ("DTC") or other
depositary (DTC or such other depositary as is specified in the applicable
Prospectus Supplement is herein referred to as the "Depositary") and registered
in the name of the Depositary or the Depositary's nominee. No single Registered
Global Security shall exceed U.S.$200,000,000. Except as set forth below, the
Registered Global Debt Securities may be transferred, in whole and not in part,
only to another nominee of the Depositary or to a successor of the Depositary or
its nominee.
DTC has advised the Corporation 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. DTC 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 and/or underwriters named in any Prospectus Supplement),
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 Corporation of Securities represented by a
Registered Global Debt Security, the Depositary will credit, on its book-entry
registration and transfer system, the participants' accounts with, the
respective principal amounts of the Securities represented by such Registered
Global Debt Security beneficially owned by such participants. The accounts to be
credited shall be designated by the agents, underwriters or dealers
participating in the distribution of such Securities, or the Corporation, if
such Securities are offered and sold directly by the Corporation, as the case
may be. Ownership of beneficial interests in a Registered Global Debt Security
will be limited to participants or persons that hold interests through
participants. Ownership of beneficial interests in Securities represented by a
Registered Global Debt Security 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 Registered Global Debt Security.
So long as the Depositary for a Registered Global Debt Security, or its
nominee, is the registered owner of the Registered Global Debt Security, the
Depositary or its nominee, as the case may be, will be considered the sole owner
or holder of the Book-Entry Securities represented by such Registered Global
Debt Security for all purposes under the Indenture. Except as provided below,
owners of beneficial interests in Book-Entry Securities represented by a
Registered Global Debt Security or Securities will not be entitled to have
Book-Entry Securities represented by such Registered Global Debt Securities
registered in their names, will not receive or be entitled to receive physical
delivery of Book-Entry Securities 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 Registered
Global Debt Security 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 Registered Global Debt Security. The Corporation understands that
under existing policy of the Depositary and industry practices, in the event
that the Corporation requests any action of holders or that an owner of a
beneficial interest in such a Registered Global Debt Security desires to give
any notice or take any action which a holder is entitled to give or take under
the Indenture or a Registered Global Debt Security, 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
Securities represented by a Registered Global Debt Security registered in the
name of the Depositary or its nominee will be made by the Corporation through
the Trustee to the Depositary or its nominee, as the case may be, as the
registered owner of a Registered Global Debt Security. None of the Corporation,
the Trustee, any paying agent or any other agent of the Corporation 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 Registered
Global Debt Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests. The Corporation expects that
the Depositary, upon receipt of any payment of principal, premium, if any, or
interest, if any, in respect of a Registered Global Debt Security, 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 Registered Global Debt Security as shown on the
records of the Depositary. The Corporation also expects that payments by
participants to owners of beneficial interests in a Registered Global Debt
Security 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
depositary or ceases to be a clearing agency under the Exchange Act and a
successor depositary registered as a clearing agency under the Exchange Act is
not appointed by the Corporation within 90 days, the Corporation will issue Debt
Securities in definitive form in exchange for all the Registered Global Debt
Securities. In addition, the Corporation may at any time, and in its sole
discretion, determine not to have the Debt Securities represented by the
Registered Global Debt Securities and, in such event, will issue Debt Securities
in definitive form in exchange for all the Registered Global Debt Securities. In
either instance, an owner of a beneficial interest in Registered Global Debt
Securities will be entitled to have Debt Securities equal in principal amount to
such beneficial interest registered in its name and will be entitled to physical
delivery of such Debt Securities in definitive form. Debt Securities so issued
in definitive form will be issued in denominations of $1,000 and integral
multiples thereof and will be issued in registered form only, without Coupons;
however, Medium-Term Notes issued pursuant to a Prospectus Supplement will be
issued in denominations of $100,000 or any amount in excess thereof which is an
integral multiple of $1,000 (or in such other denominations as shall be provided
in an applicable Pricing Supplement) and will be issued in registered form only,
without Coupons. No service charge will be made for any transfer or exchange of
such Debt Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 2.05 of the Indenture.)
The Debt Securities of a series may also be issued in the form of one or
more bearer global securities (a "Bearer Global Debt Security") that will be
deposited with a common depositary for the Euroclear System and Cedel Bank,
societe anonyme or with a nominee for such depositary identified in the
Prospectus Supplement relating to such series. The specific terms and
procedures, including the specific terms of the depositary arrangement, with
respect to any portion of a series of Debt Securities to be represented by a
Bearer Global Debt Security will be described in the Prospectus Supplement
relating to such series.
CERTAIN COVENANTS
DEFINITIONS APPLICABLE TO COVENANTS. The following definitions shall be
applicable to the covenants specified below:
(i) "Attributable Debt" means, at the time of determination as to
any lease, the present value (discounted at the actual rate, if stated,
or, if no rate is stated, the implicit rate of interest of such lease
transaction as determined by the chairman, president, any vice chairman,
any vice president, the treasurer or any assistant treasurer of the
Corporation), calculated using the interval of scheduled rental payments
under such lease, of the obligation of the lessee for net rental payments
during the remaining term of such lease (excluding any subsequent renewal
or other extension options held by the lessee). The term "net rental
payments" means, with respect to any lease for any period, the sum of the
rental and other payments required to be paid in such period by the lessee
thereunder, but not including, however, any amounts required to be paid by
such lessee (whether or not designated as rental or additional rental) on
account of maintenance and repairs, insurance, taxes, assessments, water
rates, indemnities or similar charges required to be paid by such lessee
thereunder or any amounts required to be paid by such lessee thereunder
contingent upon the amount of sales, earnings or profits or of maintenance
and repairs, insurance, taxes, assessments, water rates, indemnities or
similar charges; provided, however, that, in the case of any lease which
is terminable by the lessee upon the payment of a penalty in an amount
which is less than the total discounted net rental payments required to be
paid from the later of the first date upon which such lease may be so
terminated and the date of the determination of net rental payments, "net
rental payments" shall include the then-current amount of such penalty
from the later of such two dates, and shall exclude the rental payments
relating to the remaining period of the lease commencing with the later of
such two dates.
(ii) "Debt" means notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
(iii) "Manufacturing Subsidiary" means any Subsidiary (A)
substantially all the property of which is located within the continental
United States of America, (B) which owns a Principal Domestic
Manufacturing Property and (C) in which the Corporation's investment,
direct or indirect and whether in the form of equity, debt, advances or
otherwise, is in excess of $2,500,000,000 as shown on the books of the
Corporation as of the end of the fiscal year immediately preceding the
date of determination; provided, however, that "Manufacturing Subsidiary"
shall not include Electronic Data Systems Corporation and its
Subsidiaries, Hughes Electronics Corporation and its Subsidiaries, General
Motors Acceptance Corporation and its Subsidiaries (or any corporate
successor of any of them) or any other Subsidiary which is principally
engaged in leasing or in financing installment receivables or otherwise
providing financial or insurance services to the Corporation or others or
which is principally engaged in financing the Corporation's operations
outside the continental United States of America.
(iv) "Mortgage" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
(v) "Principal Domestic Manufacturing Property" means any
manufacturing plant or facility owned by the Corporation or any
Manufacturing Subsidiary which is located within the continental United
States of America and, in the opinion of the Board of Directors, is of
material importance to the total business conducted by the Corporation and
its consolidated affiliates as an entity.
(vi) "Subsidiary" means any corporation of which at least a majority
of the outstanding stock having by the terms thereof ordinary voting power
to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by the
Corporation, or by one or more Subsidiaries, or by the Corporation and one
or more Subsidiaries. (Section 4.08 of the Indenture.)
LIMITATION ON LIENS. For the benefit of the Debt Securities, the Corporation
will not, nor will it permit any Manufacturing Subsidiary to, issue or assume
any Debt secured by a Mortgage upon any Principal Domestic Manufacturing
Property of the Corporation or any Manufacturing Subsidiary or upon any shares
of stock or indebtedness of any Manufacturing Subsidiary (whether such Principal
Domestic Manufacturing Property, shares of stock or indebtedness are now owned
or hereafter acquired) without in any such case effectively providing
concurrently with the issuance or assumption of any such Debt that the Debt
Securities (together with, if the Corporation shall so determine, any other
indebtedness of the Corporation or such Manufacturing Subsidiary ranking equally
with the Debt Securities and then existing or thereafter created) shall be
secured equally and ratably with such Debt, unless the aggregate amount of Debt
issued or assumed and so secured by Mortgages, together with all other Debt of
the Corporation and its Manufacturing Subsidiaries which (if originally issued
or assumed at such time) would otherwise be subject to the foregoing
restrictions, but not including Debt permitted to be secured under clauses (i)
through (vi) of the immediately following paragraph, does not at the time exceed
20% of the stockholders' equity of the Corporation and its consolidated
subsidiaries, as determined in accordance with generally accepted accounting
principles and shown on the audited consolidated balance sheet contained in the
latest published annual report to the stockholders of the Corporation.
The above restrictions shall not apply to Debt secured by:
(i) Mortgages on property, shares of stock or indebtedness of any
corporation existing at the time such corporation becomes a
Manufacturing Subsidiary;
(ii) Mortgages on property existing at the time of acquisition of
such property by the Corporation or a Manufacturing Subsidiary, or
Mortgages to secure the payment of all or any part of the purchase price
of such property upon the acquisition of such property by the Corporation
or a Manufacturing Subsidiary or to secure any Debt incurred prior to, at
the time of, or within 180 days after, the later of the date of
acquisition of such property and the date such property is placed in
service, for the purpose of financing all or any part of the purchase
price thereof, or Mortgages to secure any Debt incurred for the purpose of
financing the cost to the Corporation or a Manufacturing Subsidiary of
improvements to such acquired property;
(iii) Mortgages securing Debt of a Manufacturing Subsidiary owing
to the Corporation or to another Subsidiary;
(iv) Mortgages on property of a corporation existing at the time
such corporation is merged or consolidated with the Corporation or a
Manufacturing Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Corporation or a Manufacturing
Subsidiary;
(v) Mortgages on property of the Corporation or a Manufacturing
Subsidiary in favor of the United States of America or any State thereof,
or any department, agency or instrumentality or political subdivision of
the United States of America or any State thereof, or in favor of any
other country, or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute or
to secure any indebtedness incurred for the purpose of financing all or
any part of the purchase price or the cost of construction of the property
subject to such Mortgages; or
(vi) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Mortgage
referred to in the foregoing clauses (i) to (v); provided, however, that
the principal amount of Debt secured thereby shall not exceed by more than
115% the principal amount of Debt so secured at 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 Mortgage so extended, renewed or replaced (plus improvements
on such property). (Section 4.06 of the Indenture.)
LIMITATION ON SALE AND LEASE-BACK. For the benefit of the Debt Securities, the
Corporation will not, nor will it permit any Manufacturing Subsidiary to, enter
into any arrangement with any person providing for the leasing by the
Corporation or any Manufacturing Subsidiary of any Principal Domestic
Manufacturing Property owned by the Corporation or any Manufacturing Subsidiary
on the date that the Debt Securities are originally issued (except for temporary
leases for a term of not more than five years and except for leases between the
Corporation and a Manufacturing Subsidiary or between Manufacturing
Subsidiaries), which property has been or is to be sold or transferred by the
Corporation or such Manufacturing Subsidiary to such person, unless either:
(i) the Corporation or such Manufacturing Subsidiary would be
entitled, pursuant to the provisions of the covenant on limitation on
liens described above, to issue, assume, extend, renew or replace Debt
secured by a Mortgage upon such property equal in amount to the
Attributable Debt in respect of such arrangement without equally and
ratably securing the Debt Securities; provided, however, that from and
after the date on which such arrangement becomes effective the
Attributable Debt in respect of such arrangement shall be deemed for all
purposes under the covenant on limitation on liens described above and
this covenant on limitation on sale and lease-back to be Debt subject to
the provisions of the covenant on limitation on liens described above
(which provisions include the exceptions set forth in clauses (i) through
(vi) of such covenant), or
(ii) the Corporation shall apply an amount in cash equal to the
Attributable Debt in respect of such arrangement to the retirement (other
than any mandatory retirement or by way of payment at maturity), within
180 days of the effective date of any such arrangement, of Debt of the
Corporation or any Manufacturing Subsidiary (other than Debt owned by the
Corporation or any Manufacturing Subsidiary) which by its terms matures at
or is extendible or renewable at the option of the obligor to a date more
than twelve months after the date of the creation of such Debt. (Section
4.07 of the Indenture.)
DEFEASANCE
If the terms of a particular series of Debt Securities so provide, the
Corporation may, at its option, (a) discharge its indebtedness and its
obligations under the Indenture with respect to such series or (b) not comply
with certain covenants contained in the Indenture with respect to such series,
in each case by depositing funds or obligations issued or guaranteed by the
United States of America with the Trustee. The Prospectus Supplement will more
fully describe the provisions, if any, relating to such defeasance. (Section
12.02 of the Indenture.)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Corporation and the Trustee may enter into
supplemental indentures without the consent of the holders of the Debt
Securities to (a) evidence the assumption by a successor corporation of the
obligations of the Corporation, (b) add covenants for the protection of the
holders of the Debt Securities, (c) add or change any of the provisions of the
Indenture to permit or facilitate the issuance of Debt Securities of any series
in bearer form, (d) cure any ambiguity or correct any inconsistency in such
Indenture, (e) establish the form or terms of Debt Securities of any series as
permitted by the terms of the Indenture and (f) evidence the acceptance of
appointment by a successor trustee. (Section 10.01 of the Indenture.)
The Indenture also contains provisions permitting the Corporation and the
Trustee to modify or amend the Indenture or any supplemental indenture or the
rights of the holders of the Debt Securities issued thereunder, with the consent
of the holders of not less than a majority in principal amount of the Debt
Securities of all series at the time outstanding under such Indenture which are
affected by such modification or amendment (voting as one class), provided that
no such modification shall (i) extend the fixed maturity of any Debt Securities,
or reduce the principal amount thereof, or premium, if any, or reduce the rate
or extend the time of payment of interest or Additional Amounts thereon, or
reduce the amount due and payable upon acceleration of the maturity thereof or
the amount provable in bankruptcy, or make the principal of, or interest,
premium or Additional Amounts on, any Debt Security payable in any coin or
currency other than that provided in such Debt Security, (ii) impair the right
to initiate suit for the enforcement of any such payment on or after the stated
maturity thereof, or (iii) reduce the aforesaid percentage of Debt Securities,
the consent of the holders of which is required for any such modification, or
the percentage required for the consent of the holders to waive defaults,
without the consent of the holder of each Debt Security so affected. (Section
10.02 of the Indenture.)
EVENTS OF DEFAULT
An Event of Default with respect to any series of Debt Securities is
defined in the Indenture as being: (a) default in payment of any principal or
premium, if any, on such series; (b) default for 30 days in payment of any
interest or Additional Amounts on such series; (c) default for 90 days after
notice in performance of any other covenant applicable to the Debt Securities;
or (d) certain events of bankruptcy, insolvency or reorganization. (Section 6.01
of the Indenture.)
No Event of Default with respect to a particular series of Debt Securities
issued under the Indenture necessarily constitutes an Event of Default with
respect to any other series of Debt Securities issued thereunder. In case an
Event of Default under clause (a), (b) or (c) shall occur and be continuing with
respect to any series, the Trustee or the holders of not less than 25% in
aggregate principal amount of Debt Securities of each such series then
outstanding may declare the principal (or, in the case of discounted Debt
Securities, the amount specified in the terms thereof) of such series to be due
and payable. In case an Event of Default under clause (d) shall occur and be
continuing, the Trustee or the holders of not less than 25% in aggregate
principal amount of all the Debt Securities then outstanding (voting as one
class) may declare the principal (or, in the case of discounted Debt Securities,
the amount specified in the terms thereof) of all outstanding Debt Securities to
be due and payable. Any Event of Default with respect to a particular series of
Debt Securities may be waived by the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of such series (or of all
the outstanding Debt Securities, as the case may be), except in a case of
failure to pay principal or premium, if any, or interest or Additional Amounts
in respect of such Debt Security for which payment had not been subsequently
made. (Section 6.01 of the Indenture.) The Indenture provides that the Trustee
may withhold notice to the securityholders of any default (except in payment of
principal, premium, if any, or interest or Additional Amounts) if it considers
it in the interests of the securityholders to do so. (Section 6.07 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 securityholders,
unless such securityholders shall have offered to the Trustee reasonable
indemnity. (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 aggregate principal amount of the Debt Securities of
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. (Section 6.06 of the Indenture.)
CONCERNING THE TRUSTEE
Citibank, N.A. is the Trustee under the Indenture. Citibank, N.A. acts
as depositary for funds of, makes loans to, acts as trustee and performs
certain other services for, the Corporation and certain of its subsidiaries
and affiliates in the normal course of its business.
DESCRIPTION OF DEBT WARRANTS
GENERAL
The Corporation may issue, together with Debt Securities or separately,
Debt Warrants for the purchase of Debt Securities. If the Debt Warrants are
issued together with any Debt Securities, they may be attached to or traded
separately from such Debt Securities. The Debt Warrants are to be issued under
one or more separate Warrant Agreements (each a "Debt Warrant Agreement")
between the Corporation and a banking institution organized under the laws of
the United States or one of the States thereof (each a "Warrant Agent").
The following statements with respect to the Debt Warrants are summaries
of the Debt Warrant Agreement, a form of which is filed as an exhibit to the
Registration Statement. Such summaries of certain provisions of the Debt Warrant
Agreement and the Debt Warrants do not purport to be complete and such summaries
are subject to the detailed provisions of the Debt Warrant Agreement to which
reference is hereby made for a full description of such provisions, including
the definition of certain terms used herein, and for other information regarding
the Debt Warrants. Wherever particular provisions of the Debt Warrant Agreement
or terms defined therein are referred to, such provisions or definitions are
incorporated by reference as a part of the statements made, and the statements
are qualified in their entirety by such reference.
The Debt Warrants will be evidenced by Debt Warrant Certificates (the
"Debt Warrant Certificates") and, except as otherwise specified in the
Prospectus Supplement accompanying this Prospectus, may be traded separately
from any Debt Securities with which they may be issued. Debt Warrant
Certificates may be exchanged for new Debt Warrant Certificates of different
denominations at the office of the Warrant Agent. The holder of a Debt Warrant
does not have any of the rights of a holder of a Debt Security in respect of,
and is not entitled to any payments on, any Debt Securities issuable (but not
yet issued) upon exercise of the Debt Warrants. The Debt Warrants may be issued
in one or more series, and reference is made to the Prospectus Supplement
accompanying this Prospectus relating to the particular series of Debt Warrants
offered thereby for the terms of, and other information with respect to, such
Debt Warrants, including:
(i) the title and the aggregate number of Debt Warrants;
(ii) the designation, aggregate principal amount, currency or
currencies and terms of the Debt Securities that may be
purchased upon exercise of the Debt Warrants;
(iii) the price or prices at which such Debt Warrants are
exercisable;
(iv) the currency or currencies in which such Debt Warrants are
exercisable;
(v) the places at which such Debt Warrants are exercisable and
the date on which the right to exercise the Debt Warrants
shall commence and the date on which such right shall
expire (the "Debt Warrant Expiration Date") or, if the Debt
Warrants are not continuously exercisable throughout such
period, the specific date or dates on which they will be
exercisable (each, a "Debt Warrant Exercise Date", which
term shall also mean, with respect to Debt Warrants
continuously exercisable for a period of time, every date
during such period);
(vi) the terms of any mandatory or optional call provisions;
(vii) the price or prices, if any, at which the Debt Warrants may
be redeemed at the option of the holder or will be redeemed
upon expiration;
(viii) the identity of the Debt Warrant Agent;
(ix) the exchanges, if any, on which such Debt Warrants may be
listed;
(x) whether such Debt Warrants shall be issued in book-entry
form;
(xi) if applicable, the designation and terms of the Debt
Securities with which the Debt Warrants are issued and the
number of Debt Warrants issued with each of such Debt
Securities;
(xii) if applicable, the date on and after which the Debt
Warrants and the related Debt Securities will be separately
transferable;
(xiii) whether the Debt Warrant Certificates will be in
registered form or bearer form or both;
(xiv) any applicable United States Federal income tax
consequences;
(xv) the price at which the Debt Warrants will be issued; and
(xvi) any other terms of the Debt Warrants.
EXERCISE OF DEBT WARRANTS
Debt Warrants in registered form may be exercised by payment to the
Warrant Agent of the exercise price, in each case in such currency or currencies
as are specified in the Debt Warrant, and by communicating to the Warrant Agent
the identity of the Debt Warrantholder and the number of Debt Warrants to be
exercised. Upon receipt of payment and the Debt Warrant Certificate properly
completed and duly executed, at the office of the Warrant Agent, the Warrant
Agent will, as soon as practicable, arrange for the issuance of the applicable
Debt Securities, the form of which shall be set forth in the Prospectus
Supplement. If less than all of the Debt Warrants evidenced by a Debt Warrant
Certificate are exercised, a new Debt Warrant Certificate will be issued for the
remaining amounts of Debt Warrants. A more complete summary for the exercise of
Debt Warrants in registered form and for exercises of Debt Warrants in bearer
form is contained in the Prospectus Supplement accompanying this Prospectus.
PLAN OF DISTRIBUTION
The Corporation may sell the Securities being offered hereby in any of
four ways: (i) directly to purchasers, (ii) through agents, (iii) through
underwriters, and (iv) through dealers.
Offers to purchase Securities may be solicited directly by the Corporation
or by agents designated by the Corporation from time to time. Any such agent,
who may be deemed to be an underwriter as that term is defined in the Securities
Act of 1933, involved in the offer or sale of the Securities in respect of which
this Prospectus is delivered will be named, and any commissions payable by the
Corporation to such agent set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a reasonable best efforts basis for the period of its appointment (ordinarily
five business days or less). Agents may be entitled under agreements which may
be entered into with the Corporation to indemnification by the Corporation
against certain civil liabilities, including liabilities under the Securities
Act of 1933, and may be customers of, engage in transactions with, or perform
services for, the Corporation and its subsidiaries in the ordinary course of
business.
If an underwriter or underwriters are utilized in the sale, the
Corporation will enter into an underwriting agreement with such underwriters at
the time of sale to them and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement, which will be used
by the underwriters to make resales of the Securities in respect of which this
Prospectus is delivered to the public. The underwriters may be entitled, under
the relevant underwriting agreement, to indemnification by the Corporation
against certain liabilities, including liabilities under the Securities Act of
1933.
Among others, one or more of the following firms may act as managing
underwriter(s) with respect to the offering of the Securities: Bear, Stearns
& Co. Inc., Lehman Brothers, Lehman Brothers Inc., Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith, J.P. Morgan Securities Inc., Morgan
Stanley & Co. Incorporated and Salomon Brothers Inc.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Corporation will sell such Securities to the
dealer as principal. The dealer may then resell such Securities to the public at
varying prices to be determined by such dealer at the time of resale. Dealers
may be entitled to indemnification by the Corporation against certain
liabilities, including liabilities under the Securities Act of 1933.
If so indicated in the applicable Prospectus Supplement, the Corporation
will authorize agents and underwriters to solicit offers by certain institutions
to purchase Securities from the Corporation at the public offering price set
forth in the Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Each Contract will be for an amount not less than, and
unless the Corporation otherwise agrees the aggregate principal amount of
Securities sold pursuant to Contracts shall be not less nor more than, the
respective amounts stated in the Prospectus Supplement. Institutions with whom
Contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions but shall in all cases be
subject to the approval of the Corporation. Contracts will not be subject to any
conditions except that the purchase by an institution of the Securities covered
by its Contract shall not at the time of delivery be prohibited under the laws
of any jurisdiction in the United States to which such institution is subject. A
commission indicated in the applicable Prospectus Supplement will be paid to
underwriters and agents soliciting purchases of Securities pursuant to Contracts
accepted by the Corporation.
The place and time of delivery for the Securities in respect of which this
Prospectus is delivered are set forth in the accompanying Prospectus Supplement.
--------------------
John G. Smale and Dennis Weatherstone, directors of J. P. Morgan & Co.
Incorporated, of which J. P. Morgan Securities Inc. is an indirect
wholly-owned subsidiary, are directors of the Corporation. In addition, John
G. Smale is Chairman of the Board of Directors of the Corporation. In the
ordinary course of their respective businesses, affiliates of the Agents have
engaged, and will in the future engage in commercial banking and investment
banking transactions with General Motors and certain of its affiliates.
EXPERTS
The consolidated financial statements and the financial statement schedule
included in the Corporation's 1994 Annual Report on Form 10-K, incorporated by
reference herein, have been audited by Deloitte & Touche LLP (as to financial
statements and the financial statement schedule of General Motors and as to
financial statements of GM Hughes Electronics Corporation (now Hughes
Electronics Corporation)) and KPMG Peat Marwick LLP (as to financial statements
of Electronic Data Systems Corporation), independent auditors, as stated in
their respective reports appearing therein, and have been so incorporated by
reference in reliance upon such reports given upon the authority of such firms
as experts in accounting and auditing.
LEGAL OPINIONS
Unless otherwise indicated in the Prospectus Supplement relating to the
Securities, the legality of the Securities will be passed upon for the
Corporation by Martin I. Darvick, Attorney, Legal Staff, of the Corporation. Mr.
Darvick owns shares, and has options to purchase shares, of the Corporation's
Common Stock, $1-2/3 Par Value.
Unless otherwise indicated in the Prospectus Supplement relating to the
Securities, certain legal matters relating to the Securities will be passed upon
for the Underwriters by Davis Polk & Wardwell. Davis Polk & Wardwell acts as
counsel to the Executive Compensation Committee of the Board of Directors of the
Corporation and has acted as counsel for the Corporation and its subsidiaries in
various matters.
---------------------
No dealer, salesman or any other person has been authorized to give any
information or to make any representations not contained or incorporated by
reference in this Prospectus, Prospectus Supplement, and Pricing Supplement, if
any, and, if given or made, such information or representation must not be
relied upon as having been authorized by the Corporation nor by any agent,
underwriter or dealer. Neither the delivery of this Prospectus, Prospectus
Supplement and Pricing Supplement, if any, 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, Prospectus
Supplement and Pricing Supplement, if any, shall not constitute an offer to sell
or a solicitation of an offer to buy any of the Securities 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.
---------------------
<PAGE>
TABLE OF CONTENTS
PAGE
Available Information ..........................
Incorporation of Certain
Documents by Reference ..................
General Motors Corporation.................
Use of Proceeds.....................................
Ratios of Earnings to Fixed
Charges................................................
Description of Debt Securities..............
Description of Debt Warrants...............
Plan of Distribution...............................
Experts...................................................
Legal Opinions......................................
GENERAL MOTORS CORPORATION
DEBT SECURITIES
DEBT WARRANTS
Prospectus Dated December ___, 1995
<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 this Registration Statement:
Securities and Exchange Commission registration fee.....$ 400,000
Blue Sky filing and counsel fees........................ 25,000
Fees and expenses of Trustee and Debt Warrant Agent..... 20,000
Printing Registration Statement, Prospectus, Indenture,
Debt Warrant Agreement and other documents.............. 40,000
Auditors'fees ......................................... 20,000
Rating Agencies'fee..................................... 180,000
Miscellaneous expenses.................................. 25,000
----------
Total..............................................$ 710,000
--------------------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware Corporation Law, the Corporation is
empowered to indemnify its directors and officers in the circumstances therein
provided.
The Corporation's Certificate of Incorporation, as amended, provides that
no director shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
Corporation, or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174, or any successor provision thereto, of the Delaware
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
Under Article V of its By-Laws, the Corporation shall indemnify and
advance expenses to every director and officer (and to such person's heirs,
executors, administrators or other legal representatives) in the manner and to
the full extent permitted by applicable law as it presently exists, or may
hereafter be amended, against any and all amounts (including judgments, fines,
payments in settlement, attorneys' fees and other expenses) reasonably incurred
by or on behalf of such person in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative ("a proceeding"), in which such director or officer was or is made
or is threatened to be made a party or is otherwise involved by reason of the
fact that such person is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
employee, fiduciary or member of any other corporation, partnership, joint
venture, trust, organization or other enterprise. The Corporation shall not be
required to indemnify a person in connection with a proceeding initiated by such
person if the proceeding was not authorized by the Board of Directors of the
Corporation. The Corporation shall pay the expenses of directors and officers
incurred in defending any proceeding in advance of its final disposition
("advancement of expenses"); provided, however, that the payment of expenses
incurred by a director or officer in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the director or
officer to repay all amounts advanced if it should be ultimately determined that
the director or officer is not entitled to be indemnified under Article V of the
By-Laws or otherwise. If a claim for indemnification or advancement of expenses
by an officer or director under Article V of the By-Laws is not paid in full
within ninety days after a written claim therefor has been received by the
Corporation, the claimant may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the Corporation shall have
the burden of proving that the claimant was not entitled to the requested
indemnification or advancement of expenses under applicable law. The rights
conferred on any person by Article V of the By-Laws shall not be exclusive of
any other rights which such person may have or hereafter acquire under any
statute, provision of the Corporation's Certificate of Incorporation or By-Laws,
agreement, vote of stockholders or disinterested directors or otherwise.
The Corporation is insured against liabilities which it may incur by
reason of Article V of its By-Laws. In addition, directors and officers are
insured, at the Corporation's expense, against some liabilities which might
arise out of their employment and not be subject to indemnification under
Article V of the By-Laws.
Pursuant to a resolution adopted by the Board of Directors on December 1,
1975, the Corporation to the fullest extent permissible under law will
indemnify, and has purchased insurance on behalf of, directors or officers of
the Corporation, or any of them, who incur or are threatened with personal
liability, including expenses, under the Employee Retirement Income Security Act
of 1974, as amended, or any amendatory or comparable legislation or regulation
thereunder.
<PAGE>
ITEM 16. EXHIBITS
*1(a) -- Form of proposed Underwriting Agreement (including
Form of Delayed Delivery Contract)
*1(b) -- Form of proposed Purchase Agreement
*1(c) -- Form of proposed Selling Agent Agreement
1(d) -- Form of Prospectus Supplement (Medium-Term Notes)
4(a) -- Indenture, dated as of December___, 1995.
between the Corporation and Citibank, N.A., Trustee
*4(b) -- Form of proposed Debt Warrant Agreement
*4(c) -- Form of Debt Warrant
Certificate (included in Exhibit 4(b))
*4(d) -- Forms of Global Note and Medium-Term Notes
5 -- Opinion and Consent of Martin I. Darvick, Esq., Attorney,
Legal Staff of the Corporation
8 -- Opinion and Consent of Robert N. Dietz, Tax
Counsel of the Tax Staff of the Corporation.
12 -- Computation of Ratios of Earnings to Fixed
Charges for the five years ended December 31, 1994
and the nine months ended September 30, 1995 and
1994 incorporated by reference to Exhibit 12 to
the following documents:
(a) Annual Reports on Form 10-K of General Motors Corporation
for the years ended December 31, 1994, 1993 and 1992.
(b) Quarterly Report on Form 10-Q of General
Motors Corporation for the quarter ended September 30,
1995
23(a) -- Consent of Deloitte & Touche LLP
23(b) -- Consent of KPMG Peat Marwick LLP
23(c) -- Consent of Counsel (included in Exhibit 5)
25 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Citibank, N.A.
- ---------------------
* Incorporated by reference to Exhibits 1 through 4(d),
respectively, to Registration Statement No. 33-41557.
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 the
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 l5(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 l5(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
Corporation pursuant to the provisions discussed in Item 15 above, or
otherwise, the Corporation 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, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Corporation of expenses incurred or paid by a
director or officer of the Corporation 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 Corporation 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 Corporation, certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on 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
November 14, 1995.
GENERAL MOTORS CORPORATION
By: /S/ JOHN F. SMITH, JR.
(John F. Smith, Jr.
Chief Executive Officer,
President and Director)
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed on November 14, 1995 by the following persons in the
capacities indicated.
SIGNATURE TITLE
/S/ JOHN G. SMALE Chairman of the Board
(John G. Smale) of Directors
/S/ JOHN F. SMITH, JR. Chief Executive Officer,
(John F. Smith, Jr.) President and Director
-----------
|
/S/ J. MICHAEL LOSH Executive Vice President (Principal|
(J. Michael Losh) and Chief Financial Financial|
Officer Officers)|
|
/S/ LEON J. KRAIN Vice President and |
(Leon J. Krain) Group Executive |
|
|
/S/ HEIDI KUNZ Vice President and |
(Heidi Kunz) Treasurer |
-----------
------------
|
/S/ WALLACE W. CREEK Comptroller (Principal |
(Wallace W. Creek) Accounting|
Officers) |
|
/S/ JAMES H. HUMPHREY Chief Accounting Officer |
(James H. Humphrey) |
|
------------
/S/ ANNE L. ARMSTRONG Director
(Anne L. Armstrong)
/S/ JOHN H. BRYAN Director
(John H. Bryan)
/S/ THOMAS E. EVERHART Director
(Thomas E. Everhart)
/S/ CHARLES T. FISHER, III Director
(Charles T. Fisher, III)
/S/ J. WILLARD MARRIOTT, JR. Director
(J. Willard Marriott, Jr.)
/S/ ANN D. MCLAUGHLIN Director
(Ann D. McLaughlin)
/S/ EDMUND T. PRATT, JR. Director
(Edmund T. Pratt, Jr.)
/S/ LOUIS W. SULLIVAN Director
(Louis W. Sullivan)
/S/ DENNIS WEATHERSTONE Director
(Dennis Weatherstone)
/S/ THOMAS H. WYMAN Director
(Thomas H. Wyman)
------------------------
<PAGE>
EXHIBIT INDEX
Page
EXHIBIT
NO.
*1(a) Form of proposed Underwriting Agreement (including Form
of Delayed Delivery Contract)
*1(b) Form of proposed Purchase Agreement
*1(c) Form of proposed Selling Agent Agreement
1(d) Form of Prospectus Supplement (Medium-Term Notes)
4(a) Indenture, dated as of December ___, 1995,
between the Corporation and Citibank, N.A., Trustee
*4(b) Form of proposed Debt Warrant Agreement
*4(c) Form of Debt Warrant Certificate (included in Exhibit 4(b))
*4(d) Forms of Global Note and Medium-Term Notes
5 Opinion and Consent of Martin I. Darvick, Esq., Attorney,
Legal Staff of the Corporation
8 Opinion and Consent of Robert N. Dietz, Tax Counsel of the Tax
Staff of the Corporation.
12 Computation of Ratios of Earnings to Fixed Charges for the five years
ended December 31, 1994 and the nine months ended September 30, 1995 and
1994 incorporated by reference to Exhibit 12 to the following documents:
(a) Annual Reports on Form 10-K of General Motors Corporation for the
years ended December 31, 1994, 1993 and 1992.
(b) Quarterly Report on Form 10-Q of General Motors
Corporation for the quarter ended September 30, 1995
23(a) Consent of Deloitte & Touche LLP
23(b) Consent of KPMG Peat Marwick LLP
23(c) Consent of Counsel (included in Exhibit 5)
25 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Citibank, N.A.
- -----------------------
* Incorporated by reference to Exhibits 1 through 4(d),
respectively, to Registration No. 33-41557.
Exhibit 1(d)
PROSPECTUS SUPPLEMENT
(To Prospectus Dated December ___, 1995)
U.S. $2,000,000,000
GENERAL MOTORS CORPORATION
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
General Motors Corporation (the "Corporation") may offer from time to time
its Medium-Term Notes Due Nine Months or More from Date of Issue (the "Notes").
The Notes offered by this Prospectus Supplement will be limited to up to U.S.
$2,000,000,000 aggregate initial offering price or the equivalent thereof in
other currencies, including composite currencies such as the European Currency
Unit ("ECU") (the "Specified Currency"), subject to reduction as a result of the
sale of other Debt Securities or Debt Warrants to purchase other Debt Securities
(as such capitalized terms are defined in the accompanying Prospectus). The
Notes will be offered at varying maturities due nine months or more from the
date of issue (the "Issue Date"), as selected by the purchaser and agreed to by
the Corporation, and may be subject to redemption at the option of the
Corporation or repayment at the option of the holder thereof prior to the
maturity date thereof (as further defined herein, the "Maturity Date"). Each
Note will be denominated in U.S. dollars or in the Specified Currency, as set
forth in a Pricing Supplement (the "Pricing Supplement") to this Prospectus
Supplement. See "Important Currency Exchange Information" and "Risk Factors
- -Foreign Currency Risks."
The interest rate on each Note will be either a fixed rate established by
the Corporation at the Issue Date of such Note (a "Fixed Rate Note"), which may
be zero in the case of certain Notes issued at a price representing a
substantial discount from the principal amount payable upon the Maturity Date,
or at a floating rate as set forth therein and specified in the applicable
Pricing Supplement (a "Floating Rate Note"). A Fixed Rate Note may pay a level
amount in respect of both interest and principal amortized over the life of the
Note (an "Amortizing Note"). See "Description of Notes---Fixed Rate Notes" and
"Description of Notes---Floating Rate Notes." The principal amount payable at
the Maturity Date of, or any interest and premium, if any, on, a Note, or both,
may be determined by reference to one or more Specified Currencies (a "Currency
Indexed Note"), or by reference to the price of one or more specified securities
or commodities or to one or more securities or commodities exchange indices or
other indices or by other methods (an "Indexed Note," such term to include
Currency Indexed Notes) as described in the applicable Pricing Supplement. See
"Description of Notes---Currency Indexed Notes," "Description of Notes---Other
Indexed Notes and Certain Terms Applicable to All Indexed Notes" and "Risk
Factors Indexed Notes Risks."
Unless otherwise specified in the applicable Pricing Supplement, interest
on each Fixed Rate Note (other than an Amortizing Note) is payable semiannually
each May 15 and November 15 (a "Semiannual Pay Note") or, if annually, May l5
(an "Annual Pay Note"), as selected by the purchaser and agreed to by the
Corporation, and at Maturity (as defined herein). Interest on each Floating Rate
Note is payable on the dates set forth herein and in the applicable Pricing
Supplement. Amortizing Notes will pay principal and interest semiannually each
May 15 and November 15, or quarterly each February l5, May 15, August 15 and
November 15, and, in either case, at Maturity, or otherwise, as specified in the
applicable Pricing Supplement. See "Description of Notes---Payment of Principal
and Interest." Interest rates, interest rate formulae and other variable terms
are subject to change by the Corporation, but no change will affect any Note
already issued or as to which an offer to purchase has been accepted by the
Corporation.
The Notes may be issued in whole or in part in the form of a certificate
issued in definitive form (a "Certificated Note") or in the form of a master
Note to be deposited with or on behalf of The Depository Trust Corporation
("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 representing book-entry notes
(a "Book-Entry Note"). The Certificated Notes and the Book-Entry Notes are
hereinafter together referred to as the "Notes." Beneficial interests in
Book-Entry 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. Book-Entry Notes
will not be issuable as Certificated Notes except under limited circumstances
described herein. See "Description of Notes---Book-Entry Notes."
Unless otherwise specified in the applicable Pricing Supplement, Notes
will be issued only in registered form in minimum denominations of U.S. $100,000
(and any amount in excess thereof that is an integral multiple of U.S. $l,000)
or, in the case of Notes denominated in a Specified Currency other than U.S.
dollars, the authorized denominations set forth in the applicable Pricing
Supplement. See "Description of Notes---General." Unless otherwise specified in
the applicable Pricing Supplement, the Notes may not be redeemed by the
Corporation or repaid at the option of the holder prior to their Maturity. See
"Description of Notes---Redemption and Repayment." Notes will be transferable
without service charge.
The Specified Currency, any applicable interest rate or formula, the issue
price, the Maturity Date, any interest payment dates, any principal payment
dates, any redemption and/or repayment provisions, whether such Note is a Fixed
Rate Note, a Floating Rate Note, an Amortizing Note or an Indexed Note, whether
such Note will be represented by a global Note and any other terms applicable to
each Note and established at the time of offering, unless otherwise described
herein, will be described in the applicable Pricing Supplement.
The Corporation may also issue from time to time warrants to purchase
Notes ("Note Warrants"). The Note Warrants may be issued together with or
separately from any Notes and, if issued together with Notes, may be attached to
or separate from such Notes. The particular terms of any issue of Note Warrants,
the terms of the Warrant Agreement under which such Note Warrants are issued,
the Notes issuable upon exercise of such Note Warrants, any initial public
offering price, any net proceeds to the Corporation and any other specific terms
of such issue of Note Warrants will be set forth in a supplement to this
Prospectus Supplement respecting such issue of Note Warrants (a "Note Warrant
Supplement"). Unless accompanied by a Note Warrant Supplement, no Note Warrants
are offered by this Prospectus Supplement.
---------------
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 SUPPLEMENT, ANY PRICING
SUPPLEMENT OR THE PROSPECTUS TO WHICH IT RELATES. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
PRICE TO AGENT'S DISCOUNTS AND PROCEEDS TO
PUBLIC (1)(2) COMMISSIONS (2)(3) CORPORATION (2)(3)(4)
----------------------------------------------------------------
Per Note l00.00% .05%---.75% 99.95%---99.25%
Total U.S. $2,000,000,000 U.S. $l,000,000- U.S. $1,999,000,000-
U.S. $15,000,000 U.S.$1,985,000,000
(1) Unless otherwise specified in the applicable Pricing Supplement, Notes
will be issued at 100% of their principal amount.
(2) Or the equivalent thereof in the Specified Currency.
(3) The commission payable to Morgan Stanley & Co, Incorporated, Bear,
Stearns & Co. Inc., Lehman Brothers, Lehman Brothers Inc., Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J. P. Morgan
Securities Inc. and Salomon Brothers Inc, (collectively, "the Agents") for
each Note sold through such Agent will be computed based upon the Price to
Public of such Note and will depend on such Note's Maturity Date. The
Corporation also may sell Notes to an Agent, as principal for its own
account for resale to one or more investors and other purchasers at
varying prices related to prevailing market prices at the time of resale,
as determined by such Agent, or if so agreed, at a fixed public offering
price. No commission will be payable on any Notes sold directly to
purchasers by the Corporation. The Corporation has agreed to indemnify
each Agent against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Plan of Distribution."
.
(4) Before deducting expenses payable by the Corporation estimated at
$1,000,000.
Offers to purchase the Notes are being solicited from time to time by the
Corporation through one or more of the Agents listed below and each of the
Agents have agreed to use its reasonable best efforts to solicit offers to
purchase the Notes. In addition, the Notes may be sold by the Corporation to any
Agent as principal for its own account for resale to one or more investors and
other purchasers at varying prices related to prevailing market prices at the
time of resale, as determined by such Agent or, if so agreed, at a fixed public
offering price. The Corporation reserves the right to sell Notes directly on its
own behalf in those jurisdictions where it is authorized to do so. In addition,
the Corporation may arrange for the Notes to be sold through other agents,
dealers or underwriters. Unless specified in the 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 Corporation 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 Corporation reserves the right to withdraw,
cancel or modify the offer made hereby without notice. The Corporation or the
Agent that solicits any offer may reject such offer in whole or in part. See
"Plan of Distribution."
--------------------
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill Lynch & Co.
J. P. Morgan Securities Inc.
Salomon Brothers Inc
The date of this Prospectus Supplement is December ____, 1995.
<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 Supplement, any Pricing Supplement and the
accompanying Prospectus in connection with the offer contained in this
Prospectus Supplement, any Pricing Supplement and the accompanying Prospectus
and, if given or made, such information or representation must not be relied
upon as having been authorized by the Corporation or by any Agent. Neither the
delivery of this Prospectus Supplement, any Pricing Supplement and the
accompanying Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information therein is correct at
any time subsequent to the date thereof or that there has been no change in the
affairs of the Corporation since the dates as of which information is given in
this Prospectus Supplement, any Pricing Supplement and in the accompanying
Prospectus. This Prospectus Supplement, any Pricing Supplement and the
accompanying Prospectus shall not constitute an offer to sell or a solicitation
or 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.
RISK FACTORS
THIS PROSPECTUS SUPPLEMENT DOES NOT DESCRIBE ALL OF THE RISKS OF AN
INVESTMENT IN NOTES THAT RESULT FROM SUCH NOTES BEING DENOMINATED OR PAYABLE IN
OR DETERMINED BY REFERENCE TO A CURRENCY OR COMPOSITE CURRENCY OTHER THAN UNITED
STATES DOLLARS OR TO ONE OR MORE INTEREST RATES, CURRENCIES, OR OTHER INDICES OR
FORMULAS, EITHER AS SUCH RISKS EXIST AT THE DATE OF THIS PROSPECTUS SUPPLEMENT
OR AS THEY MAY CHANGE FROM TIME TO TIME. PROSPECTIVE INVESTORS SHOULD CONSULT
THEIR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT
IN SUCH NOTES. SUCH NOTES ARE NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO
ARE UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY TRANSACTIONS OR
TRANSACTIONS INVOLVING THE APPLICABLE INTEREST RATE, CURRENCY, OR OTHER INDICES
OR FORMULAS.
RISKS ASSOCIATED WITH EXCHANGE RATES AND EXCHANGE CONTROLS
An investment in Notes that are denominated in, or the payment of which is
related to the value of, a Specified Currency other than U.S. dollars ("Foreign
Currency Notes") entails significant risks that are not associated with a
similar investment in a security denominated in U.S. dollars. Similarly, an
investment in a Currency Indexed Note entails significant risks that are not
associated with a similar investment in non-Indexed Notes. See "Risk
Factors-Indexed Notes Risks." Such risks include, without limitation, the
possibility of significant changes in the rate of exchange between United States
dollars and such Specified Currency (and, in the case of Currency Indexed Notes,
the rate of exchange between the Specified Currency and the Indexed Currency for
such Currency Indexed Note), changes resulting from official redenomination with
respect to a Specified Currency (or, in the case of each Currency Indexed Note,
with respect to the Specified Currency or the Indexed Currency therefor) and the
possibility of the imposition or modification of foreign exchange controls by
either the United States or foreign governments. Such risks generally depend on
economic and political events over which the Corporation has no control. In
recent years, rates of exchange between the U.S. dollar and certain foreign
currencies, and between certain foreign currencies and other foreign currencies,
have been highly volatile and such volatility may be expected in the future. The
exchange rate between the U.S. dollar and a foreign currency or composite
currency is at any moment a result of the supply and demand for such currency or
the currencies comprising such composite currency, and changes in the rate
result over time from the interaction of many factors, among which are rates of
inflation, interest rate levels, balance of payments and the extent of
governmental surpluses or deficits in the countries of such currencies. These
factors are in turn sensitive to the monetary, fiscal and trade policies pursued
by such governments and those of other countries important to international
trade and finance. Fluctuations in any particular exchange rate that have
occurred in the past are not necessarily indicative, however, of fluctuations in
the rate that may occur during the term of any Foreign Currency Note or any
Currency Indexed Note.
Depreciation of the Specified Currency for a Foreign Currency Note against
U.S. dollars would result in a decrease in the effective yield of such Foreign
Currency Note below its applicable interest rate and, in certain circumstances,
could result in a loss to the investor on a U.S. dollar basis. Similarly,
depreciation of the Denominated Currency with respect to a Currency Indexed Note
against the applicable Indexed Currency would result in the principal amount
payable with respect to such Currency Indexed Note at the Maturity Date being
less than the Face Amount of such Currency Indexed Note which, in turn, would
decrease the effective yield of such Currency Indexed Note below its stated
interest rate and, in certain circumstances, could also result in a loss of all
or a substantial portion of the principal of such Note to the investor. See
"Description of Notes---Currency Indexed Notes."
Governments have from time to time imposed, and may in the future impose,
exchange controls that could affect exchange rates as well as the availability
of a Specified Currency at the time of payment of principal of, premium, if any,
or interest, if any, on, a Foreign Currency Note. There can be no assurances
that exchange controls will not restrict or prohibit payments of principal, and
premium, if any, or interest, if any, in any Specified Currency other than U.S.
dollars. In addition to the risks associated with relative currency valuations
discussed above, the imposition of exchange controls might impact the liquidity
of any Note denominated in, or the value of which is linked to, a foreign
currency. Even if there are no actual exchange controls, it is possible that the
Specified Currency for such Note would not be available to the Corporation when
payments on such Note are due because of circumstances beyond the control of the
Corporation. In that event, the Corporation will make required payments in U.S.
dollars on the basis described herein. See "Description of Notes---Payment
Currency" and "Description of Notes---Currency Indexed Notes--Payment of
Principal and Interest."
The information set forth in this Prospectus Supplement is directed to
prospective purchasers who are residents of the United States, and the
Corporation disclaims any responsibility to advise prospective purchasers who
are residents of countries other than the United States with respect to any
matters that may affect the purchase, holding or receipt of payments of
principal of, premium, if any, and interest, if any, on, the Notes. Persons who
are not residents of the United Sates should consult their own legal advisors
with regard to such matters.
Pricing Supplements relating to Foreign Currency Notes or Currency Indexed
Notes will contain information concerning historical exchange rates for the
applicable Specified Currency against the U.S. dollar or other relevant
currency, (including in the case of Currently Indexed Notes, the applicable
Indexed Currency), a description of the currency or currencies and any exchange
controls affecting such currency or currencies. The information contained
therein concerning exchange rates is furnished as a matter of information only
and should not be regarded as indicative of the range of or trends in
fluctuations in currency exchange rates that may occur in the future.
RISKS ASSOCIATED WITH INDEXED NOTES RISKS
An investment in Notes indexed, as to principal or interest, or both, to
one or more values of currencies (including exchange rates between currencies),
commodities or interest rate indices entails significant risks that are not
associated with similar investments in a conventional fixed-rate debt security.
If the interest rate of such a Note is so indexed, it may result in an interest
rate that is less than that payable on a conventional fixed-rate debt security
issued at the same time, including the possibility that no interest will be
paid, and, if the principal amount payable at maturity may be less than the
original purchase price of such Note if allowed pursuant to the terms of such
Note, including the possibility that no principal will be paid. The secondary
market for such Notes will be affected by a number of factors, independent of
the creditworthiness of the issuer and the value of the applicable currency,
commodity or interest rate index, including the volatility of the applicable
currency, commodity or interest rate index, the time remaining to the Maturity
of such Notes, the amount outstanding of such Notes and market interest rates.
The value of the applicable currency, commodity or interest rate index depends
on a number of interrelated factors, including economic, financial and political
events, over which the Corporation has no control. Additionally, if the formula
used to determine the principal amount or interest payable with respect to such
Notes contains a multiple or leverage factor, the effect of any change in the
applicable currency, commodity or interest rate index will be increased. The
historical experience of the relevant currencies, commodities or interest rate
indices should not be taken as an indication of future performance of such
currencies, commodities or interest rate indices during the term of any Note.
Accordingly, prospective investors should consult their own financial and legal
advisors as to the risks entailed by an investment in such Notes and the
suitability of such Notes in light of their particular circumstances.
JUDGMENTS
The Notes will be governed by and construed in accordance with the laws of
the State of New York. In the event an action based on Notes denominated in a
Specified Currency other than U.S. dollars were commenced in a court in the
United States, it is likely that such court would grant a judgment relating to
the Notes only in U.S. dollars. If an action based on Notes denominated in a
Specified Currency other than U.S. dollars were commenced in a New York court,
however, such court would render or enter a judgment or decree in the Specified
Currency. Such judgment would then be converted into U.S. dollars at the rate of
exchange prevailing on the date of the entry of the judgment or decree.
EFFECT OF OPTIONAL REDEMPTION
Any optional redemption of Notes might affect the market value of such
Notes. Since the Corporation may be expected to redeem such Notes when
prevailing interest rates are relatively low, an investor might not be able to
reinvest the redemption proceeds at an effective interest rate as high as the
interest rate on such Notes.
NO ESTABLISHED TRADING MARKET
The Notes will not have an established trading market when issued, and
there can be no assurance of a secondary market for the Notes or the continued
liquidity of such market if one develops. See "Plan of Distribution."
CREDIT RATINGS
Any credit ratings assigned to the Corporation's medium-term note program
may not reflect the potential impact of all risks related to structure and other
factors on the market value of the Notes. Accordingly, prospective investors
should consult their own financial and legal advisors as to the risks entailed
by an investment in the Notes and the suitability of such Notes in light of
their particular circumstances.
DESCRIPTION OF NOTES
The following description of the particular terms of the Notes offered
hereby (which constitute "Debt Securities" as described in the accompanying
Prospectus) supplements, and to the extent inconsistent therewith replaces, the
description of the general terms and provisions of Debt Securities set forth
under the heading "Description of Debt Securities" in the accompanying
Prospectus, to which reference is hereby made. The particular terms of the Notes
sold pursuant to any Pricing Supplement will be described therein.
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.
Unless otherwise indicated in the applicable Pricing Supplement, the Notes
will be denominated in U.S. dollars, and payment of principal of, premium, if
any, and interest, if any, on, the Notes will be made in U.S. dollars. If any
Note is not to be denominated in U.S. dollars, the applicable Pricing Supplement
will specify the currency or currencies, including composite currencies such as
the ECU, in which such Note is to be denominated (the "Specified Currency") and,
if different, the currency or currencies in which the principal, premium, if
any, and interest, if any, with respect to such Note are to be paid, along with
any other terms relating to the non-U.S. dollar denomination, including exchange
rates for the Specified Currency as against the U.S. dollar at selected times
during the last five years, and any exchange controls or other foreign currency
risks relating to such Specified Currency. See "Foreign Currency Risks."
GENERAL
The Notes offered by this Prospectus Supplement will be limited to U.S.
$2,000,000,000 aggregate initial offering price, or the equivalent thereof in
one or more Specified Currencies, less an amount equal to the aggregate initial
offering price of any other Debt Securities or Debt Warrants to purchase Debt
Securities covered by the Registration Statement of which this Prospectus
Supplement is a part and sold by the Corporation. The Notes will be issued under
an Indenture dated as of December ____, 1995 between the Corporation and
Citibank, N.A., as Trustee, as supplemented from time to time (the "Indenture"),
which Indenture is further described under "Description of Debt Securities" in
the accompanying Prospectus. The Indenture does not limit the amount of
additional unsecured indebtedness ranking equally and ratably with the Notes
that the Corporation may incur and the Corporation 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 U.S.$2,000,000,000, aggregate
initial offering price of the Notes offered hereby. The U.S. dollar equivalent
of Notes denominated in a Specified Currency other than U.S. dollars will be
determined on the Business Day (as defined below) prior to the date of
acceptance by the Corporation for a purchase of Notes on the basis of the Market
Exchange Rate (as defined below) for such Specified Currency. 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, of which the Notes offered by this Prospectus Supplement will
form a part, constitute one series of Securities (as defined in the Indenture),
unlimited as to principal amount, established by the Corporation pursuant to the
Indenture.
The Notes will constitute unsecured and unsubordinated indebtedness of the
Corporation and will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Corporation. See "Description of Debt
Securities---General" in the accompanying Prospectus.
Notes will be offered on a continuing basis and will mature on any day
nine months or more from the Issue Date, as selected by the purchaser and agreed
to by the Corporation, and may be subject to redemption at the option of the
Corporation or repayment at the option of the holder prior to their Maturity
Date. Each Note will bear interest from the Issue Date (as defined below) at
either (a) a fixed rate ("Fixed Rate Notes"), 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"), or (b) a floating rate or rates determined by reference to
one or more Base Rates (as defined herein), which may be adjusted by a Spread
and/or Spread Multiplier (each as defined below) ("Floating Rate Notes").
Each Note will be issued in fully registered form without coupons and will
be represented by either a Certificated Note or by a single master security (the
"Master Security") representing Book-Entry Notes. The Master Security will be
registered in the name of a nominee of the Depositary. Except as set forth
herein, Book-Entry Notes will be issuable only in global form. No Book-Entry
Note shall represent any Certificated Note and Certificated Notes will not be
exchangeable for Book-Entry Notes, except as described below under "Description
of Notes---Book-Entry Notes---Delivery and Form" and the accompanying Prospectus
under "Description of Debt Securities---Book-Entry Notes---Delivery and Form."
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 Book-Entry Note. A beneficial
interest in a Book-Entry Note will be shown on, and transfers thereof will be
effected only through, records maintained by the Depositary or its participants.
Payments of principal of, premium, if any, and interest, if any, on, Notes
represented by a Book-Entry Note will be made by the Corporation 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---Book-Entry Notes---Delivery and Form" and "Description of Debt
Securities---Book-Entry Notes---Delivery and Form" in the accompanying
Prospectus.
Unless otherwise specified in the applicable Pricing Supplement, the
authorized denominations of Notes denominated in U.S. dollars will be
U.S.$100,000 and any amount in excess thereof that is an integral multiple of
U.S.$l,000. The authorized denominations of Notes denominated in a Specified
Currency other than U.S. dollars will be as set forth in the applicable Pricing
Supplement.
Interest rates offered by the Corporation with respect to the Notes may
differ depending upon, among other things, the aggregate principal amount of the
Notes purchased in any single transaction.
The principal amount of the Notes will be payable at the Maturity Date at
the Corporate Trust Office of Citibank, N.A., Corporate Trust Services, 111 Wall
Street, 5th Floor, New York, New York 10043, or at such other place as the
Corporation may designate.
Certificated Notes will be transferable by the registered holders thereof
or by their attorneys duly authorized in writing at the Corporate Trust Office
of Citibank, N.A., Corporate Trust Services, 111 Wall Street, 5th Floor, New
York, New York 10043, or at such other place as the Corporation may designate,
without charge except for any tax or other governmental charge imposed in
connection therewith, and in the manner and subject to the limitations provided
in the Indenture, and upon surrender of the Certificated Notes. Upon any such
transfer, a new Certificated Note or Notes in authorized denominations for an
equal aggregate principal amount having identical terms will be issued to the
transferee in exchange therefor.
Unless otherwise specified in the applicable Pricing Supplement, the Notes
may not be redeemed by the Corporation, 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 Corporation, repayment at the option of the holder or
acceleration of Maturity, 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 of 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 such 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 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) the
Specified Currency with respect to such Note (and, if such Specified Currency is
other than U.S. dollars, certain other terms relating to such Note); (2) whether
such Note is a Fixed Rate Note, a Floating Rate Note, an Amortizing Note or a
Zero-Coupon Note or other Original Issue Discount Note; (3) whether such Note is
a Currency Indexed Note or other Indexed Note, and if so the terms thereof; (4)
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"); (5) the date on which such Note will be issued to the
public (the "Issue Date"); (6) the Maturity Date of such Note; (7) if such Note
is a Fixed Rate Note, the rate per annum at which such Note will bear interest,
if any (the "Interest Rate"); (8) if such Note is a Floating Rate Note, the Base
Rate or Rates, the Initial Interest Rate or formula for determining such, the
Interest Reset Period, the Interest Reset Dates, the Interest Payment Period,
the Interest Payment Dates, the Index Maturity, the Maximum Interest Rate and
the Minimum Interest Rate, if any, and the Spread and/or Spread Multiplier, if
any (all as defined herein), and any other terms relating to the particular
method of calculating the Interest Rate for such Note; (9) if such Note is an
Amortizing Note, whether payments of principal thereof and interest thereon will
be made quarterly or semiannually, and the redemption or repayment information
in respect thereof; (l0) whether the interest rate on such Note may be reset
upon the occurrence of certain events or at the option of the Corporation; (11)
whether such Note may be redeemed at the option of the Corporation, and/or
repaid at the option of the holder, prior to its Maturity Date, and if so, the
provisions relating to such redemption or repayment; (l2) whether such Note will
be issued initially as a Book-Entry Note or as a Certificated Note; (13) certain
special United States Federal income tax consequences of the purchase, ownership
and disposition of certain Notes, if any, and (l4) any other terms of such Note
not inconsistent with the provisions of the Indenture.
GLOSSARY
Reference is made to the Indenture, the Prospectus and the forms of Notes
filed as exhibits to the Registration Statement to which this Prospectus
Supplement relates for the full definition of certain terms used in this
Prospectus Supplement, as well as any capitalized terms used in this Prospectus
Supplement, for which no definition is provided. Set forth below are definitions
of certain terms used in this Prospectus Supplement 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 each of the following applicable requirements: such day is (a) 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, (b) if the Note is
denominated in a Specified Currency other than U.S. dollars or ECU, (x) not a
day on which banking institutions are authorized or required by law, regulation
or executive order to close in the Principal Financial Center of the country
issuing the Specified Currency and (y) a day on which banking institutions in
such Principal Financial Center are carrying out transactions in such Specified
Currency, (c) if the Note is denominated in ECU, an ECU clearing day, as
determined by the ECU Banking Association in Paris, (d) if the Note is
denominated in a composite currency other than ECU, as specified in the
applicable Pricing Supplement and (e) with respect to London Inter Bank Offer
Rate Notes ("LIBOR Notes") is also a London Banking Day. "London Banking Day"
means any day on which dealings in deposits in the Indexed Currency are
transacted in the London interbank market. "Principal Financial Center" will
generally be the capital city of the country of the Specified Currency, except
that with respect to U.S. dollars and ECUs, the Principal Financial Center shall
be The City of New York and Luxembourg, respectively;
"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 Corporation, repayment at the option of the holder, or otherwise;
and
"Regular Record Date" with respect to any Interest Payment Date for Fixed
Rate Notes means, unless otherwise specified in the applicable Pricing
Supplement, the date (whether or not a Business Day) which is the fifteenth
calendar day of the calendar month preceding such Interest Payment Date.
"Regular Record Date" with respect to any Interest Payment Date for Notes other
than Fixed Rate Notes means, unless otherwise specified in the applicable
Pricing Supplement, the date (whether or not a Business Day) 15 calendar days
prior to such Interest Payment Date.
References herein to "U.S. dollars" or "U.S.$" or "$" are to the
currency of the United States of America.
BOOK-ENTRY NOTES---DELIVERY AND FORM
Upon issue, all Book-Entry Notes will be represented by the Master
Security. See "Description of Debt Securities---Book-Entry Notes---Delivery
and Form" in the accompanying Prospectus.
PAYMENT CURRENCY
Unless otherwise specified in the applicable Pricing Supplement, and
except as otherwise described herein with respect to Currency Indexed Notes,
principal, and premium, if any, and interest, if any, will be paid by the
Corporation in U.S. dollars in the manner described in the following paragraphs,
even if a Note is denominated in a Specified Currency other than U.S. dollars;
provided, however, that the holder of such Note may (unless the Pricing
Supplement and the Note so indicate otherwise) elect to receive all such
payments in such Specified Currency (subject to certain conditions described at
"Foreign Currency Risks---Payment Currency") by delivery of a written request to
the Corporation's paying agent (the "Paying Agent") in The City of New York. Any
such election must be received by the Paying Agent on or prior to the applicable
Regular Record Date or at least 15 calendar days prior to Maturity, as the case
may be, and no such election or change of election may be made with respect to
payments on any Note with respect to which (i) an Event of Default has occurred,
(ii) the Corporation has exercised any of its discharge or defeasance options,
or (iii) the Corporation has given a notice of redemption. Such election shall
remain in effect unless and until changed by written notice to the Paying Agent,
but the Paying Agent must receive written notice of any such change on or prior
to the applicable Regular Record Date or at least 15 calendar days prior to
Maturity, as the case may be. Until the Notes are paid or payment thereof is
provided for, the Corporation will, at all times, maintain a Paying Agent in The
City of New York capable of performing the duties described herein to be
performed by the Paying Agent. The Corporation has initially appointed Citibank,
N.A., New York, New York as Paying Agent under the Indenture. The Corporation
will notify the holders of the Notes in accordance with the Indenture of any
change in the Paying Agent or its address. Except as may otherwise be provided
in a Pricing Supplement with respect to Foreign Currency Notes, all currency
exchange costs will be borne by the Corporation unless any holder of a Note has
made the election referred to in the proviso in the first sentence in this
paragraph. In the case of such election, each electing holder of a Note shall
bear the currency exchange costs related to such Note, if any, by deductions
from the payments otherwise due such holder.
Unless otherwise specified in the applicable Pricing Supplement, in the
case of a Note denominated in a Specified Currency other than U.S. dollars, the
amount of U.S. dollar payments in respect of such Note will be determined by the
Corporation or an agent for the Corporation as specified in the applicable
Pricing Supplement (the "Exchange Rate Agent"), based on the indicative
quotation in The City of New York selected by such Exchange Rate Agent at
approximately 11:00 a.m., New York City time, on the second Business Day
preceding the applicable payment date, that yields the largest number of U.S.
dollars upon conversion of the Specified Currency. Unless otherwise specified in
the applicable Pricing Supplement, such selection shall be made from among the
quotations appearing on the bank composite or multi-contributor pages of the
Reuters Monitor Foreign Exchange Service, or if not available, the Telerate
Monitor Foreign Exchange Service. If such quotations are unavailable from either
such foreign exchange service, such election shall (unless otherwise specified
in the applicable Pricing Supplement) be made from three recognized foreign
exchange dealers in The City of New York selected by the Exchange Rate Agent and
approved by the Corporation (one of which may be the Exchange Rate Agent) (the
"Exchange Rate") for the purchase by the quoting dealer, for settlement on such
payment date, of the Specified Currency for U.S. dollars. If no such bid
quotations are available, payments will be made in the Specified Currency unless
such Specified Currency is unavailable due to the imposition of exchange
controls or to other circumstances beyond the Corporation's control or is no
longer used by the government of the country issuing such Specified Currency or
for the settlement of transactions by public institutions of or within the
international banking community, in which case the Corporation will be entitled
to make payments in U.S. dollars on the basis of the noon buying rate in The
City of New York for cable transfers in the Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York (the "Market Exchange
Rate") for such Specified Currency on the second Business Day prior to such
payment date, or on such other basis as shall be specified in the applicable
Pricing Supplement. In the event such Market Exchange Rate is not then
available, the Corporation will be entitled to make payments in U.S. dollars (i)
if such Specified Currency is not a composite currency, on the basis of the most
recently available Market Exchange Rate for such Specified Currency or (ii) if
such Specified Currency is a composite currency, including, without limitation,
ECU, in an amount determined by the Exchange Rate Agent to be the sum of the
results obtained by multiplying the number of units of each component currency
of such composite currency, as of the most recent date on which such composite
currency was used, by the Market Exchange Rate for such component currency on
the second Business Day prior to such payment date (or if such Market Exchange
Rate is not then available, by the most recently available Market Exchange Rate
for such component currency, or as otherwise specified in the applicable Pricing
Supplement). Any payment made under such circumstances in U.S. dollars where the
required payment is in Specified Currency other than U.S. dollars will not
constitute an Event of Default.
Unless otherwise specified in the applicable Pricing Supplement, if a
holder of a Note denominated in a foreign currency other than ECU shall have
elected to receive payments of principal of, and premium, if any, and interest,
if any, on such Note in such foreign currency as described above, and such
foreign currency is unavailable as of the due date for any such payments because
of the imposition of exchange controls or other circumstances beyond the
Corporation's control, or is no longer used by the government of the country
issuing such foreign currency or for the settlement of transactions by public
institutions of or within the international banking community, then all payments
due on that due date with respect to such Note shall be made in U.S. dollars
until such foreign currency is available or is so sold. The amount so payable on
any date in such foreign currency shall be converted into U.S. dollars at a rate
determined by the Exchange Rate Agent on the basis of the most recently
available Market Exchange Rate or as otherwise specified in the applicable
Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, if a
holder of a Note denominated in ECU shall have elected to receive payments of
principal of and premium, if any, and interest, if any, on such Note in ECU as
described above, and ECU are unavailable as of the due date for any such
payments because of the imposition of exchange controls or other circumstances
beyond the Corporation's control, or is no longer used in the European Monetary
System, then all payments due on that due date with respect to such Note shall
be made in U.S. dollars until the ECU is available or is so used. The amount so
payable on any date in ECU shall be converted into U.S. dollars at a rate
determined by the Exchange Rate Agent as of the second Business Day prior to the
date on which such payment is due on the following basis: The component
currencies of the ECU for this purpose shall be the currency amounts that were
components of the ECU as of the last date on which ECU were used in the European
Monetary System. The equivalent of ECU in U.S. dollars shall be calculated by
aggregating the U.S. dollar equivalents of such component currencies. The U.S.
dollar equivalent of each of such component currencies shall be determined by
the Exchange Rate Agent on the basis of the most recently available Market
Exchange Rate for each such component currency, or as otherwise indicated in the
applicable Pricing Supplement.
If the official unit of any component currency is altered by way of
combination or subdivision, the number of units of that currency as a component
shall be divided or multiplied in the same proportion. If two or more component
currencies are consolidated into a single currency, the amounts of those
currencies as components shall be replaced by an amount in such single currency
equal to the sum of the amounts of the consolidated component currencies
expressed in such single currency. If any component currency is divided into two
or more currencies, the amount of that currency as a component shall be replaced
by the amounts of such two or more currencies having an aggregate value on the
date of division equal to the amount of the former component currency
immediately before such division.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion (except to the extent expressly provided herein that
any determination made by an Exchange Rate Agent that is not the Corporation is
subject to approval by the Corporation) and, in the absence of manifest error,
shall be conclusive for all purposes and binding on holders of the Notes.
Each Note will provide that, in the event of an official redenomination of
a Specified Currency (including, without limitation, an official redenomination
of a Specified Currency that is a composite currency) the obligations of the
Corporation with respect to payments on Notes denominated in such Specified
Currency shall, in all cases, be deemed immediately following such
redenomination to provide for the payment of that amount of redenominated
currency representing the amount of such obligations immediately before such
redenomination. Except to the extent Currency Indexed Notes provide for the
adjustment of the principal amount payable at maturity thereof pursuant to
application of the formulae described under "Description of Notes---Currency
Indexed Notes---Payment of Principal and Interest," or any other formulae
provided for in the applicable Pricing Supplement, Notes will not provide for
any adjustment to any amount payable under the Notes as a result of (a) any
change in the value of a Specified Currency relative to any other currency due
solely to fluctuations in exchange rates or (b) any redenomination of any
component currency of any composite currency (unless such composite currency is
itself officially redenominated).
Currently, there are limited facilities in the United States for
conversion of U.S. dollars into foreign currencies, and vice versa. In addition,
banks do not generally offer non-U.S. dollar denominated checking or savings
account facilities in the United States. Accordingly, payments on Notes made in
a Specified Currency other than U.S. dollars will be made from an account with a
bank located outside the United States, unless otherwise specified in the
applicable Pricing Supplement.
INTEREST AND PRINCIPAL PAYMENTS
Unless otherwise specified in the applicable Pricing Supplement, interest
on the Notes and principal of Amortizing Notes (in each case other than interest
or, in the case of Amortizing Notes, principal paid at Maturity), will be paid
by mailing a check (unless otherwise specified in the applicable Pricing
Supplement) from an account at a bank located outside the United States if such
check is payable in a currency other than U.S. dollars) to the holder at the
address of such holder appearing on the security register of the Corporation on
the applicable Regular Record Date; provided, however, that unless otherwise
specified in the applicable Pricing Supplement, in the case of a Note issued
between a Regular Record Date and the Interest Payment Date relating to such
Regular Record Date, interest (and, in the case of an Amortizing Note,
principal) on such Note for the period beginning on the Issue Date and ending on
such Interest Payment Date shall be paid on the Interest Payment Date following
the succeeding Regular Record Date to the registered holder on such next
succeeding Regular Record Date.
Notwithstanding the foregoing, a holder of U.S.$l0,000,000 or more in
aggregate principal amount of Notes of like tenor and term (or a holder of the
equivalent thereof in a Specified Currency other than U.S. dollars) shall be
entitled to receive such interest (and, in the case of Amortizing Notes,
principal payments) in immediately available funds, but only if complete and
appropriate instructions have been received in writing by the Paying Agent on or
prior to the applicable Regular Record Date. Owners of beneficial interests in a
Book-Entry 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---Book-Entry Notes---Delivery and Form" herein and
"Description of Debt Securities---Book-Entry Notes---Delivery and Form" in the
accompanying Prospectus. Simultaneously with the election by any holder of a
Note to receive payments in a Specified Currency other than U.S. dollars (as
provided above), such holder may, if so entitled as described above, elect to
receive such payments in immediately available funds by providing complete and
appropriate instructions to the Paying Agent, and all payments in respect of
principal of, and premium, if any, and interest, if any, on such Note will be
made in immediately available funds to an account maintained by the payee with a
bank located outside the United States, or as otherwise provided in the
applicable Pricing Supplement.
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 (unless otherwise specified in the
applicable Pricing Supplement, payable to an account maintained by the payee
with a bank located outside the United States if payable in a Specified Currency
other than U.S. dollars) 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. See "Important Currency Exchange Information." Unless otherwise
specified in the applicable Pricing Supplement, principal and, premium, if any,
and interest, if any, payable at Maturity of a Book-Entry 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 Book-Entry Note, and principal of
Amortizing Notes in global form (in each case, other than at Maturity) will be
made in same-day funds in accordance with existing arrangements between the
Paying Agent and the Depositary. The Corporation 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---Event of Default" in the accompanying
Prospectus, 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.
The Interest Payment Dates for Fixed Rate Notes shall be as described
below under "Fixed Rate Notes," and the Interest Payment Dates for Floating Rate
Notes shall be as indicated in the applicable Pricing Supplement.
FIXED RATE NOTES
Each Fixed Rate 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, except as described below under "Description of Notes---Subsequent
Interest Periods" and "Description of Notes---Extension of Maturity." Unless
otherwise specified in the applicable Pricing Supplement, interest on each Fixed
Rate Note (other than a Zero-Coupon Note or an Amortizing Note) will be payable,
as selected by the purchaser, either semiannually each May 15 and November 15,
or annually on each May l5, and at Maturity. Unless otherwise specified in the
applicable Pricing Supplement, principal of and interest on each Amortizing Note
will be payable, as selected by the purchaser, either quarterly each February
l5, May 15, August 15, and November 15, or semiannually on each May l5 and
November 15, as set forth in the applicable Pricing Supplement, and, in either
case, at Maturity. Payments with respect to Amortizing Notes will be applied
first to interest due and payable thereon and then to the reduction of the
unpaid principal amount thereof. A table setting forth repayment information in
respect of each Amortizing Note will be set forth in the applicable Pricing
Supplement. Each payment of interest on a Fixed Rate 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 date of Maturity, as the
case may be.
Any payment of principal, and premium, if any, or interest required to be
made on a Fixed Rate 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 Pricing
Supplement, any interest on Fixed Rate Notes will be computed on the basis of a
360-day year of twelve 30-day months. The interest rates the Corporation will
agree to pay on newly-issued Fixed Rate Notes are subject to change without
notice by the Corporation from time to time, but no such change will affect any
Fixed Rate Notes already issued or as to which an offer to purchase has been
accepted by the Corporation.
FLOATING RATE NOTES
Except for the period from the Issue Date to the first Interest Reset Date
(as defined below) set forth in the applicable Pricing Supplement, each Floating
Rate Note will bear interest at a rate determined by reference to either (i) an
interest rate base (the "Base Rate"), which may be adjusted by a Spread and/or
Spread Multiplier (each as defined below) or (ii) an interest rate which may be
by reference to two or more Base Rates, as adjusted by the corresponding Spread
and/or Spread Multiplier for such related Base Rate or Rates (as will be
specified in the applicable Pricing Supplement). The "Spread" is the number of
basis points (one basis point equals one hundredth of a percentage point) to be
added to or subtracted from the related Base Rate applicable to the interest
rate for such Floating Rate Note, and the "Spread Multiplier" is the percentage
of the related Base Rate applicable to such Base Rate Note by which said Base
Rate is to be multiplied to determine the applicable interest rate on such
Floating Rate Note. Each Floating Rate Note and the applicable Pricing
Supplement will specify the Index Maturity and the Spread and/or Spread
Multiplier, if any, applicable to each such Floating Rate Note. The "Index
Maturity" for any Floating Rate Note is the period of maturity of the instrument
or obligation from which the Base Rate is calculated and will be specified in
the applicable Pricing Supplement. The Spread, Spread Multiplier, Index Maturity
and other variable terms of the Floating Rate Notes are subject to change by the
Corporation from time to time, but no such change will affect any Note already
issued or as to which an offer to purchase has been accepted by the Corporation.
The applicable Pricing Supplement will designate one of the following Base
Rates as applicable to a Floating Rate Note: (a) the Certificate of Deposit Rate
(a "CD Rate Note"), (b) the Commercial Paper Rate (a "Commercial Paper Rate
Note"), (c) the Federal Funds Rate (a "Federal Funds Rate Note"), (d) LIBOR (a
"LIBOR Note"), (e) the Prime Rate (a "Prime Rate Note"), (f) the Treasury Rate
(a "Treasury Rate Note"), (g) the CMT Rate (a "CMT Rate Note") or (h) such other
Base Rate or interest rate formula as is set forth in such Pricing Supplement
and in such Floating Rate Note.
As specified in the applicable Pricing Supplement, a Floating Rate Note
may also have either or both of the following: (i) a maximum numerical
limitation, or ceiling, on the rate at which interest may accrue during any
interest period ("Maximum Interest Rate") and/or (ii) a minimum numerical
limitation, or floor, on the rate at which interest may accrue during any
interest period ("Minimum Interest Rate"). In addition to any Maximum Interest
Rate that may be applicable to any Floating Rate Note pursuant to the above
provisions, the interest rate on a Floating Rate Note will in no event be higher
than the maximum rate permitted by applicable law (including, without
limitation, New York law, which is stated to govern the Notes and the
Indenture), as the same may be modified by United States law of general
application. Under present New York law, the maximum rate of interest, with
certain exceptions, for any loan in an amount less than U.S.$250,000 is l6% and
for any loan in the amount of U.S.$250,000 or more but less than U.S.$2,500,000
is 25% per annum on a simple interest basis. These limits do not apply to loans
of U.S.$2,500,000 or more.
Each Floating Rate Note and the applicable Pricing Supplement will specify
whether the rate of interest on such Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semiannually or annually (each an "Interest Reset
Period") and the date on which such interest rate will reset (each, an "Interest
Reset Date"). Unless otherwise specified in the applicable Pricing Supplement,
the Interest Reset Date will be, in the case of Floating Rate Notes that reset
daily, each Business Day; in the case of Floating Rate Notes (other than
Treasury Rate Notes) that reset weekly, the Wednesday of each week; in the case
of Treasury Rate Notes that reset weekly, the Tuesday of each week (except as
provided below); in the case of Floating Rate Notes that reset monthly, the
third Wednesday of each month; in the case of Floating Rate Notes that reset
quarterly, the third Wednesday of February, May, August and November; in the
case of Floating Rate Notes that reset semiannually, the third Wednesday of the
two months of each year specified in the applicable Pricing Supplement; and in
the case of Floating Rate Notes that reset annually, the third Wednesday of the
month specified in the applicable Pricing Supplement; provided, however, that
the interest rate in effect from the Issue Date to the first Interest Reset Date
will be the Initial Interest Rate (as defined below). If any Interest Reset Date
for any Floating Rate Note would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next succeeding Business Day,
except that, in the case of a LIBOR Note, if such Business Day would fall in the
next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. The interest rate or the formula for
establishing the interest rate in effect with respect to a Floating Rate Note
from the Issue Date to the first Interest Reset Date (the "Initial Interest
Rate") will be specified in the applicable Pricing Supplement.
Except as provided below, and unless otherwise specified in the applicable
Pricing Supplement, interest on Floating Rate Notes will be payable, in the case
of Floating Rate Notes with a daily, weekly or monthly Interest Reset Date, on
the third Wednesday of each month or on the third Wednesday of February, May,
August and November, as specified in the applicable Pricing Supplement; in the
case of Floating Rate Notes with a quarterly Interest Reset Date, on the third
Wednesday of February, May, August and November; in the case of Floating Rate
Notes with a semiannual Interest Reset Date, on the third Wednesday of the two
months of each year specified in the applicable Pricing Supplement; and in the
case of Floating Rate Notes with an annual Reset Date, on the third Wednesday of
the month specified in the applicable Pricing Supplement, and, in each case, at
Maturity. Subject to the next succeeding sentence, unless otherwise specified in
the applicable Pricing Supplement, if an Interest Payment Date (other than at
Maturity) with respect to any Floating Rate Note would fall on a day that is not
a Business Day, such Interest Payment Date shall be postponed to the next
succeeding Business Day, except that, in the case of LIBOR Notes, if such
Business Day would fall in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding Business Day. Any payment of
principal and premium, if any, and interest required to be made on a Floating
Rate Note on a Maturity Date that is not a Business Day will be made on the next
succeeding Business Day, with the same force and effect as if made on such
Maturity Date and no additional interest shall accrue as a result of any such
delayed payment.
Unless otherwise specified in the applicable Pricing Supplement, the
interest payable on each Interest Payment Date or at Maturity for Floating Rate
Notes will be the amount of interest accrued from and including the Issue Date
or from and including the last Interest Payment Date to which interest has been
paid to, but excluding, such Interest Payment Date or date of Maturity, as the
case may be (an "Interest Period").
Unless otherwise specified in the applicable Pricing Supplement, with
respect to a Floating Rate Note accrued interest will be calculated by
multiplying the principal amount of such Floating Rate Note by an accrued
interest factor. Unless otherwise specified in the applicable Pricing
Supplement, such accrued interest factor will be computed by adding the interest
factors calculated for each day in the Interest Period for which accrued
interest is being calculated. Unless otherwise specified in the applicable
Pricing Supplement, the interest factor for each such day is computed by
dividing the interest rate applicable on such day by 360, in the cases of CD
Rate Notes, Commercial Paper Rate Notes, Federal Funds Rate Notes, Prime Rate
Notes and LIBOR Notes, or by the actual number of days in the year, in the case
of Treasury Rate Notes or CMT Rate Notes. The interest rate applicable to any
day that is an Interest Reset Date is the interest rate as determined, in
accordance with the procedures hereinafter set forth, with respect to the
Interest Determination Date (as defined below) pertaining to such Interest Reset
Date. The interest rate applicable to any other day is the interest rate in
effect on the immediately preceding Interest Reset Date (or, if none, the
Initial Interest Rate).
Unless otherwise specified in the applicable Pricing Supplement, all
percentages resulting from any calculation of the rate of interest on a Floating
Rate Note will be rounded, if necessary, to the nearest one hundred-thousandth
of a percent (.0000001), with five one-millionths of a percentage point rounded
upward (e.g., 9.876545% (or .09876545) would be rounded to 9.87655% (or
.0987655)), and all U.S. dollar amounts used in or resulting from such
calculation on Floating Rate Notes will be rounded to the nearest cent or, in
the case of Notes denominated other than in U.S. dollars, the nearest unit (with
one-half cent or unit being rounded upwards).
Unless otherwise specified in the applicable Pricing Supplement, the
"Interest Determination Date" pertaining to an Interest Reset Date for CD Rate
Notes, CMT Rate Notes, Commercial Paper Rate Notes, Prime Rate Notes and Federal
Funds Rate Notes will be the second Business Day preceding such Interest Reset
Date; the Interest Determination Date pertaining to an Interest Reset Date for a
LIBOR Note will be the second London Banking Day preceding such Interest Reset
Date; and the Interest Determination Date pertaining to an Interest Reset Date
for a Treasury Rate Note will be the day of the week in which such Interest
Reset Date falls on which direct obligations of the United States ("Treasury
Bills") of the applicable Index Maturity (as specified on the face of such
Treasury Rate Note) are auctioned. Treasury Bills are normally sold at auction
on Monday of each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that such auction may
be held on the preceding Friday. If, as the result of a legal holiday, an
auction is so held on the preceding Friday, such Friday will be the Interest
Determination Date pertaining to the Interest Reset Date occurring in the next
succeeding week. If an auction falls on a day that is an Interest Reset Date,
such Interest Reset Date will be the next following Business Day. Unless
otherwise specified in the applicable Pricing Supplement, the Interest
Determination Date pertaining to a Note, the interest rate of which is
determined with reference to two or more Base Rates, will be the first Business
Day which is at least two Business Days prior to such Interest Reset Date for
such Note on which each Base Rate shall be determinable.
Unless otherwise specified in the applicable Pricing Supplement, the
"Calculation Date," where applicable, pertaining to an Interest Determination
Date will the earlier of (i) the tenth calendar day after such Interest
Determination Date, or, if any such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day preceding the applicable
Interest Payment Date or Maturity, as the case may be.
The applicable Pricing Supplement shall specify a calculation agent (the
"Calculation Agent"), which may be the Corporation, with respect to any issue of
Floating Rate Notes. Upon the request of the holder of any Floating Rate Note,
the Calculation Agent will provide the interest rate then in effect and, if
determined, the interest rate that will become effective on the next Interest
Reset Date with respect to such Floating Rate Note. If at any time the Trustee
is not the Calculation Agent, the Corporation will notify the Trustee of each
determination of the interest rate applicable to any such Floating Rate Note.
The interest rate in effect with respect to a Floating Rate Note from the
Issue Date to the first Interest Reset Date will be the Initial Interest Rate.
The interest rate for each subsequent Interest Rate Date will be determined by
the Calculation Agent as follows:
CD RATE NOTES
CD Rate Notes will bear interest at the interest rates (calculated with
reference to the CD Rate and the Spread and/or Spread Multiplier, if any and
subject to the Minimum Interest Rate and the Maximum Interest Rate, if any)
specified in the CD Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the "CD
Rate" means, with respect to any Interest Determination Date, the rate on such
date for negotiable certificates of deposit having the Index Maturity designated
in the applicable Pricing Supplement as published by the Board of Governors of
the Federal Reserve System in "Statistical Release H.l5(5l9), Selected Interest
Rates," or any successor publication of the Board of Governors of the Federal
Reserve System ("H.l5(5l9)") under the heading "CDs (Secondary Market)" or, if
not so published by 9:00 a.m., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate will be the rate on
such Interest Determination Date for negotiable certificates of deposit of the
applicable Index Maturity as published by the Federal Reserve Bank of New York
in its daily statistical release, "Composite 3:30 p.m. Quotations for U.S.
Government Securities," or any successor publication of the Federal Reserve Bank
of New York (the "Composite Quotations") under the heading "Certificates of
Deposit." If such rate is not yet published in either Release H.15(519) or the
Composite Quotations by 3:00 p.m., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 a.m., New York
City time, on such Interest Determination Date, of three leading nonbank dealers
in negotiable U.S. dollar certificates of deposit in The City of New York
selected by the Calculation Agent, after consultation with the Corporation, for
negotiable certificates of deposit of major United States money center banks (in
the market for negotiable certificates of deposit) with a remaining maturity
closest to the applicable Index Maturity in a denomination of U.S. $5,000,000;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the rate of interest in effect on such
Interest Determination Date. All references in this Prospectus Supplement or any
applicable Pricing Supplement to "Release H.15(519)" shall also be references to
any successor publication to Release H.15(519).
CD Rate Notes, like other Notes, are not deposit obligations of a bank and
are not insured by the Federal Deposit Insurance Corporation.
COMMERCIAL PAPER RATE NOTES
Commercial Paper Rate Notes will bear interest at the interest rates
(calculated with reference to the Commercial Paper Rate and the Spread and/or
Spread Multiplier, if any, and subject to the Minimum Interest Rate and the
Maximum Interest Rate, if any) specified in the Commercial Paper Rate Notes and
in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Commercial Paper Rate" means, with respect to any Interest Determination Date,
the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the applicable Index Maturity specified in the
applicable Pricing Supplement, as such rate shall be published in H.l5(5l9)
under the heading "Commercial Paper." In the event that such rate is not
published prior to 9:00 a.m., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, then the Commercial Paper Rate
shall be the Money Market Yield on such Interest Determination Date of the rate
for commercial paper of the applicable Index Maturity as published in the
Composite Quotations under the heading "Commercial Paper." If such rate is not
yet published in either H.15(519) or the Composite Quotations by 3:00 p.m., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, then the Commercial Paper Rate shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00 a.m., New York
City time, on such Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent,
after consultation with the Corporation, for commercial paper of the applicable
Index Maturity, placed for industrial issuers whose bond rating is "AA," or the
equivalent, from a nationally recognized statistical rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting offered rates as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the rate of interest in effect on such
Interest Determination Date.
<PAGE>
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D X 360 x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
FEDERAL FUNDS RATE NOTES
Federal Funds Rate Notes will bear interest at the interest rates
(calculated with reference to the Federal Funds Rate and the Spread and/or
Spread Multiplier, if any, and subject to the Minimum Interest Rate and the
Maximum Interest Rate, if any) specified in the Federal Funds Rate Notes and in
the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Federal Funds Rate" means, with respect to any Interest Determination Date, the
rate on such date for Federal Funds as published in H.15(519) under the heading
"Federal Funds (Effective)" or, if not so published by 9:00 a.m., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the Federal Funds Rate will be the rate on such Interest Determination Date as
published in the Composite Quotations under the heading "Federal Funds/Effective
Rate." If such rate is not yet published in either H.15(519) or the Composite
Quotations by 3:00 p.m., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, then the Federal Funds Rate for such
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the rates for the last transaction in overnight
Federal Funds arranged by three leading brokers of Federal Funds transactions in
The City of New York selected by the Calculation Agent, after consultation with
the Corporation, as of 9:00 a.m., New York City time, on such Interest
Determination Date; provided, however, that if the brokers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the rate
of interest in effect for the applicable period will be the rate of interest in
effect on such Interest Determination Date.
LIBOR NOTES
LIBOR Notes will bear interest at the interest rate (calculated with
reference to LIBOR and the Spread and/or Spread Multiplier, if any, and subject
to the Minimum Interest Rate and the Maximum Interest Rate, if any) specified in
the LIBOR Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, "LIBOR"
means the rate determined by the Calculation Agent in accordance with the
following provisions:
(i) With respect to an Interest Determination Date relating to a LIBOR
Note or any Floating Rate Note for which the interest rate is determined with
reference to LIBOR, LIBOR will be either (a) if "LIBOR Reuters" is specified in
the applicable Pricing Supplement, the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page by its terms provides only for a
single rate, in which case such single rate shall be used) for deposits in the
Index Currency having the Index Maturity designated in the applicable Pricing
Supplement, commencing on the second London Banking Day immediately following
that Interest Determination Date, that appear on the Designated LIBOR Page
specified in the applicable Pricing Supplement as of 11:00 a.m. London time, on
that Interest Determination Date, if at least two such offered rates appear
(unless, as aforesaid, only a single rate is required) on such Designated LIBOR
Page or (b) if "LIBOR Telerate" is specified in the applicable Pricing
Supplement, the rate for deposits in the Index Currency having the Index
Maturity designated in the applicable Pricing Supplement commencing on the
second London Banking Day immediately following that Interest Determination Date
that appears on the Designated LIBOR Page specified in the applicable Pricing
Supplement as of 11:00 a.m. London time, on that Interest Determination Date. If
fewer than two offered rates appear, or no rate appears, as applicable, LIBOR in
respect of the related Interest Determination Date will be determined as if the
parties had specified the rate described in clause (ii) below.
(ii) With respect to any Interest Determination Date on which fewer than
two offered rates appear, or no rate appears, as the case may be, on the
applicable Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent will request the principal London offices of each of four
major reference ranks in the London interbank market, as selected by the
Calculation Agent, after consultation with the Corporation, to provide the
Calculation Agent with its offered quotation for deposits in the Index Currency
for the period of the Index Maturity designated in the applicable Pricing
Supplement, commencing on the second London Banking Day immediately following
such Interest Determination Date, to prime banks in the London interbank market
at approximately 11:00 a.m. London time, on such Interest Determination Date and
in a principal amount that is representative for a single transaction in such
Index Currency in such market at such time. If at least two such quotations are
provided, LIBOR determined on such Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are provided,
LIBOR determined on such Interest Determination Date will be the arithmetic mean
of the rates quoted at approximately 11:00 a.m. in the applicable Principal
Financial Center, on such Interest Determination date by three major banks in
such Principal Financial Center selected by the Calculation Agent, after
consultation with the Corporation, for loans in the Index Currency to leading
European banks, having the Index Maturity designated in the applicable Pricing
Supplement, commencing on the second London Banking Day immediately following
the Interest Determination Date, and in a principal amount that is
representative for a single transaction in such Index Currency in such market at
such time; provided, however, that if the banks so selected by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR determined on such
Interest Determination Date will be LIBOR in effect on such Interest
Determination Date.
"Index Currency" means the currency (including composite currencies)
specified in the applicable Pricing Supplement as the currency for which LIBOR
shall be calculated. If no such currency is specified in the applicable Pricing
Supplement, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is designated
in the applicable Pricing Supplement, the display on the Reuters Monitor Money
Rates Service for the purpose of displaying the London interbank rates of major
banks for the applicable Index Currency or (b) if "LIBOR Telerate" is designated
in the applicable Pricing Supplement, the display on the Dow Jones Telerate
Service for the purpose of displaying the London interbank rates of major banks
for the applicable Index Currency. If neither LIBOR Reuters nor LIBOR Telerate
is specified in the applicable Pricing Supplement, LIBOR for the applicable
Index Currency will be determined as if LIBOR Telerate (and, if the U.S. dollar
is the Index Currency, page 3750) had been specified.
PRIME RATE NOTES
Prime Rate Notes will bear interest at the interest rate (calculated with
reference to the Prime Rate and the Spread and/or Spread Multiplier, if any, and
subject to the Minimum Interest Rate and the Maximum Interest Rate, if any)
specified in the Prime Rate Notes and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Prime Rate" means, with respect to any Interest Determination Date, the rate on
such date as published in H.l5(5l9) under the heading "Bank Prime Loan." If such
rate is not published by 9:00 a.m., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Prime Rate will be
determined by the Calculation Agent and will be the arithmetic mean of the rates
of interest publicly announced by each bank named on the "Reuters Screen NYMF
Page" (as defined below) as such bank's prime rate or base lending rate as in
effect for such Interest Determination Date. "Reuters Screen NYMF Page" means
the display designated as page "NYMF" on the Reuters Monitor Money Rates Service
(or such other page as may replace the NYMF page on that service for the purpose
of displaying prime rates or base lending rates of major United States banks).
If fewer than four such rates but more than one such rate appear on the Reuters
Screen NYMF Page for such Interest Determination Date, the Prime Rate will be
determined by the Calculation Agent and will be the arithmetic mean of the prime
rates quoted on the basis of the actual number of days in the year divided by
360 as of the close of business on such Interest Determination Date by four
major money center banks in The City of New York selected by the Calculation
Agent, after consultation with the Corporation. If fewer than two such rates
appear on the Reuters Screen NYMF Page, the Prime Rate will be calculated by the
Calculation Agent and will be determined as the arithmetic mean of the prime
rates furnished in The City of New York by the appropriate number of substitute
banks or trust companies organized and doing business under the laws of the
United States, or any State thereof, in each case having total equity capital of
at least U.S.$500,000,000 and being subject to supervision or examination by
federal or state authority, selected by the Calculation Agent, after
consultation with the Corporation, to provide such rate or rates; provided that
if the banks or trust companies selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the rate of interest in effect
for the applicable period will be the rate of interest in effect on such
Interest Determination Date.
TREASURY RATE NOTES
Treasury Rate Notes will bear interest at the interest rates (calculated
with reference to the Treasury Rate and the Spread and/or Spread Multiplier, if
any, and subject to the Minimum Interest Rate and the Maximum Interest Rate, if
any) specified in the Treasury Rate Notes and in the applicable Pricing
Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the
"Treasury Rate" means, with respect to any Interest Determination Date, the rate
for the auction held on such Interest Determination Date of direct obligations
of the United States ("Treasury Bills") having the Index Maturity designated in
the applicable Pricing Supplement, as published in H.l5(5l9) under the heading
"Treasury Bills---auction average (investment)" or, if not so published by 9:00
a.m., New York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate (expressed as a bond equivalent, on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the Treasury.
In the event that the results of the auction of Treasury Bills having the
applicable Index Maturity designated in the applicable Pricing Supplement are
not published or reported as provided above by 3:00 p.m., New York City time, on
such Calculation Date or if no such auction is held on such Interest
Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on such Interest
Determination Date, of three leading primary United States government securities
dealers selected by the Calculation Agent, after consultation with the
Corporation, for the issue of Treasury Bills with a remaining maturity closest
to the applicable Index Maturity; provided, however; that if the dealers
selected as aforesaid by the Calculation Agent are not quoting bid rates as
mentioned in this sentence, the interest rate for the applicable period will be
the interest rate in effect on such Interest Determination Date.
CMT RATE NOTES
Unless otherwise specified in the applicable Pricing Supplement, "CMT
Rate" means, with respect to any Interest Determination Date relating to a
Floating Rate Note for which the interest rate is determined with reference to
the CMT Rate (a "CMT Rate Interest Determination Date"), the rate displayed on
the Designated CMT Telerate Page under the caption "...Treasury Constant
Maturities...Federal Reserve Board Release H.15...Mondays Approximately 3:45
P.M.," under the column for the Designated CMT Maturity Index for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
week, or the month, as applicable, ended immediately preceding the week in which
the related CMT Rate Interest Determination Date occurs. If such rate is no
longer displayed on the relevant page or is not displayed by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in the City of New York (which may include the
Agent or its affiliates) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent, after consultation with the
Corporation, and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in the City of New York (from five such Reference
Dealers selected by the Calculation Agent, after consultation with the
Corporation, and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not five)
of such Reference Dealers are quoting as described above, then the CMT Rate will
be based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided, however,
that if fewer than three Reference Dealers so selected by the Calculation Agent
are quoting as mentioned herein, the CMT Rate determined as of such CMT Rate
Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain from five Reference Dealers quotations for the Treasury Note with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page specified in the applicable Pricing Supplement (or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)) for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified in the applicable Pricing Supplement, the designated CMT
Telerate Page shall be 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index shall be 2 years.
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 Sates 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.
CURRENCY INDEXED NOTES
The Corporation may from time to time offer Notes as to which the
principal amount payable at Maturity and/or the rate of interest thereon is
determined by reference to the rate of exchange between the currency or
composite currency in which such Notes ("Currency Indexed Notes") are
denominated (the "Denominated Currency") and the other currency or currencies or
composite currency or composite currencies specified as the Indexed Currency
(the "Indexed Currency") in the applicable Pricing Supplement, or as determined
in such other manner as may be specified in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, (a)
holders of Currency Indexed Notes will be entitled to receive a principal amount
in respect of such Currency Indexed Notes exceeding the amount designated as the
face amount of such Currency Indexed Notes in the applicable Pricing Supplement
(the "Face Amount") if, at Maturity, the rate at which the Denominated Currency
can be exchanged for the Indexed Currency is greater than the rate of such
exchange designated as the Base Exchange Rate, expressed in units of the Indexed
Currency per one unit of the Denominated Currency, in the applicable Pricing
Supplement (the "Base Exchange Rate") and (b) holders of Currency Indexed Notes
will be entitled to receive a principal amount in respect of such Currency
Indexed Notes less than the Face Amount of such Currency Indexed Notes if, at
Maturity, the rate at which the Denominated Currency can be exchanged for the
Indexed Currency is less than such Base Exchange Rate, in each case determined
as described below under "Currency Indexed Notes---Payment of Principal and
Interest." Information as to the relative historical value (which information is
not necessarily indicative of relative future value) of the applicable
Denominated Currency against the applicable Indexed Currency, any exchange
controls applicable to such Denominated Currency or Indexed Currency and certain
tax consequences to holders will be set forth in the applicable Pricing
Supplement. See "Foreign Currency Risks" and "Indexed Notes Risks."
PAYMENT OF PRINCIPAL AND INTEREST
Unless otherwise specified in the applicable Pricing Supplement, interest
will be payable by the Corporation in the Denominated Currency based on the Face
Amount of the Currency Indexed Notes and at the rate and times and in the manner
set forth herein and in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, principal
of a Currency Indexed Note will be payable by the Corporation in the Denominated
Currency at Maturity. The amount of such principal shall equal the Face Amount
of the Currency Indexed Note, plus or minus an amount of the Denominated
Currency determined by the Exchange Rate Agent specified in the applicable
Pricing Supplement, which may be the Corporation, by reference to the difference
between the Base Exchange Rate and the rate at which the Denominated Currency
can be exchanged for the Indexed Currency as determined on the second Exchange
Rate day (the "Determination Date") prior to Maturity of such Currency Indexed
Note by the Exchange Rate Agent. Such rate of exchange shall be based upon the
arithmetic mean of the open market spot offer quotations for the Indexed
Currency (spot bid quotations for the Denominated Currency) obtained by the
Exchange Rate Agent from the Reference Dealers (as defined below) in The City of
New York at 11:00 a.m., New York City time, on the Determination Date, for an
amount of Indexed Currency equal to the aggregate Face Amount of such Currency
Indexed Note multiplied by the Base Exchange Rate, with settlement at Maturity
to be in the Denominated Currency (such rate of exchange, as so determined and
expressed in units of the Indexed Currency per one unit of the Denominated
Currency, is hereafter referred to as the "Spot Rate"). If such quotations from
the Reference Dealers are not available on the Determination Date due to
circumstances beyond the control of the Exchange Rate Agent or the Corporation,
the Spot Rate will be determined on the basis of the most recently available
quotations from the Reference Dealers. As used herein, the term "Reference
Dealers" shall mean the three banks or firms specified as such in the applicable
Pricing Supplement or, if any of them shall be unwilling or unable to provide
the requested quotations, such other major money center bank or banks in The
City of New York selected by the Exchange Rate Agent, in consultation with the
Corporation, to act as Reference Dealer or Dealers in replacement therefor. In
the absence of manifest error, the determination by the Exchange Rate Agent of
the Spot Rate and the principal amount of Currency Indexed Notes payable at
Maturity thereof shall be final and binding on the Corporation and the holders
of such Currency Indexed Notes.
See "Description of Notes---Payment Currency" for a discussion of the
procedures followed by the Exchange Rate Agent if the Denominated Currency of a
Currency Indexed Note is unavailable as of the due date for any payment thereof
because of the imposition of exchange controls or other circumstances beyond the
Corporation's control or such Denominated Currency is no longer used as
discussed therein.
The formula to be used by the Exchange Rate Agent to determine the
principal amount of a Currency Indexed Note payable at Maturity will be
specified in the applicable Pricing Supplement.
OTHER INDEXED NOTES AND CERTAIN TERMS APPLICABLE TO ALL INDEXED NOTES
The Notes may be issued as Indexed Notes, other than Currency Indexed
Notes, the principal amount of which payable at Maturity and/or the interest
thereon, or both, may be determined by reference to the price of one or more
specified securities or commodities, to one or more securities or commodities
exchange indices or other indices or by other similar methods or formulae.
Holders of Indexed Notes may receive a principal amount at Maturity that is
greater than or less than the face amount of such Notes depending upon the
fluctuation of the relative value, rate or price of the specified index. The
Pricing Supplement relating to such an Indexed Note will describe, as
applicable, the method by which the amount of interest payable and the amount of
principal payable at the Maturity Date in respect of such Indexed Note will be
determined, certain special tax consequences of the purchase, ownership or
disposition to holders of such Notes, certain risks associated with an
investment in such Notes and other information relating to such Notes. See
"Risks Factors."
PROSPECTIVE INVESTORS SHOULD CONSULT WITH THEIR OWN FINANCIAL AND LEGAL
ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN CURRENCY INDEXED OR OTHER
INDEXED NOTES. SUCH AN INVESTMENT ENTAILS SIGNIFICANT RISKS THAT ARE NOT
ASSOCIATED WITH A SIMILAR INVESTMENT IN A SECURITY THE PRINCIPAL AMOUNT OF WHICH
PAYABLE AT MATURITY IS NOT DETERMINED BY CURRENCY EXCHANGE RATES OR SECURITIES
OR COMMODITIES EXCHANGE INDICES OR OTHER INDICES AND IS NOT AN APPROPRIATE
INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO SUCH
TRANSACTIONS.
Unless otherwise specified in the applicable Pricing Supplement, (a) for
the purpose of determining whether holders of the requisite principal amount of
Debt Securities outstanding under the Indenture have made a demand or given a
notice or waiver or taken any other action, the outstanding principal amount of
Indexed Notes (including Currency Indexed Notes) will be deemed to be the face
amount thereof and (b) in the event of an acceleration of the Maturity Date of
an Indexed Note, the principal amount payable to the holder of such Note upon
acceleration will be the principal amount determined by reference to the formula
by which the principal amount of such Note would be determined on the Maturity
Date thereof, as if the date of acceleration were the Maturity Date.
SUBSEQUENT INTEREST PERIODS
The Pricing Supplement relating to each Note will indicate whether the
Corporation has the option with respect to such Note to reset the interest rate,
in the case of a Fixed Rate Note, or to reset the Spread and/or Spread
Multiplier, in the case of a Floating Rate Note, and, if so, the date or dates
on which such interest rate or such Spread and/or Spread Multiplier, as the case
may be, may be reset (each an "Optional Reset Date"). If the Corporation has
such option with respect to any Note, the following procedures shall apply,
unless modified as set forth in the applicable Pricing Supplement.
The Corporation may exercise such option with respect to a Note by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to an Optional Reset Date for such Note. Not later than 40 days prior to
such Optional Reset Date, the Trustee will mail to the holder of such Note a
notice (the "Reset Notice") setting forth (i) the election of the Corporation to
reset the interest rate, in the case of a Fixed Rate Note, or the Spread and/or
Spread Multiplier, in the case of a Floating Rate Note, (ii) such new interest
rate or such new Spread and/or Spread Multiplier, as the case may be, and (iii)
the provisions, if any, for redemption or repayment during the period from such
Optional Reset Date to the next Optional Reset Date or, if there is no such next
Optional Reset Date, to the Maturity Date of such Note (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during such Subsequent Interest Period. Upon the transmittal by the
Trustee of a Reset Notice to the holder of a Note, such new interest rate or
such new Spread and/or Spread Multiplier, as the case may be, shall take effect
automatically, and, except as modified by the Reset Notice and as described in
the next paragraph, such Note will have the same terms as prior to the
transmittal of such Reset Notice.
Notwithstanding the foregoing, not later than 20 days prior to an Optional
Reset Date for a Note, the Corporation may, at its option, revoke the interest
rate, in the case of a Fixed Rate Note, or the Spread and/or Spread Multiplier,
in the case of a Floating Rate Note, provided for in the Reset Notice and
establish an interest rate, in the case of a Fixed Rate Note, or a Spread and/or
Spread Multiplier, in the case of a Floating Rate Note, that is higher than the
interest rate, Spread and/or Spread Multiplier, as the case may be, provided for
in the Reset Notice, for the Subsequent Interest Period commencing on such
Optional Reset Date by causing the Trustee to transmit notice of such higher
interest rate or higher Spread and/or Spread Multiplier, as the case may be, to
the holder of such Note. Such notice shall be irrevocable. All Notes with
respect to which the interest rate or Spread or Spread Multiplier is reset on an
Optional Reset Date and with respect to which the holders of such Notes have not
tendered such Notes for repayment (or have validly revoked any such tender)
pursuant to the next succeeding paragraph will bear such higher interest rate,
in the case of a Fixed Rate Note, or higher Spread and/or Spread Multiplier, in
the case of a Floating Rate Note, for the Subsequent Interest Period.
If the Corporation elects to reset the interest rate or the Spread and/or
Spread Multiplier of a Note as described above, the holder of such Note will
have the option to elect repayment of such Note by the Corporation on any
Optional Reset Date at a price equal to the aggregate principal amount thereof
outstanding on, plus any accrued interest to, such Optional Reset Date. In order
for a Note to be so repaid on an Optional Reset Date, the holder thereof must
follow the procedures set forth below under "Redemption and Repayment" for
optional repayment, except that the period for delivery of such Note or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that a holder who has tendered a Note for
repayment pursuant to a Reset Notice may, by written notice to the Trustee,
revoke any such tender for repayment until the close of business on the tenth
day prior to such Optional Reset Date.
EXTENSION OF MATURITY
The Pricing Supplement relating to each Note (other than an Amortizing
Note) will indicate whether the Corporation has the option to extend the
maturity of such Note for one or more whole years (each an "Extension Period")
up to but not beyond the date (the "Final Maturity Date") set forth in such
Pricing Supplement. If the Corporation has such option with respect to any Note
(other than an Amortizing Note), the following procedures shall apply, unless
modified as set forth in the applicable Pricing Supplement (which will contain
complete details concerning such option by the Corporation to extend the
maturity of a Note (other than an Amortizing Note)).
The Corporation may exercise such option with respect to a Note by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to the Maturity Date of such Note originally in effect prior to the
exercise of such option (the "Original Maturity Date") or, if the Maturity Date
of such Note has already been extended prior to the Maturity Date then in effect
(an "Extended Maturity Date"). No later than 40 days prior to the Original
Maturity Date or an Extended Maturity Date, as the case may be (each, a
"Maturity Date"), the Trustee will mail to the holder of such Note a notice (the
"Extension Notice") relating to such Extension Period, setting forth (i) the
election of the Corporation to extend the Original Maturity Date, (ii) the new
Maturity Date, (iii) in the case of a Fixed Rate Note, the interest rate
applicable to the Extension Period or, in the case of a Floating Rate Note, the
Spread and/or Spread Multiplier applicable to the Extension Period, and (iv) the
provisions, if any, for redemption during the Extension Period, including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during the Extension Period. Upon the
mailing by the Trustee of an Extension Notice to the holder of a Note, the
Original Maturity Date shall be extended automatically as set forth in the
Extension Notice, and, except as modified by the Extension Notice and as
described in the next paragraph, such Note will have the same terms as prior to
the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the
Original Maturity Date for a Note, the Corporation may, at its option, revoke
the interest rate, in the case of a Fixed Rate Note, or the Spread and/or Spread
Multiplier, in the case of a Floating Rate Note, provided for in the Extension
Notice and establish an interest rate, in the case of a Fixed Rate Note, or a
Spread and/or Spread Multiplier, in the case of a Floating Rate Note, that is
higher than the interest rate, Spread and/or Spread Multiplier, as the case may
be, provided for in the Extension Notice for the Extension Period, by mailing or
causing the Trustee to transmit notice of such higher interest rate or higher
Spread and/or Spread Multiplier, as the case may be, to the holder of such Note.
Such notice shall be irrevocable. All Notes with respect to which the Maturity
Date is extended and with respect to which the holders of such Notes have not
tendered such Notes for repayment (or have validly revoked any such tender)
pursuant to the next succeeding paragraph will bear such higher interest rate,
in the case of a Fixed Rate Note, or higher Spread and/or Spread Multiplier, in
the case of a Floating Rate Note, for the Extension Period.
If the Corporation elects to extend the Maturity Date of a Note, the
holder of such Note will have the option to elect repayment of such Note by the
Corporation on the Original Maturity Date at a price equal to the principal
amount thereof plus any accrued interest to such date. In order for a Note to be
so repaid on the Original Maturity Date, the holder thereof must follow the
procedures set forth below under "Redemption and Repayment" for optional
repayment, except that the period for delivery of such Note or notification to
the Trustee shall be at least 30 but not more than 35 days prior to the Original
Maturity Date and except that a holder who has tendered a Note for repayment
pursuant to an Extension Notice may, by written notice to the Trustee, revoke
any such tender for repayment until the close of business on the tenth day prior
to the Original Maturity Date.
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
Corporation or repayable prior to the Maturity Date at the option of the holder.
Unless otherwise specified in the applicable Pricing Supplement, the Notes,
except for Amortizing 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 Corporation 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 Corporation 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 to be repaid at the option of the holder thereof, the Corporation
must receive at least 30 days but not more than 45 days prior to the repayment
date, the Note with the form entitled "Option to Elect Repayment" on the reverse
of the Note duly completed. Exercise of the repayment option by the holder of a
Note shall be irrevocable, except as otherwise provided under "Description of
Notes---Subsequent Interest Periods" and "Description of Notes---Extensions of
Maturity." The repayment option may be exercised by the holder of a Note for
less than the aggregate principal amount of the Note then outstanding provided
that the principal amount of the Note remaining outstanding after repayment is
an authorized denomination.
With respect to a Book-Entry Note, the Depositary's nominee will be the
holder of such Book-Entry Note and therefore will be the only entity that can
exercise a right to repayment. See "Description of Notes---Book-Entry Notes." 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 Book-Entry 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
Book-Entry 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 Book-Entry 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 Book-Entry
Notes will be governed by agreements among them, subject to any statutory or
regulated requirements as may be in effect from time to time.
If applicable, the Corporation 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 purchase.
The Corporation may at any time purchase Notes at any price or prices in
the open market or otherwise. Notes so purchased by the Corporation may, at the
discretion of the Corporation, be held or resold or surrendered to the Trustee
for cancellation.
IMPORTANT CURRENCY EXCHANGE INFORMATION
Unless otherwise set forth in the applicable Pricing Supplement, each
Purchaser of a Note is required to pay for such Notes in the Specified Currency
thereof in immediately available funds, and payments of principal of, premium,
if any, and interest, if any, on, such Note will be made in the Specified
Currency. Currently, there are limited facilities in the United States for
conversion of U.S. dollars into foreign currencies or currency units and vice
versa and few banks offer non-U.S. dollar checking or savings account facilities
in the United States. Accordingly, unless otherwise specified in a Pricing
Supplement or unless alternative arrangements are made, payment of principal of,
premium, if any, and interest, if any, on, Notes in a Specified Currency other
than U.S. dollars will be made to an account at a bank outside the United
States. See "Foreign Currency Risks." However, if requested by a prospective
purchaser of Notes denominated in a Specified Currency other than U.S. dollars,
the Agent soliciting the offer to purchase will use reasonable efforts to
arrange for the conversion of U.S. dollars into such Specified Currency to
enable the purchaser to pay for such Notes. Such request must be made on or
before the third Business Day preceding the date of delivery of the Notes, or by
such other date as is determined by such Agent. Each such conversion will be
made by the relevant Agent on such terms and subject to such conditions,
limitations and charges as such Agent may from time to time establish in
accordance with its regular foreign exchange practice. All costs of any such
exchange will be borne by the purchasers of the Notes.
OTHER/ADDITIONAL PROVISIONS; ADDENDUM
Any provision with respect to the Notes, including the specification and
determination of one or more Interest Rate Bases, the calculation of the
interest rate applicable to a Floating Rate Note, the Interest Payment Dates,
the Maturity Date or any other term relating thereto, may be modified and/or
supplemented as specified under "Other/Additional Provisions" on the face
thereof or in an Addendum relating thereto, if so specified on the face thereof.
Such provisions will be described in the applicable Pricing Supplement.
UNITED STATES FEDERAL TAXATION
GENERAL
In the opinion of the Corporation'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 a hedge against, or
which are hedged against, a currency exchange or interest rate risk, or United
States holders whose functional currency (as defined in Section 985 of the Code)
is other than the U.S. dollar. 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 Supplement. 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 for United States Federal income tax purposes (i) 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
any political subdivision thereof or (iii) an estate or trust whose income from
sources without the United States is includable in gross income for United
States Federal income tax purposes regardless of its source. The term also
includes certain former citizens of the United States whose income and gain on
the Notes will be taxable.
TAX CONSEQUENCES TO U.S. HOLDERS
PAYMENTS OF INTEREST
Interest on a Note (whether denominated in U.S. dollars or in other than
U.S. dollars) 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, including certain Floating Rate Notes, Foreign
Currency Notes, Currency Indexed Notes and other Indexed Notes are described
under "Original Issue Discount Notes", "Foreign Currency Notes" and "Currency
Indexed Notes and Other Indexed 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 at which a substantial amount of such Notes
is sold (excluding bond houses, brokers or similar persons or organizations
acting in the capacity of underwriters or wholesalers). 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. "Qualified
stated interest" is defined as stated interest unconditionally payable (or that
will be constructively received under Section 451 of the Code) in cash or
property (other than debt instruments of the issuer) at least annually at a
single fixed rate, a single qualified floating rate, or a single "objective
rate," provided that the single rate appropriately takes into account the length
of interval between payments.
Under the OID Regulations, Variable Rate Notes are subject to special
rules. Subject to certain exceptions, a variable rate of interest is a
"qualified floating rate" if variations in the value of the rate can reasonably
be expected to measure contemporaneous fluctuations in the cost of newly
borrowed funds in the currency in which the Note is denominated. A variable rate
will be considered a qualified floating rate if the variable rate equals (i) the
product of an otherwise qualified floating rate and a fixed multiple (i.e., a
Spread Multiplier) that is greater than zero but not more than 1.35 or (ii) an
otherwise qualified floating rate (or the product described in clause (i)) plus
or minus a fixed rate (i.e., a Spread). If the variable rate equals the product
of an otherwise qualified floating rate and a single fixed multiplier greater
than 1.35, however, such rate generally constitutes an "objective rate,"
described more fully below. A variable rate will not be considered a qualified
floating rate if the variable rate is subject to a cap, floor, governor (i.e., a
restriction on the amount of increase or decrease in the stated interest rate)
or similar restriction that is reasonably expected as of the issue date to cause
the yield on the Note to be significantly more or less than the expected yield
determined without the restriction (other than a cap, floor or governor that is
fixed throughout the term of the Note).
Subject to certain exceptions, an "objective rate" is defined as a rate
(other than a qualified floating rate) that is determined using a single fixed
formula and that is based on (i) one or more qualified floating rates, (ii) one
or more rates where each rate would be a qualified floating rate for a Note
denominated in a currency other than the currency in which the Note is
denominated, (iii) the yield or changes in the price of one or more items of
personal property (other than stock or debt of the Corporation or a related
party) that is "actively traded," or (iv) a combination of the rates described
in clauses (i), (ii) and (iii) of this sentence. A variable rate of interest on
a Note will not be considered an objective rate if it is reasonably expected
that the average value of the rate during the first half of the Note's term will
be either significantly less than or significantly greater than the average
value of the rate during the final half of the Note's term.
If interest on a Note is stated at a fixed rate for an initial period of
less than one year (e.g., an Initial Interest Rate) followed by a variable rate
that is either a qualified floating rate or an objective rate for a subsequent
period, and the value of the variable rate on the issue date is intended to
approximate the fixed rate, the fixed rate and the variable rate together
constitute a single qualified floating rate or objective rate. If a Floating
Rate Note provides for two or more qualified floating rates that can reasonably
be expected to have approximately the same values throughout the term of the
Note, the qualified floating rates together constitute a single qualified
floating rate. Two or more rates will be conclusively presumed to meet the
requirements of the preceding sentences if the values of the applicable rates on
the issue date are within 1/4 of 1 percent of each other. In addition, in order
to be treated as qualified stated interest (rather than contingent payments, as
discussed below), the qualified floating rate or objective rate in effect at a
given time for a Note must be set at a value of that rate on any day that is no
earlier than three months prior to the first day on which that value is in
effect and no later than one year following that first day.
Special tax considerations (including possible original issue discount)
may arise with respect to Notes which provide for interest at (i) more than one
qualified floating rate, (ii) a single fixed rate and one or more qualified
floating rates, or (iii) in certain cases a single fixed rate and a single
objective rate. In the event Notes of this type are issued, the United States
Federal income tax consequences to purchasers and holders thereof will be
discussed in the applicable Pricing Supplement. Purchasers of such Notes should
carefully examine the Pricing Supplement and should consult their tax advisors
regarding the purchase, ownership and disposition of such Notes.
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 included in its stated redemption price at
maturity, 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 Corporation
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. Holder's 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 or market discount 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 Corporation 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.
MARKET DISCOUNT AND PREMIUM
If a U.S. Holder purchases a Note for an amount less than its stated
redemption price at maturity, or in the case of an Original Issue Discount Note,
its adjusted issue price, the amount of the difference will be treated as
"market discount," unless such excess is less than a specified DE MINIMIS
amount.
In general, market discount will be considered to accrue ratably during
the period from the date of acquisition to the maturity date of the Note, unless
the Holder elects (on a Note by Note basis) to accrue on the basis of a constant
interest rate. Any gain recognized on the retirement or disposition of a Market
Discount Note will be treated as ordinary income to the extent that such gain
does not exceed the accrued market discount on such Note. Alternatively, a
Holder may elect to include market discount in income currently as it accrued
(on either a ratable or constant interest rate basis). Such election shall apply
to all debt instruments with market discount acquired by the electing Holder
during that taxable year and all subsequent years. Absent such an election, a
Holder may be required to defer the deduction of all or a portion of the
interest paid or accrued on any indebtedness incurred or maintained to purchase
or carry such Note until the maturity or disposition of such Note.
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.
An Original Issue Discount Note purchased for an amount that is greater
than its adjusted issue price, but less than or equal to the sum of all amounts
payable on the Note (other than qualified stated interest), will be considered
to have been purchased at an "acquisition premium." A U.S. Holder will reduce
the amount of original issue discount which such Holder includes in income for
any taxable year by the fraction, the numerator of which is the excess of the
cost of the Note over its adjusted issue price and denominator of which is the
excess of the sum of all amounts payable on the Note after the purchase date
(other than qualified stated interest) over the adjusted issue price.
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.
SUBSEQUENT INTEREST PERIODS AND EXTENSIONS OF MATURITY
If so specified in the applicable Pricing Supplement relating to a Note,
the Company may have the option (a) to reset the interest rate, in the case of a
Fixed Rate Note, or to reset the Spread and/or the Spread Multiplier, in the
case of a Floating Rate Note and/or (b) to extend the Maturity of such Note. See
"Description of Notes---Subsequent Interest Periods" and "Description of
Notes--- Extension of Maturity." These type of Notes may be subject to special
rules for determining interest income or gain or loss. A description of the
United States Federal income tax consequences to a U.S. Holder of these Notes
will be contained in the applicable Pricing Supplement.
FOREIGN CURRENCY NOTES
The United States Federal income tax consequences to a U.S. Holder of the
ownership and disposition of Notes that are denominated in, or provide for
payments determined by reference to, a currency or currency unit other than the
United States dollar ("Foreign Currency Notes") will be summarized in the
applicable Pricing Supplement.
NOTES LINKED TO COMMODITIES, SECURITIES, INDEXES OR OTHER FACTORS
The United States Federal income tax consequences to a U.S. Holder of the
ownership and disposition of Notes that have principal or interest determined by
reference to one or more specified commodity prices, securities, equity or
commodity indices or other factors will vary depending on the exact terms of the
Notes and related factors. Notes containing any of such features may be subject
to rules that differ from the general rules discussed above. U.S. Holders
intending to purchase such Notes should refer to the discussion relating to
taxation in the applicable Pricing Supplement.
NOTES SUBJECT TO CONTINGENCIES
The Treasury has proposed new regulations concerning the proper treatment
of contingent payment debt instruments. The proposed effective date of the
regulations is 60 days after the date the regulations are finalized. Notes
containing contingent payments may be subject to rules that differ from those
described above, or presently proposed in the proposed regulations. A
description of the proposed treatment of contingent Notes will be summarized in
the applicable Pricing Supplement.
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 Corporation, 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. Certain holders
(including, among others, U.S. corporations and persons who are not U.S.
persons) are not subject to the backup withholding and reporting requirements.
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.
PLAN OF DISTRIBUTION
Under the terms of Selling Agent Agreements, each dated as of December ,
1995, the Notes are offered on a continuing basis by the Corporation through
Bear, Stearns & Co. Inc., Lehman Brothers, Lehman Brothers Inc., Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J. P. Morgan Securities
Inc., and Salomon Brothers Inc, who have agreed to use their reasonable best
efforts to solicit purchases of the Notes. The Corporation 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. In addition, the Corporation may
arrange for the Notes to be sold through other agents, dealers or underwriters.
The Corporation may sell Notes directly to investors on its own behalf. Unless
otherwise specified in the applicable Pricing Supplement, the Corporation will
pay each Agent a commission in the form of a discount ranging from .05% to .60%
of the initial offering price of each Note sold through such Agent, depending
upon the Maturity Date thereof. No commission will be payable to the Agents on
Notes sold directly to purchasers by the Corporation. The Corporation 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 Corporation reserves the right to withdraw, cancel or
modify the offer without notice.
The Corporation may also sell Notes to an Agent as principal for its own
account at a discount equal to the commission applicable to any agency sale of a
Note of identical maturity, unless otherwise specified in the applicable Pricing
Supplement. Such Notes may be resold to one or more investors and other
purchasers at varying prices relating to prevailing market prices at the time of
resale as determined by the Agent or, if so specified in an applicable Pricing
Supplement, for resale 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 Corporation. 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 of 1933, as amended. The Corporation has agreed to indemnify the
Agents against certain liabilities, including liabilities under the Securities
Act of 1933, as amended.
No Note will have an established trading market when issued. The
Corporation 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.
--------------------
GENERAL MOTORS CORPORATION
and
CITIBANK, N.A.,
Trustee
INDENTURE
Dated as of December , l995
Debt Securities
<PAGE>
TABLE OF CONTENTS*
PAGE
Parties......................... ......................................1
Recitals...............................................................1
ARTICLE ONE.
DEFINITIONS.
Section 1.01. Definitions.............................................1
Additional Amounts....................................2
Authorized Newspaper..................................2
Board of Directors....................................2
Board Resolution......................................2
Business Day..........................................2
Corporate Trust Office................................2
Corporation...........................................3
Corporation Order.....................................3
Coupon................................................3
Coupon Security.......................................3
Depository............................................3
Event of Default......................................3
Global Security.......................................4
Holder................................................4
Indenture.............................................4
Interest Payment Date.................................4
Issue Date............................................4
Maturity Date.........................................4
Officers' Certificate.................................4
Opinion of Counsel....................................5
Original Issue Discount Securities....................5
outstanding...........................................5
Paying Agent..........................................5
person................................................6
*The Table of Contents is not part of the Indenture.
<PAGE>
Place of Payment.....................................6
Registered Security..................................6
Regular Record Date..................................6
responsible officer..................................6
Security Register and Security Registrar.............6
Trust Indenture Act of 1939..........................6
United States........................................6
United States person.................................7
Unregistered Security................................7
U.S. Dollar..........................................7
Section 1.02 Notice Securityholders.................................7
ARTICLE TWO.
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES.
Section 2.01. Amount Unlimited; Issuable in Series....................7
Section 2.02. Form of Trustee's Certificate of Authentication........10
Section 2.03. Form, Execution, Authentication, Delivery and Dating of
Securities...........................................................10
Section 2.04. Denominations; Record Date.............................12
Section 2.05. Exchange and Registration of Transfer of Securities....13
Section 2.06. Temporary Securities...................................14
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities........15
Section 2.08. Cancellation...........................................16
Section 2.09. Computation of Interest................................16
Section 2.l0. Securities in Global Form.............................16
Section 2.ll. Medium-Term Securities................................16
ARTICLE THREE.
REDEMPTION OF SECURITIES.
Section 3.01. Redemption of Securities; Applicability of Article.....18
Section 3.02. Notice of Redemption; Selection of Securities..........18
Section 3.03. Payment of Securities Called for Redemption............19
ARTICLE FOUR.
PARTICULAR COVENANTS OF THE CORPORATION.
Section 4.01. Payment of Principal, Premium, Interest
and Additional Amounts.................................20
Section 4.02. Offices for Notices and Payments, etc..................20
Section 4.03. Provisions as to Paying Agent..........................21
Section 4.04. Luxembourg Publications................................22
Section 4.05. Statement by Officers as to Default....................22
Section 4.06. Limitation on Liens....................................22
Section 4.07. Limitation on Sale and Lease-Back......................24
Section 4.08. Definitions Applicable to Sections 4.06 and 4.07.......24
ARTICLE FIVE.
SECURITYHOLDER LISTS AND REPORTS BY
THE CORPORATION AND THE TRUSTEE.
Section 5.01. Securityho1der Lists......................................26
Section 5.02. Preservation and Disclosure of Lists..................... 26
Section 5.03. Reports by the Corporation................................27
Section 5.04. Reports by the Trustee....................................28
ARTICLE SIX.
REMEDIES ON DEFAULT.
Section 6.01. Events of Default.........................................28
Section 6.02. Payment of Securities on Default; Suit Therefor...........30
Section 6.03. Application of Moneys Collected by Trustee................32
Section 6.04. Proceedings by Securityholders............................33
Section 6.05. Remedies Cumulative and Continuing........................34
Section 6.06. Direction of Proceedings..................................34
Section 6.07. Notice of Defaults........................................35
Section 6.08. Undertaking to Pay Costs..................................35
ARTICLE SEVEN.
CONCERNING THE TRUSTEE.
Section 7.01. Duties and Responsibilities of Trustee....................36
Section 7.02. Reliance on Documents, Opinions, etc......................37
Section 7.03. No Responsibility for Recitals, etc.......................38
Section 7.04. Ownership of Securities or Coupons........................38
Section 7.05. Moneys to be Held in Trust................................38
Section 7.06. Compensation and Expenses of Trustee......................38
Section 7.07. Officers' Certificate as Evidence.........................39
Section 7.08. Conflicting Interest of Trustee...........................39
Section 7.09. Eligibility of Trustee....................................39
Section 7.10. Resignation or Removal of Trustee.........................40
Section 7.11. Acceptance by Successor Trustee...........................41
Section 7.12. Successor by Merger, etc..................................42
Section 7.13. Limitations on Rights of Trustee as Creditor..............42
<PAGE>
ARTICLE EIGHT.
CONCERNING THE SECURITYHOLDERS.
Section 8.01. Action by Securityholders.................................42
Section 8.02. Proof of Execution by Securityholders.....................43
Section 8.03. Who Are Deemed Absolute Owners............................44
Section 8.04. Corporation-Owned Securities Disregarded..................44
Section 8.05. Revocation of Consents; Future Securityholders Bound......44
Section 8.06. Securities in a Foreign Currency..........................45
ARTICLE NINE.
SECURITYHOLDERS' MEETINGS.
Section 9.01. Purposes of Meetings......................................45
Section 9.02. Call of Meetings by Trustee...............................46
Section 9.03. Call of Meetings by Corporation or Securityholders........46
Section 9.04. Qualification for Voting..................................47
Section 9.05. Regulations...............................................47
Section 9.06. Voting....................................................47
ARTICLE TEN.
SUPPLEMENTAL INDENTURES.
Section 10.01. Supplemental Indentures without Consent of Securityholders
48
Section 10.02. Supplemental Indentures with Consent of Securityholders..49
Section 10.03. Compliance with Trust Indenture Act: Effect of
Supplemental Indentures..................................50
Section 10.04. Notation on Securities...................................51
ARTICLE ELEVEN.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
Section 11.01. Corporation May Consolidate, etc., on Certain Terms......51
Section 11.02. Successor Corporation Substituted........................51
Section 11.03. Opinion of Counsel to be Given Trustee...................52
Section 11.04 Certificate to Trustee...................................52
<PAGE>
ARTICLE TWELVE.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
Section 12.0l. Discharge of Indenture...................................52
Section 12.02. Satisfaction, Discharge and Defeasance
of Securities of any Series..............................53
Section 12.03. Deposited Moneys to be Held in Trust by Trustee..........54
Section 12.04. Paying Agent to Repay Moneys Held........................55
Section 12.05. Return of Unclaimed Moneys...............................55
ARTICLE THIRTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
Section 13.01. Indenture and Securities Solely Corporate Obligations....55
ARTICLE FOURTEEN.
MISCELLANEOUS PROVISIONS.
Section 14.01. Benefits of Indenture Restricted to Parties and Securityholder
56
Section 14.02. Provisions Binding on Corporation's Successors...........56
Section 14.03. Addresses for Notices, etc...............................56
Section 14.04. Evidence of Compliance with Conditions Precedent.........56
Section 14.05. Legal Holidays...........................................57
Section 14.06. Trust Indenture Act to Control...........................57
Section 14.07. Execution in Counterparts................................57
Section 14.08. New York Contract........................................57
Section 14.09 Judgment Currency........................................57
Section 14.10 Severability of Provisions...............................58
Section 14.11 Corporation Released From Indenture Requirements Under
Certain Circumstances....................................58
Acceptance of Trust by Trustee..........................................58
Testimonium.............................................................58
Signatures and Seals....................................................59
Acknowledgments.........................................................59
<PAGE>
......THIS INDENTURE, dated as of the day of December, 1995 between GENERAL
MOTORS CORPORATION, a corporation duly organized and existing under the laws of
the State of Delaware (hereinafter sometimes called the "Corporation"), party of
the first part, and Citibank, N.A., a banking association duly incorporated and
existing under the laws of the United States of America, as trustee hereunder
(hereinafter sometimes called the "Trustee," which term shall include any
successor trustee appointed pursuant to Article Seven).
WITNESSETH:
WHEREAS, the Corporation deems it necessary to issue from time to time for
its lawful purposes securities (hereinafter called the "Securities" or, in the
singular, "Security") evidencing its unsecured indebtedness and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of the Securities 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 Corporation represents that all acts and things necessary to
constitute these presents a valid indenture and agreement according to its
terms, have been done and performed, and the execution of this Indenture has in
all respects been duly authorized, and the Corporation, in the exercise of legal
rights and power in it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions upon which the Securities are
authenticated, issued and received, and in consideration of the premises, of the
purchase and acceptance of the Securities 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 Corporation covenants and agrees
with the Trustee, for the equal and proportionate benefit of the respective
Holders from time to time of the Securities, 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.
ADDITIONAL AMOUNTS:
The term "Additional Amounts" shall mean any additional amounts which are
required by a Security or by or pursuant to a Board Resolution under
circumstances specified therein, to be paid by the Corporation in respect of
certain taxes, assessments or governmental charges imposed on certain Holders of
Securities and which are owing to such Holders of Securities.
AUTHORIZED NEWSPAPER:
The term "Authorized Newspaper" shall mean a newspaper in an official
language of the country of publication of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof which
is made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the
Corporation or the Finance Committee of the Corporation or any committee
established by the Board of Directors or Finance Committee.
BOARD RESOLUTION:
The term "Board Resolution" shall mean a resolution certified by the
Secretary or Assistant Secretary of the Corporation 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.
BUSINESS DAY:
The term "Business Day" shall mean, with respect to any Security, a day
(other than a Saturday or Sunday) that in the city (or in any of the cities, if
more than one) in which amounts are payable as specified on the face of the form
of such Security, is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order to
close.
CORPORATE TRUST OFFICE:
The term "Corporate Trust Office" means the office of the Trustee in New
York, New York, at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
120 Wall Street, New York, NY 10043, except that, with respect to presentation
of Securities for payment or registration of transfers and exchanges and the
location of the Security Registrar, such term means the office or agency of the
Trustee in said city at which at any particular time its corporate agency
business shall be conducted, which at the date hereof is located at 111 Wall
Street, New York, NY 10043.
CORPORATION:
The term "Corporation" shall mean the person named as the "Corporation" 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 "Corporation" shall mean such successor corporation.
CORPORATION ORDER:
The term "Corporation Order" shall mean any request, order or confirmation
signed by a person designated pursuant to Section 2.03 to the Trustee, which may
be transmitted by telex, by telecopy or in writing.
COUPON:
The term "Coupon" shall mean any interest coupon appertaining to a
Security.
COUPON SECURITY:
The term "Coupon Security" shall mean any Security authenticated and
delivered with one or more Coupons appertaining thereto.
DEPOSITORY:
The term "Depository" shall mean, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository by the Corporation pursuant to
Section 2.01 until a successor Depository shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depository" shall mean
or include each Person who is then a Depository hereunder, and if at any time
there is more than one such Person, "Depository" as used with respect to the
Securities of any such series shall mean the Depository with respect to the
Securities of that series.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified as such in
Section 6.01.
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GLOBAL SECURITY:
The term "Global Security" shall mean a Registered Security or an
Unregistered Security evidencing all or part of a series of Securities issued to
the Depository for such series in accordance with Section 2.03.
HOLDER:
The terms "Holder," "Holder of Securities," "Securityholder" or other
similar terms, shall mean (a) in the case of any Registered Security, the person
in whose name at the time such Security is registered on the registration books
kept for that purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed or
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.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
ISSUE DATE:
The term "Issue Date" shall mean, with respect to Securities of any
tranche, whether evidenced by a Registered Security or an Unregistered Security,
the date such Securities are authenticated pursuant to Section 2.03.
MATURITY DATE:
The term "Maturity Date" when used with respect to any Security, shall
mean the stated maturity of the Security.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board of Directors or the President or any Executive Vice
President or any Senior Vice President or any Vice President or the Treasurer
and by the Secretary or any Assistant Secretary or, if the other signatory is
other than the Treasurer, any Assistant Treasurer of the Corporation.
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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 Corporation, or who
may be other counsel acceptable to the Trustee.
ORIGINAL ISSUE DISCOUNT SECURITIES:
The term "Original Issue Discount Securities" shall mean any Securities
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.
OUTSTANDING:
The term "outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 7.08 and Section 8.04, mean, as of any
particular time, all Securities authenticated and delivered by the Trustee under
this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, 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 Corporation) or shall have been
set aside and segregated in trust by the Corporation (if the Corporation shall
act as its own Paying Agent), provided, that if such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as in Article Three provided, or provisions satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in lieu of and in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Article
Two, unless proof satisfactory to the Trustee is presented that any such
Securities are held by bona fide Holders in due course.
PAYING AGENT:
The term "Paying Agent" shall mean initially Citibank, N.A., and
subsequently, any other paying agent appointed by the Corporation from time to
time in respect of the Securities.
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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.
PLACE OF PAYMENT:
The term "Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest, if any, (and Additional Amounts, if any) on the Securities of
that series are payable.
REGISTERED SECURITY:
The term "Registered Security" shall mean any Security registered on the
Security registration books of the Corporation.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Sections 2.01 and 2.04.
RESPONSIBLE OFFICER:
The term "responsible officer" when used with respect to the Trustee shall
mean any officer assigned by the Trustee to administer its corporate trust
matters.
SECURITY REGISTER AND SECURITY REGISTRAR:
The term "Security Register" and "Security Registrar" shall have the
respective meanings specified in Section 2.05.
TRUST INDENTURE ACT OF 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act
of 1939, as amended.
UNITED STATES:
The term "United States" shall mean the United States of America
(including the States and the District of Columbia) and its possessions
(including the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands).
UNITED STATES PERSON:
The term "United States person" has the meaning given to it by the
Internal Revenue Code of l986, as amended, and regulations thereunder, including
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D).
UNREGISTERED SECURITY:
The term "Unregistered Security" shall mean any Security other than a
Registered Security.
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 SECURITYHOLDERS. Except as otherwise expressly
provided herein, where this Indenture provides for notice to Holders of
Securities 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 Securities 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 Security shall affect the sufficiency of
such notice with respect to other Holders of Securities.
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 Securities 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.
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
SECTION 2.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. 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 Securities of any series:
(1) the designation of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
2.05, 2.06, 2.07, 3.02 or 10.04);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates, which may be fixed or variable, at which the
Securities of the series shall bear interest, if any, and if the rate or rates
are variable, the manner of calculation thereof, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and, in the case of Registered Securities, the Regular Record
Date for the determination of Holders of such Securities 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), interest, if any,
and Additional Amounts, if any, on Securities of the series shall be payable;
(6) the right, if any, of the Corporation to redeem Securities, 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 Securities of the series
may be redeemed pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Corporation to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(8) if other than U.S. Dollars, the currency or currencies, or units based
on or related to foreign currencies, including European Currency Units ("ECUs"),
in which the Securities of the series shall be denominated and in which payments
of principal of (premium, if any), interest, if any, on and any other amounts
payable with respect to such Securities shall or may be payable; or in the
manner in which such currency, currencies or composite currencies will be
determined; and if the principal of (and premium, if any) and interest, if any,
on the Securities of such series are to be payable, at the election of the
Corporation or a holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities are
stated to be payable, the currency or currencies in which payment of the
principal of (and premium, if any) and interest, if any, on Securities of such
series as to which such election is made shall be payable, and the periods
within which and the terms and conditions upon which such election is to be
made;
(9) if the amount of principal of and interest on the Securities of the
series may be determined with reference to an index based on a currency or
currencies other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(10) the denominations in which Securities of the series shall be
issuable, if other than U.S.$l,000 or integral multiples thereof with respect to
Registered Securities and denominations of U.S.$1,000 and U.S.$5,000 for
Unregistered Securities;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities 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;
(12) whether the Securities of the series will be issuable as Registered
Securities or Unregistered Securities (with or without Coupons), or both, any
restrictions applicable to the offer, sale or delivery of Unregistered
Securities and, if other than as provided for in Section 2.05, the terms upon
which Unregistered Securities of the series may be exchanged for Registered
Securities of such series and vice versa; and whether the Securities of the
series shall be issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depository for such Global Security or
Securities and whether any Global Securities of the series are to be issuable
initially in temporary form and whether any Global Securities of the series are
to be issuable in definitive form with or without Coupons and, if so, whether
beneficial owners of interests in any such definitive Global Security may
exchange such interests for Securities 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 2.05;
(13) whether and under what circumstances the Corporation will pay
Additional Amounts on the Securities of the series held by a person who is not a
U.S. person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Corporation will have the option to redeem such
Securities rather than pay such Additional Amounts;
(14) the provisions, if any, for the defeasance of the Securities of
the series;
(15) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security 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;
(16) any trustees, depositaries, authenticating or paying agents, transfer
agents, registrars or any other agents with respect to the Security of such
series; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
All Securities of any one series shall be substantially identical except
(i) as to denomination, (ii) that Securities of any series may be issuable as
either Registered Securities or Unregistered Securities and (iii) 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 Corporation 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 TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication shall be in the following form:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee,
By:______________________
Authorized Signatory
SECTION 2.03. FORM, EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF
SECURITIES. The Securities of each series and the Coupons, if any, to be
attached thereto, 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, 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 Corporation 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
Securities may be listed, or to conform to usage.
Each Security and Coupon shall be executed on behalf of the Corporation by
its Chairman of the Board of Directors or any Vice Chairman of the Board of
Directors or its President or any Executive Vice President or any Senior Vice
President or any Vice President and by its Treasurer or any Assistant Treasurer
or its Secretary or any 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 Corporation may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities.
Each Security and Coupon bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Corporation shall
bind the Corporation, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Security, or the Security to which such Coupon appertains. At any time and from
time to time after the execution and delivery of this Indenture, the Corporation
may deliver Securities of any series executed by the Corporation and, in the
case of Coupon Securities, having attached thereto appropriate Coupons, to the
Trustee for authentication, together with a Corporation Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Corporation Order shall authenticate and deliver such Securities. If
the form or terms of the Securities or Coupons of the series have been
established in or pursuant to one or more Board Resolutions as permitted by this
Section and Section 2.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities or Coupons has been established
by or pursuant to Board Resolution as permitted by Section 2.01, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such terms have
been established in conformity with the provisions of this Indenture; and
(c) that each such Security and Coupon, when authenticated and
delivered by the Trustee and issued by the Corporation in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Corporation, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles. If such form or terms has
been so established, the Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
the Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Every Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in or pursuant to the
Board Resolution or supplemental indenture referred to in Section 2.01 or, if no
such terms are specified, the date of its original issuance.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never issued and sold
by the Corporation, and the Corporation shall deliver such Security to the
Trustee for cancellation as provided in Section 2.08 together with a written
statement (which need not comply with Section 14.04 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Corporation, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
If the Corporation shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of a
Global Security, then the Corporation shall execute and the Trustee shall in
accordance with this Section and the Corporation Order with respect to such
series authenticate and deliver the Global Security that (i) shall represent and
shall be denominated in an aggregate amount equal to the aggregate principal
amount of outstanding Securities of such series to be represented by the Global
Security, (ii) shall be registered, if in registered form, in the name of the
Depository for such Global Security or the nominee of such Depository, and (iii)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions.
Each Depository designated pursuant to Section 2.01 for a Global Security
in registered form must, at the time of its designation and at all times while
it serves as Depository, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 2.04. DENOMINATIONS; RECORD DATE. The Securities shall be issuable
as Registered Securities or Unregistered Securities in such denominations as may
be specified as contemplated in Section 2.01. In the absence of any such
specification with respect to any series, such Securities shall be issuable in
the denominations contemplated by Section 2.01.
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 Registered Securities of any particular
series as contemplated by Section 2.01; provided, however, that in the absence
of any such provisions with respect to any series, such term shall mean (1) the
last day of the calendar month next preceding such Interest Payment Date if such
Interest Payment Date is the fifteenth day of a calendar month; or (2) the
fifteenth day of a calendar month next preceding such Interest Payment Date if
such Interest Payment Date is the first day of the calendar month.
The person in whose name any Registered Security 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 and Additional Amounts,
if any, payable on such Interest Payment Date notwithstanding the cancellation
of such Registered Security 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 Corporation shall default in the payment
of the interest and Additional Amounts, if any, due on such Interest Payment
Date, such defaulted interest and Additional Amounts, if any, shall be paid to
the persons in whose names outstanding Registered Securities are registered on a
subsequent record date established by notice given by mail by or on behalf of
the Corporation to the Holders of Securities 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.
SECTION 2.05. EXCHANGE AND REGISTRATION OF TRANSFER OF SECURITIES.
Registered Securities of any series may be exchanged for a like aggregate
principal amount of Registered Securities of other authorized denominations of
such series. Registered Securities to be exchanged shall be surrendered at the
office or agency to be designated and maintained by the Corporation for such
purpose in the Borough of Manhattan, The City of New York, in accordance with
the provisions of Section 4.02, and the Corporation shall execute and register
and the Trustee shall authenticate and deliver in exchange therefor the
Registered Security or Registered Securities which the Holder making the
exchange shall be entitled to receive.
If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.01, at
the option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series of any authorized
denominations and of a like aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Corporation that
shall be maintained for such purpose in accordance with Section 4.02, with, in
the case of Unregistered Securities that are Coupon Securities, all unmatured
Coupons and all matured Coupons in default thereto appertaining. At the option
of the Holder thereof, if Unregistered Securities of any series are issued in
more than one authorized denomination, except as otherwise specified pursuant to
Section 2.01, such Unregistered Securities may be exchanged for Unregistered
Securities of such series of other authorized denominations and of a like
aggregate principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Corporation that shall be maintained for such
purpose in accordance with Section 4.02 or as specified pursuant to Section
2.01, with, in the case of Unregistered Securities that are Coupon Securities,
all unmatured Coupons and all matured Coupons in default thereto appertaining.
Unless otherwise specified pursuant to Section 2.01, Registered Securities of
any series may not be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Corporation shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
The Corporation (or its designated agent (the "Security Registrar")) shall
keep, at such office or agency, a Security Register (the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Corporation shall register Securities and shall register the transfer of
Registered Securities as in this Article Two provided. The Security Register
shall be in written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times the Security
Register shall be open for inspection by the Trustee. Upon due presentment for
registration of transfer of any Registered Security of a particular series at
such office or agency, the Corporation shall execute and the Corporation or the
Security Registrar shall register and the Trustee shall authenticate and deliver
in the name of the transferee or transferees a new Registered Security or
Registered Securities of such series for an equal aggregate principal amount.
Unregistered Securities (except for any temporary bearer Securities) and
Coupons shall be transferable by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment, as the case may be, shall (if so required by the
Corporation or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation
and the Trustee duly executed by, the Holder or his attorney duly authorized in
writing.
No service charge shall be made for any exchange or registration of
transfer of Registered Securities, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
The Corporation shall not be required to exchange or register a transfer
of (a) any Registered Securities of any series for a period of fifteen days next
preceding any selection of such Registered Securities of such series to be
redeemed, or (b) any Security of any such series selected for redemption except
in the case of any such series to be redeemed in part, the portion thereof not
to be so redeemed.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, neither the Corporation nor the Trustee (which shall
rely on an Officers' Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Corporation
(including the inability of the Corporation to deduct from its income, as
computed for Federal income tax purposes, the interest payable on any
Securities) under then applicable United States Federal income tax laws.
SECTION 2.06. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series, the Corporation may execute and upon receipt of a
Corporation Order the Trustee shall authenticate and deliver temporary
Securities of such series (printed or lithographed). Temporary Securities of any
series shall be issuable in any authorized denominations, and in the form
approved from time to time by or pursuant to a Board Resolution but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Corporation. Every temporary
Security shall be executed by the Corporation and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unnecessary delay the
Corporation shall execute and shall furnish definitive Securities of such series
and thereupon any or all temporary Registered Securities of such series may be
surrendered in exchange therefor without charge at the office or agency to be
designated and maintained by the Corporation for such purpose in the Borough of
Manhattan, The City of New York, in accordance with the provisions of Section
4.02 and in the case of Unregistered Securities at any agency maintained by the
Corporation for such purpose as specified pursuant to Section 2.01, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
an equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and in the case of such Securities that are Coupon
Securities, having attached thereto the appropriate Coupons. Until so exchanged
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series. The provisions of
this Section 2.06 are subject to any restrictions or limitations on the issue
and delivery of temporary Unregistered Securities of any series that may be
established pursuant to Section 2.01 (including any provision that Unregistered
Securities of such series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency of the
Corporation located outside the United States and the procedures pursuant to
which definitive Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. In case any
temporary or definitive Security of any series or, in the case of a Coupon
Security, any Coupon appertaining thereto, shall become mutilated or be
destroyed, lost or stolen, the Corporation in the case of a mutilated Security
or Coupon shall, and in the case of a lost, stolen or destroyed Security or
Coupon may, in its discretion, execute, and upon receipt of a Corporation Order
the Trustee shall authenticate and deliver, a new Security of the same series as
the mutilated, destroyed, lost or stolen Security or, in the case of a Coupon
Security, a new Coupon Security of the same series as the mutilated, destroyed,
lost or stolen Coupon Security or, in the case of a Coupon, a new Coupon
Security of the same series as the Coupon Security to which such mutilated,
destroyed, lost or stolen Coupon appertains, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen or in exchange for the Coupon Security to which such mutilated,
destroyed, lost or stolen Coupon appertains, with all appurtenant Coupons not
destroyed, lost or stolen. In every case the applicant for a substituted
Security or Coupon shall furnish to the Corporation and to the Trustee such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Corporation and to the Trustee evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon, as the case may be,
and of the ownership thereof. The Trustee may authenticate any such substituted
Security and deliver the same upon the written request or authorization of any
officer of the Corporation. Upon the issuance of any substituted Security or
Coupon, the Corporation may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith and in addition a further sum not exceeding
ten dollars for each Security so issued in substitution. In case any Security or
Coupon which has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Corporation may, instead of issuing a substituted
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security or Coupon) if the applicant for such
payment shall furnish the Corporation and the Trustee with such security or
indemnity as they may require to save them harmless and, in case of destruction,
loss or theft, evidence to the satisfaction of the Corporation and the Trustee
of the destruction, loss or theft of such Security or Coupon and of the
ownership thereof.
Every substituted Security with, in the case of any such Security that is
a Coupon Security, its Coupons, issued pursuant to the provisions of this
Section by virtue of the fact that any Security or Coupon is destroyed, lost or
stolen shall, with respect to such Security or Coupon, constitute an additional
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Security or Coupon 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 Securities, and the Coupons appertaining thereto, duly issued hereunder.
All Securities and any Coupons appertaining thereto shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and Coupons appertaining thereto 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 2.08. CANCELLATION. All Securities surrendered for payment,
redemption, exchange or registration of transfer, and all Coupons surrendered
for payment as the case may be, shall, if surrendered to the Corporation or any
agent of the Corporation or of the Trustee, be delivered to the Trustee and
promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it,
and no Securities or Coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall destroy
cancelled Securities and Coupons and deliver a certificate of destruction to the
Corporation.
SECTION 2.09. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2.10. SECURITIES IN GLOBAL FORM. If Securities of a series are
issuable in global form, as specified as contemplated by Section 2.01, then,
notwithstanding clause (9) of Section 2.01 and the provisions of Section 2.04,
such Security shall represent such of the outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
of outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Corporation Order to be delivered to the Trustee
pursuant to Section 2.03 or Section 2.06. Subject to the provisions of Section
2.03 and, if applicable, Section 2.06, the Trustee shall deliver and redeliver
any Security in definitive global bearer form in the manner and upon written
instructions given by the Person or Persons specified therein or in the
applicable Corporation Order. If a Corporation Order pursuant to Section 2.03 or
2.06 has been, or simultaneously is, delivered, any instructions by the
Corporation with respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with Section l4.04 and
need not be accompanied by an Opinion of Counsel. The beneficial owner of a
Security represented by a definitive Global Security in bearer form may, upon no
less than 30 days written notice to the Trustee, given by the beneficial owner
through a Depository, exchange its interest in such definitive Global Security
for a definitive Bearer Security or Securities, or a definitive Registered
Security or Securities, of any authorized denomination, subject to the rules and
regulations of such Depository and its members. No individual definitive Bearer
Security will be delivered in or to the United States.
The provisions of the last sentence of the third to the last paragraph of
Section 2.03 shall apply to any Security represented by a Security in global
form if such Security was never issued and sold by the Corporation and the
Corporation delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 14.04 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of the third to the last paragraph
of Section 2.03.
Unless otherwise specified as contemplated by Section 2.01, payment of
principal of and any premium and any interest on any Security in definitive
global form shall be made to the Person or Persons specified therein.
SECTION 2.11. MEDIUM-TERM SECURITIES. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Corporation Order,
Officers' Certificate, supplemental indenture or Opinion of Counsel otherwise
required pursuant to Sections 14.04, 2.01 2.03 and 2.06 at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
An Officers' Certificate or supplemental indenture, delivered pursuant to
this Section 2.11 in the circumstances set forth in the preceding paragraph may
provide that Securities which are the subject thereof will be authenticated and
delivered by the Trustee on original issue from time to time upon the written
order of persons designated in such Officers' Certificate or supplemental
indenture and that such persons are authorized to determine, consistent with
such Officers' Certificate or any applicable supplemental indenture such terms
and conditions of said Securities as are specified in such Officers' Certificate
or supplemental indenture, provided that the foregoing procedure is acceptable
to the Trustee.
ARTICLE THREE.
REDEMPTION OF SECURITIES.
SECTION 3.01. REDEMPTION OF SECURITIES; APPLICABILITY OF ARTICLE.
Redemption of Securities of any series as permitted or required by the terms
thereof shall be made in accordance with such terms and this Article; provided,
however, that if any provision of any series of Securities shall conflict with
any provision of this Article, the provision of such series of Securities shall
govern.
The notice date for a redemption of Securities shall mean the date on
which notice of such redemption is given in accordance with the provisions of
Section 3.02 hereof.
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF SECURITIES. The election
of the Corporation to redeem any Securities shall be evidenced by an Officers'
Certificate. In case the Corporation shall desire to exercise the right to
redeem all, or, as the case may be, any part of a series of Securities pursuant
to the terms and provisions applicable to such series, it shall fix a date for
redemption and shall mail a notice of such redemption at least thirty and not
more than sixty days prior to the date fixed for redemption to the Holders of
the Securities of such series which are Registered Securities to be redeemed as
a whole or in part at their last addresses as the same appear on the Security
Register. Such mailing shall be by prepaid first class mail. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder shall have received such notice. In any
case, failure to give notice by mail, or any defect in the notice to the Holder
of any Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Security of such series.
Notice of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and addresses with
the Trustee as described in Section 5.04, shall be given by mailing notice of
such redemption, by first class mail, postage prepaid, at least thirty days and
not more than sixty days prior to the date fixed for redemption, to such Holders
at such addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Corporation, the Trustee shall make such information
available to the Corporation for such purpose). Notice of redemption to any
other Holder of an Unregistered Security of such series shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and in an
Authorized Newspaper in London (and, if required by Section 4.04, in an
Authorized Newspaper in Luxembourg), in each case, once in each of two
successive calendar weeks, the first publication to be not less than thirty nor
more than sixty days prior to the date fixed for redemption. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder shall have received such notice. In any
case, failure to give notice by mail, or any defect in the notice to the Holder
of any Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify the provisions of such
Securities under which such redemption is made, that the conditions precedent,
if any, to such redemption have occurred, shall describe the same and the date
fixed for redemption, the redemption price at which such Securities are to be
redeemed, the Place of Payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Coupon Securities, of all
Coupons appertaining thereto maturing after the date fixed for redemption, that
interest and Additional Amounts, if any, accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest, if any, thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all of the Securities of a series are to be
redeemed any notice of redemption published in an Authorized Newspaper shall
specify the numbers of the Securities to be redeemed. In case any Security is to
be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that upon surrender
of such Security, a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued of the same series.
At least one Business Day prior to the redemption date specified in the
notice of redemption given for Unregistered Securities as provided in this
Section and on or prior to the redemption date specified in the notice of
redemption given for all Securities other than Unregistered Securities, the
Corporation will deposit in trust with the Trustee or with one or more paying
agents an amount of money sufficient to redeem on the redemption date all the
Securities or portions of Securities so called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed for
redemption. The Corporation will give the Trustee notice of each redemption at
least forty-five days prior to the date fixed for redemption (unless a shorter
notice is acceptable to the Trustee) as to the aggregate principal amount of
Securities to be redeemed.
If less than all of the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such other manner as it shall
deem reasonable and fair, the numbers of the Securities to be redeemed in whole
or in part.
SECTION 3.03. PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Securities or portions of
Securities with respect to which such notice has been given shall become due and
payable on the date and at the Place of Payment stated in such notice at the
applicable redemption price, together with interest, if any (and Additional
Amounts, if any), accrued to the date fixed for redemption, and on and after
said date (unless the Corporation shall default in the payment of such
Securities at the redemption price, together with interest, if any, and
Additional Amounts, if any, accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue. On
presentation and surrender of such Securities subject to redemption at said
Place of Payment in said notice specified, the said Securities or the specified
portions thereof shall be paid and redeemed by the Corporation at the applicable
redemption price, together with interest, if any, and Additional Amounts, if
any, accrued thereon to the date fixed for redemption. Interest, if any (and
Additional Amounts, if any), maturing on or prior to the date fixed for
redemption shall continue to be payable (but without interest thereon unless the
Corporation shall default in payment thereof) in the case of Coupon Securities
to the bearers of the Coupons for such interest upon surrender thereof, and in
the case of Registered Securities to the Holders thereof registered as such on
the Security Register on the relevant record date subject to the terms and
provisions of Section 2.04. At the option of the Corporation payment may be made
by check to (or to the order of) the Holders of the Securities or other persons
entitled thereto against presentation and surrender of such Securities.
If any Coupon Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the date fixed for redemption, the
surrender of such missing Coupon or Coupons may be waived by the Corporation and
the Trustee, if there be furnished to each of them such security or indemnity as
they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Corporation
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Corporation, a new Security or Securities, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented of the same series.
ARTICLE FOUR.
PARTICULAR COVENANTS OF THE CORPORATION.
SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS. The Corporation will duly and punctually pay or cause to be paid the
principal of (and premium, if any), interest, if any, and Additional Amounts, if
any, on each of the Securities at the place, at the respective times and in the
manner provided in the terms of the Securities and in this Indenture. The
interest on Coupon Securities (together with any Additional Amounts) shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. The
interest, if any, on any temporary bearer Securities (together with any
Additional Amounts) shall be paid, as to the installments of interest evidenced
by Coupons attached thereto, if any, only upon presentation and surrender
thereof, and, as to the other installments of interest, if any, only upon
presentation of such Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any Additional
Amounts) shall be payable only to the Holders thereof and at the option of the
Corporation may be paid by mailing checks for such interest payable to or upon
the order of such Holders at their last addresses as they appear on the Security
Register for such Securities.
SECTION 4.02. OFFICES FOR NOTICES AND PAYMENTS, ETC. As long as any of the
Securities of a series remain outstanding, the Corporation will designate and
maintain, in the Borough of Manhattan, The City of New York, an office or agency
where the Registered Securities of such series may be presented for registration
of transfer and for exchange as in this Indenture provided, an office or agency
where notices and demands to or upon the Corporation in respect of the
Securities of such series or of this Indenture may be served, and an office or
agency where the Securities of such series may be presented for payment. The
Corporation 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 Corporation
shall fail to maintain any such office or agency in the Borough of Manhattan,
The City of New York, or shall fail to give such notice of the location or of
any change in the location thereof, presentations may be made and notices and
demands may be served at the corporate trust office of the Trustee in the
Borough of Manhattan, The City of New York, and the Corporation hereby appoints
the Trustee as its agent to receive all such presentations, notices and demands.
If Unregistered Securities of any series are outstanding, the Corporation
will maintain or cause the Trustee to maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of such series are listed) where such Unregistered
Securities, and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the
Corporation within the United States nor will any payment be made by transfer to
an account in, or by mail to an address in, the United States, except, at the
option of the Corporation, if the Corporation shall have determined that,
pursuant to applicable United States laws and regulations then in effect such
payment can be made without adverse tax consequences to the Corporation.
Notwithstanding the foregoing, payments in U.S. Dollars with respect to
Unregistered Securities of any series and Coupons appertaining thereto which are
payable in U.S. Dollars may be made at an agency of the Corporation maintained
in the Borough of Manhattan, The City of New York if such payment in U.S.
Dollars at each agency maintained by the Corporation outside the United States
for payment on such Unregistered Securities is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Corporation hereby initially designates Citibank, N.A., located at its
Corporate Trust Office as the Security Registrar and as the office or agency of
the Corporation in the Borough of Manhattan, The City of New York, where the
Securities may be presented for payment and, in the case of Registered
Securities, for registration of transfer and for exchange as in this Indenture
provided and where notices and demands to or upon the Corporation in respect of
the Securities of any series or of this Indenture may be served.
SECTION 4.03. PROVISIONS AS TO PAYING AGENT. (a) Whenever the Corporation
shall appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to execute and deliver
to the Trustee an instrument in which such 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 (and premium, if any), interest, if any, or Additional
Amounts, if any, on the Securities of such series in trust for the benefit of
the Holders of the Securities of such series, or Coupons appertaining thereto,
as the case may be, entitled thereto and will notify the Trustee of the receipt
of sums to be so held,
(2) that it will give the Trustee notice of any failure by the
Corporation (or by any other obligor on the Securities of such series) to make
any payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any, on the Securities of such series when the same shall
be due and payable, and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent.
(b) If the Corporation shall act as its own paying agent, it will, on or
before each due date of the principal of (and premium, if any), interest, if
any, or Additional Amounts, if any, on the Securities of any series set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series entitled thereto a sum sufficient to pay such principal (and premium
if any), interest, if any, or Additional Amounts, if any, so becoming due. The
Corporation will promptly notify the Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the
Corporation may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities 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.
(d) 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 12.03 and 12.04.
SECTION 4.04. LUXEMBOURG PUBLICATIONS. In the event of the publication of
any notice pursuant to Section 3.02, 6.07, 7.10, 7.11, 9.02, 10.02 or 12.05, the
party making such publication shall also, to the extent that notice is required
so to be given to Holders of Securities of any series by applicable Luxembourg
law or stock exchange regulation, make a similar publication the same number of
times in Luxembourg.
SECTION 4.05. STATEMENT BY OFFICERS AS TO DEFAULT. The Corporation will
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Corporation (which, on the date of execution
hereof, ends on December 31) ending after the date hereof, commencing with the
fiscal year ended in 1995, an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Corporation is in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture to be performed or observed by it and, if the Corporation shall be in
default, specifying all such defaults and the nature thereof of which they may
have knowledge.
SECTION 4.06. LIMITATIONS ON LIENS. For the benefit of the Securities, the
Corporation will not, nor will it permit any Manufacturing Subsidiary to, issue
or assume any Debt secured by a Mortgage upon any Principal Domestic
Manufacturing Property of the Corporation or any Manufacturing Subsidiary or
upon any shares of stock or indebtedness of any Manufacturing Subsidiary
(whether such Principal Domestic Manufacturing Property, shares of stock or
indebtedness are now owned or hereafter acquired) without in any such case
effectively providing concurrently with the issuance or assumption of any such
Debt that the Securities (together with, if the Corporation shall so determine,
any other indebtedness of the Corporation or such Manufacturing Subsidiary
ranking equally with the Securities and then existing or thereafter created)
shall be secured equally and ratably with such Debt, unless the aggregate amount
of Debt issued or assumed and so secured by Mortgages, together with all other
Debt of the Corporation and its Manufacturing Subsidiaries which (if originally
issued or assumed at such time) would otherwise be subject to the foregoing
restrictions, but not including Debt permitted to be secured under clauses (i)
through (vi) of the immediately following paragraph, does not at the time exceed
20% of the stockholders' equity of the Corporation and its consolidated
subsidiaries, as determined in accordance with generally accepted accounting
principles and shown on the audited consolidated balance sheet contained in the
latest published annual report to the stockholders of the Corporation.
The above restrictions shall not apply to Debt secured by (i) Mortgages on
property, shares of stock or indebtedness of any corporation existing at the
time such corporation becomes a Manufacturing Subsidiary; (ii) Mortgages on
property existing at the time of acquisition of such property by the Corporation
or a Manufacturing Subsidiary, or Mortgages to secure the payment of all or any
part of the purchase price of such property upon the acquisition of such
property by the Corporation or a Manufacturing Subsidiary or to secure any Debt
incurred prior to, at the time of, or within 180 days after, the later of the
date of acquisition of such property and the date such property is placed in
service, for the purpose of financing all or any part of the purchase price
thereof, or Mortgages to secure any Debt incurred for the purpose of financing
the cost to the Corporation or a Manufacturing Subsidiary of improvements to
such acquired property; (iii) Mortgages securing Debt of a Manufacturing
Subsidiary owing to the Corporation or to another Subsidiary; (iv) Mortgages on
property of a corporation existing at the time such corporation is merged or
consolidated with the Corporation or a Manufacturing Subsidiary or at the time
of a sale, lease or other disposition of the properties of a corporation as an
entirety or substantially as an entirety to the Corporation or a Manufacturing
Subsidiary; (v) Mortgages on property of the Corporation or a Manufacturing
Subsidiary in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any indebtedness
incurred for the purpose of financing all or any part of the purchase price or
the cost of construction of the property subject to such Mortgages; or (vi) any
extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any Mortgage referred to in the foregoing
clauses (i) to (v), inclusively; PROVIDED, HOWEVER, that the principal amount of
Debt secured thereby shall not exceed by more than 115% the principal amount of
Debt so secured at 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 Mortgage so extended, renewed or replaced (plus
improvements on such property).
SECTION 4.07. LIMITATION ON SALE AND LEASE-BACK. For the benefit of the
Securities, the Corporation will not, nor will it permit any Manufacturing
Subsidiary to, enter into any arrangement with any person providing for the
leasing by the Corporation or any Manufacturing Subsidiary of any Principal
Domestic Manufacturing Property owned by the Corporation or any Manufacturing
Subsidiary on the date that the Securities are originally issued (except for
temporary leases for a term of not more than five years and except for leases
between the Corporation and a Manufacturing Subsidiary or between Manufacturing
Subsidiaries), which property has been or is to be sold or transferred by the
Corporation or such Manufacturing Subsidiary to such person, unless either (i)
the Corporation or such Manufacturing Subsidiary would be entitled, pursuant to
the provisions of the covenant on limitation on liens described above, to issue,
assume, extend, renew or replace Debt secured by a Mortgage upon such property
equal in amount to the Attributable Debt in respect of such arrangement without
equally and ratably securing the Securities; provided, however, that from and
after the date on which such arrangement becomes effective the Attributable Debt
in respect of such arrangement shall be deemed for all purposes under the
covenant on limitation on liens described in Section 4.06 and this covenant on
limitation on sale and lease-back to be Debt subject to the provisions of the
covenant on limitation on liens described above (which provisions include the
exceptions set forth in clauses (i) through (vi) of such covenant), or (ii) the
Corporation shall apply an amount in cash equal to the Attributable Debt in
respect of such arrangement to the retirement (other than any mandatory
retirement or by way of payment at maturity), within 180 days of the effective
date of any such arrangement, of Debt of the Corporation or any Manufacturing
Subsidiary (other than Debt owned by the Corporation or any Manufacturing
Subsidiary) which by its terms matures at or is extendible or renewable at the
option of the obligor to a date more than twelve months after the date of the
creation of such Debt.
SECTION 4.08. DEFINITIONS APPLICABLE TO SECTIONS 4.06 AND 4.07. The
following definitions shall be applicable to the covenants contained in Sections
4.06 and 4.07 hereof:
(a) "Attributable Debt" means, at the time of determination as to any
lease, the present value (discounted at the actual rate, if
stated, or, if no rate is stated, the implicit rate of interest
of such lease transaction as determined by the chairman,
president, any vice chairman, any vice president, the treasurer
or any assistant treasurer of the Corporation), calculated using
the interval of scheduled rental payments under such lease, of
the obligation of the lessee for net rental payments during the
remaining term of such lease (excluding any subsequent renewal or
other extension options held by the lessee). The term "net
rental payments" means, with respect to any lease for any period,
the sum of the rental and other payments required to be paid in
such period by the lessee thereunder, but not including, however,
any amounts required to be paid by such lessee (whether or not
designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments, water
rates, indemnities or similar charges required to be paid by such
lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales, earnings
or profits or of maintenance and repairs, insurance, taxes,
assessments, water rates, indemnities or similar charges;
provided, however, that, in the case of any lease which is
terminable by the lessee upon the payment of a penalty in an
amount which is less than the total discounted net rental
payments required to be paid from the later of the first date
upon which such lease may be so terminated and the date of the
determination of net rental payments, "net rental payments" shall
include the then current amount of such penalty from the later of
such two dates, and shall exclude the rental payments relating to
the remaining period of the lease commencing with the later of
such two dates.
(b) "Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
(c) "Manufacturing Subsidiary" means any Subsidiary (A) substantially
all the property of which is located within the continental
United States of America, (B) which owns a Principal Domestic
Manufacturing Property and (C) in which the Corporation's
investment, direct or indirect and whether in the form of equity,
debt, advances or otherwise, is in excess of U.S.$2,500,000,000
as shown on the books of the Corporation as of the end of the
fiscal year immediately preceding the date of determination;
PROVIDED, HOWEVER, that "Manufacturing Subsidiary" shall not
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include Electronic Data Systems Corporation and its Subsidiaries,
Hughes Electronics Corporation and its Subsidiaries, General
Motors Acceptance Corporation and its Subsidiaries (or any
corporate successor of any of them) or any other Subsidiary which
is principally engaged in leasing or in financing installment
receivables or otherwise providing financial or insurance
services to the Corporation or others or which is principally
engaged in financing the Corporation's operations outside the
continental United States of America.
(d) "Mortgage" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
(e) "Principal Domestic Manufacturing Property" means any manufacturing
plant or facility owned by the Corporation or any Manufacturing
Subsidiary which is located within the continental United States of
America and, in the opinion of the Board of Directors, is of
material importance to the total business conducted by the
Corporation and its consolidated affiliates as an entity.
(f) "Subsidiary" means any corporation of which at least a majority
of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the board of directors of
such corporation (irrespective of whether or not at the time
stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency) is at the time owned by the Corporation, or by one
or more Subsidiaries, or by the Corporation and one or more
Subsidiaries.
ARTICLE FIVE.
SECURITYHOLDER LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE.
SECTION 5.01. SECURITYHOLDER LISTS. The Corporation covenants and
agrees that it will furnish or cause to be furnished to the Trustee with
respect to the Securities of each series:
(a) semiannually, not later than each Interest Payment Date (in the
case of any series having semiannual Interest Payment Dates) or not later than
the dates determined pursuant to Section 2.01 (in the case of any series not
having semiannual Interest Payment Dates) a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities
of such series as of the Regular Record Date (or as of such other date as may be
determined pursuant to Section 2.01 for such series) therefor, and
(b) at such other times as the Trustee may request in writing,
within thirty days after receipt by the Corporation of any such request, a list
in such form as the Trustee may reasonably require of the names and addresses of
the Holders of Securities of a 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
Security Registrar any such list shall exclude names and addresses received by
the Trustee in its capacity as Security Registrar, and if and so long as all of
the Securities of any series are Registered Securities, 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 Securities (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 Security 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 Securities (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 Security 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 Securities of a particular series (in which case the applicants must
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities 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 Securities of such series or all Securities, 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 Securityholders 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 such series or all Securities, 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, 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 Securities of such series or all Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If said 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, said 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 Securities, by receiving and holding the
same, agrees with the Corporation and the Trustee that neither the Corporation
nor the Trustee nor any agent of the Corporation 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 Securities 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 CORPORATION. The Corporation covenants:
(a) to file with the Trustee within fifteen days after the Corporation is
required to file the same with the Securities and Exchange 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 said Commission may from time
to time by rules and regulations prescribe) which the Corporation may be
required to file with said Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934; or, if the Corporation is not required to
file information, documents or reports pursuant to either of such sections, then
to file with the Trustee and said 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) to file with the Trustee and the Securities and Exchange Commission,
in accordance with the rules and regulations prescribed from time to time by
said Commission, such additional information, documents, and reports with
respect to compliance by the Corporation with the conditions and covenants
provided for in this Indenture as may be required from time to time by such
rules and regulations;
(c) to transmit by mail to all the Holders of Securities of each series,
as the names and addresses of such Holders appear on the Security Register,
within thirty days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by the Corporation
with respect to each such series pursuant to subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Securities and Exchange Commission; and
(d) If Unregistered Securities of any series are outstanding, to file with
the listing agent of the Corporation with respect to such series such documents
and reports of the Corporation as may be required from time to time by the rules
and regulations of any stock exchange on which such Unregistered Securities are
listed.
SECTION 5.04. REPORTS BY THE TRUSTEE. (a) On or before April 1, 1996 and
on or before April 1 of each year thereafter, so long as any Securities of any
series are outstanding hereunder, the Trustee shall transmit to the Holders of
Securities of such series, in the manner provided by Section 311(c) of the Trust
Indenture Act of 1939, a brief report dated as of the preceding February 15, as
may be required by Sections 311(a) and (b) of the Trust Indenture Act of 1939.
(b) A copy of each such report shall, at the time of such transmission to Holder
of Securities of a particular series, be filed by the Trustee with each stock
exchange upon which the Securities of such series are listed and also with the
Securities and Exchange Commission. The Corporation agrees to notify the Trustee
when and as the Securities of any series 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 Securities 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 Securities 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, or in
the payment of any Additional Amounts upon any of the Securities 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 Corporation duly to observe or perform any
other of the covenants or agreements on the part of the Corporation applicable
to such series of the Securities or contained in this Indenture for a period of
ninety days after the date on which written notice of such failure, requiring
the Corporation to remedy the same, shall have been given to the Corporation by
the Trustee, or to the Corporation and the Trustee by the Holders of at least
twenty-five percent in aggregate principal amount of the Securities 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 Corporation 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 Corporation 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
ninety days; or
(e) the Corporation 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 Corporation 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 Securities 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 Securities of all series affected
thereby then outstanding hereunder, by notice in writing to the Corporation (and
to the Trustee if given by Holders of such Securities) may declare the principal
amount of all the Securities (or, with respect to Original Issue Discount
Securities, such lesser amount as may be specified in the terms of such
Securities) 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 Securities 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 Securities then outstanding
hereunder (voting as one class), by notice in writing to the Corporation (and to
the Trustee if given by Holders of Securities), may declare the principal of all
the Securities not already due and payable (or, with respect to Original Issue
Discount Securities, such lesser amount as may be specified in the terms of such
Securities) 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 Securities to the contrary notwithstanding. The
foregoing provisions, however, are subject to the conditions that if, at any
time after the principal of the Securities 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 Corporation shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest, if
any, and all Additional Amounts, if any, due upon all the Securities of such
series or of all the Securities, as the case may be, and the principal of (and
premium, if any, on) all Securities of such series or of all the Securities, as
the case may be (or, with respect to Original Issue Discount Securities, such
lesser amount as may be specified in the terms of such Securities), 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 and
Additional Amounts, if any, at the same rate as the rate of interest specified
in the Securities of such series, as the case may be (or, with respect to
Original Issue Discount Securities at the rate specified in the terms of such
Securities 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 Securities of such series (or of all the Securities, as
the case may be) then outstanding, by written notice to the Corporation and to
the Trustee, may waive all defaults with respect to that series or with respect
to all Securities, 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 Securities 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 Securities shall be
treated as a single class and the principal amount of Original Issue Discount
Securities shall be deemed to be the amount declared payable under the terms
applicable to such Original Issue Discount Securities.
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 recession and annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Corporation, Trustee and the Holders of Securities, as the case may be, shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Corporation, the Trustee and the Holders of
Securities, as the case may be, shall continue as though no such proceedings had
been taken.
SECTION 6.02. PAYMENT OF SECURITIES ON DEFAULT; SUIT THEREFOR. The
Corporation covenants that (1) in case default shall be made in the payment of
any installment of interest, if any, on any of the Securities of any series or
any Additional Amounts in payable respect of any of the Securities 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) any of the
Securities of any series, as and when the same shall have become due and
payable, whether upon maturity of such series or upon redemption or upon
declaration or otherwise, then upon demand of the Trustee, the Corporation will
pay to the Trustee, for the benefit of the Holders of the Securities of such
series, and the Coupons, if any, appertaining to such Securities, the whole
amount that then shall have become due and payable on all such Securities of
such series and such Coupons, for principal (and premium, if any) or interest,
if any, or Additional Amounts, 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, and Additional Amounts, if any, at the same rate as the rate
of interest specified in the Securities of such series (or, with respect to
Original Issue Discount Securities, at the rate specified in the terms of such
Securities for interest on overdue principal thereof upon maturity, redemption
or acceleration); and, in addition thereto, such further amounts as shall be
payable pursuant to Section 7.06.
In case the Corporation 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 Corporation or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Corporation or other obligor upon such Securities 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 Corporation or any other obligor upon Securities 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
Corporation or such other obligor, or in case of any other judicial proceedings
relative to the Corporation or such other obligor, or to the creditors or
property of the Corporation or such other obligor, the Trustee, irrespective of
whether the principal of the Securities 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 (or, with respect to Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series), and premium, if any, interest, if any, and Additional Amounts, if any,
owing and unpaid in respect of the Securities 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 the Securities
and Coupons of such series allowed in any such judicial proceedings relative to
the Corporation or other obligor upon the Securities of such series, or to the
creditors or property of the Corporation 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
Securityholders 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 the Securities and Coupons 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 the Securityholders 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
reasonable 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 Securities
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 Securities, may be enforced by the Trustee without the
possession of any of the Securities or Coupons appertaining to such Securities,
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 Securities or Coupons
appertaining thereto.
In case of a 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 shall be applied in the order
following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, if any, upon presentation of the several Securities and Coupons in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of the amounts payable to the Trustee pursuant
to Section 7.06;
SECOND: In case the principal of the Securities in respect of which moneys
have been collected shall not have become due, to the payment of interest, if
any, and Additional Amounts, if any, on the Securities 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, and Additional Amounts, if any, specified in the Securities of such series
(or, with respect to Original Issue Discount Securities, at the rate specified
in the terms of such Securities 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 Securities 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 Securities of such
series for principal (and premium, if any), interest, if any, and Additional
Amounts, if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest, if any, and Additional Amounts,
if any, at the same rate as the rate of interest specified in the Securities of
such series (or, with respect to Original Issue Discount Securities, at the rate
specified in the terms of such Securities 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
Securities of such series, then to the payment of such principal (and premium,
if any), interest, if any, and Additional Amounts, if any, without preference or
priority of principal (and premium, if any), over interest, if any, and
Additional Amounts, if any, or of interest, if any, and Additional Amounts, if
any, over principal (and premium, if any), or of any installment of interest, if
any, or Additional Amounts, if any, over any other installment of interest, if
any, or Additional Amounts, if any, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal (and
premium, if any), and accrued and unpaid interest, if any, and Additional
Amounts, if any.
SECTION 6.04. PROCEEDINGS BY SECURITYHOLDERS. No Holder of any Security of
any series or of any Coupon appertaining thereto 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 such Holder previously shall have
given to the Trustee written notice of default and of the continuance thereof,
as hereinbefore provided, and unless also the Holders of not less than
twenty-five percent in aggregate principal amount of the Securities of such
series then outstanding or, in the case of any Event of Default described in
clause (d) or (e) of Section 6.01, twenty-five per cent in aggregate principal
amount of all the Securities at the time outstanding (voting as one class) shall
have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and 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 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 Security with every other taker and Holder and
the Trustee, that no one or more Holders of Securities or Coupons appertaining
to such Securities shall have any right in any manner whatever by virtue of or
by availing himself of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of Securities or Coupons appertaining
to such Securities, 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 Securities and Coupons. For the protection and enforcement of the
provisions of this Section, each and every Securityholder 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 Security to receive payment of the principal of (and
premium, if any) and interest, if any, and Additional Amounts, if any, on such
Security or Coupon, on or after the respective due dates expressed in such
Security or Coupon, 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 Securities,
principal shall mean such amount as shall be due and payable be specified in the
terms of such Securities.
SECTION 6.05. REMEDIES CUMULATIVE AND CONTINUING. All powers and remedies
given by this Article Six to the Trustee or to the Holders of Securities or
Coupons 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 the Holders of Securities or Coupons, 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 Securities or Coupons to exercise any right or
power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such
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 the Holders of Securities or Coupons may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Holders of
Securities or Coupons, as the case may be.
SECTION 6.06. DIRECTION OF PROCEEDINGS. The Holders of a majority in
aggregate principal amount of the Securities 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;
provided, however, that (i) such direction shall not be in conflict with any
rule of law or with this Indenture, (ii) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction and
(iii) 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 would be prejudicial to the Holders not joining in such
direction or 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 responsible officers 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 Securities of
any series, the holders of a majority in aggregate principal amount of the
Securities of such series at the time outstanding may on behalf of the Holders
of all of the Securities 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, or Additional Amounts, if
any, on any Securities of such series or in respect of a covenant or provision
hereof which may not be modified or amended without the consent of the Holders
of each outstanding Security of such series affected. Upon any such waiver the
Corporation, the Trustee and the Holders of the Securities 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 Securities 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 the Securities of any series,
give notice of all defaults with respect to that series known to the Trustee (i)
if any Unregistered Securities of that series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 4.04, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of that
series are then outstanding, to all Holders thereof who have filed their names
and addresses with the Trustee as described in Section 5.04, by mailing such
notice to such Holders at such addresses and (iii) to all Holders of then
outstanding Registered Securities of that series, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register, unless
in each case such defaults shall have been cured before the mailing or
publication of such notice (the term "defaults" for the purpose of this Section
being hereby defined to be the events specified in Sections 6.01(a), (b), (c),
(d) and (e) and any additional events specified in the terms of any series of
Securities pursuant to Section 2.01, not including periods of grace, if any,
provided for therein, and irrespective of the giving of written notice specified
in Section 6.01 (c) or in the terms of any Securities established pursuant to
Section 2.01); and provided that, except in the case of default in the payment
of the principal of (premium, if any), interest, if any, or Additional Amounts,
if any, on any of the Securities of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or responsible officers
of the Trustee in good faith determines that the withholding of such notice is
in the interests of the Holders of the Securities of such series.
SECTION 6.08. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each Holder of any Security 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 Securityholders of
any series, or group of such Securityholders, holding in the aggregate more than
ten percent in aggregate principal amount of all Securities (voting as one
class), or to any suit instituted by any Securityholders for the enforcement of
the payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any on any Security on or after the due date expressed in
such Security.
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 a particular series and after the
curing of all Events of Default 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 a
particular series has occurred (which has not been cured) 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
such series which may have occurred:
(1) the duties and obligations of the Trustees with respect to 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; and
(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 Securities 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.
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 adequate indemnity 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 rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, Coupon 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 Corporation mentioned
herein shall be sufficiently evidenced by an instrument signed in the name of
the Corporation by the Chairman of the Board of Directors or any Vice Chairman
of the Board of Directors or the President or any Executive Vice President or
any Senior Vice President or any Vice President or the Treasurer and by the
Secretary or any Assistant Secretary or, if the other signatory is other than
the Treasurer, any Assistant Treasurer (unless other evidence in respect thereof
be herein specifically prescribed); and a Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or any Assistant
Secretary of the Corporation;
(c) the Trustee may consult with counsel and 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 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 Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity 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, coupon 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 Corporation, 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, provided, however, that the Trustee shall be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it
hereunder; and
(g) the Trustee shall not be liable for any action taken 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 Securities, other than the Trustee's certificate of
authentication, shall be taken as the statements of the Corporation, 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 Securities, provided that the Trustee shall not be relieved of its duty
to authenticate Securities only as authorized by this Indenture. The Trustee
shall not be accountable for the use or application by the Corporation of
Securities or the proceeds thereof.
SECTION 7.04. OWNERSHIP OF SECURITIES OR COUPONS. The Trustee or any agent
of the Corporation or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons with the same rights it
would have if it were not Trustee, or an agent of the Corporation or of the
Trustee.
SECTION 7.05. MONEYS TO BE HELD IN TRUST. Subject to the provisions of
Section 12.04 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 Corporation 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 Corporation, signed by its Chairman of the Board of Directors or
any Vice Chairman of the Board of Directors or its President or any Executive
Vice President or any Senior Vice President or any Vice President or its
Treasurer or any Assistant Treasurer.
SECTION 7.06. COMPENSATION AND EXPENSES OF TRUSTEE. The Corporation
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 Corporation 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, expenses and disbursements of its
counsel and of all 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 hereon. The Corporation also covenants to indemnify
the Trustee for, and to hold it harmless against, any loss, liability or
reasonable expense incurred without negligence or bad faith on the part of the
Trustee, arising out of or in connection with the acceptance or administration
of this trust, including the reasonable costs and expenses of defending itself
against any claim of liability in the premises. The obligations of the
Corporation 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. Such additional indebtedness shall be secured
by a lien prior to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or Coupons.
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. (a) The Trustee shall
comply with Section 310(b) of the Trust Indenture Act of 1939.
(b) The Indentures dated as of April 1, 1986 and November 15, 1990,
respectively, between the Corporation and Citibank, N.A. shall be deemed to be
specifically described herein for purposes of clause (i) of the first proviso
contained in 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 twenty-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, upon sixty days written notice to
the Corporation, at any time resign with respect to one or more or all series by
giving written notice of resignation to the Corporation (i) if any Unregistered
Securities of a series affected are then outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in London (and, if required by Section 4.04, at least once
in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities
of a series affected are then outstanding, by mailing notice of such resignation
to the Holders thereof who have filed their names and addresses with the Trustee
as described in Section 5.04 at such addresses as were so furnished to the
Trustee and (iii) by mailing notice of such resignation to the Holders of then
outstanding Registered Securities of each series affected at their addresses as
they shall appear on the Security Register. Upon receiving such notice of
resignation the Corporation shall promptly appoint a successor trustee with
respect to the applicable series by written instrument, in duplicate, executed
by order of the Board of Directors of the Corporation, 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 mailing of such notice of
resignation to the Securityholders, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities 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: (i) the Trustee
shall fail to comply with the provisions of subsection (a) of Section 7.08 with
respect to any series of Securities after written request therefor by the
Corporation or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months, or
(ii) the Trustee shall cease to be eligible in accordance with the
provision of Section 7.09 with respect to any series of Securities and shall
fail to resign after written request therefor by the Corporation or by any such
Securityholder, or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, 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 Corporation may remove the Trustee with respect to
the applicable series of Securities 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 Corporation, 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 Securityholder of such series who
has been a bona fide Holder of a Security or Securities 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
Securities of all series (voting as one class) at the time outstanding may at
any time remove the Trustee with respect to Securities of all series and appoint
a successor trustee with respect to the Securities 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.
SECTION 7.11. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Corporation 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 Corporation 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 Corporation 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 Securities of one or more (but not all) series, the Corporation, the
predecessor Trustee and each successor trustee with respect to the Securities 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 Securities 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.
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 Corporation shall give notice of the succession of such trustee
hereunder (a) if any Unregistered Securities of a series affected are then
outstanding, to the Holders thereof, by publication of such notice at least once
in an Authorized Newspaper in the Borough of Manhattan, The City of New York and
at least once in an Authorized Newspaper in London (and, if required by Section
4.04, at least once in an Authorized Newspaper in Luxembourg), (b) if any
Unregistered Securities of a series affected are then outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 5.04, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Corporation for such purpose) and (c) to the
Holders of Registered Securities of each series affected, by mailing such notice
to such Holders at their addresses as they shall appear on the Security
Register. If the Corporation fails to mail 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 Corporation.
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 SECURITYHOLDERS.
SECTION 8.01. ACTION BY SECURITYHOLDERS. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities 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 Securityholders in person or by agent or proxy appointed in writing,
or (b) by the record of the Holders of Securities voting in favor thereof at any
meeting of Securityholders 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 Securityholders.
In determining whether the Holders of a specified percentage in aggregate
principal amount of the Securities 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
Security 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 Security at the
time the taking of such action is evidenced to the Trustee.
SECTION 8.02. PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to the
provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Securityholder or its agent or proxy shall be sufficient if made
in the following manner:
(a) In the case of Holders of Unregistered Securities, 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 instruments 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. Where such execution is by or on behalf of any legal entity other than
an individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the person executing the same. The fact of the holding
by any Holder of a Security of any series, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank, banker
or recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the person named in such certificate. Any such certificate may be issued in
respect of one or more Securities of one or more series specified therein. The
holding by the person named in any such certificate of any Securities of any
series specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of
such holding (1) another certificate bearing a later date issued in respect of
the same Securities shall be produced, or (2) the Security of such series
specified in such certificate shall be produced by some other person, or (3) the
Security of such series specified in such certificates shall have ceased to be
outstanding. Subject to Sections 7.01, 7.02 and 9.05, the fact and date of the
execution of any such instrument and the amount and numbers of Securities of any
series held by the person so executing such instrument and the amount and
numbers of any Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee for such series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such Securities
shall be proved by the Security Register or by a certificate of the Security
Registrar.
SECTION 8.03. WHO ARE DEEMED ABSOLUTE OWNERS. The Corporation, the
Trustee, any paying agent, any transfer agent and any Security Registrar may
treat the Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether or not such
Unregistered Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes and neither the
Corporation, the Trustee, any paying agent, any transfer agent nor any Security
Registrar shall be affected by any notice to the contrary. The Corporation, the
Trustee, any paying agent, any transfer agent and any Security Registrar may,
subject to Section 2.04 hereof, treat the person in whose name a Registered
Security shall be registered upon the Security Register as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue) for the purpose of receiving payment thereof or on account thereof and
for all other purposes and neither the Corporation, the Trustee, any paying
agent, any transfer agent nor any Security Registrar shall be affected by any
notice to the contrary.
SECTION 8.04. CORPORATION-OWNED SECURITIES DISREGARDED. In determining
whether the Holders of the required aggregate principal amount of Securities
have concurred in any direction, consent or waiver under this Indenture,
Securities which are owned by the Corporation or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Corporation, 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 Securities which the Trustee knows are so
owned shall be disregarded. Securities 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 Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Corporation. 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 SECURITYHOLDERS BOUND. At any
time prior to the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security the identifying number of
which is shown by the evidence to be included in the Securities 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 Security. Except as aforesaid any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Security issued in exchange or substitution therefor irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the
Securities specified in this Indenture in connection with such action shall be
conclusively binding upon the Corporation, the Trustee and the Holders of all
the Securities of each series intended to be affected thereby.
SECTION 8.06. SECURITIES IN A FOREIGN CURRENCY. Unless otherwise specified
in an Officers' Certificate delivered pursuant to Section 2.01 of this Indenture
with respect to a particular series of Securities, on any day when for purposes
of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of two or more series of outstanding
Securities and, at such time, there are outstanding Securities of at least one
such series which are denominated in a coin or currency other than that of at
least one other such series, then the principal amount of Securities of each
such series (other than any such series denominated in U.S. Dollars) which shall
be deemed to be outstanding for the purpose of taking such action shall be that
amount of U.S. Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 8.06, Market Exchange Rate shall
mean the noon U.S. Dollar buying rate for that currency for cable transfers
quoted in The City of New York on such day as certified for customs purposes by
the Federal Reserve Bank of New York; provided, however, in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities, such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Corporation shall
use, in its sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York, or in the case of ECUs, the rate of
exchange as published in the Journal, as of the most recent available date, or
in the case of ECUs, rates of exchange from one or more major banks in The City
of New York or in the country of issue of the currency in question, which for
purposes of the ECU shall be Brussels, Belgium, or such other quotations or, in
the case of ECUs, a rate of exchange as the Corporation shall deem appropriate.
The provisions of this paragraph shall apply in determining the equivalent
number of votes which each Securityholder or proxy shall be entitled to pursuant
to Section 9.05 in respect of Securities of a series denominated in a currency
other than U.S. Dollars.
All decisions and determinations of the Corporation regarding the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Corporation and all Holders.
ARTICLE NINE.
SECURITYHOLDERS' MEETINGS.
SECTION 9.01. PURPOSES OF MEETINGS. A meeting of Securityholders 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 Corporation or to the Trustee, or to give
any directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders 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 Securities 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 Holders of Securities 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 the
Borough of Manhattan, The City of New York, or in London, as the Trustee shall
determine. Notice of every meeting of the Holders of Securities 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 (i) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof, by
publication at least twice in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least twice in an Authorized Newspaper in
London (and, if required by Section 4.04, at least twice in an Authorized
Newspaper in Luxembourg) prior to the date fixed for the meeting, the first
publication, in each case, to be not less than twenty nor more than one hundred
eighty days prior to the date fixed for the meeting and the last publication to
be not more than five days prior to the date fixed for the meeting, (ii) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof who
have filed their names and addresses with the Trustee as described in Section
5.04, by mailing such notice to such Holders at such addresses, not less than
twenty nor more than one hundred eighty days prior to the date fixed for the
meeting and (iii) to all Holders of then outstanding Registered Securities of
each series that may be affected by the action proposed to be taken at such
meeting, by mailing such notice to such Holders at their addresses as they shall
appear on the Security Register, not less than twenty nor more than one hundred
eighty days prior to the date fixed for the meeting. Failure of any Holder or
Holders to receive such notice or any defect therein shall in no case affect the
validity of any action taken at such meeting. Any meeting of Holders of
Securities of all or any series shall be valid without notice if the Holders of
all such Securities outstanding, the Corporation and the Trustee are present in
person or by proxy or shall have waived notice thereof before or after the
meeting. The Trustee may fix, in advance, a date as the record date for
determining the holders entitled to notice of or to vote at any such meeting at
not less than twenty or more than one hundred eighty days prior to the date
fixed for such meeting.
SECTION 9.03. CALL OF MEETINGS BY CORPORATION OR SECURITYHOLDERS. In case
at any time the Corporation, pursuant to a Board Resolution, or the Holders of
at least ten percent in aggregate principal amount of the Securities of any or
all series, as the case may be, then outstanding, shall have requested the
Trustee to call a meeting of Securityholders 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 mailed or published as provided in Section 9.02, the
notice of such meeting within thirty days after receipt of such request, then
the Corporation or the Holders of such Securities in the amount above specified
may determine the time and the place in said Borough of Manhattan or London for
such meeting and may call such meeting to take any action authorized in Section
9.01, by mailing notice thereof as provided in Section 9.02.
SECTION 9.04. QUALIFICATION FOR VOTING. To be entitled to vote at any
meeting of Securityholders a person shall be a Holder of one or more Securities
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
Securityholders 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 Corporation 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 Securityholders, in regard to proof of the holding
of Securities 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
Corporation or by Securityholders as provided in Section 9.03, in which case the
Corporation or the Securityholder 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 Securities represented at the meeting and
entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each U.S.$1,000
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting not to be
outstanding. The chairman of the meeting shall have no right to vote except as a
Securityholder or proxy. Any meeting of Securityholders 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 Securityholders shall be by written ballot on which shall be
subscribed the signatures of the Securityholders 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 Securities 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 reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders 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
affidavit 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 mailed 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 Corporation 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 SECURITYHOLDERS.
The Corporation, 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 Corporation,
or successive successions, and the assumption by any successor corporation of
the covenants, agreements and obligations of the Corporation pursuant to Article
Eleven hereof;
(b) to add to the covenants of the Corporation 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 Securities of any or
all series, or the Coupons appertaining to such Securities, 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 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 or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
of any series in bearer form, registrable or not registrable as to principal,
and with or without interest Coupons, and to provide for exchangeability of such
Securities with Securities issued hereunder in fully registered form and to make
all appropriate changes for such purpose, and to add or change any of the
provisions of this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of uncertificated Securities of any series;
(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 any series of Securities or any Coupons appertaining
to such Securities;
(e) to evidence and provide for the acceptance and appointment hereunder
by a successor trustee with respect to the Securities 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 establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03; and
(g) 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
Security 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 Security outstanding.
The Trustee is hereby authorized to join with the Corporation 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 Corporation and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 10.02.
SECTION 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF Securityholders.
With the consent (evidenced as provided in Section 8.01) of the Holders of not
less than a majority in the aggregate principal amount of the Securities of all
series at the time outstanding affected by such supplemental indenture (voting
as one class), the Corporation, 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 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 indentures or modifying in any manner the rights of the
Holders of the Securities of each such series or any Coupons appertaining to
such Securities; provided, however, that no such supplemental indenture shall
(i) change the fixed maturity of any Securities, or reduce the principal amount
thereof (or premium, if any), or reduce the rate or extend the time of payment
of any interest or Additional Amounts thereon or reduce the amount due and
payable upon acceleration of the maturity thereof or the amount provable in
bankruptcy, or make the principal of (premium, if any) or interest, if any, or
Additional Amounts, if any, on any Security payable in any coin or currency
other than that provided in such Security, (ii) impair the right to institute
suit for the 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 Securities, 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 Holder of each Security so affected.
Upon the request of the Corporation, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the
Corporation authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid, the Trustee shall join with the Corporation 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 Securityholders 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 and delivery by the Corporation and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give notice of such supplemental indenture (i) to the
Holders of then outstanding Registered Securities of each series affected
thereby, by mailing a notice thereof by first-class mail to such Holders at
their addresses as they shall appear on the Security Register, (ii) if any
Unregistered Securities of a series affected thereby are then outstanding, to
the Holders thereof who have filed their names and addresses with the Trustee as
described in Section 5.04, by mailing a notice thereof by first-class mail to
such Holders at such addresses as were so furnished to the Trustee and (iii) if
any Unregistered Securities of a series affected thereby are then outstanding,
to all Holders thereof, if by publication of a notice thereof at least once in
an Authorized Newspaper in London (and, if required by Section 4.04, at least
once in an Authorized Newspaper in Luxembourg), and in each case such notice
shall set forth in general terms the substance of such supplemental indenture.
Any failure of the Corporation to mail or publish 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
Corporation and the Holders of Securities 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 SECURITIES. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provision 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 Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Corporation, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Corporation, authenticated by the Trustee and delivered,
without charge to the Securityholders, in exchange for the Securities of such
series then outstanding.
ARTICLE ELEVEN.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 11.01. CORPORATION MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. The
Corporation 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, firm or corporation, unless (i) either the Corporation shall be the
continuing corporation, or the successor corporation (if other than the
Corporation) 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 premium, if any),
interest, if any, and Additional Amounts, if any, on all the Securities and any
Coupons, 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 Corporation by supplemental indenture satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation and (ii) the
Corporation 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 SUBSTITUTED. 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 Corporation, 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 Corporation, any or all of the Securities, and any Coupons
appertaining thereto, issuable hereunder which theretofore shall not have been
signed by the Corporation and delivered to the Trustee; and, upon the order of
such successor corporation, instead of the Corporation, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities or Coupons which previously
shall have been signed and delivered by the officers of the Corporation to the
Trustee for authentication, and any Securities or Coupons which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All of the Securities, and any Coupons appertaining thereto, so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities or Coupons theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities,
and any Coupons appertaining thereto, 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 Securities and
Coupons 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 1, 1996, and on
or before April 1 in each year thereafter, the Corporation will deliver to the
Trustee a brief certificate of the Corporation's principal executive officer,
principal financial officer or principal accounting officer as to such officer's
knowledge of the Corporation'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.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 12.01. DISCHARGE OF INDENTURE. If at any time (a) the Corporation
shall have delivered to the Trustee for cancellation all Securities of any
series theretofore authenticated (other than any Securities of such series and
Coupons appertaining thereto which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.06) or (b) all
such Securities of such series and any Coupons appertaining to such Securities
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 Corporation 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
Corporation in accordance with Section 12.04) sufficient to pay at maturity or
upon redemption all Securities of such series and all Coupons appertaining to
such Securities not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any), interest, if any, and Additional
Amounts, 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 Corporation shall also
pay or cause to be paid all other sums payable hereunder by the Corporation with
respect to such series, then this Indenture shall cease to be of further effect
with respect to the Securities of such series or any Coupons appertaining to
such Securities, and the Trustee, on demand of and at the cost and expense of
the Corporation and subject to Section 14.04, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to the
Securities of such series and all Coupons appertaining to such Securities. The
Corporation 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 Securities of such series or any Coupons appertaining to such
Securities.
SECTION 12.02. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY
SERIES. If pursuant to Section 2.01 provision is made for the defeasance of
Securities of a series, then the provisions of this Section 12.02 shall be
applicable except as otherwise specified as contemplated by Section 2.01 for
Securities of such series. At the Corporation's option, either (a) the
Corporation shall be deemed to have paid and discharged the entire indebtedness
on all the outstanding Securities of any such series and the Trustee, at the
expense of the Corporation, shall execute proper instruments acknowledging
satisfaction and discharge of such indebtedness or (b) the Corporation 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 Securities of such series,
(i) the Corporation 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 Securities and any related
Coupons are then specified as payable at stated maturity) sufficient
to pay and discharge the entire indebtedness of all outstanding
Securities of such series for principal (and premium, if any),
interest, if any, and Additional Amounts, if any, to the stated
maturity or any redemption date as contemplated by the last
paragraph of this Section 12.02, as the case may be; or
(ii) the Corporation 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 Securities of such series for principal (and premium, if
any), interest, if any, and Additional Amounts, if any, to the
stated maturity or any redemption date as contemplated by the last
paragraph of this Section 12.02, as the case may be; or
(B) the Corporation 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 Securities of such series, and
(2) the Corporation has paid or caused to be paid all other sums payable
with respect to the outstanding Securities of such series, and
(3) The Corporation has delivered to the Trustee an Opinion of Counsel
stating that (i) the Corporation 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 shall
confirm that, the holders of the outstanding Securities and any related Coupons
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.
(4) the Corporation has delivered to the Trustee an Officers' 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 Securities of any such series have been complied
with.
Any deposits with the Trustee referred to in Section 12.02(l)(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
Securities 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 therefor and the Corporation 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 Corporation.
SECTION 12.03. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. All
moneys deposited with the Trustee pursuant to Section 12.01 or 12.02 shall be
held in trust and applied by it to the payment, either directly or through any
paying agent (including the Corporation acting as its own paying agent), to the
Holders of the particular Securities and of any Coupons appertaining to such
Securities 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), interest, if any, and Additional Amounts, if
any.
SECTION 12.04. PAYING AGENT TO REPAY MONEYS HELD. In connection with the
satisfaction and discharge of this Indenture with respect to Securities of any
series all moneys with respect to such Securities then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Corporation, 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 12.05. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or
paid to the Trustee or any paying agent for the payment of the principal of (and
premium, if any), interest, if any, and Additional Amounts, if any, on any
Security and not applied but remaining unclaimed for two years after the date
upon which such principal (and premium, if any), interest, if any, and
Additional Amounts, 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 Corporation by the Trustee or such
paying agent on demand, and the Holder of such Security or any Coupon
appertaining to such Security shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law,
thereafter look only to the Corporation 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; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment in respect of
Unregistered Securities of any series, may at the expense of the Corporation
cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized Newspaper in London
(and, if required by Section 4.04, once in an Authorized Newspaper in
Luxembourg), notice that such moneys remain and that, after a date specified
therein, which shall not be less than thirty days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Corporation.
ARTICLE THIRTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 13.01. INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS. No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any past, present or future incorporator, stockholder, officer or
director, as such, of the Corporation or of any successor corporation, either
directly or through the Corporation 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
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities and Coupons.
ARTICLE FOURTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 14.01. BENEFITS OF INDENTURE RESTRICTED TO PARTIES AND
SECURITYHOLDERS. Nothing in this Indenture or in the Securities or Coupons,
expressed or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities or Coupons, 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 Securities or Coupons.
SECTION 14.02. PROVISIONS BINDING ON CORPORATION'S SUCCESSORS. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Corporation shall bind its successors and assigns, whether
so expressed or not.
SECTION 14.03. ADDRESSES FOR NOTICES, ETC. 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 Securities to or on the Corporation 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 Corporation
with the Trustee), as follows: General Motors Corporation, 767 Fifth Avenue, New
York, New York 10153. Any notice, direction, request or demand by any
Securityholder 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 its Corporate
Trust Office, which is at the date of this Indenture, 120 Wall Street, 13th
Floor, New York, New York 10043, except that for purposes of presentation of
Securities for payment or registration of transfer or exchange, such term means
the office or agency which at any particular time its corporate agency business
shall be conducted, which at the date of this Indenture is 111 Wall Street, New
York, New York 10043.
SECTION 14.04. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Upon any
application or demand by the Corporation to the Trustee to take any action under
any of the provisions of this Indenture, the Corporation 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 14.05. LEGAL HOLIDAYS. In any case where the date of maturity of
any interest, premium or Additional Amounts on or principal of the Securities or
the date fixed for redemption of any Securities shall not be a Business Day in a
city where payment thereof is to be made, then payment of any interest, premium
or Additional Amounts on, or principal of such Securities need not be made on
such date in such city 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 14.06. 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 14.07. 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 14.08. NEW YORK CONTRACT. This Indenture and each Security 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. Any claims or proceedings in respect of this
Indenture shall be heard in a federal or state court located in the State of New
York.
SECTION 14.09. JUDGMENT CURRENCY. The Corporation agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purposes of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the date on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
SECTION 14.10 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 14.11 CORPORATION RELEASED FROM INDENTURE REQUIREMENTS UNDER
CERTAIN CIRCUMSTANCES. Whenever in this Indenture the Corporation shall be
required to do or not to do anything so long as any of the Securities of any
series shall be Outstanding, the Corporation 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
Securities of that series shall have failed to present and surrender them for
payment pursuant to the terms of this Indenture.
Citibank, N.A., the party of the second part, hereby accepts the trusts in
this Indenture declared and provided, upon the terms and conditions hereinabove
set forth.
IN WITNESS WHEREOF, GENERAL MOTORS CORPORATION, the party of the first
part, has caused this Indenture to be signed and acknowledged by its Chairman of
the Board or one of its Vice Chairmen of the Board or its President or one of
its Executive Vice Presidents or one of its Senior Vice Presidents or one of its
Vice Presidents or its Treasurer, and its Corporate seal to be affixed hereunto,
and the same to be attested by its Secretary or an Assistant Secretary; and
CITIBANK, N.A., the party of the second part, has caused this Indenture to be
signed, and its
<PAGE>
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.
[Corporate Seal] GENERAL MOTORS CORPORATION
Attest: By:________________________
[Corporate Seal] CITIBANK, N.A.
Attest: By:__________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____day of December, 1995 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 the _______________________ of General Motors Corporation, one of the
corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said Corporation; that the seal affixed to said
instrument is such Corporate seal; that it was so
<PAGE>
affixed by authority of the Board of Directors of said Corporation, and that
he/she signed his/her name thereto by like authority.
[SEAL]
Notary Public
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the day of December, 1995 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 Citibank, N.A., one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation, that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that he/she signed his/her name thereto by like authority.
[SEAL]
Notary Public
EXHIBIT 5
GENERAL MOTORS CORPORATION
3031 WEST GRAND BOULEVARD
DETROIT, MICHIGAN 48202
November 14, 1995
GENERAL MOTORS CORPORATION
3044 West Grand Boulevard
Detroit, Michigan 48202
Dear Sirs:
As Attorney for General Motors Corporation (the "Corporation") in
connection with the registration of your Debt Securities and Debt Warrants
(the "Securities") which will be offered by the Corporation at an aggregate
price of up to $2,000,000,000, for issuance from time to time pursuant to
Rule 415 of the Securities Act of 1933, as amended, I advise that in my
opinion you have full power and authority under the laws of Delaware, the
State of your incorporation, and under your Certificate of Incorporation, as
amended, to borrow the money and to contract the indebtedness to be
evidenced by the said Securities.
It is my further opinion that the Indenture dated as of December ___,
1995, with Citibank, N.A., as Trustee (the "Indenture"), has been duly
authorized, executed and delivered and that the Debt Securities, as provided
in the Indenture, and the Debt Warrants, as provided in the Debt Warrant
Agreement, when duly authorized, executed and authenticated, issued and paid
for, will be valid and legally binding obligations of the Corporation in
accordance with and subject to the terms thereof and of the Indenture and
the Debt Warrant Agreement, as the case may be.
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 Securities 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
Attorney
Exhibit 8
GENERAL MOTORS CORPORATION
3044 WEST GRAND BOULEVARD
DETROIT, MICHIGAN 48202
November 14, 1995
General Motors Corporation
3044 West Grand Boulevard
Detroit, Michigan 48202
Dear Sirs:
In connection with the General Motors Corporation (the "Corporation")
registration of the Medium-Term Notes Due from Nine Months or More from Date of
Issue (the "Notes") which will be offered by the Corporation at an aggregate
price of up to $2,000,000,000, I have acted as tax counsel to the Corporation,
and in that capacity have furnished certain opinions to it. I hereby confirm to
you the opinion as set forth under the heading "United States Federal Taxation"
in the Prospectus Supplement 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 all
material 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 the
reference to tax counsel under the heading "United States Federal Taxation" in
the Prospectus Supplement. By providing the foregoing consent, I do not admit
that tax counsel falls within the category of persons whose consent is required
under section 7 of the Securities Act of 1933, as amended.
Very truly yours,
s/ Robert N. Dietz
------------------
Robert N. Dietz
Tax Attorney
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
GENERAL MOTORS CORPORATION:
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of General Motors Corporation of our reports dated
January 30, 1995 appearing in the Annual Report on Form 10-K of General
Motors Corporation for the year ended December 31, 1994 and to the
reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
- -------------------------
DELOITEE & TOUCHE LLP
Detroit, Michigan
November 13, 1995
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
THE BOARDS OF DIRECTORS
ELECTRONIC DATA SYSTEMS CORPORATION
GENERAL MOTORS CORPORATION
We hereby consent to the use of our report incorporated herein by
reference and to the reference to our firm under the heading "Experts" in
the Prospectus.
/s/ KPMG PEAT MARWICK LLP
- -------------------------
KPMG PEAT MARWICK LLP
Dallas, Texas
November 13, 1995
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) ___
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
----------------------
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
- --------------------------------------------------- ----------
(Address of principal executive office) (Zip Code)
-----------------------
GENERAL MOTORS CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 38-0572515
- ------------------------------------- -------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
767 FIFTH AVENUE 10153
NEW YORK, NEW YORK (Zip Code)
3044 WEST GRAND BOULEVARD 48202
DETROIT, MICHIGAN (Zip Code)
- ------------------------------------------------
(Address of principal executive offices)
-----------------------
DEBT SECURITIES
(Title of the indenture securities)
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.
NAME ADDRESS
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now
in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement No.
2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration Statement
No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to
T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 toRegistration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank,
N.A.(as of June 30, 1995 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Citibank, N.A., a national banking association organized and existing under the
laws of the United States of America, 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 6th day of
November, 1995.
CITIBANK, N.A.
/S/CAROL NG
By: Carol Ng
Assistant Vice President
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N. A.
of New York in the State of New York, at the close of business on June 30, 1995
published in response to call made by Comptroller of the Currency, under Title
12, United States Code, Section 161, Charter Number 1461 Comptroller of the
Currency Northeastern District.
ASSETS
Thousands
of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances
and currency and coin $ 7,397,000
Interest-bearing balances: 9,242,000
Securities:
Held-to-maturity securities 4,013,000
Available-for-sale securities 12,199,000
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 IBFs: Federal
funds sold 3,468,000
Securities purchased under
agreements to resell 519,000
Loans and lease financing receivables:
Loans and leases, net of
unearned income $136,294,000
LESS: Allowance for loan and
lease losses 4,401,000
------------
Loans and leases, net of unearned
income and allowance 131,893,000
Assets held in trading accounts 33,328,000
Premises and fixed assets
(including capitalized leases) 3,463,000
Other real estate owned 1,299,000
Investments in unconsolidated
subsidiaries and associated companies 1,039,000
Customers' liability to this bank on
acceptances outstanding 1,408,000
Intangible assets 14,000
Other assets 7,825,000
------------
TOTAL ASSETS $217,107,000
============
LIABILITIES
Deposits:
In domestic offices $ 33,302,000
Noninterest-bearing $ 11,799,000
Interest-bearing
21,503,000
- ------------
In foreign offices, Edge and Agreement
subsidiaries, and IBFs 116,776,000
Noninterest-bearing 8,429,000
Interest-bearing 108,347,000
------------
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 IBFs:
Federal funds purchased 1,756,000
Securities sold under agreements
to repurchase 675,000
Trading liabilities 22,079,000
Other borrowed money:
With original maturity of one year
or less 8,224,000
With original maturity of more than
one year 4,321,000
Mortgage indebtedness and obligations
under capitalized leases 107,000
Bank's liability on acceptances
executed and outstanding 1,418,000
Notes and debentures subordinated
to deposits 5,700,000
Other liabilities 7,752,000
------------
TOTAL LIABILITIES $202,110,000
============
EQUITY CAPITAL
Common stock $ 751,000
Surplus 6,686,000
Undivided profits and capital reserves 7,855,000
Net unrealized holding gains (losses)
on available-for-sale securities 246,000
Cumulative foreign currency translation
adjustments (541,000)
------------
TOTAL EQUITY CAPITAL $ 14,997,000
------------
TOTAL LIABILITIES AND EQUITY CAPITAL $217,107,000
============
<PAGE>
I, Roger W. Trupin, Controller of the above-named bank do hereby declare
that this Report of Condition is true and correct to the best of my knowledge
and belief.
ROGER W. TRUPIN
We, the undersigned directors, attest to the correctness of this Report of
Condition. We 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 and
is true and correct.
CHRISTOPHER J. STEFFEN
WILLIAM R. RHODES
PAUL J. COLLINS Directors
