L:\secfiles\8-k\1997\jul97.doc
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report
(Date of earliest event reported) July 1, 1997
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GENERAL MOTORS CORPORATION
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(Exact name of registrant as specified in its charter)
STATE OF DELAWARE 1-143 38-0572515
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
100 Renaissance Center, Detroit, Michigan 48243-7301
3044 West Grand Boulevard, Detroit, Michigan 48202-3091
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (313)-556-5000
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<PAGE>
ITEM 5. OTHER EVENTS
On July 3, 1997, General Motors (GM) announced that offers to exchange
shares of its outstanding Series D and G Preference Stocks for newly created
Trust Originated Preferred Securitiessm (TOPrSsm) expired as originally
scheduled on Wednesday, July 2, 1997 at 12:00 midnight (Eastern Standard Time).
Subsequently, on July 9, 1997, 3,055,255 shares of the outstanding
depositary shares, each representing one-fourth of a share of GM Series D 7.92%
Preference Stock, were exchanged for 8.67% TOPrS(sm) issued by General
Motors Capital Trust D, and 5,064,489 shares of the outstanding depositary
shares, each representing one-fourth of a share of GM Series G 9.12% Preference
Stock, were exchanged for 9.87% TOPrS(sm) issued by General Motors Capital
Trust G (hereinafter referred to as the "Trusts"). As a result, 3,014,654
depositary shares, each representing one-fourth of a share of GM Series D 7.92%
Preference Stock, and 5,015,410 depositary shares, each representing
one-fourth of a share of GM Series G 9.12% Preference Stock, remain outstanding,
respectively. Certain final documents associated with the exchange
transactions are identified in Item 7 below and included herein as Exhibits.
TOPrS(sm) is a financial instrument representing the right to receive
certain distributions from a Trust. The property of each of the Trusts consists
solely of junior subordinated debentures issued by GM.
* * *
(sm)Trust Originated Preferred Securities(TOPrS(sm)) is a service mark of
Merrill Lynch & Co.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Exhibit 4(c)(i) Amended and Restated Declaration of Trust of General
Motors Capital Trust D.
Exhibit 4(c)(ii) Amended and Restated Declaration of Trust of General
Motors Capital Trust G.
Exhibit 4(d)(i) Indenture between General Motors Corporation and
Wilmington Trust Company
Exhibit 4(d)(ii) First Supplemental Indenture between General Motors
Corporation and Wilmington Trust Company With Respect To The Series D
Junior Subordinated Debentures
Exhibit 4(d)(iii)Second Supplemental Indenture between General Motors
Corporation and Wilmington Trust Company With Respect To The Series G
Junior Subordinated Debentures
Exhibit 4(g)(i) Series D Preferred Securities Guarantee Agreement,
General Motors Capital Trust D.
Exhibit 4(g)(ii) Series G Preferred Securities Guarantee Agreement,
General Motors Capital Trust G.
Exhibit 4(h)(i) Series D Common Securities Guarantee Agreement,
General Motors Capital Trust D.
Exhibit 4(h)(ii) Series G Common Securities Guarantee Agreement,
General Motors Capital Trust G.
* * *
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GENERAL MOTORS CORPORATION
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(Registrant)
Date July 28, 1997
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By
s/Peter R. Bible
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(Peter R. Bible,
Chief Accounting Officer)
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GMNEWTR.D2
FOOTER B HAS BEEN ENTERED (DRAFT)
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
GENERAL MOTORS CAPITAL TRUST D
Dated as of July 9, 1997
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions. 2
ARTICLE 2 TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. 7
SECTION 2.2 Lists of Holders of Series D Securities. 7
SECTION 2.3 Reports by the Institutional Trustee. 8
SECTION 2.4 Periodic Reports to the Institutional Trustee. 8
SECTION 2.5 Evidence of Compliance with Conditions Precedent. 8
SECTION 2.6 Events of Default; Waiver. 8
SECTION 2.7 Event of Default; Notice. 10
ARTICLE 3 ORGANIZATION
SECTION 3.1 Name. 10
SECTION 3.2 Office. 11
SECTION 3.3 Purpose. 11
SECTION 3.4 Authority. 11
SECTION 3.5 Title to Property of the Series D Trust. 11
SECTION 3.6 Powers and Duties of the Regular Trustees. 11
SECTION 3.7 Prohibition of Actions by the Series D Trust
and the Trustees. 14
SECTION 3.8 Powers and Duties of the Institutional Trustee. 15
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee. 17
SECTION 3.10 Certain Rights of the Institutional Trustee. 18
SECTION 3.11 Delaware Trustee. 20
SECTION 3.12 Execution of Documents. 20
SECTION 3.13 Not Responsible for Recitals or Issuance
of Series D Securities. 20
SECTION 3.14 Duration of Series D Trust. 21
SECTION 3.15 Mergers. 21
ARTICLE 4 SPONSOR
SECTION 4.1 Sponsor's Purchase of Series D Common Securities. 22
SECTION 4.2 Responsibilities of the Sponsor. 22
SECTION 4.3 Right to Proceed. 23
SECTION 4.4 Expenses. 23
ARTICLE 5 TRUSTEES
SECTION 5.1 Number of Trustees. 24
SECTION 5.2 Delaware Trustee. 24
SECTION 5.3 Institutional Trustee; Eligibility. 24
SECTION 5.4 Certain Qualifications of the Regular Trustees
and Delaware Trustee Generally. 25
SECTION 5.5 Regular Trustees. 25
SECTION 5.6 Appointment, Removal and Resignation of Trustees. 26
SECTION 5.7 Vacancies among Trustees. 27
SECTION 5.8 Effect of Vacancies. 27
SECTION 5.9 Meetings. 27
SECTION 5.10 Delegation of Power. 28
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business. 28
ARTICLE 6 DISTRIBUTIONS
SECTION 6.1 Distributions. 28
ARTICLE 7 ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Series D Securities. 28
ARTICLE 8 DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Series D Trust. 30
ARTICLE 9 TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Series D Securities. 30
SECTION 9.2 Transfer of Certificates. 31
SECTION 9.3 Deemed Security Holders. 32
SECTION 9.4 Book-Entry Interests. 32
SECTION 9.5 Notices to Depository Institution. 33
SECTION 9.6 Appointment of Successor Depository Institution. 33
SECTION 9.7 Definitive Series D Preferred Security
Certificates. 33
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates. 34
ARTICLE 10 LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability. 34
SECTION 10.2 Exculpation. 35
SECTION 10.3 Fiduciary Duty. 35
SECTION 10.4 Indemnification. 36
SECTION 10.5 Outside Businesses. 39
ARTICLE 11 ACCOUNTING
SECTION 11.1 Fiscal Year. 39
SECTION 11.2 Certain Accounting Matters. 39
SECTION 11.3 Banking. 40
SECTION 11.4 Withholding. 40
ARTICLE 12 AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments. 40
SECTION 12.2 Meetings of the Holders; Action by
Written Consent. 42
ARTICLE 13 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional
Trustee. 43
SECTION 13.2 Representations and Warranties of Delaware
Trustee. 44
ARTICLE 14 MISCELLANEOUS 44
SECTION 14.1 Notices. 44
SECTION 14.2 Governing Law. 45
SECTION 14.3 Intention of the Parties. 46
SECTION 14.4 Headings. 46
SECTION 14.5 Successors and Assigns 46
SECTION 14.6 Partial Enforceability. 46
SECTION 14.7 Counterparts. 46
ANNEXES AND EXHIBITS
ANNEX 1 Terms of 8.67% Trust Originated Preferred Securities,
Series, and 8.67% Trust Originated Common Securities, Series D
EXHIBIT A-1 Form of Preferred Security Certificate
EXHIBIT A-2 Form of Common Security Certificate
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
<PAGE>
310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(a) and (b) 5.3(c)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 3.10(a)
314(f) Inapplicable
315(a) 3.9(b)
315(b) 2.7(a)
315(c) 3.9(a)
315(d) 3.9(a)
316(a) and (b) 2.6 and Annex I (Sections 5 and 6)
316(c) 3.6(e)
317(a) 3.8(c)
317(b) 3.8(h)
* This Cross-Reference Table does not constitute part of the Declaration as
executed and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
GENERAL MOTORS CAPITAL TRUST D
July 9, 1997
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Series D Declaration") is
dated and effective as of July 9, 1997, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial ownership interests in the Series D Trust to be issued pursuant to
this Series D Declaration.
WHEREAS, the Trustees and the Sponsor established General Motors Capital
Trust D (the "Series D Trust"), a statutory business trust under the Business
Trust Act (as defined herein), pursuant to a Declaration of Trust dated April
11, 1997 (the "Original Declaration") and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on April 11, 1997 (the "Certificate
of Trust"); and
WHEREAS, the Sponsor and the Series D Trust have made an offer to exchange
(the "Series D Offer") 8.67% Trust Originated Preferred Securities ("TOPrS "),
Series D, representing undivided preferred beneficial ownership interests in the
assets of the Series D Trust (the "Series D Preferred Securities"), for up to
5,462, 917 of the Sponsor's outstanding depositary shares (the "Series D 7.92%
Depositary Shares"), each representing one-fourth of a share of Series D 7.92%
Preference Stock, $0.10 par value per share, of the Sponsor (the "Series D 7.92%
Preference Stock") not owned by the Sponsor; and
WHEREAS, concurrently with the issuance of the Series D Preferred
Securities in exchange for Series D 7.92% Depositary Shares validly tendered in
the Series D Offer, (a) the Series D Trust will issue and sell to the Sponsor
Series D Trust Originated Common Securities representing undivided common
beneficial ownership interests in the assets of the Series D Trust (the "Series
D Common Securities" and, together with the "Series D Preferred Securities," the
"Series D Securities") in an aggregate liquidation amount equal to at least 3%
of the total capital of the Series D Trust and (b) the Sponsor will deposit into
the Series D Trust as trust assets its 8.67% Junior Subordinated Deferrable
Interest Debentures, Series D, due 2012 (the "Series D Debentures"), having an
aggregate principal amount equal to the aggregate stated liquidation amount of
the Series D Securities so issued; and
WHEREAS, the Series D Trust has been established for the principal
purposes of issuing the Series D Securities and purchasing the Series D
Debentures from the Series D Debenture Issuer (as defined herein); and
WHEREAS, as of the date hereof, no Series D Securities have been issued;
and
WHEREAS, all of the Trustees and the Sponsor, by this Series D
Declaration, hereby amend and restate each and every term and provision of the
Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Series D Trust as a business trust under the Business Trust Act and that
this Series D Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Series D Trust
will be held in trust for the benefit of the Holders, subject to the provisions
of this Series D Declaration.
<PAGE>
ARTICLE I.
INTERPRETATION AND DEFINITIONS
A. SECTION 1.1 Definitions.
Unless the context otherwise requires:
a. capitalized terms used in this Series D Declaration
but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
b. a term defined anywhere in this Series D Declaration
has the same meaning throughout;
c. all references to "the Series D Declaration" or "this
Series D Declaration" are to this Series D Declaration as
modified, supplemented or amended from time to time;
d. all references in this Series D Declaration to
Articles, Sections, Annexes and Exhibits are to Articles and
Sections of, and Annexes and Exhibits to, this Series D
Declaration;
e. a term defined in the Trust Indenture Act has the
same meaning when used in this Series D Declaration unless
otherwise defined in this Series D Declaration or unless the
context otherwise requires; and
f. a reference to the singular includes the plural and
vice versa.
"Additional Interest" has the meaning set forth in Section 2(d) of
Annex I.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial ownership interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depository Institution as described in Section 9.4.
"Business Day" means any day other than a day on which Federal or State
banking institutions in New York, New York or Wilmington, Delaware are
authorized or obligated by law, executive order or regulation to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Series D Common Security Certificate or a Series D
Preferred Security Certificate.
"Closing Date" means the "Exchange Date" as defined in the Dealer
Manager Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Compound Interest" has the meaning set forth in Section 2(a) of Annex I.
"Corporate Trust Office" means the office of the Institutional Trustee at
which the corporate trust business of the Institutional Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Series D Trust or (ii)
the Series D Trust's Affiliates; and (b) any Holder of Series D Securities.
"Coupon Rate" has the meaning set forth in Section 2(a) of Annex I.
"Creditor" has the meaning set forth in Section 4.4(d).
"Dealer Manager Agreement" means the Dealer Manager Agreement between the
Series D Debenture Issuer, the Series D Trust and the dealer managers and other
parties named thereunder.
"Debt Trustee" means Wilmington Trust Company, a Delaware banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Definitive Series D Preferred Security Certificates" has the meaning
set forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depository Institution" shall mean DTC, PDTC, another clearing agency, or
any successor registered as a clearing agency under the Exchange Act, or other
applicable statute or regulation, which, in each case, shall be designated by
the Series D Debenture Issuer pursuant to either Section 2.03 or 2.11 of the
Indenture.
"Depository Institution Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depository
Institution effects book-entry transfers and pledges of securities deposited
with the Depository Institution.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders in accordance
with Section 6.1.
"Distribution Payment Date" has the meaning set forth in Section 2(b) of
Annex I.
"DTC" means The Depository Trust Company, the initial Depository
Institution.
"Event of Default" in respect of the Series D Securities means an Event of
Default under the Indenture which has occurred and is continuing in respect of
the Series D Debentures.
"Exchange" means the exchange of the Series D 7.92% Depositary Shares for
the Series D Preferred Securities pursuant to the Series D Offer.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Sponsor Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture dated as of July 1, 1997, between the
Series D Debenture Issuer and the Debt Trustee, and any indenture supplemental
thereto pursuant to which the Series D Debentures are to be issued, as amended.
"Institutional Trustee" has the meaning set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in
Section 3.8(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation" has the meaning set forth in Section 3 of Annex I.
"Liquidation Distribution" has the meaning set forth in Section 3 of
Annex I.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in liquidation amount of the Series D Securities" means, except
as provided in the terms of the Series D Preferred Securities set forth in Annex
I hereto or by the Trust Indenture Act, Holder(s) of outstanding Series D
Securities voting together as a single class or, as the context may require,
Holders of outstanding Series D Preferred Securities or Holders of outstanding
Series D Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Series D Securities of the relevant class.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series D Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Paying Agent" has the meaning set forth in Section 3.8(h).
"Payment Amount" has the meaning set forth in Section 6.1.
"PDTC" means The Philadelphia Depository Trust Company.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Pre-Issuance Interest" has the meaning set forth in Section 2(a) of
Annex I.
"Pro Rata" has the meaning set forth in Section 8 of Annex I.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning set forth in Section
4(g) of Annex I.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Resignation Request" has the meaning set forth in Section 5.6(c).
"Responsible Officer" means, with respect to the Institutional Trustee,
any officer within the Corporate Trust Office of the Institutional Trustee,
including any vice-president, any assistant vice-president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Series D Common Securities" has the meaning set forth in Section 7.1(a).
"Series D Common Securities Guarantee" means the guarantee agreement to be
dated as of the date hereof of the Sponsor in respect of the Series D Common
Securities, as amended.
"Series D Common Security Certificate" means a definitive certificate in
fully registered form representing a Series D Common Security substantially in
the form of Exhibit A-2.
"Series D Debenture Issuer" means General Motors Corporation, a Delaware
corporation, in its capacity as issuer of the Series D Debentures under the
Indenture.
"Series D Extension Period" has the meaning set forth in Section 2(b) of
Annex I.
"Series D Preferred Guarantee Trustee" means Wilmington Trust Company, a
national banking association, as trustee under the Series D Preferred Securities
Guarantee until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Series D Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depository Institution, or on the
books of a Person maintaining an account with such Depository Institution
(directly as a Depository Institution Participant or as an indirect participant,
in each case in accordance with the rules of such Depository Institution).
"Series D Preferred Security Certificate" means a certificate representing
a Series D Preferred Security substantially in the form of Exhibit A-1.
"Series D Preferred Securities Guarantee" means the guarantee agreement to
be dated as of the date hereof, of the Sponsor in respect of the Series D
Preferred Securities, as amended.
"Series D Redemption Price" has the meaning set forth in Section 4(c) of
Annex I.
"Series D Securities" means the Series D Common Securities and the
Series D Preferred Securities.
"Series D Securities Guarantees" means the Series D Common Securities
Guarantee and the Series D Preferred Securities Guarantee.
"Series D Stated Maturity" has the meaning set forth in Section 4(a) of
Annex I.
"Sponsor" means General Motors Corporation, a Delaware corporation, or any
successor entity in a merger, consolidation or amalgamation, in its capacity as
sponsor of the Series D Trust.
"Sponsor Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Series D Trust or its Affiliates.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Institutional Trustee" has the meaning set forth in Section
5.6(b)(i).
"Successor Series D Securities" has the meaning set forth in Section
3.15(b)(i).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex I.
"10% in liquidation amount of the Series D Securities" means, except as
provided in the terms of the Series D Preferred Securities set forth in Annex I
hereto or by the Trust Indenture Act, Holder(s) of outstanding Series D
Securities voting together as a single class or, as the context may require,
Holders of outstanding Series D Preferred Securities or Holders of outstanding
Series D Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Series D Securities of the relevant class.
"Transfer Agent" has the meaning set forth in Section 9.2(e).
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Series D
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Series D Declaration is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Series D Declaration and shall, to the extent applicable, be
governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture
Act.
(c)If, and to the extent that, any provision of this Series D
Declaration limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, the duties imposed by the Trust Indenture Act
shall control.
(d)The application of the Trust Indenture Act to this Series D
Declaration shall not affect the nature of the Series D
Securities as equity securities representing undivided
beneficial ownership interests in the assets of the Series D
Trust.
SECTION 2.2 Lists of Holders of Series D Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Series D Trust shall provide the Institutional Trustee (i)
within 14 days after each record date for payment of
Distributions, a list, in such form as the Institutional
Trustee may reasonably require, of the names and addresses of
the Holders ("List of Holders") as of such record date,
provided that neither the Sponsor nor the Regular Trustees on
behalf of the Series D Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not
differ from the most recent List of Holders given to the
Institutional Trustee by the Sponsor and the Regular Trustees
on behalf of the Series D Trust, and (ii) at any other time,
within 30 days of receipt by the Series D Trust of a written
request for a List of Holders as of a date no more than 14
days before such List of Holders is given to the Institutional
Trustee. The Institutional Trustee shall preserve, in as
current a form as is reasonably practicable, all information
contained in the Lists of Holders given to it or which it
receives in its capacity as Paying Agent (if acting in such
capacity) provided that the Institutional Trustee may destroy
any List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Institutional Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
Within 60 days after May 15 of each year, the Institutional Trustee shall
provide to the Holders of the Series D Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Institutional
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to the Institutional
Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Series D
Trust shall provide to the Institutional Trustee, the Holders and the Securities
and Exchange Commission such documents, reports and information as required by
Section 314 (if any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act (provided that any certificate to be
provided pursuant to Section 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year).
SECTION 2.5 Evidence of Compliance with Conditions
Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Series D
Trust shall provide to the Institutional Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Series D Declaration
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), the Holders of a Majority in
liquidation amount of Series D Preferred Securities may, by
vote, on behalf of the Holders of all of the Series D
Preferred Securities, waive any past Event of Default in
respect of the Series D Preferred Securities and its
consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event
of Default under the Series D Declaration shall also
not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the
Series D Debentures (a "Super Majority") to be waived
under the Indenture, then the Event of Default under the
Series D Declaration may only be waived by the vote of
the Holders of at least the proportion in liquidation
amount of the Series D Preferred Securities that the
relevant Super Majority represents of the aggregate
principal amount of the Series D Debentures outstanding;
or
(iii) requires the consent or vote of each Holder of Series D
Debentures to be waived under the Indenture, then the
Event of Default under the Series D Declaration may only
be waived by each Holder of Series D Preferred
Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Series D
Declaration and the Series D Securities, as permitted by the Trust Indenture
Act. Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Series D Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Series D
Declaration, but no such waiver shall extend to any subsequent or other default
or an Event of Default with respect to the Series D Preferred Securities or
impair any right consequent thereon. Any waiver by the Holders of the Series D
Preferred Securities of an Event of Default with respect to the Series D
Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Series D Common Securities of any such Event of Default with respect to
the Series D Common Securities for all purposes of this Series D Declaration
without any further act, vote, or consent of the Holders of the Series D Common
Securities.
(b) Subject to Section 2.6(c), the Holders of a Majority in
liquidation amount of the Series D Common Securities may, by
vote, on behalf of the Holders of all of the Series D Common
Securities, waive any past Event of Default with respect to
the Series D Common Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Series D Common Securities are deemed to
have waived such Event of Default under the Series D
Declaration as provided below in this Section 2.6(b),
then the Event of Default under the Series D Declaration
shall also not be waivable; or
(ii) requires the consent or vote of (A) a Super Majority
to be waived, then the Event of Default under the
Series D Declaration may only be waived by the vote of
the Holders of at least the proportion in liquidation
amount of the Series D Common Securities that the
relevant Super Majority represents of the aggregate
principal amount of the Series D Debentures
outstanding or (B) each holder of Series D Debentures
to be waived, then the Event of Default under the
Series D Declaration may only be waived by each Holder
of Series D Common Securities, except where the
Holders of the Series D Common Securities are deemed
to have waived such Event of Default under the Series
D Declaration as provided below in this
Section 2.6(b); provided further, each Holder of
Series D Common Securities will be deemed to have
waived any such Event of Default and all Events of
Default with respect to the Series D Common Securities
and its consequences until all Events of Default with
respect to the Series D Preferred Securities have been
cured, waived or otherwise eliminated, and until such
Events of Default have been so cured, waived or
otherwise eliminated, the Institutional Trustee will
be deemed to be acting solely on behalf of the Holders
of the Series D Preferred Securities and only the
Holders of the Series D Preferred Securities will have
the right to direct the Institutional Trustee in
accordance with the terms of the Series D Securities
set forth in Annex I hereto. If any Event of Default
with respect to the Series D Preferred Securities is
waived by the Holders of Series D Preferred Securities
as provided in this Series D Declaration, the Holders
of Series D Common Securities agree that such waiver
shall also constitute the waiver of such Event of
Default with respect to the Series D Common Securities
for all purposes under this Series D Declaration
without any further act, vote or consent of the
Holders of the Series D Common Securities. Subject to
the foregoing provisions of this Section 2.6(b), upon
such waiver, any such default shall cease to exist and
any Event of Default with respect to the Series D
Common Securities arising therefrom shall be deemed to
have been cured for every purpose of this Series D
Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with
respect to the Series D Common Securities or impair
any right consequent thereon. The foregoing provisions
of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Series D Declaration and
the Series D Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of
this Section 2.6(b), upon such waiver, any such
default shall cease to exist and any Event of Default
with respect to the Series D Common Securities arising
therefrom shall be deemed to have been cured for every
purpose of this Series D Declaration, but no such
waiver shall extend to any subsequent or other default
or Event of Default with respect to the Series D
Common Securities or impair any right consequent
thereon.
(c)The right of any Holder to receive payment of Distributions
in accordance with this Series D Declaration and the terms of
the Series D Securities set forth in Annex I on or after the
respective payment dates therefor, or to institute suit for
the enforcement of any such payment on or after such payment
dates, shall not be impaired without the consent of each such
Holder.
(d) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the written direction of the Holders
of the Series D Preferred Securities, constitutes a waiver of
the corresponding Event of Default under this Series D
Declaration. The foregoing provisions of this Section 2.6(d)
shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Series D
Declaration and the Series D Securities, as permitted by the
Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notice of all defaults
with respect to the Series D Securities actually known to a
Responsible Officer, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the
purposes of this Section 2.7(a) being hereby defined to be an
Event of Default as defined in the Indenture, not including
any periods of grace provided for therein and irrespective of
the giving of any notice provided therein); provided that,
except for a default in the payment of principal of, premium,
if any, or interest on any of the Series D Debentures or in
the payment of any sinking fund installment established for
the Series D Debentures, the Institutional Trustee shall be
protected in withholding such notice if and so long as a
Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders;
and provided further, that in the case of any default of the
character specified in Section 5.01(c) of the Indenture, no
such notice to Holders shall be given until at least 60 days
after the occurrence thereof but shall be given within 90 days
after such occurrence.
(b)The Institutional Trustee shall not be
deemed to have knowledge of any default except:
(i) default under Sections 5.01(a), (b), and (f)
of the Indenture; or
(ii) any default as to which the Institutional Trustee shall
have received written notice or of which a Responsible
Officer charged with the administration of the Series D
Declaration shall have actual knowledge.
ARTICLE 3
ORGANIZATION
SECTION 3.1 Name.
The Series D Trust continued by this Series D Declaration is named
"General Motors Capital Trust D," as such name may be modified from time to time
by the Regular Trustees following written notice to the Holders. The Series D
Trust's activities may be conducted under the name of the Series D Trust or any
other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Series D Trust is c/o General
Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301. Upon
ten (10) Business Days' written notice to the Holders of Series D Securities,
the Regular Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Series D Trust are (i) to
issue (a) its Series D Preferred Securities in exchange for Series D 7.92%
Depositary Shares validly tendered in the Series D Offer and deliver such Series
D 7.92% Depositary Shares to the Series D Debenture Issuer in consideration of
the deposit by the Series D Debenture Issuer in the Series D Trust as trust
assets of Series D Debentures having an aggregate stated principal amount equal
to the aggregate stated liquidation amount of the Series D 7.92% Depositary
Shares so delivered and (b) its Series D Common Securities to the Sponsor in
exchange for cash and invest the proceeds thereof in an equal aggregate
principal amount of Series D Debentures, (ii) to enter into such agreements and
arrangements as may be necessary in connection with the Series D Offer and to
take all actions, and exercise such discretion, as may be necessary or desirable
in connection with the Series D Offer and to file such registration statements
or make such other filings under the Securities Act, the Exchange Act or state
securities or "Blue Sky" laws as may be necessary or desirable in connection
with the Series D Offer and the issuance of the Series D Preferred Securities,
and (iii) except as otherwise limited herein, to engage in those other
activities necessary or incidental thereto. As more specifically provided in
Section 3.7, the Series D Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Series
D Trust not to be classified for United States federal income tax purposes as a
grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Series D Declaration and to
the specific duties of the Institutional Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the purposes of the Series D
Trust. Any action taken by the Regular Trustees in accordance with their powers
shall constitute the act of and serve to bind the Series D Trust and any action
taken by the Institutional Trustee on behalf of the Series D Trust in accordance
with its powers shall constitute the act of and serve to bind the Series D
Trust. In dealing with the Trustees acting on behalf of the Series D Trust, no
person shall be required to inquire into the authority of the Trustees to bind
the Series D Trust. Persons dealing with the Series D Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Series D Declaration.
SECTION 3.5 Title to Property of the Series D Trust.
Except as provided in Section 3.8 with respect to the Series D Debentures
and the Institutional Trustee Account or as otherwise provided in this Series D
Declaration, legal title to all assets of the Series D Trust shall be vested in
the Series D Trust. The Holders shall not have legal title to any part of the
assets of the Series D Trust, but shall have an undivided beneficial interest in
the assets of the Series D Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Series D Trust to engage in the following activities:
(a) to issue the Series D Securities in accordance with this
Series D Declaration in connection with the exchange of the
Series D Preferred Securities and the sale of the Series D
Common Securities; provided, however, that the Series D Trust
may issue no more than one series of Series D Preferred
Securities and no more than one series of Series D Common
Securities; and, provided further, that there shall be no
interests in the Series D Trust other than the Series D
Securities, and the issuance of Series D Securities shall be
limited to a one-time simultaneous issuance of both Series D
Preferred Securities and Series D Common Securities on the
Closing Date;
(b) in connection with the issue and exchange of the
Series D Preferred Securities, at the direction of the
Sponsor, to:
(i) execute and file with the Commission one or
more registration statements on Form S-4 prepared by
the Sponsor, including any and all amendments thereto,
pertaining to the Series D Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor
to be necessary in order to qualify or register all or
part of the Series D Preferred Securities in any State
in which the Sponsor has determined to qualify or
register such Series D Preferred Securities for
exchange;
(iii) execute and file an application, prepared by
the Sponsor, to the NYSE, Inc. or any other national
stock exchange or the NASDAQ Stock Market's National
Market for listing or quotation upon notice of
issuance of any Series D Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any
amendments thereto, prepared by the Sponsor, relating
to the registration of the Series D Preferred
Securities under Section 12(b) of the Exchange Act;
(v) prepare, execute and file with the Commission
an Issuer Tender Offer statement on Schedule 13E-3 or
Schedule 13E-4, as necessary, or any other appropriate
document or schedule, and any amendment thereto;
(vi) execute and enter into the Dealer Manager
Agreement providing for the exchange of the Series D
Preferred Securities;
(vii) execute and enter into one or more exchange
agent agreements, information agent agreements or
other agreements as may be required in connection with
the Series D Offer; and
(viii) execute and deliver letters, documents or
instruments with DTC and PDTC.
(c) to acquire the Series D Debentures in consideration of the
transfer of the Series D 7.92% Depositary Shares received upon
exchange of the Series D Preferred Securities and the sale of
the Series D Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Series D
Debentures to be held of record in the name of the
Institutional Trustee for the benefit of the Holders;
(d) to give the Sponsor and the Institutional Trustee
prompt written notice of the occurrence of a Tax Event;
(e) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established,
including and with respect to, for the purposes of Section
316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Series D Securities as to such
actions and applicable record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of
the Series D Securities set forth in Annex I hereto;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands
of or against the Series D Trust ("Legal Action"), unless
pursuant to Section 3.8(e), the Institutional Trustee has the
exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and
managers, contractors, advisors, and consultants and pay
reasonable compensation for such services;
(i) to cause the Series D Trust to comply with the Series
D Trust's obligations under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4)
of the Trust Indenture Act to the Institutional Trustee,
which certificate may be executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Series D Trust;
(l) to act as, or appoint another Person to act as,
registrar, transfer agent and paying agent for the Series D
Securities;
(m) to give prompt written notice to the Holders of any
notice received from the Series D Debenture Issuer of its
election to defer payments of interest on the Series D
Debentures by extending the interest payment period under
the Indenture;
(n) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of
the Series D Trust in all matters necessary or incidental to
the foregoing;
(o)to take all action that may be necessary or appropriate for
the preservation and the continuation of the Series D Trust's
valid existence, rights, franchises and privileges as a
statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the
Holders or to enable the Series D Trust to effect the purposes
for which the Series D Trust was created;
(p) to take any action, not inconsistent with this Series D
Declaration or with applicable law, that the Regular Trustees
determine in their discretion to be necessary or desirable in
carrying out the activities of the Series D Trust as set out
in this Section 3.6, including, but not limited to:
(i) causing the Series D Trust not to be deemed to
be an Investment Company required to be registered
under the Investment Company Act;
(ii) causing the Series D Trust to be classified for
United States federal income tax purposes as a grantor
trust; and
(iii) cooperating with the Series D Debenture Issuer to
ensure that the Series D Debentures will be treated as
indebtedness of the Series D Debenture Issuer for United
States federal income tax purposes, provided that such
actions do not adversely affect the interests of
Holders; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be
filed with respect to the Series D Trust to be duly prepared
and filed by the Regular Trustees, on behalf of the Series D
Trust.
The Regular Trustees shall exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the Series
D Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Series D
Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Institutional Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Series D Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Series D
Trust and the Trustees.
(a)The Series D Trust shall not, and the Trustees (including
the Institutional Trustee) shall cause the Series D Trust not
to, engage in any activity other than in connection with the
purpose of the Series D Trust or other than as required or
authorized by this Series D Declaration. In particular, the
Series D Trust shall not, and the Trustees (including the
Institutional Trustee) shall cause the Series D Trust not to:
(i) invest any proceeds received by the Series D
Trust from holding the Series D Debentures, but shall
distribute all such proceeds to Holders pursuant to
the terms of this Series D Declaration and of the
Series D Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Series D Trust property for other than
a Series D Trust purpose;
(iv) make any investments, other than investments
represented by the Series D Debentures;
(v) possess any power or otherwise act in such a
way as to vary the Series D Trust assets or the terms
of the Series D Securities in any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in,
the Series D Trust other than the Series D Securities;
(vii) incur any indebtedness for borrowed money; or
(viii) other than as provided in this Series D
Declaration or Annex I hereto, (A) direct the time,
method and place of exercising any trust or power
conferred upon the Debt Trustee with respect to the
Series D Debentures, (B) waive any past default that
is waivable under the Indenture, (C) exercise any
right to rescind or annul any declaration that the
principal of all the Series D Debentures held in the
Series D Trust shall be due and payable, or (D)
consent to any amendment, modification or termination
of the Indenture or the Series D Debentures if such
action would cause the Series D Trust to be classified
for United States federal income tax purposes as other
than a grantor trust or would cause the Series D Trust
to be deemed an Investment Company required to be
registered under the Investment Company Act.
SECTION 3.8 Powers and Duties of the Institutional
Trustee.
(a) The legal title to the Series D Debentures shall be owned
by and held of record in the name of the Institutional Trustee
in trust for the benefit of the Holders. The right, title and
interest of the Institutional Trustee to the Series D
Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance
with Section 5.6. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to
the Series D Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right,
title and interest in the Series D Debentures to the Regular
Trustees or to the Delaware Trustee (if the Institutional
Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Institutional Trustee
Account") in the name of and under the exclusive control
of the Institutional Trustee on behalf of the Holders
and, upon the receipt of payments of funds made in
respect of the Series D Debentures held by the
Institutional Trustee, deposit such funds into the
Institutional Trustee Account and make payments to the
Holders from the Institutional Trustee Account in
accordance with Section 6.1. Funds in the Institutional
Trustee Account shall be held uninvested until disbursed
in accordance with this Series D Declaration;
(ii) engage in such ministerial activities as shall
be necessary or appropriate to effect the redemption
of the Series D Securities to the extent the Series D
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the
Series D Securities, engage in such ministerial
activities as shall be necessary or appropriate to
effect the distribution of the Series D Debentures to
Holders in accordance with the provisions of the
Indenture.
(d) The Institutional Trustee shall take all actions and
perform such duties as may be specifically required of the
Institutional Trustee pursuant to the terms of the Series D
Securities.
(e)The Institutional Trustee shall take any Legal Action which
arises out of or in connection with (i) an Event of Default of
which a Responsible Officer has actual knowledge or (ii) the
Institutional Trustee's duties and obligations under this
Series D Declaration or the Trust Indenture Act. If the
Institutional Trustee fails to enforce its rights under the
Series D Debentures after a Holder of Series D Preferred
Securities has made a written request, such Holder may
institute a legal proceeding against the Series D Debenture
Issuer to enforce the Institutional Trustee's rights under the
Series D Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event
of Default has occurred and is continuing and such event is
attributable to the failure of the Series D Debenture Issuer
to pay interest or principal on the Series D Debentures on the
date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), then a Holder
of Series D Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the
principal of, or interest on, the Series D Debentures having a
principal amount equal to the aggregate liquidation amount of
the Series D Preferred Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the
Series D Debentures. Notwithstanding any payments made to such
Holder of Series D Preferred Securities by the Series D
Debenture Issuer in connection with a Direct Action, the
Series D Debenture Issuer shall remain obligated to pay the
principal of or interest on the Series D Debentures held by
the Series D Trust or the Institutional Trustee of the Series
D Trust, and the Series D Debenture Issuer shall be subrogated
to the rights of the Holder of such Series D Preferred
Securities with respect to payments on the Series D Preferred
Securities. Except as provided in the preceding sentences and
in the Series D Preferred Securities Guarantee, the Holders of
Series D Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the
Series D Debentures.
(f) The Institutional Trustee shall not resign as a
Trustee unless either:
(i) the Series D Trust has been completely
liquidated and the proceeds of the liquidation
distributed to the Holders pursuant to the terms of
the Series D Securities; or
(ii) a Successor Institutional Trustee has been
appointed and has accepted that appointment in
accordance with Section 5.6.
(g) The Institutional Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder
of Series D Debentures under the Indenture and, if an Event of
Default actually known to a Responsible Officer occurs and is
continuing, the Institutional Trustee shall, for the benefit
of Holders, enforce its rights as holder of the Series D
Debentures subject to the rights of the Holders pursuant to
the terms of such Series D Securities.
(h)The Institutional Trustee may authorize one or more Persons
acceptable to the Series D Trust (each, a "Paying Agent") to
pay Distributions, redemption payments or liquidation payments
on behalf of the Series D Trust with respect to the Series D
Securities and any such Paying Agent shall comply with Section
317(b) of the Trust Indenture Act. Any Paying Agent may be
removed by the Institutional Trustee at any time and a
successor Paying Agent or additional Paying Agents may be
appointed at any time by the Institutional Trustee, in each
case without prior notice to the Holders. The Paying Agent may
perform such functions whenever the Institutional Trustee may
do so. Each reference in this Series D Declaration to payment
to the Holders by the Institutional Trustee includes such
payment by a Paying Agent. A Paying Agent has the same rights
as the Institutional Trustee to deal with the Sponsor or an
Affiliate, and itself may be the Series D Trust, an Affiliate
of the Series D Trust or a Related Party of the Sponsor. The
Institutional Trustee hereby appoints The First National Bank
of Boston to initially act as Paying Agent for the Series D
Securities.
(i) The Institutional Trustee shall give prompt written notice
to the Holders of the Series D Securities of any notice
received by it from the Series D Debenture Issuer of the
Series D Debenture Issuer's election to defer payments of
interest on the Series D Debentures by extending the interest
payment period with respect thereto.
(j) The Institutional Trustee shall notify all Holders of the
Series D Preferred Securities of any notice of default
received from the Debt Trustee with respect to the Series D
Debentures. Such notice shall state that such event of default
under the Indenture with respect to the Series D Debentures
also constitutes an Event of Default hereunder.
(k)Subject to this Section 3.8, the Institutional Trustee
shall have none of the duties, liabilities, powers or the
authority of the Regular Trustees set forth in Section 3.6.
The Institutional Trustee shall exercise the powers set forth in this
Section 3.8 and in Sections 3.9 and 3.10 in a manner that is consistent with the
purposes and functions of the Series D Trust set out in Section 3.3, and the
Institutional Trustee shall not take any action that is inconsistent with the
purposes and functions of the Series D Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee.
(a) The Institutional Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Series D
Declaration and no implied covenants shall be read into this
Series D Declaration against the Institutional Trustee. In
case an Event of Default has occurred (that has not been cured
or waived pursuant to Section 2.6) of which a Responsible
Officer has actual knowledge, the Institutional Trustee shall
exercise such of the rights and powers vested in it by this
Series D Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Series D Declaration shall be
construed to relieve the Institutional Trustee from liability
for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations
of the Institutional Trustee shall be determined
solely by the express provisions of this Series D
Declaration and the Institutional Trustee shall
not be liable except for the performance of such
duties and obligations as are specifically set
forth in this Series D Declaration, and no implied
covenants or obligations shall be read into this
Series D Declaration against the Institutional
Trustee; and
(B) in the absence of bad faith
on the part of the Institutional Trustee, the
Institutional 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
Institutional Trustee and conforming to the
requirements of this Series D Declaration; but in
the case of any such certificates or opinions that
by any provision hereof are specifically required
to be furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Series D
Declaration;
(ii) the Institutional Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that
the Institutional Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Institutional 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 not less than a Majority in liquidation
amount of the Series D Securities relating to the time,
method and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or
exercising any trust or power conferred upon the
Institutional Trustee under this Series D Declaration;
(iv) no provision of this Series D Declaration shall
require the Institutional Trustee to expend or risk its
own funds or otherwise incur personal financial
liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to
it under the terms of this Series D Declaration or
adequate indemnity against such risk is not reasonably
assured to it;
(v) the Institutional Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Series D Debentures and the Institutional Trustee
Account shall be to deal with such property in a similar
manner as the Institutional Trustee deals with similar
property for its own account, subject to the protections
and limitations on liability afforded to the
Institutional Trustee under this Series D Declaration
and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Series D
Debentures or the payment of any taxes or assessments
levied thereon or in connection therewith;
(vii) the Institutional Trustee shall not be liable for
any interest on any money received by it except as it
may otherwise agree with the Sponsor. Money held by the
Institutional Trustee need not be segregated from other
funds held by it except in relation to the Institutional
Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law;
(viii) the Institutional Trustee shall not be
responsible for monitoring the compliance by the Regular
Trustees or the Sponsor with their respective duties
under this Series D Declaration, nor shall the
Institutional Trustee be liable for any default or
misconduct of the Regular Trustees or the Sponsor; and
(ix) the Institutional Trustee shall not be liable
for the acts or omissions of any paying agent,
registrar, authenticating agent or transfer agent if
other than the Institutional Trustee.
SECTION 3.10 Certain Rights of the Institutional
Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional 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
or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper
party or parties;
(ii) any direction or act of the Sponsor or the
Regular Trustees contemplated by this Series D
Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Series D
Declaration, the Institutional Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Institutional Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or
the Regular Trustees;
(iv) the Institutional Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any filing under tax or securities laws)
or any rerecording, refiling or registration thereof;
(v)the Institutional Trustee may consult with counsel or
other experts and the advice or opinion of such counsel
and experts with respect to legal matters or advice
within the scope of such experts' area of expertise
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such
advice or opinion, which counsel may be counsel to the
Sponsor or any of its Affiliates, and may include any of
its employees. The Institutional Trustee shall have the
right at any time to seek instructions concerning the
administration of this Series D Declaration from any
court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Series D Declaration at the
request, order or direction of any Holder, unless such
Holder shall have provided to the Institutional Trustee
reasonable security and indemnity against the costs,
expenses (including attorneys' fees and expenses and the
expenses of the Institutional Trustee's agents, nominees
or custodians) and liabilities that might be incurred by
it in complying with such request or direction,
including such reasonable advances as may be requested
by the Institutional Trustee provided, that, nothing
contained in this Section 3.10(a)(vi) shall be taken to
relieve the Institutional Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Series D
Declaration;
(vii) the Institutional 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, consent, order,
approval, bond, debenture, coupon or other paper or
document, but the Institutional Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit;
(viii) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents,
custodians, nominees or attorneys and the Institutional
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(ix)any action taken by the Institutional Trustee or its
agents hereunder shall bind the Series D Trust and the
Holders, and the signature of the Institutional Trustee
or its agents alone shall be sufficient and effective to
perform any such action and no third party shall be
required to inquire as to the authority of the
Institutional Trustee to so act or as to its compliance
with any of the terms and provisions of this Series D
Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Series D
Declaration the Institutional Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request
instructions from the Holders which instructions may
only be given by the Holders of the same proportion in
liquidation amount of the Series D Securities as would
be entitled to direct the Institutional Trustee under
the terms of the Series D Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until
such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in or
accordance with such instructions; and
(xi) except as otherwise expressly provided by this
Series D Declaration, the Institutional Trustee shall
not be under any obligation to take any action that is
discretionary under the provisions of this Series D
Declaration.
(b) No provision of this Series D Declaration shall be deemed
to impose any duty or obligation on the Institutional Trustee
to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Institutional
Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to
exercise any such right, power, duty or obligation. No
permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Series D Declaration other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Institutional Trustee described
in this Series D Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. Notwithstanding anything
herein to the contrary, the Delaware Trustee shall not be liable for the acts or
omissions to act of the Series D Trust or of the Regular Trustees except such
acts as the Delaware Trustee is expressly obligated or authorized to undertake
under this Series D Declaration or the Business Trust Act and except for the
negligence or willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Series D Trust any
documents which the Regular Trustees have the power and authority to execute
pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance
of Series D Securities.
The recitals contained in this Series D Declaration and the Series D
Securities shall be taken as the statements of the Sponsor, and the Trustees do
not assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Series D
Trust or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Series D Declaration or the Series D Securities.
SECTION 3.14 Duration of Series D Trust.
The Series D Trust, unless dissolved pursuant to the provisions of Article
8 hereof, shall have existence until April 11, 2052.
SECTION 3.15 Mergers.
(a) The Series D Trust may not consolidate, amalgamate, merge
with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any
corporation or other body, except as described in Section
3.15(b) and (c).
(b) The Series D Trust may, with the consent of the Regular
Trustees or, if there are more than two, a majority of the
Regular Trustees, and without the consent of the Holders, the
Institutional Trustee or the Delaware Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust
organized as such under the laws of any State of the United
States; provided that:
(i) if the Series D Trust is not the survivor, such
successor entity (the "Successor Entity") either:
(A) expressly assumes all of
the obligations of the Series D Trust under the
Series D Securities; or
(B) substitutes for the Series D
Preferred Securities other securities having
substantially the same terms as the Series D
Preferred Securities (the "Successor Series D
Securities") so long as the Successor Series D
Securities rank the same as the Series D Preferred
Securities rank with respect to Distributions and
payments upon liquidation, redemption and
otherwise;
(ii) the Series D Debenture Issuer expressly acknowledges a
trustee of the Successor Entity that possesses the same
powers and duties as the Institutional Trustee as the
holder of the Series D Debentures;
(iii) the Series D Preferred Securities or
any Successor Series D Securities are listed, or any
Successor Series D Securities will be listed upon
notification of issuance, on any national securities
exchange or with another organization on which the
Series D Preferred Securities are then listed or quoted;
(iv) such merger, consolidation,
amalgamation or replacement does not cause the Series D
Preferred Securities (including any Successor Series D
Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation
or replacement does not adversely affect the rights,
preferences and privileges of the Holders (including any
Successor Series D Securities) in any material respect
(other than with respect to any dilution of such
Holders' interests in the Successor Entity);
(vi) such Successor Entity has a purpose
identical to that of the Series D Trust;
(vii) prior to such merger, consolidation,
amalgamation or replacement, the Series D Debenture
Issuer has received an opinion of a nationally
recognized independent counsel to the Series D Trust
experienced in such matters to the effect that:
(A) such merger,
consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges
of the Holders (including any Successor Series D
Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the
Successor Entity); and
(B) following such
merger, consolidation, amalgamation or replacement,
neither the Series D Trust nor the Successor Entity
will be required to register as an Investment Company;
and
(C) following such merger,
consolidation, amalgamation or replacement, the Series D
Trust (or the Successor Entity) will be treated as a
grantor trust for United States federal income tax
purposes; and
(viii) the Sponsor guarantees the
obligations of such Successor Entity under the Successor
Series D Securities at least to the extent provided by
the Series D Preferred Securities Guarantee and the
Series D Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Series D Trust shall
not, except with the consent of Holders of 100% in liquidation
amount of the Series D Securities, consolidate, amalgamate,
merge with or into, or be replaced by any other entity or
permit any other entity to consolidate, amalgamate, merge with
or into, or replace it, if such consolidation, amalgamation,
merger or replacement would cause the Series D Trust or
Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE 4
SPONSOR
SECTION 4.1 Sponsor's Purchase of Series D Common
Securities.
On the Closing Date, the Sponsor will purchase all of the Series D Common
Securities issued by the Series D Trust, in an amount at least equal to 3% of
the total capital of the Series D Trust, at the same time as the Series D
Preferred Securities are issued in exchange for Series D 7.92% Depositary Shares
in the Series D Offer.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Series D Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Series D Trust with the
Commission one or more registration statements on Form S-4
in relation to the Series D Preferred Securities, including
any amendments thereto;
(b)to determine the states in which to take appropriate action
to qualify or register for sale all or part of the Series D
Preferred Securities and to do any and all such acts, other
than actions which must be taken by the Series D Trust, and
advise the Series D Trust of actions it must take, and prepare
for execution and filing any documents to be executed and
filed by the Series D Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any
such states;
(c) to prepare for filing by the Series D Trust an
application to the NYSE, Inc. or any other national stock
exchange or the NASDAQ National Market for listing or
quotation upon notice of issuance of the Series D Preferred
Securities;
(d) to prepare for filing by the Series D Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Series D Preferred Securities under
Section 12(b) of the Exchange Act, including any amendments
thereto; and
(e) to negotiate the terms of the Dealer Manager
Agreement.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders to institute a Direct
Action as set forth in Section 3.8(e) hereto.
SECTION 4.4 Expenses.
In connection with the offering, sale and issuance of the Series D
Debentures to the Institutional Trustee and in connection with the issuance of
the Series D Securities by the Series D Trust, the Series D Debenture Issuer, in
its capacity as borrower with respect to the Series D Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale
and issuance of the Series D Debentures, including fees to the
dealer managers payable pursuant to the Dealer Manager
Agreement, and compensation of the Debt Trustee under the
Indenture in accordance with the provisions of Section 6.06 of
the Indenture;
(b) be responsible and shall pay all debts and obligations
(other than with respect to the Series D Securities) and all
costs and expenses of the Series D Trust (including, but not
limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Series D Trust, the offer,
sale and issuance of the Series D Securities (including fees
to the dealer managers in connection therewith), the fees and
expenses (including reasonable counsel fees and expenses) of
the Institutional Trustee, the Delaware Trustee and the
Regular Trustees (including any amounts payable under Article
10 of this Series D Declaration), the costs and expenses
relating to the operation of the Series D Trust, including,
without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating,
travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the
acquisition, financing and disposition of Series D Trust
assets and the enforcement by the Institutional Trustee of the
rights of Holders of the Series D Preferred Securities);
(c) be primarily liable for any indemnification
obligations arising with respect to this Series D
Declaration; and
(d) pay any and all taxes(other than United States withholding
taxes attributable to the Series D Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes
of the Series D Trust.
The Series D Debenture Issuer's obligations under this Section 4.4 shall
be for the benefit of, and shall be enforceable by, any person to whom such
debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether or
not such Creditor has received notice hereof. Any such Creditor may enforce the
Series D Debenture Issuer's obligations under this Section 4.4 directly against
the Series D Debenture Issuer and the Series D Debenture Issuer irrevocably
waives any right of remedy to require that any such Creditor take any action
against the Series D Trust or any other Person before proceeding against the
Series D Debenture Issuer. The Series D Debenture Issuer agrees to execute such
additional agreements as may be necessary or desirable in order to give full
effect to the provisions of this Section 4.4.
ARTICLE 5
TRUSTEES
SECTION 5.1 Number of Trustees.
(a) The number of Trustees initially shall be five.At any time
before the issuance of any Series D Securities, the Sponsor
may, by written instrument, increase or decrease the number of
Trustees. After the issuance of any Series D Securities, the
number of Trustees may be increased or decreased by vote of
the Holders of a majority in liquidation amount of the Series
D Common Securities voting as a class at a meeting of the
Holders of the Series D Common Securities; provided, however,
that, the number of Trustees shall in no event be less than
two; and provided further that (i) if required under Section
5.2 below, one Trustee shall be the Delaware Trustee; (ii)
there shall be at least one Trustee who is an employee or
officer of, or is affiliated with the Sponsor (a "Regular
Trustee"); and (iii) so long as required under Section 5.3,
one Trustee shall be the Institutional Trustee.
(b) Any action taken by Holders of Series D Common Securities
pursuant to this Article 5 shall be taken at a meeting of
Holders of Series D Common Securities convened for such
purpose or by written consent of such Holders.
(c) Except as otherwise provided herein, no amendment may be
made to this Section 5.1 which would change any rights with
respect to the number, existence or appointment and removal of
Trustees, except with the consent of each Holder of Series D
Common Securities.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise
meets the requirements of applicable law, provided that, if
the Institutional Trustee has its principal place of business
in the State of Delaware and otherwise meets the requirements
of applicable law, then the Institutional Trustee may also be
the Delaware Trustee and Section 3.11 shall have no
application.
The initial Delaware Trustee shall be Wilmington Trust Company until
removed or replaced in accordance with Section 5.6.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) For so long as this Series D Declaration is required to
qualify as an indenture under the Trust Indenture Act, there
shall at all times be one Trustee (the "Institutional
Trustee") which shall:
(i) not be an Affiliate of the Sponsor; and
(ii)be a corporation organized and doing business under
the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act
as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of
at least $50,000,000, and subject to supervision or
examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law
or to the requirements of the supervising or examining
authority referred to above, then for the purposes of
this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time an Institutional Trustee is required the
Institutional Trustee shall cease to be eligible to so act
under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth
in Section 5.6(c).
(c)If at any time an Institutional Trustee is required the
Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act or becomes a creditor of the Sponsor during the
time periods specified in Section 311 of the Trust Indenture
Act, the Institutional Trustee and the Holder of the Series D
Common Securities (as if it were the obligor referred to in
Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) and 311
of the Trust Indenture Act, as applicable.
(d)The Series D Preferred Securities Guarantee shall be deemed
to be specifically described in this Series D Declaration for
purposes of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be Wilmington
Trust Company until removed or replaced in accordance with
Section 5.6.
SECTION 5.4 Certain Qualifications of the Regular
Trustees and Delaware Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be John D. Finnegan, Walter G. Borst
and Martin I. Darvick.
(a)Except as expressly set forth in this Series D Declaration
and except if a meeting of the Regular Trustees is called with
respect to any matter over which the Regular Trustees have
power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one of such Regular
Trustees;
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or
applicable law, any one of the Regular Trustees is authorized
to execute on behalf of the Series D Trust any documents which
the Regular Trustees have the power and authority to execute
pursuant to Section 3.6; and
(c)a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the
age of 21 his or her power for the purposes of signing any
documents which the Regular Trustees have power and authority
to cause the Series D Trust to execute pursuant to Section
3.6.
SECTION 5.6 Appointment, Removal and Resignation of
Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed
or removed without cause at any time:
(i) until the issuance of any Series D
Securities, by written instrument executed by the
Sponsor; and
(ii) after the issuance of any Series D
Securities, by vote of the Holders of a Majority in
liquidation amount of the Series D Common Securities
voting as a class at a meeting of the Holders of the
Series D Common Securities.
(b) (i) So long as an Institutional Trustee is required
under Section 5.3, the Trustee that acts as
Institutional Trustee shall not be removed in
accordance with Section 5.6(a) until a successor
institutional Trustee possessing the qualifications to
act as Institutional Trustee under Section 5.3(a) (a
"Successor Institutional Trustee") has been appointed
and has accepted such appointment by written
instrument executed by such Successor Institutional
Trustee and delivered to the Regular Trustees, the
Sponsor and the Institutional Trustee being removed;
and
(ii) so long as a Delaware Trustee is required under
Section 5.2, the Trustee that acts as Delaware Trustee
shall not be removed in accordance with this
Section 5.6(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware Trustee")
has been appointed and has accepted such appointment
by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular
Trustees, the Sponsor and the Delaware Trustee being
removed.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death,
removal or resignation as described herein. Any Trustee may
resign from office (without need for prior or subsequent
accounting) by an instrument (a "Resignation Request") in
writing signed by the Trustee and delivered to the Sponsor and
the Series D Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein;
provided, however, that:
i) no such resignation of the Trustee that acts as
the Institutional Trustee shall be effective:
(A) until a Successor
Institutional Trustee has been appointed and has
accepted such appointment by instrument executed
by such Successor Institutional Trustee and
delivered to the Series D Trust, the Sponsor and
the resigning Institutional Trustee; or
(B) until the assets of the
Series D Trust have been completely liquidated and
the proceeds thereof distributed to the Holders of
the Series D Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Series D
Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Series D Common Securities shall use
their best efforts to promptly appoint a Successor
Institutional Trustee or Successor Delaware Trustee as the
case may be if the Institutional Trustee or the Delaware
Trustee delivers a Resignation Request in accordance with
this Section 5.6.
(e)If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as
provided in this Section 5.6 within 60 days after delivery to
the Sponsor and the Series D Trust of a Resignation Request,
the resigning Institutional Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction
for appointment of a Successor Institutional Trustee or
Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or
Successor Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor
Institutional Trustee or Successor Delaware Trustee, as the
case may be.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees, shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Series D Trust. Whenever a vacancy in the number of
Regular Trustees shall occur, until such vacancy is filled by the appointment of
a Regular Trustee in accordance with Section 5.6, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Series D Declaration.
SECTION 5.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Series D Declaration, any action of the Regular
Trustees may be taken at a meeting by vote of a majority of the Regular Trustees
present (whether in person or by telephone) and eligible to vote with respect to
such matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Regular Trustees. In the event there is only
one Regular Trustee, any and all action of such Regular Trustee shall be
evidenced by a written consent of such Regular Trustee.
SECTION 5.10 Delegation of Power.
The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Series D Trust the doing of such
things and the execution of such instruments either in the name of the Series D
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Series D Trust, as set forth
herein.
SECTION 5.11 Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE 6
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein) in accordance with
the applicable terms of the relevant Holder's Series D Securities as set forth
in Annex I. If and to the extent that the Series D Debenture Issuer makes a
payment of interest (including Compound Interest and Additional Interest),
premium and/or principal on the Series D Debentures held by the Institutional
Trustee (the amount of any such payment being a "Payment Amount"), the
Institutional Trustee shall and is directed, to the extent funds are available
for that purpose, to make a distribution (a "Distribution") of the Payment
Amount to Holders.
ARTICLE 7
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Series D
Securities.
(a) The Regular Trustees shall on behalf of the Series D Trust
issue the Series D Preferred Securities, which shall be one
class of preferred securities representing undivided preferred
beneficial ownership interests in the assets of the Series D
Trust having such terms as are set forth in Annex I (which
terms are incorporated by reference in, and made a part of,
this Series D Declaration as if specifically set forth herein)
and the Series D Common Securities, which shall be one class
of common securities representing undivided common beneficial
ownership interests in the assets of the Series D Trust having
such terms as are set forth in Annex I (which terms are
incorporated by reference in, and made a part of, this Series
D Declaration as if specifically set forth herein). The Series
D Trust shall issue no securities or other interests in the
assets of the Series D Trust other than the Series D Preferred
Securities and the Series D Common Securities. Each Security
shall be dated the date of its authentication.
(b)The Certificates shall be signed on behalf of the Series D
Trust by a Regular Trustee. Such signature shall be the manual
or facsimile signature of any present or any future Regular
Trustee. Typographical and other minor errors or defects in
any such reproduction of any such signature shall not affect
the validity of any Security. In case any Regular Trustee of
the Series D Trust who shall have signed any of the Series D
Securities shall cease to be such Regular Trustee before the
Certificates so signed shall be delivered by the Series D
Trust, such Certificates nevertheless may be delivered as
though the person who signed such Certificates had not ceased
to be such Regular Trustee; and any Certificate may be signed
on behalf of the Series D Trust by such persons who, at the
actual date of execution of such Security, shall be the
Regular Trustees of the Series D Trust, although at the date
of the execution and delivery of the Series D Declaration any
such person was not such a Regular Trustee. Certificates shall
be printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation of any stock
exchange on which Series D Securities may be listed, or to
conform to usage. Pending the preparation of definitive
Certificates, the Regular Trustees on behalf of the Series D
Trust may execute and the Institutional Trustee shall
authenticate, temporary Certificates (printed, lithographed or
typewritten), substantially in the form of the definitive
Certificates in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for
temporary Certificates all as may be determined by the Regular
Trustees on behalf of the Series D Trust upon the same
conditions and in substantially the same manner, and with like
effect, as definitive Certificates. Without unnecessary delay,
the Regular Trustees on behalf of the Series D Trust will
execute and furnish and the Institutional Trustee shall
authenticate, definitive Certificates and thereupon any or all
temporary Certificates may be surrendered to the transfer
agent and registrar in exchange therefor (without charge to
the Holders).
(c) A Security shall not be valid until authenticated by the
manual or facsimile signature of an authorized signatory of
the Institutional Trustee. The signature shall be conclusive
evidence that the Security has been authenticated under this
Series D Declaration.
The Institutional Trustee may appoint an authenticating agent acceptable
to the Series D Trust to authenticate Series D Securities. An authenticating
agent may authenticate Series D Securities whenever the Institutional Trustee
may do so. Each reference in this Series D Declaration to authentication by the
Institutional Trustee includes authentication by such agent. An authenticating
agent has the same rights as the Institutional Trustee to deal with the Sponsor
or an Affiliate, and may itself be an Affiliate of the Series D Trust or a
Related Party of the Sponsor. The Institutional Trustee hereby appoints The
First National Bank of Boston initially to act as authenticating agent for the
Series D Securities.
(d) The consideration received by the Series D Trust for the
issuance of the Series D Securities shall constitute a
contribution to the capital of the Series D Trust and shall
not constitute a loan to the Series D Trust.
(e) Upon issuance of the Series D Securities as provided in
this Series D Declaration, the Series D Securities so issued
shall be deemed to be validly issued, fully paid and
non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Series D Preferred Security Beneficial Owner in accordance
with the terms of this Series D Declaration, shall be deemed
to have expressly assented and agreed to the terms of, and
shall be bound by, this Series D Declaration.
ARTICLE 8
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Series D Trust.
(a) Notwithstanding anything to the contrary contained herein,
the Sponsor shall have the right at any time to dissolve the
Series D Trust and cause the distribution of all of the Series
D Debentures to the Holders in exchange for all of the Series
D Securities in accordance with the terms of the Series D
Securities. In addition, the Series D Trust shall dissolve:
(i) on April 11, 2052, the expiration of the term
of the Series D Trust;
(ii) upon the bankruptcy of the Sponsor or the
Series D Trust;
(iii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor, the filing
of a certificate of cancellation with respect to the
Series D Trust after having obtained the consent of the
Holders of at least a Majority in liquidation amount of
the Series D Securities voting together as a single
class to file such certificate of cancellation, or the
revocation of the Sponsor's charter and the expiration
of 90 days after the date of revocation without a
reinstatement thereof;
(iv) upon the entry of a decree of judicial
dissolution of the Holder of the Series D Common
Securities, the Sponsor or the Series D Trust;
(v) when all of the Series D Securities shall have been
called for redemption and the amounts necessary for
redemption thereof, including any Additional Interest or
Compound Interest, shall have been paid to the Holders
in accordance with the terms of the Series D Securities;
(vi) upon the distribution of all of the Series D
Debentures to the Holders in exchange for all of the
Series D Securities in accordance with the terms of
the Series D Securities; or
(vii) before the issuance of any Series D Securities,
with the consent of all of the Regular Trustees and
the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Trustees shall file a
certificate of cancellation with the Secretary of State of the
State of Delaware.
(c) The provisions of Article 10 shall survive the
dissolution of the Series D Trust.
ARTICLE 9
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Series D Securities.
(a) Series D Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in
this Series D Declaration and in the terms of the Series D
Securities. Any transfer or purported transfer of any Security
not made in accordance with this Series D Declaration shall be
null and void.
(b) Subject to this Article 9, the Series D Preferred
Securities shall be freely transferable.
(c) The Sponsor may not transfer the Series D Common
Securities.
SECTION 9.2 Transfer of Certificates.
(a) The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such
indemnity as the Regular Trustees may require) in respect of
any tax or other government charges that may be imposed in
relation to it. Upon surrender for registration of transfer of
any Certificate, the Regular Trustees shall cause one or more
new Certificates to be issued and authenticated by the
Institutional Trustee in the name of the designated transferee
or transferees. Every Certificate surrendered for registration
of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for
registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to
the rights and subject to the obligations of a Holder
hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Series D
Declaration.
(b) Upon receipt by the Institutional Trustee of a Definitive
Series D Preferred Security Certificate, duly endorsed or
accompanied by appropriate instruments of transfer, in form
satisfactory to the Institutional Trustee, requesting transfer
of such Definitive Series D Preferred Security Certificate for
a beneficial interest in a Global Certificate, the
Institutional Trustee shall cancel such Definitive Series D
Preferred Security Certificate and cause, or direct the
Depository Institution to cause, the aggregate number of
Series D Preferred Securities represented by the appropriate
Global Certificate to be increased accordingly. If no Global
Certificates are then outstanding, the Series D Trust shall
issue and the Institutional Trustee shall authenticate, upon
written order of any Regular Trustee, an appropriate number of
Series D Preferred Securities in global form.
(c) Upon receipt by the Institutional Trustee from the
Depository Institution or its nominee on behalf of any Person
having a beneficial interest in a Global Certificate of
written instructions or such other form of instructions as is
customary for the Depository Institution or the person
designated by the Depository Institution, requesting transfer
of a beneficial interest in a Global Certificate for a
Definitive Series D Preferred Security Certificate, then the
Institutional Trustee or the securities custodian, at the
direction of the Institutional Trustee, will cause, in
accordance with the standing instructions and procedures
existing between the Depository Institution and the securities
custodian, the aggregate principal amount of the Global
Certificate to be reduced on its books and records and,
following such reduction, the Series D Trust will execute and
the Institutional Trustee will authenticate and deliver to the
transferee a Definitive Series D Preferred Security
Certificate.
Definitive Series D Preferred Security
Certificates issued in exchange for a beneficial interest in a
Global Certificate shall be registered in such names and in
such authorized denominations as the Depository Institution,
pursuant to instructions from its Depository Institution
Participants or indirect participants or otherwise, shall
instruct the Institutional Trustee. The Institutional Trustee
shall deliver such Series D Preferred Securities to the
persons in whose names such Series D Preferred Securities are
so registered in accordance with the instructions of the
Depository Institution. 1. Notwithstanding any other
provisions of this Series D Declaration, a Global Certificate
may not be transferred as a whole except by the Depository
Institution to a nominee of the Depository Institution or
another nominee of the Depository Institution or by the
Depository Institution or any such nominee to a successor
Depository Institution or a nominee of such successor
Depository Institution.
d) The Institutional Trustee may appoint a transfer agent and
registrar ("Transfer Agent") acceptable to the Series D Trust
to perform the functions set forth in this Section 9.2. The
Transfer Agent may perform such functions whenever the
Institutional Trustee may do so. Each reference in this Series
D Declaration to registration and transfer of Series D
Preferred Securities by the Institutional Trustee includes
such activities by the Transfer Agent. The Transfer Agent has
the same rights as the Institutional Trustee to deal with the
Sponsor or an Affiliate, and itself may be the Series D Trust,
an Affiliate of the Series D Trust or a Related Party of the
Sponsor. The Institutional Trustee hereby appoints The First
National Bank of Boston initially to act as Transfer Agent for
the Series D Preferred Securities.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Series D Trust as the sole holder of
such Certificate and of the Series D Securities represented by such Certificate
for purposes of receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable or other claim
to or interest in such Certificate or in the Series D Securities represented by
such Certificate on the part of any Person, whether or not the Series D Trust
shall have actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
The Series D Preferred Securities Certificates, on original issuance, will
be executed and issued by the Series D Trust and authenticated by the
Institutional Trustee either (i) in the form of one or more, fully-registered,
global Series D Preferred Security Certificates (each a "Global Certificate"),
to be delivered to DTC or PDTC, the initial Depository Institutions, by, or on
behalf of, the Series D Trust to those tendering holders of Series D 7.92%
Depositary Shares held in global form or (ii) in certificated form (the
"Definitive Series D Preferred Security Certificates") to be held directly by
the Holder to those tendering holders of Series D 7.92% Depositary Shares held
directly in certificated form. Investors may elect to hold their Series D
Preferred Securities directly or hold their interest through a Global
Certificate. Global Certificates shall initially be registered on the books and
records of the Series D Trust in the name of DTC or PDTC, as applicable, or
their respective nominees. With respect to Series D Preferred Security
Beneficial Owners holding their interest in Series D Preferred Securities
pursuant to a Global Certificate:
(a) the Series D Trust and the Trustees shall be entitled to
deal with the Depository Institution, with respect to such
Series D Preferred Security Beneficial Owners, for all
purposes of this Series D Declaration (including the payment
of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of such
Series D Preferred Securities and the sole holder of the
Global Certificates and shall have no obligation to such
Series D Preferred Security Beneficial Owners;
(b) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Series D
Declaration, the provisions of this Section 9.4 shall
control; and
(c) the rights of such Series D Preferred Security Beneficial
Owners shall be exercised only through the Depository
Institution and shall be limited to those established by law
and agreements between such Series D Preferred Security
Beneficial Owners and the Depository Institution and/or the
Depository Institution Participants. The Depository
Institution will make book-entry transfers among the
Depository Institution Participants and receive and transmit
payments of Distributions on the Global Certificates to such
Depository Institution Participants.
Depository Institution Participants shall have no rights under this Series
D Declaration with respect to any Global Certificate held on their behalf by the
Depository Institution or by the Institutional Trustee as the custodian of the
Depository Institution or under such Global Certificate, and the Depository
Institution may be treated by the Series D Trust, the Institutional Trustee and
any agent of the Series D Trust or the Institutional Trustee as the absolute
owner of such Global Certificate for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Series D Trust, the
Institutional Trustee or any agent of the Series D Trust or the Institutional
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository Institution or impair, as between the
Depository Institution and its Depository Institution Participants, the
operation of customary practices of such Depository Institution governing the
exercise of the rights of a holder of a beneficial interest in any Global
Certificate.
At such time as all beneficial interests in a Global Certificate have
either been exchanged for Definitive Series D Preferred Security Certificates to
the extent permitted by this Series D Declaration or redeemed, repurchased or
canceled in accordance with the terms of this Series D Declaration, such Global
Certificate shall be returned to the Depository Institution for cancellation or
retained and canceled by the Institutional Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Certificate is exchanged
for Definitive Series D Preferred Security Certificates, or if Definitive Series
D Preferred Security Certificates are exchanged for a beneficial interest in a
Global Certificate, Series D Preferred Securities represented by such Global
Certificate shall be reduced or increased and an adjustment shall be made on the
books and records of the Institutional Trustee (if it is then the securities
custodian for such Global Certificate) with respect to such Global Certificate,
by the Institutional Trustee or the securities custodian, to reflect such
reduction or increase.
SECTION 9.5 Notices to Depository Institution.
Whenever a notice or other communication to the Series D Preferred
Security Holders is required under this Series D Declaration, unless and until
Definitive Series D Preferred Security Certificates shall have been issued to
the Series D Preferred Security Beneficial Owners pursuant to Sections 9.2, 9.4
or 9.7, the Regular Trustees shall give all such notices and communications
specified herein to be given to the Series D Preferred Security Holders to the
applicable Depository Institution, and shall have no notice obligations to the
Series D Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Depository
Institution.
If any Depository Institution elects to discontinue its services as
securities depositary with respect to the Series D Preferred Securities, the
Regular Trustees may, in their sole discretion, appoint a successor Depository
Institution with respect to such Series D Preferred Securities.
SECTION 9.7 Definitive Series D Preferred Security
Certificates.
If:
(a) a Depository Institution elects to discontinue its
services as securities depositary with respect to the Series
D Preferred Securities and a successor Depository
Institution is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with
the Sponsor to terminate the book-entry system through the
Depository Institutions with respect to the Series D
Preferred Securities; or
(c) there shall have occurred a Series D Declaration
Event of Default,
then:
(a) Definitive Series D Preferred Security Certificates
shall be prepared by the Regular Trustees on behalf of the
Series D Trust with respect to such Series D Preferred
Securities; and
(b)upon surrender of the Global Certificates by the applicable
Depository Institution, accompanied by registration
instructions, the Regular Trustees shall cause Definitive
Series D Preferred Security Certificates to be delivered to
Series D Preferred Security Beneficial Owners in accordance
with the instructions of such Depository Institution. Neither
the Trustees nor the Series D Trust shall be liable for any
delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on,
said instructions of the Depository Institution. The
Definitive Series D Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular
Trustees may deem appropriate, 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 Series D Preferred Securities may be listed, or to
conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates.
If:
(a) any mutilated Certificates should be surrendered to
the Regular Trustees, or if the Regular Trustees shall
receive evidence to their satisfaction of the destruction,
loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees, the
Institutional Trustee or any authenticating agent such
security or indemnity as may be required by them to keep
each of them harmless,
then, in the absence of notice that such Certificate shall
have been acquired by a bona fide purchaser, any Regular
Trustee on behalf of the Series D Trust shall execute and
deliver and the Institutional Trustee shall authenticate, in
exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under
this Section 9.8, the Regular Trustees may require the payment
of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the
relevant Series D Securities, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be
found at any time.
ARTICLE 10
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Series D Declaration,
the Series D Securities Guarantees and the terms of the Series
D Securities, the Sponsor shall not be:
(i)) personally liable for the return of any portion
of the capital contributions (or any return thereon)
of the Holders which shall be made solely from assets
of the Series D Trust; and
(ii) be required to pay to the Series D Trust or to
any Holder any deficit upon dissolution of the Series
D Trust or otherwise.
(b) The Series D Debenture Issuer shall be liable for all of
the debts and obligations of the Series D Trust (other than
payments of distributions, if any, with respect to the Series
D Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the
State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Series D Trust or
any Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Series D
Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on
such Indemnified Person by this Series D Declaration or by
law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Series D Trust and upon
such information, opinions, reports or statements presented to
the Series D Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's
professional or expert competence and who has been selected
with reasonable care by or on behalf of the Series D Trust,
including information, opinions, reports or statements as to
the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders might
properly be paid.
SECTION 10.3 Fiduciary Duty.
(a)To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities
relating thereto to the Series D Trust or to any other Covered
Person, an Indemnified Person acting under this Series D
Declaration shall not be liable to the Series D Trust or to
any other Covered Person for its good faith reliance on the
provisions of this Series D Declaration. The provisions of
this Series D Declaration, to the extent that they restrict
the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on
the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest
exists or arises between an Indemnified Person and any
Covered Persons; or
(ii) whenever this Series D Declaration or
any other agreement contemplated herein or therein
provides that an Indemnified Person shall act in a
manner that is, or provides terms that are, fair and
reasonable to the Series D Trust or any Holder,
the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering
in each case the relative interest of each party (including
its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and
any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Indemnified
Person, the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute a
breach of this Series D Declaration or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Series D Declaration an Indemnified
Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be
entitled to consider such interests and factors as it
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Series D Trust or
any other Person; or
(ii) in its "good faith" or under another
express standard, the Indemnified Person shall act under
such express standard and shall not be subject to any
other or different standard imposed by this Series D
Declaration or by applicable law.
SECTION 10.4 Indemnification.
(a) (i) The Series D Debenture Issuer shall indemnify,
to the full extent permitted by law, any Sponsor
Indemnified Person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action, suit or proceeding,
whether civil, criminal, administrative or
investigative (other than an action by or in the right
of the Series D Trust) by reason of the fact that he
is or was a Sponsor Indemnified Person against
expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed
to the best interests of the Series D Trust, and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the Sponsor
Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not
opposed to the best interests of the Series D Trust,
and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) The Series D Debenture Issuer shall
indemnify, to the full extent permitted by law, any
Sponsor Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the
Series D Trust to procure a judgment in its favor by
reason of the fact that he is or was a Sponsor
Indemnified Person against expenses (including
attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the
best interests of the Series D Trust and except that no
such indemnification shall be made in respect of any
claim, issue or matter as to which such Sponsor
Indemnified Person shall have been adjudged to be liable
to the Series D Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon
application that, despite the adjudication of liability
but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity
for such expenses which such Court of Chancery or such
other court shall deem proper.
(iii) To the extent that a Sponsor
Indemnified Person shall be successful on the merits or
otherwise (including dismissal of an action without
prejudice or the settlement of an action without
admission of liability) in defense of any action, suit
or proceeding referred to in paragraphs (i) and (ii) of
this Section 10.4(a), or in defense of any claim, issue
or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him
in connection therewith.
(iv) Any indemnification under paragraphs
(i) and (ii) of this Section 10.4(a) (unless ordered by
a court) shall be made by the Series D Debenture Issuer
only as authorized in the specific case upon a
determination that indemnification of the Sponsor
Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct
set forth in paragraphs (i) and (ii). Such determination
shall be made (1) by the Regular Trustees by a majority
vote of a quorum consisting of such Regular Trustees who
were not parties to such action, suit or proceeding, (2)
if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a
written opinion, or (3) by the Series D Common Security
Holder of the Series D Trust.
(v) Expenses (including attorneys' fees)
incurred by a Sponsor Indemnified Person in defending a
civil, criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the Series
D Debenture Issuer in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Sponsor Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by
the Series D Debenture Issuer as authorized in this
Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Series D Debenture Issuer
if a determination is reasonably and promptly made (i)
by the Regular Trustees by a majority vote of a quorum
of disinterested Regular Trustees, (ii) if such a quorum
is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii)
by the Series D Debenture Issuer, that, based upon the
facts known to the Regular Trustees, counsel or the
Series D Debenture Issuer, as the case may be, at the
time such determination is made, such Sponsor
Indemnified Person acted in bad faith or in a manner
that such person did not believe to be in or not opposed
to the best interests of the Series D Trust, or, with
respect to any criminal proceeding, that such Sponsor
Indemnified Person believed or had reasonable cause to
believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees,
independent legal counsel or Series D Debenture Issuer
reasonably determine that such person deliberately
breached his duty to the Series D Trust or its Holders.
(vi) The indemnification and advancement of
expenses provided by, or granted pursuant to, the other
paragraphs of this Section 10.4(a) shall not be deemed
exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or
disinterested directors of the Series D Debenture Issuer
or Series D Preferred Security Holders of the Series D
Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while
holding such office. All rights to indemnification under
this Section 10.4(a) shall be deemed to be provided by a
contract between the Series D Debenture Issuer and each
Sponsor Indemnified Person who serves in such capacity
at any time while this Section 10.4(a) is in effect. Any
repeal or modification of this Section 10.4(a) shall not
affect any rights or obligations then existing.
(vii) The Series D Debenture Issuer or the
Series D Trust may purchase and maintain insurance on
behalf of any person who is or was a Sponsor Indemnified
Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of
his status as such, whether or not the Series D
Debenture Issuer would have the power to indemnify him
against such liability under the provisions of this
Section 10.4(a).
(viii) For purposes of this Section 10.4(a),
references to "the Series D Trust" shall include, in
addition to the resulting or surviving entity, any
constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so
that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or
was serving at the request of such constituent entity as
a director, trustee, officer, employee or agent of
another entity, shall stand in the same position under
the provisions of this Section 10.4(a) with respect to
the resulting or surviving entity as he would have with
respect to such constituent entity if its separate
existence had continued.
(ix) The indemnification and advancement of
expenses provided by, or granted pursuant to, this
Section 10.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has
ceased to be a Sponsor Indemnified Person and shall
inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Series D Debenture Issuer agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Institutional Trustee and the Delaware
Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee and the
Delaware Trustee (each of the Persons in (i) through (iv)
being referred to as a "Fiduciary Indemnified Person") for,
and to hold each Fiduciary Indemnified Person harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses
(including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set
forth in this Section 10.4(b) shall survive the satisfaction
and discharge of this Series D Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Series D Trust, and the Series D Trust and the
Holders shall have no rights by virtue of this Series D Declaration in and to
such independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the Series
D Trust, shall not be deemed wrongful or improper. No Covered Person, the
Sponsor, the Delaware Trustee, or the Institutional Trustee shall be obligated
to present any particular investment or other opportunity to the Series D Trust
even if such opportunity is of a character that, if presented to the Series D
Trust, could be taken by the Series D Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Institutional Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE II
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Series D Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a). At all times during the existence of the Series D Trust,
the Regular Trustees shall keep, or cause to be kept, full
books of account, records and supporting documents, which
shall reflect in reasonable detail, each transaction of the
Series D Trust. The books of account shall be maintained on
the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied. The
Series D Trust shall use the accrual method of accounting for
United States federal income tax purposes. The Regular
Trustees of the Series D Trust shall at all times cause the
Series D Trust to comply fully with all applicable accounting
requirements (including, without limitation, requirements with
respect to audits, reports and disclosure and dissemination of
financial statements) of any exchange on which any of the
Series D Securities may at such time be listed or which are
required under applicable law. The books and records of the
Series D Trust, together with a copy of the Series D
Declaration and a certified copy of the Certificate of Trust,
and any amendment thereto shall at all times be maintained at
the principal office of the Series D Trust and shall be open
for inspection for any examination by any Holder or its duly
authorized representative for any purpose reasonably related
to its interest in the Series D Trust during normal business
hours.
(b) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders, any annual United States
federal income tax information statement, required by the
Code, containing such information with regard to the Series D
Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the
Code to deliver any such statement at a later date, the
Regular Trustees shall endeavor to deliver all such statements
within 30 days after the end of each Fiscal Year of the Series
D Trust.
(c) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United
States federal income tax return, on a Form 1041 or such other
form required by United States federal income tax law, and any
other annual income tax returns required to be filed by the
Regular Trustees on behalf of the Series D Trust with any
state or local taxing authority.
SECTION 11.3 Banking.
The Series D Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Series D Trust; provided, however, that all
payments of funds in respect of the Series D Debentures held by the
Institutional Trustee shall be made directly to the Institutional Trustee
Account and no other funds of the Series D Trust shall be deposited in the
Institutional Trustee Account. The sole signatories for such accounts shall be
designated by the Regular Trustees; provided, however, that the Institutional
Trustee shall designate the signatories for the Institutional Trustee Account.
SECTION 11.4 Withholding.
The Series D Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Series D Trust shall request, and the Holders shall provide to the Series D
Trust, such forms or certificates as are necessary to establish an exemption
from withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Series D Trust to assist it in
determining the extent of, and in fulfilling, its withholding obligations. The
Regular Trustees shall file required forms with applicable jurisdictions and,
unless an exemption from withholding is properly established by a Holder, shall
remit amounts withheld with respect to the Holder to applicable jurisdictions.
To the extent that the Series D Trust is required to withhold and pay over any
amounts to any authority with respect to distributions or allocations to any
Holder, the amount withheld shall be deemed to be a distribution in the amount
of the withholding to the Holder. In the event of any claimed over withholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from actual Distributions
made, the Series D Trust may reduce subsequent Distributions by the amount of
such withholding.
ARTICLE 12
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Series D Declaration
or by any applicable terms of the Series D Securities, this
Series D Declaration may only be amended by a written
instrument approved and executed by:
(i) the Regular Trustees (or, if there are more
than two Regular Trustees, a majority of the Regular
Trustees);
(ii) if the amendment affects the rights,
powers, duties, obligations or immunities of the
Institutional Trustee, the Institutional Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the
Delaware Trustee;
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an
Officers' Certificate from each of the Series D Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Series D Declaration
(including the terms of the Series D Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations
or immunities of the Institutional Trustee, the
Institutional Trustee shall have first received:
(A) an Officers' Certificate
from each of the Series D Trust and the Sponsor
that such amendment is permitted by, and conforms
to, the terms of this Series D Declaration
(including the terms of the Series D Securities);
and
(B) an opinion of counsel (who
may be counsel to the Sponsor or the Series D
Trust) that such amendment is permitted by, and
conforms to, the terms of this Series D
Declaration (including the terms of the Series D
Securities); and
(iii) to the extent the result of such amendment
would be to:
(A) cause the trust to fail to
continue to be classified for purposes of United
States federal income taxation as a grantor trust;
(B) reduce or otherwise
adversely affect the powers of the Institutional
Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Series D Trust
to be deemed to be an Investment Company
required to be registered under the Investment
Company Act;
(c) At such time after the Series D Trust has issued any Series
D Securities that remain outstanding, any amendment that would
adversely affect the rights, privileges or preferences of any
Holder may be effected only with such additional requirements
as may be set forth in the terms of such Series D Securities;
(d) Sections 4.4, 9.1(c) and this Section 12.1 shall not
be amended without the consent of all of the Holders of the
Series D Securities;
(e) Article 4 shall not be amended without the consent of
the Holders of a Majority in liquidation amount of the
Series D Common Securities;
(f) The rights of the holders of the Series D Common Securities
under Article 5 to increase or decrease the number of, and
appoint and remove Trustees shall not be amended without the
consent of the Holders of a Majority in liquidation amount of
the Series D Common Securities; and
(g) Notwithstanding Section 12.1(c), this Series D
Declaration may be amended without the consent of the
Holders to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Series D Declaration that may be defective or
inconsistent with any other provision of this Series D
Declaration;
(iii) add to the covenants, restrictions or
obligations of the Sponsor;
(iv) conform to any change in Rule 3a-5 or written change
in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material
adverse effect on the right, preferences or privileges
of the Holders;
(v) preserve the status of the Series D Trust as a
grantor trust for federal income tax purposes; and
(vi) make any other change that does not adversely
affect the rights of the Holders.
It shall not be necessary for any consent of the Holders under this Section 12.1
to approve the particular form of any proposed amendment or modification to this
Series D Declaration, but it shall be sufficient if such consent shall approve
the substance thereof.
SECTION 12.2 Meetings of the Holders; Action by Written
Consent.
(a) Meetings of the Holders of any class of Series D Securities
may be called at any time by the Regular Trustees (or as
provided in the terms of the Series D Securities) to consider
and act on any matter on which Holders of such class of Series
D Securities are entitled to act under the terms of this
Series D Declaration, the terms of the Series D Securities or
the rules of any stock exchange on which the Series D
Preferred Securities are listed or admitted for trading. The
Regular Trustees shall call a meeting of the Holders of such
class if directed to do so by the Holders of at least 10% in
liquidation amount of such class of Series D Securities. Such
direction shall be given by delivering to the Regular Trustees
one or more calls in a writing stating that the signing
Holders wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any
Holders calling a meeting shall specify in writing the
Certificates held by the Holders exercising the right to call
a meeting and only those Series D Securities specified shall
be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph
has been met.
(b) Except to the extent otherwise provided in the terms
of the Series D Securities, the following provisions shall
apply to meetings of Holders:
(i) notice of any such meeting shall be given to all the
Holders having a right to vote thereat at least 7 days
and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the
Holders is permitted or required under this Series D
Declaration or the rules of any stock exchange on which
the Series D Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be given
at a meeting of the Holders. Any action that may be
taken at a meeting of the Holders may be taken without a
meeting if a consent in writing setting forth the action
so taken is signed by the Holders owning not less than
the minimum amount of Series D Securities in liquidation
amount that would be necessary to authorize or take such
action at a meeting at which all Holders having a right
to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given
to the Holders entitled to vote who have not consented
in writing. The Regular Trustees may specify that any
written ballot submitted to the Holders for the purpose
of taking any action without a meeting shall be returned
to the Series D Trust within the time specified by the
Regular Trustees;
(ii)each Holder may authorize any Person to act for it by
proxy on all matters in which a Holder is entitled to
participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be
valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the Holder
executing it. Except as otherwise provided herein, all
matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law
of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Series D
Trust were a Delaware corporation and the Holders were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders shall be conducted
by the Regular Trustees or by such other Person that
the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Series D
Declaration, the terms of the Series D Securities, the
Trust Indenture Act or the listing rules of any stock
exchange on which the Series D Preferred Securities are
then listed or trading, otherwise provides, the Regular
Trustees, in their sole discretion, shall establish all
other provisions relating to meetings of Holders,
including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any
Holders, waiver of any such notice, action by consent
without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such
right to vote.
ARTICLE 13
REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of
Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Series D Trust and to the Sponsor at the date of this Series D
Declaration, and each Successor Institutional Trustee represents and warrants to
the Series D Trust and the Sponsor at the time of the Successor Institutional
Trustee's acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a Delaware banking corporation
with trust powers, duly organized, validly existing and in
good standing under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this
Series D Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of this Series D Declaration has been
duly authorized by all necessary corporate action on the part
of the Institutional Trustee. This Series D Declaration has
been duly executed and delivered by the Institutional Trustee,
and constitutes the legal, valid and binding obligation of the
Institutional Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general
principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this
Series D Declaration by the Institutional Trustee does not
conflict with or constitute a breach of the Articles of
Incorporation or By-laws of the Institutional Trustee;
(d) no consent, approval or authorization of, or
registration with or notice to, any State or Federal banking
authority is required for the execution, delivery or
performance by the Institutional Trustee, of this Series D
Declaration;
(e) on the closing date of the Series D Offer, the
Institutional Trustee will be the record holder of the
Series D Debentures and the Institutional Trustee has not
knowingly created any liens or encumbrances on such Series D
Debentures; and
(f) the Institutional Trustee satisfies the
qualifications set forth in Section 5.3.
SECTION 13.2 Representations and Warranties of Delaware
Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Series D Trust and to the Sponsor at the date of this Series D
Declaration, and each Successor Delaware Trustee represents and warrants to the
Series D Trust and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) the Delaware Trustee is a Delaware banking corporation with
trust powers, duly organized, validly existing and in good
standing under the laws of the State of Delaware, with trust
power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, this Series D
Declaration;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Series D
Declaration. The Series D Declaration under Delaware law
constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding
in equity or at law);
(c) no consent, approval or authorization of, or
registration with or notice to, any State or Federal banking
authority is required for the execution, delivery or
performance by the Delaware Trustee, of this Series D
Declaration; and
(d) the Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business
in the State of Delaware.
ARTICLE 14
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Series D Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Series D Trust, in care of the
Regular Trustees at the Trust's mailing address set forth
below (or such other address as the Series D Trust may give
notice of to the Holders):
General Motors Capital Trust D
c/o General Motors Corporation
100 Renaissance Center
Detroit, Michigan 48243-7301
Attention: General Counsel
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as the
Delaware Trustee may give notice of to the Holders):
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or
such other address as the Institutional Trustee may give
notice of to the Holders):
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(d) if given to the Holder of the Series D Common Securities,
at the mailing address of the Sponsor set forth below (or such
other address as the Holder of the Series D Common Securities
may give notice to the Series D Trust):
General Motors Corporation
100 Renaissance Center
Detroit, Michigan 48243-7301
Attention: General Counsel
(e) if given to any other Holder, at the address set
forth on the books and records of the Series D Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
THIS SERIES D DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Series D Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Series D Declaration shall be interpreted to further this
intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Series D Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Series D Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns
Whenever in this Series D Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Series D Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Series D Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Series D Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
This Series D Declaration may contain more than one counterpart of the
signature page and this Series D Declaration may be executed by the affixing of
the signature of each of the Trustees to one of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one, and
they shall have the same force and effect as though all of the signers had
signed a single signature page.
* * * * *
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ John D. Finnegan
John D. Finnegan, as Regular Trustee
/s/ Walter G. Borst
Walter G. Borst, as Regular Trustee
/s/ Martin I. Darvick
Martin I. Darvick, as Regular Trustee
WILMINGTON TRUST COMPANY,
as Institutional Trustee and as
Delaware Trustee
By: /s/ Donald G. MacKelcan
Name: Donald G. MacKelcan
Title: Assistant Vice President
GENERAL MOTORS CORPORATION,
as Sponsor
By: /s/ John D. Finnegan
Name: John D. Finnegan
Title: Assistant Vice President and
Treasurer
<PAGE>
- --------------------
SM"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
ANNEX I
TERMS OF
8.67% TRUST ORIGINATED PREFERRED SECURITIES, SERIES D
8.67% TRUST ORIGINATED COMMON SECURITIES, SERIES D
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of July 9, 1997 (as amended from time to time, the "Series D
Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Series D Securities are set out below
(each capitalized term used but not defined herein has the meaning set forth in
the Series D Declaration or, if not defined in the Series D Declaration, as
defined in the Prospectus referred to below):
1. Designation and Number.
(a) Series D Preferred Securities. 3,055,255 Series D Preferred Securities
of the Series D Trust with an aggregate stated liquidation amount with respect
to the assets of the Series D Trust of Seventy-Six Million Three Hundred and
Eighty-One Thousand Three Hundred and Seventy-Five Dollars ($76,381,375) and a
stated liquidation amount with respect to the assets of the Series D Trust of
$25 per preferred security, are hereby designated for the purposes of
identification only as "8.67% Trust Originated Preferred SecuritiesSM
("TOPrSSM"), Series D" (the "Series D Preferred Securities"). The Series D
Preferred Security Certificates evidencing the Series D Preferred Securities
shall be substantially in the form of Exhibit A-1 to the Series D Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Series D Preferred Securities are listed. The Series
D Preferred Securities shall be issued to former holders of Series D 7.92%
Depositary Shares ("Series D 7.92% Depositary Shares"), each representing
one-fourth of a share of Series D 7.92% Preference Stock (the "Series D 7.92%
Preference Stock"), of General Motors Corporation (the "Sponsor") in exchange
for such Series D 7.92% Depositary Shares pursuant to the Series D Offer.
(b) Series D Common Securities. 94,493 Series D Common Securities of the
Series D Trust with an aggregate stated liquidation amount with respect to the
assets of the Series D Trust of Two Million Three Hundred and Sixty-Two Thousand
Three Hundred and Twenty-Five Dollars ($2,362,325) and a stated liquidation
amount with respect to the assets of the Series D Trust of $25 per common
security, are hereby designated for the purposes of identification only as
"8.67% Trust Originated Common Securities, Series D" (the "Series D Common
Securities"). The Series D Common Security Certificates evidencing the Series D
Common Securities shall be substantially in the form of Exhibit A-2 to the
Series D Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice. The Series D
Common Securities are to be issued and sold to the Sponsor in consideration of
$2,362,325 in cash. Series D Common Securities may be issued in fractional share
amounts.
(c) The Series D Preferred Securities and the Series D Common Securities
represent undivided beneficial ownership interests in the assets of the Series D
Trust.
(d) In connection with the Series D Offer and the purchase by the Sponsor
of the Series D Common Securities, the Sponsor will deposit in the Series D
Trust, and the Series D Trust will purchase, respectively, as trust assets,
Series D Debentures of the Sponsor having an aggregate principal amount equal to
Seventy-Eight Million Seven Hundred and Forty-Three Thousand Seven Hundred
Dollars ($78,743,700), and bearing interest at an annual rate equal to the
annual Distribution rate on the Series D Preferred Securities and Series D
Common Securities and having payment and redemption provisions which correspond
to the payment and redemption provisions of the Series D Preferred Securities
and Series D Common Securities.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of 8.67% (the "Coupon Rate") of the stated liquidation amount of $25 per
Security, such rate being the rate of interest payable on the Series D
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate ("Compound Interest") (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and any
such interest (including Additional Interest and Compound Interest) payable
unless otherwise stated. A Distribution will be made by the Institutional
Trustee only to the extent that payments are made in respect of the Series D
Debentures held by the Institutional Trustee and to the extent the Series D
Trust has funds available in the Institutional Trustee Account. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed. In addition, Holders of Series D Preferred
Securities will be entitled to an additional cash distribution at the rate of
7.92% per annum of the liquidation amount thereof from April 1, 1997 through
July 2, 1997 (the expiration date of the Series D Offer, the "Expiration Date"),
in lieu of dividends accumulating and unpaid from April 1, 1997 on Series D
7.92% Depositary Shares accepted for exchange in the Series D Offer, such
additional distributions to be made on August 1, 1997 to Holders of the Series D
Preferred Securities on the record date for such distribution ("Pre-Issuance
Interest"). Payment of Pre-Issuance Interest may not be deferred as provided in
subsection (b) below.
<PAGE>
(b) Distributions on the Series D Securities will be cumulative, will
accrue from July 3, 1997, the first date following the Expiration Date (the
"Series D Accrual Date"), and, except as otherwise described below, will be
payable quarterly on February 1, May 1, August 1 and November 1 of each year,
commencing on August 1, 1997, when, as and if available for payment (a
"Distribution Payment Date"). With the exception of Pre-Issuance Interest, so
long as the Series D Debenture Issuer shall not be in default in the payment of
interest on the Series D Debentures, the Series D Debenture Issuer has the right
under the Indenture to defer payments of interest on the Series D Debentures by
extending the interest payment period from time to time on the Series D
Debentures for a period not exceeding 20 consecutive quarters (each a "Series D
Extension Period"), during which Series D Extension Period no interest shall be
due and payable on the Series D Debentures, provided that no Series D Extension
Period shall last beyond the Series D Stated Maturity. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly to the
extent permitted by law during any such Series D Extension Period. Prior to the
termination of any such Series D Extension Period, the Series D Debenture Issuer
may further extend such Series D Extension Period; provided that such Series D
Extension Period, together with all such previous and further extensions
thereof, may not exceed 20 consecutive quarters or extend beyond the Series D
Stated Maturity. Any interest accrued on the Series D Debentures during a Series
D Extension Period shall be paid Pro Rata to holders of Series D Debentures on
the first payment date following the Series D Extension Period and the Payment
Amount shall be paid Pro Rata to the Holders on the first Distribution Payment
Date following the Series D Extension Period. Upon the termination of any Series
D Extension Period and the payment of all amounts then due, the Series D
Debenture Issuer may commence a new Series D Extension Period, subject to the
above requirements. In the event that the Series D Debenture Issuer exercises
this right, then the Series D Debenture Issuer shall not (i) declare or pay any
dividend on, make a distribution with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital stock
(other than (a) purchases or acquisitions of shares of its common stock
(including, without limitation, all classes of common stock now or hereafter
issued) in connection with the satisfaction by the Series D Debenture Issuer of
its obligations under any employee benefit plans or any other contractual
obligation of the Series D Debenture Issuer (other than a contractual obligation
ranking pari passu with or junior to the Series D Debentures), (b) the issuance
of capital stock in connection with a recapitalization or reclassification of
the Series D Debenture Issuer's capital stock or the exchange or conversion of
one class or series of the Series D Debenture Issuer's capital stock for another
class or series of the Series D Debenture Issuer's capital stock, in each case
by merger or otherwise, or (c) the purchase of fractional interests in shares of
the Series D Debenture Issuer's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged), (ii) make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities issued by the Series D
Debenture Issuer that rank pari passu with or junior to such Series D Debentures
(including any other series of debentures) and (iii) make any guarantee payments
with respect to the foregoing (other than pursuant to the Series D Series D
Preferred Securities Guarantee).
(c) Distributions on the Series D Securities will be payable promptly by
the Institutional Trustee upon receipt of immediately available funds to the
Holders thereof as they appear on the books and records of the Series D Trust on
the relevant record dates, which will be the 15th day of the month immediately
preceding the month which includes the relevant distribution date. The record
dates and distribution dates shall be the same as the record dates and payment
dates on the Series D Debentures. Distributions payable on any Series D
Securities that are not punctually paid on any Distribution Payment Date, as a
result of the Series D Debenture Issuer having failed to make the corresponding
interest payment on the Series D Debentures, will forthwith cease to be payable
to the Person in whose name such Series D Securities are registered on the
relevant record date, and such defaulted Distribution will instead be payable to
the Person in whose name such Series D Securities are registered on the special
record date established by the Regular Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall not
be considered payable on any Distribution Payment Date falling within a Series D
Extension Period unless the Series D Debenture Issuer has elected to make a full
or partial payment of interest accrued on the Series D Debentures on such
Distribution Payment Date. Distributions on the Series D Securities will be paid
by the Series D Trust. All Distributions paid with respect to the Series D
Securities shall be paid on a Pro Rata basis to Holders thereof entitled
thereto. If any date on which Distributions are payable on the Series D
Securities is not a Business Day, then payment of the Distribution payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) If at any time while the Institutional Trustee is the Holder of any
Series D Securities, the Series D Trust or the Institutional Trustee is required
to pay any taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Series D Debenture Issuer will pay as
additional interest ("Additional Interest") on the Series D Securities held by
the Institutional Trustee, such amounts as shall be required so that the net
amounts received and retained by the Series D Trust and the Institutional
Trustee after paying any such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Series D Trust and the Institutional
Trustee would have received had no such taxes, duties, assessments or other
governmental charges been imposed.
(e) In the event that there is any money or other property held by or for
the Series D Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Series D Trust (each a "Liquidation"), the
Holders on the date of the Liquidation will be entitled to receive Pro Rata out
of the assets of the Series D Trust available for distribution to Holders after
satisfaction of liabilities of creditors distributions in an amount equal to the
aggregate of the stated liquidation amount of $25 per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such Liquidation, Series
D Debentures in an aggregate stated principal amount equal to the aggregate
stated liquidation amount of such Series D Securities, with an interest rate
equal to the Coupon Rate of, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Series D
Securities, shall be distributed on a Pro Rata basis to the Holders in exchange
for such Series D Securities.
4. Redemption and Distribution.
(a) Redemption of the Series D Securities will occur simultaneously with
any repayment of the Series D Debentures. The Series D Debentures will mature on
July 1, 2012 (which date may be shortened to a date no earlier than August 1,
1999, subject to certain conditions) (such date, including as so shortened, the
"Series D Stated Maturity"). Upon the repayment of the Series D Debentures at
maturity, the proceeds from such repayment shall be simultaneously applied to
redeem Series D Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Series D Debentures so repaid at a redemption
price of $25 per Security, plus an amount equal to accrued and unpaid
Distributions thereon at the date of the redemption, payable in cash (the
"Maturity Redemption Price"). Holders will be given not less than 30 nor more
than 60 days notice of such redemption. Such notice can be given either before
or after repayment of the Series D Debentures.
(b) If, at any time prior to August 1, 1999, a Tax Event shall occur and
be continuing, the Series D Debenture Issuer shall have the right, upon not less
than 30 and no more than 60 days notice to holders of the Series D Debentures,
at its option, to redeem the Series D Debentures, in whole (but not in part),
for cash within 90 days following the occurrence of such Tax Event at a
prepayment price (the "Series D Tax Event Prepayment Price") equal to (i) 105%
of the principal amount of the Series D Debentures if such Series D Debentures
are prepaid during the period commencing on the Series D Accrual Date through
and including July 31, 1997 and (ii) the percentage of the principal amount of
the Series D Debentures specified below, if such Series D Debentures are prepaid
during the 12-month period beginning August 1 of the years indicated below,
plus, in each case, any accrued and unpaid interest thereon to the date of
prepayment:
Year Percentage
1997 105 %
1998 102.5
1999 and thereafter 100
Upon such redemption, all Series D Securities shall be redeemed by the
Series D Trust at a redemption price equal to the Series D Tax Event Prepayment
Price (the "Series D Tax Event Redemption Price").
(c) The Series D Debentures are redeemable in whole or in part, from time
to time, on or after August 1, 1999 upon not less than 30 nor more than 60 days
notice, at a prepayment price (the "Series D Optional Prepayment Price") equal
to 100% of the principal amount thereof, plus any accrued and unpaid interest
thereon to the date of prepayment. Upon such prepayment, the proceeds from such
prepayment shall simultaneously be applied to redeem Series D Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Series D Debentures so prepaid at a redemption price equal to the Series D
Optional Prepayment Price (the "Series D Optional Redemption Price").
Notwithstanding anything to the contrary contained herein, the Series D
Debenture Issuer may not redeem fewer than all of the Series D Debentures unless
all accrued and unpaid interest on all of the Series D Debentures has been paid
for all quarterly periods terminating on or prior to the date of prepayment.
"Series D Redemption Price" means the Maturity Redemption Price, the
Series D Optional Redemption Price or the Series D Tax Event Redemption
Price, as the context requires.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Series D Securities, there is more than an
insubstantial risk that (i) the Series D Trust is, or will be within 90 days of
the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Series D Debentures, (ii) interest
payable on the Series D Debentures is not, or within 90 days of the date thereof
will not be, deductible by the Company, in whole or in part, for United States
federal income tax purposes, or (iii) the Series D Trust is, or will be within
90 days of the date thereof, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
(d) If fewer than all the outstanding Series D Securities are to be so
redeemed, the Series D Common Securities and the Series D Preferred Securities
will be redeemed Pro Rata (as such term is defined in Section 8 hereof) as
described in Section 4(g)(ii) below.
(e) The Series D Trust may not redeem fewer than all the outstanding
Series D Securities unless all accrued and unpaid Distributions have been paid
on all Series D Securities for all quarterly Distribution periods terminating on
or before the date of redemption.
(f) The Series D Debenture Issuer will have the right at any time to
liquidate the Series D Trust and cause the Series D Debentures to be distributed
to the Holders. If the Series D Debentures are distributed to the Holders and
the Series D Preferred Securities are then listed on an exchange, the Series D
Debenture Issuer will use its best efforts to cause the Series D Debentures to
be listed on the NYSE or on such other exchange as the Series D Preferred
Securities are then listed.
On the date fixed for any distribution of Series D Debentures upon
dissolution of the Series D Trust, (i) the Series D Preferred Securities will no
longer be deemed to be outstanding, (ii) the Depository Institution or its
nominee, as the record holder of the Series D Preferred Securities, will receive
a registered global certificate or certificates representing the Series D
Debentures to be delivered upon such distribution, and (iii) any certificates
representing Series D Preferred Securities not held by the Depository
Institution or its nominee will be deemed to represent Series D Debentures
having an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
accrued and unpaid interest equal to accrued and unpaid distributions on, such
Series D Preferred Securities until such certificates are presented to the
Series D Debenture Issuer or its agent for transfer or reissuance.
(g) Redemption or Distribution Procedures.
(i) Notice of any redemption of the Series D Debentures, or notice of
distribution of Series D Debentures in exchange for the Series D Securities (a
"Series D Redemption/Distribution Notice") will be given by the Series D Trust
by mail to each Holder of Series D Securities to be redeemed or exchanged not
fewer than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date fixed for
redemption of the Series D Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which notices are given pursuant
to this Section 4(f)(i), a Series D Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders. Each Series D Redemption/Distribution Notice shall
be addressed to the Holders at the address of each such Holder appearing in the
books and records of the Series D Trust. No defect in the Series D
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Series D Securities
are to be redeemed, the Series D Securities to be redeemed shall be redeemed Pro
Rata from each Holder, it being understood that, in respect of Series D
Preferred Securities registered in the name of and held of record by the
Depository Institution or its nominee, the distribution of the proceeds of such
redemption will be made to each Depository Institution Participant (or Person on
whose behalf such nominee holds such securities) in accordance with the
procedures applied by such agency or nominee.
(iii) If Series D Securities are to be redeemed and the Series D Trust
gives a Series D Redemption/Distribution Notice, which notice may only be issued
if the Series D Debentures are redeemed as set out in this Section 4 (which
notice will be irrevocable), then by 12:00 noon, Eastern time, on the redemption
date, the Series D Debenture Issuer will deposit with one or more paying agents
an amount of money sufficient to redeem on the redemption date all the Series D
Securities so called for redemption at the Series D Redemption Price. If a
Series D Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to the close of
business on the date of such deposit, or on the redemption date, as applicable,
distributions will cease to accrue on the Series D Securities so called for
redemption and all rights of Holders of such Series D Securities so called for
redemption will cease, except the right of the Holders of such Series D
Securities to receive the Series D Redemption Price, but without interest on
such Series D Redemption Price. On presentation and surrender of such Series D
Securities at a place of payment specified in said notice, the said Series D
Securities or the specified portions thereof shall be paid and redeemed by the
Series D Trust at the applicable Series D Redemption Price. Neither the Regular
Trustees nor the Series D Trust shall be required to register or cause to be
registered the transfer of any Series D Securities that have been so called for
redemption. If any date fixed for redemption of Series D Securities is not a
Business Day, then payment of the Series D Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Series D
Redemption Price in respect of any Series D Securities is improperly withheld or
refused and not paid either by the Institutional Trustee or by the Sponsor as
guarantor pursuant to the relevant Series D Securities Guarantee, Distributions
on such Series D Securities will continue to accrue from the original redemption
date to the actual date of payment, in which case the actual payment date will
be considered the date fixed for redemption for purposes of calculating the
Series D Redemption Price.
(iv) The Series D Trust shall not be required to (i) issue, or register the
transfer or exchange of, any Series D Securities during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Series D Securities and ending at the close of business on the day of the
mailing of the relevant notice of redemption and (ii) register the transfer or
exchange of any Series D Securities so selected for redemption, in whole or in
part, except the unredeemed portion of any Series D Securities being redeemed in
part.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and regulations of the Federal
Reserve Board), the Sponsor or any of its subsidiaries may at any time and from
time to time purchase outstanding Series D Preferred Securities by tender, in
the open market or by private agreement.
5. Voting Rights -- Series D Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as otherwise required
by law and the Series D Declaration, the Holders of the Series D Preferred
Securities will have no voting rights.
(b) Subject to the requirements set forth in the immediately following
paragraph, the Holders of a majority in aggregate liquidation amount of the
Series D Preferred Securities, voting separately as a class, have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or to direct the exercise of any trust
or power conferred upon the Institutional Trustee under the Series D
Declaration, including the right to direct the Institutional Trustee, as holder
of the Series D Debentures, to (i) exercise the remedies available to it under
the Indenture as holder of the Series D Debentures, (ii) waive any past Event of
Default and its consequences that is waivable under Section 5.07 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Series D Debentures shall be due and payable, or (iv)
consent to any amendment, modification or termination of the Indenture or the
Series D Debentures where such consent shall be required; provided, however,
that, where a consent or action under the Indenture would require the consent or
act of a Super Majority, only the Holders of at least such Super Majority in
aggregate liquidation amount of the Series D Preferred Securities may direct the
Institutional Trustee to give such consent or take such action; and provided
further, that where a consent or action under the Indenture is only effective
against each holder of Series D Debentures who has consented thereto, such
consent or action will only be effective against a holder of Series D Preferred
Securities who directs the Institutional Trustee to give such consent or take
such action. A waiver of an Indenture Event of Default will constitute a waiver
of the corresponding Declaration Event of Default. The Institutional Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Series D Preferred Securities. If the Institutional Trustee fails
to enforce its rights under the Series D Debentures after a holder of record of
Series D Preferred Securities has made a written request, such holder of record
of Series D Preferred Securities may institute a legal proceeding directly
against the Series D Debenture Issuer to enforce the Institutional Trustee's
rights under the Series D Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Series D
Debenture Issuer to pay interest or principal on the Series D Debentures on the
date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Series D Preferred
Securities may institute a Direct Action for enforcement of payment to such
Holder of the principal of or interest on the Series D Debentures having a
principal amount equal to the aggregate liquidation amount of the Series D
Preferred Securities of such holder on or after the respective due date
specified in the Series D Debentures. Notwithstanding any payments made to such
Holder of Series D Preferred Securities by the Series D Debenture Issuer in
connection with a Direct Action, the Series D Debenture Issuer shall remain
obligated to pay the principal of or interest on the Series D Debentures held by
the Series D Trust or the Institutional Trustee of the Series D Trust, and the
Series D Debenture Issuer shall be subrogated to the rights of the Holder of
such Series D Preferred Securities with respect to payments on the Series D
Preferred Securities to the extent of any payments made by the Series D
Debenture Issuer to such Holder in any Direct Action. Except as provided in the
preceding sentences, the Holders of Series D Preferred Securities will not be
able to exercise directly any other remedy available to the holders of the
Series D Debentures.
Except with respect to directing the time, method and place of conducting
a proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clauses (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of a nationally-recognized tax counsel
experienced in such matters to the effect that, as a result of such action, the
Series D Trust will not fail to be classified as a grantor trust for United
States federal income tax purposes.
Any approval or direction of Holders of Series D Preferred Securities may
be given at a separate meeting of Holders of Series D Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Series D
Securities in the Series D Trust or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which Holders of Series D
Preferred Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each Holder of
record of Series D Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Series D Preferred Securities
will be required for the Series D Trust to redeem and cancel Series D Preferred
Securities or to distribute the Series D Debentures in accordance with the
Series D Declaration and the terms of the Series D Securities.
Notwithstanding that Holders of Series D Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Series D Preferred Securities that are owned by the Sponsor or any Affiliate of
the Sponsor shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
Holders of the Series D Preferred Securities will have no rights to
appoint or remove the Trustees, who may be appointed, removed or replaced solely
by the Sponsor, as Holder of all of the Series D Common Securities.
6. Voting Rights -- Series D Common Securities.
(a) Except as provided under Sections 6(b), (c) and 7 and as otherwise
required by law and the Series D Declaration, the Holders of the Series D Common
Securities will have no voting rights.
(b) The Holders of the Series D Common Securities are entitled, in
accordance with Article 5 of the Series D Declaration, to vote to appoint,
remove or replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Series D Declaration and only after the
Event of Default with respect to the Series D Preferred Securities has been
cured, waived, or otherwise eliminated and subject to the requirements of the
second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Series D Common Securities, voting separately as a
class, may direct the time, method, and place of conducting any proceeding for
any remedy available to the Institutional Trustee, or exercising any trust or
power conferred upon the Institutional Trustee under the Series D Declaration,
including (i) directing the time, method, place of conducting any proceeding for
any remedy available to the Debt Trustee, or exercising any trust or power
conferred on the Debt Trustee with respect to the Series D Debentures, (ii)
waive any past default and its consequences that is waivable under Section 5.07
of the Indenture, or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Series D Debentures shall be due and payable;
provided that, where a consent or action under the Indenture would require the
consent or act of a Super Majority of holders of Series D Debentures affected
thereby the Institutional Trustee may only give such consent or take such action
at the written direction of the holders of at least the proportion in
liquidation amount of the Series D Common Securities which the relevant Super
Majority represents of the aggregate principal amount of the Series D Debentures
outstanding; and provided further, that where a consent or action under the
Indenture would require the consent or action of each holder of Series D
Debentures, each Holder of Series D Preferred Securities must direct the
Institutional Trustee to give such consent or take such action. Pursuant to this
Section 6(c), the Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Series D Preferred
Securities. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Series D
Common Securities under this paragraph unless the Institutional Trustee has
obtained an opinion of a nationally-recognized tax counsel experienced in such
matters to the effect that, as a result of such action, the Series D Trust will
not fail to be classified as a grantor trust for United States federal income
tax purposes. If the Institutional Trustee fails to enforce its rights under the
Series D Declaration, any Holder of Series D Common Securities may institute a
legal proceeding directly against any Person to enforce the Institutional
Trustee's rights under the Series D Declaration, without first instituting a
legal proceeding against the Institutional Trustee or any other Person.
Any approval or direction of Holders of Series D Common Securities may be
given at a separate meeting of Holders of Series D Common Securities convened
for such purpose, at a meeting of all of the Holders of Series D Securities in
the Series D Trust or pursuant to written consent. The Regular Trustees will
cause a notice of any meeting at which Holders of Series D Common Securities are
entitled to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Series D Common
Securities. Each such notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Series D Common Securities will
be required for the Series D Trust to redeem and cancel Series D Common
Securities or to distribute the Series D Debentures in accordance with the
Series D Declaration and the terms of the Series D Securities.
7. Amendments to Series D Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the Series D
Declaration, if any proposed amendment to the Series D Declaration provides for,
or the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Series D
Securities, whether by way of amendment to the Series D Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of the Series D
Trust, other than as described in Section 8.1 of the Series D Declaration, then
the Holders of outstanding Series D Securities voting together as a single class
will be entitled to vote on such amendment or proposal (but not on any other
amendment or proposal) and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in liquidation
amount of the Series D Securities affected thereby, provided, that, if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Series D Preferred Securities or only the Series D Common Securities,
then only the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of Series D
Securities.
(b) In the event the consent of the Institutional Trustee, as the holder
of the Series D Debentures, is required under the Indenture with respect to any
amendment, modification or termination on the Indenture, the Institutional
Trustee shall request the written direction of the Holders of the Series D
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Series D Securities voting together as a
single class; provided, however, that where a consent under the Indenture would
require the consent of a Super Majority, the Institutional Trustee may only give
such consent at the direction of the Holders of at least the proportion in
liquidation amount of the Series D Securities which the relevant Super Majority
represents of the aggregate principal amount of the Series D Debentures
outstanding; provided, that where a consent or action under the Indenture is
only effective against each holder of Series D Debentures who has consented
thereto, such consent or action will only be effective against a holder of
Series D Preferred Securities who directs the Institutional Trustee to give such
consent or take such action; and provided further, that the Institutional
Trustee shall not take any action in accordance with the directions of the
Holders of the Series D Securities under this Section 7(b) unless the
Institutional Trustee has obtained an opinion of a nationally recognized tax
counsel experienced in such matters to the effect that for the purposes of
United States federal income tax the Series D Trust will not be classified as
other than a grantor trust on account of such action.
(c) Notwithstanding the foregoing, no amendment or modification may be
made to the Series D Declaration if such amendment or modification would (i)
cause the Series D Trust to be classified for purposes of United States federal
income taxation as other than a grantor trust, (ii) reduce or otherwise
adversely affect the powers of the Institutional Trustee or (iii) cause the
Series D Trust to be deemed an "investment company" which is required to be
registered under the Investment Company Act.
8. Pro Rata.
A reference in these terms of the Series D Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
according to the aggregate stated liquidation amount of the Series D Securities
held by the relevant Holder in relation to the aggregate stated liquidation
amount of all Series D Securities outstanding unless, in relation to a payment,
an Event of Default under the Series D Declaration has occurred and is
continuing, in which case any funds available to make such payment shall be paid
first to each Holder of the Series D Preferred Securities pro rata according to
the aggregate stated liquidation amount of Series D Preferred Securities held by
the relevant Holder relative to the aggregate stated liquidation amount of all
Series D Preferred Securities outstanding, and only after satisfaction of all
amounts owed to the Holders of the Series D Preferred Securities, to each Holder
of Series D Common Securities pro rata according to the aggregate stated
liquidation amount of Series D Common Securities held by the relevant Holder
relative to the aggregate stated liquidation amount of all Series D Common
Securities outstanding.
9. Ranking.
The Series D Preferred Securities rank pari passu, and payment thereon
shall be made Pro Rata, with the Series D Common Securities except that, where
an Event of Default occurs and is continuing, the rights of Holders of the
Series D Common Securities to receive payment of periodic Distributions and
payments upon liquidation, redemption and otherwise will be subordinated to the
rights of the Holders of the Series D Preferred Securities.
10. Listing.
The Regular Trustees shall use their best efforts to cause the Series D
Preferred Securities to be listed for quotation on the NYSE.
11. Acceptance of Series D Securities Guarantee and Indenture.
Each Holder of Series D Preferred Securities and Series D Common
Securities, by the acceptance thereof, agrees to the provisions of the Series D
Series D Preferred Securities Guarantee and the Series D Common Securities
Guarantee, respectively, including the subordination provisions therein, and to
the provisions of the Indenture.
12. No Preemptive Rights.
The Holders shall have no preemptive rights to subscribe for any
additional securities.
13. Miscellaneous.
These terms constitute a part of the Series D Declaration.
The Sponsor will provide a copy of the Series D Declaration, the Series D
Series D Preferred Securities Guarantee or the Series D Common Securities
Guarantee (as may be appropriate), and the Indenture to a Holder without charge
on written request to the Sponsor at its principal place of business.
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
Certificate Number _____ Number of Preferred Securities _____
CUSIP NO. 370439200
Certificate Evidencing Preferred Securities
of
GENERAL MOTORS CAPITAL TRUST D 8.67% Trust Originated
Preferred Securities1M, Series D ("TOPrSSM")
(liquidation amount $25 per Preferred Security)
GENERAL MOTORS CAPITAL TRUST D, a statutory business trust formed under
the laws of the State of Delaware (the "Series D Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of preferred securities of
the Series D Trust representing undivided beneficial ownership interests in the
assets of the Series D Trust, designated the 8.67% Trust Originated Preferred
SecuritiesSM, Series D (liquidation amount $25 per Preferred Security) (the
"Series D Preferred Securities"). The Series D Preferred Securities are
transferable on the books and records of the Series D Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Series D Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Series D
Trust dated as of July 9 , 1997, as the same may be amended from time to time
(the "Series D Declaration"), including the designation of the terms of the
Series D Preferred Securities as set forth in Annex I to the Series D
Declaration. Capitalized terms used herein but not defined shall have the
meanings given them in the Series D Declaration. The Holder is entitled to the
benefits of the Series D Preferred Securities Guarantee to the extent provided
therein. The Sponsor will provide a copy of the Series D Declaration, the Series
D Preferred Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Series D Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Series D
Declaration and is entitled to the benefits thereunder. In addition, the Holder
is deemed to have (i) agreed to the terms of the Indenture and the Series D
Debentures, including that the Series D Debentures are subordinate and junior in
right of payment to all present and future Senior Indebtedness and Other
Financial Obligations (as defined in the Indenture) as and to the extent
provided in the Indenture and (ii) agreed to the terms of the Series D Preferred
Securities Guarantee, including that the Series D Preferred Securities Guarantee
is subordinate and junior in right of payment to all other liabilities of the
Sponsor, including the Series D Debentures, except those made pari passu or
subordinate by their terms, and pari passu with the most senior preferred or
preference stock now or hereafter issued by the Sponsor and with any guarantee
now or hereafter entered into by the Sponsor in respect of any preferred or
preference stock of any Affiliate of the Sponsor.
By accepting this certificate, the Holder agrees to treat, for United
States federal income tax purposes, the Series D Debentures as indebtedness and
the Series D Preferred Securities as evidence of indirect beneficial ownership
in the Series D Debentures.
Unless the Authenticating Agent's Certificate of Authentication hereon has
been properly executed, these Series D Preferred Securities shall not be
entitled to any benefit under the Series D Declaration or be valid or obligatory
for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Series D Trust has caused this certificate to be
signed by its duly authorized Regular Trustees.
GENERAL MOTORS CAPITAL TRUST D
By:
Name:
Title: Regular Trustee
By:
Name:
Title: Regular Trustee
By:
Name:
Title: Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Series D Preferred Securities referred to in the
within-mentioned Series D Declaration.
Dated _____________, ________
-----------------------,
as Authenticating Agent
By:
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Series D Preferred Security will be fixed at
a rate per annum of 8.67% (the "Coupon Rate") of the stated liquidation amount
of $25 per Preferred Security, such rate being the rate of interest payable on
the Series D Debentures to be held by the Institutional Trustee. Distributions
in arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest (including Additional Interest and Compound
Interest) payable unless otherwise stated. A Distribution will be made by the
Institutional Trustee only to the extent that payments are made in respect of
the Series D Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available in the Institutional Trustee Account.
The amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed. In addition, Holders will be entitled to an
additional cash distribution at the rate of 7.92% per annum of the stated
liquidation amount from April 1, 1997 through July 2, 1997 (the expiration date
of the Series D Offer, the "Expiration Date") in lieu of dividends accumulating
and unpaid from April 1, 1997 on Series D 7.92% Depositary Shares accepted for
exchange in the Series D Offer, such additional distributions to be made on
August 1, 1997 to Holders of record on the record date for such distribution
("Pre-Issuance Interest"). Payment of such additional cash distribution may not
be deferred as provided in the succeeding paragraph.
Except as otherwise described below, Distributions on the Series D
Preferred Securities will be cumulative, will accrue from July 3, 1997, the
first date following the Expiration Date, and, except as otherwise described
below, will be payable quarterly on February 1, May 1, August 1 and November 1
of each year, commencing on August 1, 1997, to Holders of record on the relevant
record dates, which in each case will be the 15th day of the month immediately
preceding the month which includes the relevant distribution date. The record
dates and distribution dates shall be the same as the record dates and payment
dates on the Series D Debentures. With the exception of Pre-Issuance Interest,
so long as the Series D Debenture Issuer shall not be in default in the payment
of interest on the Series D Debentures, the Series D Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Series D Debentures for a
period not exceeding 20 consecutive quarters (each an "Series D Extension
Period"), provided that no Series D Extension Period shall last beyond Series D
Stated Maturity. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Series D Extension Period. Prior to
the termination of any such Series D Extension Period, the Series D Debenture
Issuer may further extend such Series D Extension Period; provided that such
Series D Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the Series D
Stated Maturity. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Series D Trust on the first record
date after the end of the Series D Extension Period. Upon the termination of any
Series D Extension Period and the payment of all amounts then due, the Series D
Debenture Issuer may commence a new Series D Extension Period, subject to the
above requirements.
The Series D Preferred Securities shall be redeemable as provided in the
Series D Declaration.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Series D
Preferred Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
- -------------------------------------------------------------------
to transfer this Series D Preferred Security Certificate on the books of
the Series D Trust. The agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other
side of this Series D Preferred Security
Certificate)
(Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Trustee, which requirements include membership
or participation in STAMP or such other "signature
guaranty program" as may be determined by the
Trustee in addition to or in substitution for
STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number __________ Number of Common Securities __________
Certificate Evidencing Common Securities
of
GENERAL MOTORS CAPITAL TRUST D
8.67% Trust Originated Common Securities, Series D
(liquidation amount $25 per Common Security)
GENERAL MOTORS CAPITAL TRUST D, a statutory business trust formed under
the laws of the State of Delaware (the "Series D Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of common securities of
the Series D Trust representing undivided beneficial ownership interests in the
assets of the Series D Trust, designated the 8.67% Trust Originated Common
Securities (liquidation amount $25 per Common Security) (the "Series D Common
Securities"). The Series D Common Securities are transferable on the books and
records of the Series D Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Series D Common Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Series D Trust dated as of July 9, 1997, as the same
may be amended from time to time (the "Series D Declaration"), including the
designation of the terms of the Series D Common Securities as set forth in Annex
I to the Series D Declaration. Capitalized terms used herein but not defined
shall have the meaning given them in the Series D Declaration. The Holder is
entitled to the benefits of the Series D Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Series D
Declaration, the Series D Common Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Sponsor is bound by the Series D
Declaration and is entitled to the benefits thereunder. In addition, the Holder
is deemed to have (i) agreed to the terms of the Indenture and the Series D
Debentures, including that the Series D Debentures are subordinate and junior in
right of payment to all present and future Senior Indebtedness and Other
Financial Obligations (as defined in the Indenture) as and to the extent
provided in the Indenture and (ii) agreed to the terms of the Series D Preferred
Securities Guarantee, including that the Series D Preferred Securities Guarantee
is subordinate and junior in right of payment to all other liabilities of the
Sponsor, including the Series D Debentures, except those made pari passu or
subordinate by their terms, and pari passu with the most senior preferred or
preference stock now or hereafter issued by the Sponsor and with any guarantee
now or hereafter entered into by the Sponsor in respect of any preferred or
preference stock of any Affiliate of the Sponsor.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Series D Debentures as indebtedness and the Series D
Common Securities as evidence of indirect beneficial ownership in the Series D
Debentures.
Unless the Authenticating Agent's Certificate of Authentication hereon has
been properly executed, these Series D Common Securities shall not be entitled
to any benefit under the Series D Declaration or be valid or obligatory for any
purpose.
<PAGE>
IN WITNESS WHEREOF, the Series D Trust has caused this certificate to be
signed by its duly authorized Regular Trustees.
GENERAL MOTORS CAPITAL TRUST D
By:
Name:
Title: Regular Trustee
By:
Name:
Title: Regular Trustee
By:
Name:
Title: Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Series D Common Securities referred to in the
within-mentioned Series D Declaration.
Dated _____________, ________
-----------------------------,
as Authenticating Agent
By:
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Series D Common Security will be fixed at a
rate per annum of 8.67% (the "Coupon Rate") of the stated liquidation amount of
$25 per Common Security, such rate being the rate of interest payable on the
Series D Debentures to be held by the Institutional Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest (including Additional Interest and Compound
Interest) payable unless otherwise stated. A Distribution will be made by the
Institutional Trustee only to the extent that payments are made in respect of
the Series D Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available in the Institutional Trustee Account.
The amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed.
Except as otherwise described below, distributions on the Series D Common
Securities will be cumulative, will accrue from July 3, 1997, the first date
following the expiration date of the Series D Offer, and, except as otherwise
described below, will be payable quarterly on February 1, May 1, August 1 and
November 1 of each year, commencing on August 1,1997, to Holders of record on
relevant record dates, which in each case will be the 15th day of the month
immediately preceding the month which includes the relevant distribution date.
The record dates and distribution dates shall be the same as the record and
payment dates on the Series D Debentures. So long as the Series D Debenture
Issuer shall not be in default in the payment of interest on the Series D
Debentures, the Series D Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period from time to
time on the Series D Debentures for a period not exceeding 20 consecutive
quarters (each an "Series D Extension Period"), provided that no Series D
Extension Period shall last beyond the Series D Stated Maturity. As a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Coupon Rate compounded
quarterly during any such Series D Extension Period. Prior to the termination of
any such Series D Extension Period, the Series D Debenture Issuer may further
extend such Series D Extension Period; provided that such Series D Extension
Period together with all such previous and further extensions thereof may not
exceed 20 consecutive quarters or extend beyond the Series D Stated Maturity.
Payments of accrued Distributions will be payable to Holders as they appear on
the books and records of the Series D Trust on the first record date after the
end of the Series D Extension Period. Upon the termination of any Series D
Extension Period and the payment of all amounts then due, the Series D Debenture
Issuer may commence a new Series D Extension Period, subject to the above
requirements.
The Series D Common Securities shall be redeemable as provided in the
Series D Declaration.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Series D
Common Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________ this Series D Common
Security Certificate on the books of the Series D Trust. The agent may
substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other
side of this Series D Common Security Certificate)
(Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Trustee, which requirements include membership
or participation in STAMP or such other "signature
guaranty program" as may be determined by the
Trustee in addition to or in substitution for
STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
- --------
1SM"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
GMNEWTR.G2
FOOTER B HAS BEEN ENTERED (DRAFT)
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
GENERAL MOTORS CAPITAL TRUST G
Dated as of July 9, 1997
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions. 2
ARTICLE 2 TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. 7
SECTION 2.2 Lists of Holders of Series G Securities. 7
SECTION 2.3 Reports by the Institutional Trustee. 8
SECTION 2.4 Periodic Reports to the Institutional Trustee. 8
SECTION 2.5 Evidence of Compliance with Conditions Precedent. 8
SECTION 2.6 Events of Default; Waiver. 8
SECTION 2.7 Event of Default; Notice. 10
ARTICLE 3 ORGANIZATION
SECTION 3.1 Name. 10
SECTION 3.2 Office. 11
SECTION 3.3 Purpose. 11
SECTION 3.4 Authority. 11
SECTION 3.5 Title to Property of the Series G Trust. 11
SECTION 3.6 Powers and Duties of the Regular Trustees. 11
SECTION 3.7 Prohibition of Actions by the Series G Trust
and the Trustees. 14
SECTION 3.8 Powers and Duties of the Institutional Trustee. 15
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee. 17
SECTION 3.10 Certain Rights of the Institutional Trustee. 18
SECTION 3.11 Delaware Trustee. 20
SECTION 3.12 Execution of Documents. 20
SECTION 3.13 Not Responsible for Recitals or Issuance of
Series G Securities. 20
SECTION 3.14 Duration of Series G Trust. 21
SECTION 3.15 Mergers. 21
ARTICLE 4 SPONSOR
SECTION 4.1 Sponsor's Purchase of Series G Common Securities. 22
SECTION 4.2 Responsibilities of the Sponsor. 22
SECTION 4.3 Right to Proceed. 23
SECTION 4.4 Expenses. 23
ARTICLE 5 TRUSTEES
SECTION 5.1 Number of Trustees. 24
SECTION 5.2 Delaware Trustee. 24
SECTION 5.3 Institutional Trustee; Eligibility. 24
SECTION 5.4 Certain Qualifications of the Regular Trustees and
Delaware Trustee Generally. 25
SECTION 5.5 Regular Trustees. 25
SECTION 5.6 Appointment, Removal and Resignation of Trustees. 26
SECTION 5.7 Vacancies among Trustees. 27
SECTION 5.8 Effect of Vacancies. 27
SECTION 5.9 Meetings. 27
SECTION 5.10 Delegation of Power. 28
SECTION 5.11 Merger, Conversion, Consolidation or Succession to
Business. 28
ARTICLE 6 DISTRIBUTIONS
SECTION 6.1 Distributions. 28
ARTICLE 7 ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Series G Securities. 28
ARTICLE 8 DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Series G Trust. 30
ARTICLE 9 TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Series G Securities. 30
SECTION 9.2 Transfer of Certificates. 31
SECTION 9.3 Deemed Security Holders. 32
SECTION 9.4 Book-Entry Interests. 32
SECTION 9.5 Notices to Depository Institution. 33
SECTION 9.6 Appointment of Successor Depository Institution. 33
SECTION 9.7 Definitive Series G Preferred Security Certificates. 33
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates. 34
ARTICLE 10 LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR THERS
SECTION 10.1 Liability. 34
SECTION 10.2 Exculpation. 35
SECTION 10.3 Fiduciary Duty. 35
SECTION 10.4 Indemnification. 36
SECTION 10.5 Outside Businesses. 39
ARTICLE 11 ACCOUNTING
SECTION 11.1 Fiscal Year. 39
SECTION 11.2 Certain Accounting Matters. 39
SECTION 11.3 Banking. 40
SECTION 11.4 Withholding. 40
ARTICLE 12 AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments. 40
SECTION 12.2 Meetings of the Holders; Action by Written Consent. 42
ARTICLE 13 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE AND
DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional
Trustee. 43
SECTION 13.2 Representations and Warranties of Delaware Trustee. 44
ARTICLE 14 MISCELLANEOUS 44
SECTION 14.1 Notices. 44
SECTION 14.2 Governing Law. 45
SECTION 14.3 Intention of the Parties. 46
SECTION 14.4 Headings. 46
SECTION 14.5 Successors and Assigns 46
SECTION 14.6 Partial Enforceability. 46
SECTION 14.7 Counterparts. 46
ANNEXES AND EXHIBITS
ANNEX 1 Terms of 9.87% Trust Originated Preferred Securities, Series G,
and 9.87% Trust Originated Common Securities, Series G
EXHIBIT A-1 Form of Preferred Security Certificate
EXHIBIT A-2 Form of Common Security Certificate
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
<PAGE>
310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(a) and (b) 5.3(c)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 3.10(a)
314(f) Inapplicable
315(a) 3.9(b)
315(b) 2.7(a)
315(c) 3.9(a)
315(d) 3.9(a)
316(a) and (b) 2.6 and Annex I (Sections 5 and 6)
316(c) 3.6(e)
317(a) 3.8(c)
317(b) 3.8(h)
* This Cross-Reference Table does not constitute part of the Declaration as
executed and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
GENERAL MOTORS CAPITAL TRUST G
July 9, 1997
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Series G Declaration") is
dated and effective as of July 9, 1997, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial ownership interests in the Series G Trust to be issued pursuant to
this Series G Declaration.
WHEREAS, the Trustees and the Sponsor established General Motors Capital
Trust G (the "Series G Trust"), a statutory business trust under the Business
Trust Act (as defined herein), pursuant to a Declaration of Trust dated April
11, 1997 (the "Original Declaration") and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on April 11, 1997 (the "Certificate
of Trust"); and
WHEREAS, the Sponsor and the Series G Trust have made an offer to exchange
(the "Series G Offer") 9.87% Trust Originated Preferred Securities ("TOPrS "),
Series G, representing undivided preferred beneficial ownership interests in the
assets of the Series G Trust (the "Series G Preferred Securities"), for up to
9,071,910 of the Sponsor's outstanding depositary shares (the "Series G 9.12%
Depositary Shares"), each representing one-fourth of a share of Series G 9.12%
Preference Stock, $0.10 par value per share, of the Sponsor (the "Series G 9.12%
Preference Stock") not owned by the Sponsor; and
WHEREAS, concurrently with the issuance of the Series G Preferred
Securities in exchange for Series G 9.12% Depositary Shares validly tendered in
the Series G Offer, (a) the Series G Trust will issue and sell to the Sponsor
Series G Trust Originated Common Securities representing undivided common
beneficial ownership interests in the assets of the Series G Trust (the "Series
G Common Securities" and, together with the "Series G Preferred Securities," the
"Series G Securities") in an aggregate liquidation amount equal to at least 3%
of the total capital of the Series G Trust and (b) the Sponsor will deposit into
the Series G Trust as trust assets its 9.87% Junior Subordinated Deferrable
Interest Debentures, Series G, due 2012 (the "Series G Debentures"), having an
aggregate principal amount equal to the aggregate stated liquidation amount of
the Series G Securities so issued; and
WHEREAS, the Series G Trust has been established for the principal
purposes of issuing the Series G Securities and purchasing the Series G
Debentures from the Series G Debenture Issuer (as defined herein); and
WHEREAS, as of the date hereof, no Series G Securities have been issued;
and
WHEREAS, all of the Trustees and the Sponsor, by this Series G
Declaration, hereby amend and restate each and every term and provision of the
Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Series G Trust as a business trust under the Business Trust Act and that
this Series G Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Series G Trust
will be held in trust for the benefit of the Holders, subject to the provisions
of this Series G Declaration.
<PAGE>
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Series G Declaration
but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Series G Declaration
has the same meaning throughout;
(c) all references to "the Series G Declaration" or "this
Series G Declaration" are to this Series G Declaration as
modified, supplemented or amended from time to time;
(d) all references in this Series G Declaration to
Articles, Sections, Annexes and Exhibits are to Articles and
Sections of, and Annexes and Exhibits to, this Series G
Declaration;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Series G Declaration unless
otherwise defined in this Series G Declaration or unless the
context otherwise requires; and
(f) a reference to the singular includes the plural and
vice versa.
"Additional Interest" has the meaning set forth in Section 2(d) of
Annex I.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial ownership interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depository Institution as described in Section 9.4.
"Business Day" means any day other than a day on which Federal or State
banking institutions in New York, New York or Wilmington, Delaware are
authorized or obligated by law, executive order or regulation to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Series G Common Security Certificate or a Series G
Preferred Security Certificate.
"Closing Date" means the "Exchange Date" as defined in the Dealer
Manager Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Compound Interest" has the meaning set forth in Section 2(a) of Annex I.
"Corporate Trust Office" means the office of the Institutional Trustee at
which the corporate trust business of the Institutional Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Series G Trust or (ii)
the Series G Trust's Affiliates; and (b) any Holder of Series G Securities.
"Coupon Rate" has the meaning set forth in Section 2(a) of Annex I.
"Creditor" has the meaning set forth in Section 4.4(d).
"Dealer Manager Agreement" means the Dealer Manager Agreement between the
Series G Debenture Issuer, the Series G Trust and the dealer managers and other
parties named thereunder.
"Debt Trustee" means Wilmington Trust Company, a Delaware banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Definitive Series G Preferred Security Certificates" has the meaning
set forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depository Institution" shall mean DTC, PDTC, another clearing agency, or
any successor registered as a clearing agency under the Exchange Act, or other
applicable statute or regulation, which, in each case, shall be designated by
the Series G Debenture Issuer pursuant to either Section 2.03 or 2.11 of the
Indenture.
"Depository Institution Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depository
Institution effects book-entry transfers and pledges of securities deposited
with the Depository Institution.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders in accordance
with Section 6.1.
"Distribution Payment Date" has the meaning set forth in Section 2(b) of
Annex I.
"DTC" means The Depository Trust Company, the initial Depository
Institution.
"Event of Default" in respect of the Series G Securities means an Event of
Default under the Indenture which has occurred and is continuing in respect of
the Series G Debentures.
"Exchange" means the exchange of the Series G 9.12% Depositary Shares for
the Series G Preferred Securities pursuant to the Series G Offer.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Sponsor Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture dated as of July 1, 1997 between the
Series G Debenture Issuer and the Debt Trustee, and any indenture supplemental
thereto pursuant to which the Series G Debentures are to be issued, as amended.
"Institutional Trustee" has the meaning set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in
Section 3.8(c).
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation" has the meaning set forth in Section 3 of Annex I.
"Liquidation Distribution" has the meaning set forth in Section 3 of
Annex I.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in liquidation amount of the Series G Securities" means, except
as provided in the terms of the Series G Preferred Securities set forth in Annex
I hereto or by the Trust Indenture Act, Holder(s) of outstanding Series G
Securities voting together as a single class or, as the context may require,
Holders of outstanding Series G Preferred Securities or Holders of outstanding
Series G Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Series G Securities of the relevant class.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series G Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Paying Agent" has the meaning set forth in Section 3.8(h).
"Payment Amount" has the meaning set forth in Section 6.1.
"PDTC" means The Philadelphia Depository Trust Company.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Pre-Issuance Interest" has the meaning set forth in Section 2(a) of
Annex I.
"Pro Rata" has the meaning set forth in Section 8 of Annex I.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning set forth in Section
4(g) of Annex I.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Resignation Request" has the meaning set forth in Section 5.6(c).
"Responsible Officer" means, with respect to the Institutional Trustee,
any officer within the Corporate Trust Office of the Institutional Trustee,
including any vice-president, any assistant vice-president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Series G Common Securities" has the meaning set forth in Section 7.1(a).
"Series G Common Securities Guarantee" means the guarantee agreement to be
dated as of the date hereof of the Sponsor in respect of the Series G Common
Securities, as amended.
"Series G Common Security Certificate" means a definitive certificate in
fully registered form representing a Series G Common Security substantially in
the form of Exhibit A-2.
"Series G Debenture Issuer" means General Motors Corporation, a Delaware
corporation, in its capacity as issuer of the Series G Debentures under the
Indenture.
"Series G Extension Period" has the meaning set forth in Section 2(b) of
Annex I.
"Series G Preferred Guarantee Trustee" means Wilmington Trust Company, a
national banking association, as trustee under the Series G Preferred Securities
Guarantee until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Series G Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depository Institution, or on the
books of a Person maintaining an account with such Depository Institution
(directly as a Depository Institution Participant or as an indirect participant,
in each case in accordance with the rules of such Depository Institution).
"Series G Preferred Security Certificate" means a certificate representing
a Series G Preferred Security substantially in the form of Exhibit A-1.
"Series G Preferred Securities Guarantee" means the guarantee agreement to
be dated as of the date hereof, of the Sponsor in respect of the Series G
Preferred Securities, as amended.
"Series G Redemption Price" has the meaning set forth in Section 4(c) of
Annex I.
"Series G Securities" means the Series G Common Securities and the
Series G Preferred Securities.
"Series G Securities Guarantees" means the Series G Common Securities
Guarantee and the Series G Preferred Securities Guarantee.
"Series G Stated Maturity" has the meaning set forth in Section 4(a) of
Annex I.
"Sponsor" means General Motors Corporation, a Delaware corporation, or any
successor entity in a merger, consolidation or amalgamation, in its capacity as
sponsor of the Series G Trust.
"Sponsor Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Series G Trust or its Affiliates.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Institutional Trustee" has the meaning set forth in Section
5.6(b)(i).
"Successor Series G Securities" has the meaning set forth in Section
3.15(b)(i).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex I.
"10% in liquidation amount of the Series G Securities" means, except as
provided in the terms of the Series G Preferred Securities set forth in Annex I
hereto or by the Trust Indenture Act, Holder(s) of outstanding Series G
Securities voting together as a single class or, as the context may require,
Holders of outstanding Series G Preferred Securities or Holders of outstanding
Series G Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Series G Securities of the relevant class.
"Transfer Agent" has the meaning set forth in Section 9.2(e).
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Series G
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Series G Declaration is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Series G Declaration and shall, to the extent applicable, be
governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture
Act.
(c) If,and to the extent that, any provision of this Series G
Declaration limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, the duties imposed by the Trust Indenture Act
shall control.
(d)The application of the Trust Indenture Act to this Series G
Declaration shall not affect the nature of the Series G
Securities as equity securities representing undivided
beneficial ownership interests in the assets of the Series G
Trust.
SECTION 2.2 Lists of Holders of Series G Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Series G Trust shall provide the Institutional Trustee (i)
within 14 days after each record date for payment of
Distributions, a list, in such form as the Institutional
Trustee may reasonably require, of the names and addresses of
the Holders ("List of Holders") as of such record date,
provided that neither the Sponsor nor the Regular Trustees on
behalf of the Series G Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not
differ from the most recent List of Holders given to the
Institutional Trustee by the Sponsor and the Regular Trustees
on behalf of the Series G Trust, and (ii) at any other time,
within 30 days of receipt by the Series G Trust of a written
request for a List of Holders as of a date no more than 14
days before such List of Holders is given to the Institutional
Trustee. The Institutional Trustee shall preserve, in as
current a form as is reasonably practicable, all information
contained in the Lists of Holders given to it or which it
receives in its capacity as Paying Agent (if acting in such
capacity) provided that the Institutional Trustee may destroy
any List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Institutional Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
Within 60 days after May 15 of each year, the Institutional Trustee shall
provide to the Holders of the Series G Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Institutional
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to the Institutional
Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Series G
Trust shall provide to the Institutional Trustee, the Holders and the Securities
and Exchange Commission such documents, reports and information as required by
Section 314 (if any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act (provided that any certificate to be
provided pursuant to Section 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year).
SECTION 2.5 Evidence of Compliance with Conditions
Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Series G
Trust shall provide to the Institutional Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Series G Declaration
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), the Holders of a Majority in
liquidation amount of Series G Preferred Securities may, by
vote, on behalf of the Holders of all of the Series G
Preferred Securities, waive any past Event of Default in
respect of the Series G Preferred Securities and its
consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event
of Default under the Series G Declaration shall also
not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the
Series G Debentures (a "Super Majority") to be waived
under the Indenture, then the Event of Default under the
Series G Declaration may only be waived by the vote of
the Holders of at least the proportion in liquidation
amount of the Series G Preferred Securities that the
relevant Super Majority represents of the aggregate
principal amount of the Series G Debentures outstanding;
or
(iii) requires the consent or vote of each Holder of Series G
Debentures to be waived under the Indenture, then the
Event of Default under the Series G Declaration may only
be waived by each Holder of Series G Preferred
Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Series G
Declaration and the Series G Securities, as permitted by the Trust Indenture
Act. Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Series G Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Series G
Declaration, but no such waiver shall extend to any subsequent or other default
or an Event of Default with respect to the Series G Preferred Securities or
impair any right consequent thereon. Any waiver by the Holders of the Series G
Preferred Securities of an Event of Default with respect to the Series G
Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Series G Common Securities of any such Event of Default with respect to
the Series G Common Securities for all purposes of this Series G Declaration
without any further act, vote, or consent of the Holders of the Series G Common
Securities.
(b)Subject to Section 2.6(c), the Holders of a Majority in
liquidation amount of the Series G Common Securities may, by
vote, on behalf of the Holders of all of the Series G Common
Securities, waive any past Event of Default with respect to
the Series G Common Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Series G Common Securities are deemed to
have waived such Event of Default under the Series G
Declaration as provided below in this Section 2.6(b),
then the Event of Default under the Series G Declaration
shall also not be waivable; or
(ii) requires the consent or vote of (A) a Super Majority
to be waived, then the Event of Default under the
Series G Declaration may only be waived by the vote of
the Holders of at least the proportion in liquidation
amount of the Series G Common Securities that the
relevant Super Majority represents of the aggregate
principal amount of the Series G Debentures
outstanding or (B) each holder of Series G Debentures
to be waived, then the Event of Default under the
Series G Declaration may only be waived by each Holder
of Series G Common Securities, except where the
Holders of the Series G Common Securities are deemed
to have waived such Event of Default under the Series
G Declaration as provided below in this
Section 2.6(b); provided further, each Holder of
Series G Common Securities will be deemed to have
waived any such Event of Default and all Events of
Default with respect to the Series G Common Securities
and its consequences until all Events of Default with
respect to the Series G Preferred Securities have been
cured, waived or otherwise eliminated, and until such
Events of Default have been so cured, waived or
otherwise eliminated, the Institutional Trustee will
be deemed to be acting solely on behalf of the Holders
of the Series G Preferred Securities and only the
Holders of the Series G Preferred Securities will have
the right to direct the Institutional Trustee in
accordance with the terms of the Series G Securities
set forth in Annex I hereto. If any Event of Default
with respect to the Series G Preferred Securities is
waived by the Holders of Series G Preferred Securities
as provided in this Series G Declaration, the Holders
of Series G Common Securities agree that such waiver
shall also constitute the waiver of such Event of
Default with respect to the Series G Common Securities
for all purposes under this Series G Declaration
without any further act, vote or consent of the
Holders of the Series G Common Securities. Subject to
the foregoing provisions of this Section 2.6(b), upon
such waiver, any such default shall cease to exist and
any Event of Default with respect to the Series G
Common Securities arising therefrom shall be deemed to
have been cured for every purpose of this Series G
Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with
respect to the Series G Common Securities or impair
any right consequent thereon. The foregoing provisions
of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Series G Declaration and
the Series G Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of
this Section 2.6(b), upon such waiver, any such
default shall cease to exist and any Event of Default
with respect to the Series G Common Securities arising
therefrom shall be deemed to have been cured for every
purpose of this Series G Declaration, but no such
waiver shall extend to any subsequent or other default
or Event of Default with respect to the Series G
Common Securities or impair any right consequent
thereon.
(c)The right of any Holder to receive payment of Distributions
in accordance with this Series G Declaration and the terms of
the Series G Securities set forth in Annex I on or after the
respective payment dates therefor, or to institute suit for
the enforcement of any such payment on or after such payment
dates, shall not be impaired without the consent of each such
Holder.
(d)A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the written direction of the Holders
of the Series G Preferred Securities, constitutes a waiver of
the corresponding Event of Default under this Series G
Declaration. The foregoing provisions of this Section 2.6(d)
shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Series G
Declaration and the Series G Securities, as permitted by the
Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notice of all defaults
with respect to the Series G Securities actually known to a
Responsible Officer, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the
purposes of this Section 2.7(a) being hereby defined to be an
Event of Default as defined in the Indenture, not including
any periods of grace provided for therein and irrespective of
the giving of any notice provided therein); provided that,
except for a default in the payment of principal of, premium,
if any, or interest on any of the Series G Debentures or in
the payment of any sinking fund installment established for
the Series G Debentures, the Institutional Trustee shall be
protected in withholding such notice if and so long as a
Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders;
and provided further, that in the case of any default of the
character specified in Section 5.01(c) of the Indenture, no
such notice to Holders shall be given until at least 60 days
after the occurrence thereof but shall be given within 90 days
after such occurrence.
(b) The Institutional Trustee shall not be
deemed to have knowledge of any default except:
(i) default under Sections 5.01(a), (b), and (f)
of the Indenture; or
(ii) any default as to which the Institutional Trustee shall
have received written notice or of which a Responsible
Officer charged with the administration of the Series G
Declaration shall have actual knowledge.
ARTICLE 3
ORGANIZATION
SECTION 3.1 Name.
The Series G Trust continued by this Series G Declaration is named
"General Motors Capital Trust G," as such name may be modified from time to time
by the Regular Trustees following written notice to the Holders. The Series G
Trust's activities may be conducted under the name of the Series G Trust or any
other name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Series G Trust is c/o General
Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301. Upon
ten (10) Business Days' written notice to the Holders of Series G Securities,
the Regular Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Series G Trust are (i) to
issue (a) its Series G Preferred Securities in exchange for Series G 9.12%
Depositary Shares validly tendered in the Series G Offer and deliver such Series
G 9.12% Depositary Shares to the Series G Debenture Issuer in consideration of
the deposit by the Series G Debenture Issuer in the Series G Trust as trust
assets of Series G Debentures having an aggregate stated principal amount equal
to the aggregate stated liquidation amount of the Series G 9.12% Depositary
Shares so delivered and (b) its Series G Common Securities to the Sponsor in
exchange for cash and invest the proceeds thereof in an equal aggregate
principal amount of Series G Debentures, (ii) to enter into such agreements and
arrangements as may be necessary in connection with the Series G Offer and to
take all actions, and exercise such discretion, as may be necessary or desirable
in connection with the Series G Offer and to file such registration statements
or make such other filings under the Securities Act, the Exchange Act or state
securities or "Blue Sky" laws as may be necessary or desirable in connection
with the Series G Offer and the issuance of the Series G Preferred Securities,
and (iii) except as otherwise limited herein, to engage in those other
activities necessary or incidental thereto. As more specifically provided in
Section 3.7, the Series G Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Series
G Trust not to be classified for United States federal income tax purposes as a
grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Series G Declaration and to
the specific duties of the Institutional Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the purposes of the Series G
Trust. Any action taken by the Regular Trustees in accordance with their powers
shall constitute the act of and serve to bind the Series G Trust and any action
taken by the Institutional Trustee on behalf of the Series G Trust in accordance
with its powers shall constitute the act of and serve to bind the Series G
Trust. In dealing with the Trustees acting on behalf of the Series G Trust, no
person shall be required to inquire into the authority of the Trustees to bind
the Series G Trust. Persons dealing with the Series G Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Series G Declaration.
SECTION 3.5 Title to Property of the Series G Trust.
Except as provided in Section 3.8 with respect to the Series G Debentures
and the Institutional Trustee Account or as otherwise provided in this Series G
Declaration, legal title to all assets of the Series G Trust shall be vested in
the Series G Trust. The Holders shall not have legal title to any part of the
assets of the Series G Trust, but shall have an undivided beneficial interest in
the assets of the Series G Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Series G Trust to engage in the following activities:
(a) to issue the Series G Securities in accordance with this
Series G Declaration in connection with the exchange of the
Series G Preferred Securities and the sale of the Series G
Common Securities; provided, however, that the Series G Trust
may issue no more than one series of Series G Preferred
Securities and no more than one series of Series G Common
Securities; and, provided further, that there shall be no
interests in the Series G Trust other than the Series G
Securities, and the issuance of Series G Securities shall be
limited to a one-time simultaneous issuance of both Series G
Preferred Securities and Series G Common Securities on the
Closing Date;
(b)in connection with the issue and exchange of the
Series G Preferred Securities, at the direction of the
Sponsor, to:
(i) execute and file with the Commission one or
more registration statements on Form S-4 prepared by
the Sponsor, including any and all amendments thereto,
pertaining to the Series G Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor
to be necessary in order to qualify or register all or
part of the Series G Preferred Securities in any State
in which the Sponsor has determined to qualify or
register such Series G Preferred Securities for
exchange;
(iii) execute and file an application, prepared by
the Sponsor, to the NYSE, Inc. or any other national
stock exchange or the NASDAQ Stock Market's National
Market for listing or quotation upon notice of
issuance of any Series G Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any
amendments thereto, prepared by the Sponsor, relating
to the registration of the Series G Preferred
Securities under Section 12(b) of the Exchange Act;
(v) prepare, execute and file with the Commission
an Issuer Tender Offer statement on Schedule 13E-3 or
Schedule 13E-4, as necessary, or any other appropriate
document or schedule, and any amendment thereto;
(vi) execute and enter into the Dealer Manager
Agreement providing for the exchange of the Series G
Preferred Securities;
(vii) execute and enter into one or more exchange
agent agreements, information agent agreements or
other agreements as may be required in connection with
the Series G Offer; and
(viii) execute and deliver letters, documents or
instruments with DTC and PDTC.
(c)to acquire the Series G Debentures in consideration of the
transfer of the Series G 9.12% Depositary Shares received upon
exchange of the Series G Preferred Securities and the sale of
the Series G Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Series G
Debentures to be held of record in the name of the
Institutional Trustee for the benefit of the Holders;
(d) to give the Sponsor and the Institutional Trustee
prompt written notice of the occurrence of a Tax Event;
(e) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established,
including and with respect to, for the purposes of Section
316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Series G Securities as to such
actions and applicable record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of
the Series G Securities set forth in Annex I hereto;
(g)to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands
of or against the Series G Trust ("Legal Action"), unless
pursuant to Section 3.8(e), the Institutional Trustee has the
exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and
managers, contractors, advisors, and consultants and pay
reasonable compensation for such services;
(i) to cause the Series G Trust to comply with the Series
G Trust's obligations under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4)
of the Trust Indenture Act to the Institutional Trustee,
which certificate may be executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Series G Trust;
(l) to act as, or appoint another Person to act as,
registrar, transfer agent and paying agent for the Series G
Securities;
(m) to give prompt written notice to the Holders of any
notice received from the Series G Debenture Issuer of its
election to defer payments of interest on the Series G
Debentures by extending the interest payment period under
the Indenture;
(n) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of
the Series G Trust in all matters necessary or incidental to
the foregoing;
(o)to take all action that may be necessary or appropriate for
the preservation and the continuation of the Series G Trust's
valid existence, rights, franchises and privileges as a
statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the
Holders or to enable the Series G Trust to effect the purposes
for which the Series G Trust was created;
(p) to take any action, not inconsistent with this Series G
Declaration or with applicable law, that the Regular Trustees
determine in their discretion to be necessary or desirable in
carrying out the activities of the Series G Trust as set out
in this Section 3.6, including, but not limited to:
(i) causing the Series G Trust not to be deemed to
be an Investment Company required to be registered
under the Investment Company Act;
(ii) causing the Series G Trust to be classified for
United States federal income tax purposes as a grantor
trust; and
(iii) cooperating with the Series G Debenture Issuer to
ensure that the Series G Debentures will be treated as
indebtedness of the Series G Debenture Issuer for United
States federal income tax purposes, provided that such
actions do not adversely affect the interests of
Holders; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be
filed with respect to the Series G Trust to be duly prepared
and filed by the Regular Trustees, on behalf of the Series G
Trust.
The Regular Trustees shall exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the Series
G Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Series G
Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Institutional Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Series G Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Series G
Trust and the Trustees.
(a)The Series G Trust shall not, and the Trustees (including
the Institutional Trustee) shall cause the Series G Trust not
to, engage in any activity other than in connection with the
purpose of the Series G Trust or other than as required or
authorized by this Series G Declaration. In particular, the
Series G Trust shall not, and the Trustees (including the
Institutional Trustee) shall cause the Series G Trust not to:
(i) invest any proceeds received by the Series G
Trust from holding the Series G Debentures, but shall
distribute all such proceeds to Holders pursuant to
the terms of this Series G Declaration and of the
Series G Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Series G Trust property for other than
a Series G Trust purpose;
(iv) make any investments, other than investments
represented by the Series G Debentures;
(v) possess any power or otherwise act in such a
way as to vary the Series G Trust assets or the terms
of the Series G Securities in any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in,
the Series G Trust other than the Series G Securities;
(vii) incur any indebtedness for borrowed money; or
(viii) other than as provided in this Series G Declaration
or Annex I hereto, (A) direct the time, method and place
of exercising any trust or power conferred upon the Debt
Trustee with respect to the Series G Debentures, (B)
waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul
any declaration that the principal of all the Series G
Debentures held in the Series G Trust shall be due and
payable, or (D) consent to any amendment, modification
or termination of the Indenture or the Series G
Debentures if such action would cause the Series G Trust
to be classified for United States federal income tax
purposes as other than a grantor trust or would cause
the Series G Trust to be deemed an Investment Company
required to be registered under the Investment Company
Act.
SECTION 3.8 Powers and Duties of the Institutional
Trustee.
(a) The legal title to the Series G Debentures shall be owned
by and held of record in the name of the Institutional Trustee
in trust for the benefit of the Holders. The right, title and
interest of the Institutional Trustee to the Series G
Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance
with Section 5.6. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to
the Series G Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right,
title and interest in the Series G Debentures to the Regular
Trustees or to the Delaware Trustee (if the Institutional
Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Institutional Trustee
Account") in the name of and under the exclusive control
of the Institutional Trustee on behalf of the Holders
and, upon the receipt of payments of funds made in
respect of the Series G Debentures held by the
Institutional Trustee, deposit such funds into the
Institutional Trustee Account and make payments to the
Holders from the Institutional Trustee Account in
accordance with Section 6.1. Funds in the Institutional
Trustee Account shall be held uninvested until disbursed
in accordance with this Series G Declaration;
(ii) engage in such ministerial activities as shall
be necessary or appropriate to effect the redemption
of the Series G Securities to the extent the Series G
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the
Series G Securities, engage in such ministerial
activities as shall be necessary or appropriate to
effect the distribution of the Series G Debentures to
Holders in accordance with the provisions of the
Indenture.
(d) The Institutional Trustee shall take all actions and
perform such duties as may be specifically required of the
Institutional Trustee pursuant to the terms of the Series G
Securities.
(e)The Institutional Trustee shall take any Legal Action which
arises out of or in connection with (i) an Event of Default of
which a Responsible Officer has actual knowledge or (ii) the
Institutional Trustee's duties and obligations under this
Series G Declaration or the Trust Indenture Act. If the
Institutional Trustee fails to enforce its rights under the
Series G Debentures after a Holder of Series G Preferred
Securities has made a written request, such Holder may
institute a legal proceeding against the Series G Debenture
Issuer to enforce the Institutional Trustee's rights under the
Series G Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event
of Default has occurred and is continuing and such event is
attributable to the failure of the Series G Debenture Issuer
to pay interest or principal on the Series G Debentures on the
date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), then a Holder
of Series G Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the
principal of, or interest on, the Series G Debentures having a
principal amount equal to the aggregate liquidation amount of
the Series G Preferred Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the
Series G Debentures. Notwithstanding any payments made to such
Holder of Series G Preferred Securities by the Series G
Debenture Issuer in connection with a Direct Action, the
Series G Debenture Issuer shall remain obligated to pay the
principal of or interest on the Series G Debentures held by
the Series G Trust or the Institutional Trustee of the Series
G Trust, and the Series G Debenture Issuer shall be subrogated
to the rights of the Holder of such Series G Preferred
Securities with respect to payments on the Series G Preferred
Securities. Except as provided in the preceding sentences and
in the Series G Preferred Securities Guarantee, the Holders of
Series G Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the
Series G Debentures.
(f) The Institutional Trustee shall not resign as a
Trustee unless either:
(i) the Series G Trust has been completely
liquidated and the proceeds of the liquidation
distributed to the Holders pursuant to the terms of
the Series G Securities; or
(ii) a Successor Institutional Trustee has been
appointed and has accepted that appointment in
accordance with Section 5.6.
(g) The Institutional Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder
of Series G Debentures under the Indenture and, if an Event of
Default actually known to a Responsible Officer occurs and is
continuing, the Institutional Trustee shall, for the benefit
of Holders, enforce its rights as holder of the Series G
Debentures subject to the rights of the Holders pursuant to
the terms of such Series G Securities.
(h)The Institutional Trustee may authorize one or more Persons
acceptable to the Series G Trust (each, a "Paying Agent") to
pay Distributions, redemption payments or liquidation payments
on behalf of the Series G Trust with respect to the Series G
Securities and any such Paying Agent shall comply with Section
317(b) of the Trust Indenture Act. Any Paying Agent may be
removed by the Institutional Trustee at any time and a
successor Paying Agent or additional Paying Agents may be
appointed at any time by the Institutional Trustee, in each
case without prior notice to the Holders. The Paying Agent may
perform such functions whenever the Institutional Trustee may
do so. Each reference in this Series G Declaration to payment
to the Holders by the Institutional Trustee includes such
payment by a Paying Agent. A Paying Agent has the same rights
as the Institutional Trustee to deal with the Sponsor or an
Affiliate, and itself may be the Series G Trust, an Affiliate
of the Series G Trust or a Related Party of the Sponsor. The
Institutional Trustee hereby appoints The First National Bank
of Boston to initially act as Paying Agent for the Series G
Securities.
(i)The Institutional Trustee shall give prompt written notice
to the Holders of the Series G Securities of any notice
received by it from the Series G Debenture Issuer of the
Series G Debenture Issuer's election to defer payments of
interest on the Series G Debentures by extending the interest
payment period with respect thereto.
(j) The Institutional Trustee shall notify all Holders of the
Series G Preferred Securities of any notice of default
received from the Debt Trustee with respect to the Series G
Debentures. Such notice shall state that such event of default
under the Indenture with respect to the Series G Debentures
also constitutes an Event of Default hereunder.
(k) Subject to this Section 3.8, the Institutional Trustee
shall have none of the duties, liabilities, powers or the
authority of the Regular Trustees set forth in Section 3.6.
The Institutional Trustee shall exercise the powers set forth in this
Section 3.8 and in Sections 3.9 and 3.10 in a manner that is consistent with the
purposes and functions of the Series G Trust set out in Section 3.3, and the
Institutional Trustee shall not take any action that is inconsistent with the
purposes and functions of the Series G Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee.
(a) The Institutional Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Series G
Declaration and no implied covenants shall be read into this
Series G Declaration against the Institutional Trustee. In
case an Event of Default has occurred (that has not been cured
or waived pursuant to Section 2.6) of which a Responsible
Officer has actual knowledge, the Institutional Trustee shall
exercise such of the rights and powers vested in it by this
Series G Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Series G Declaration shall be
construed to relieve the Institutional Trustee from liability
for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations
of the Institutional Trustee shall be determined
solely by the express provisions of this Series G
Declaration and the Institutional Trustee shall
not be liable except for the performance of such
duties and obligations as are specifically set
forth in this Series G Declaration, and no implied
covenants or obligations shall be read into this
Series G Declaration against the Institutional
Trustee; and
(B) in the absence of bad faith
on the part of the Institutional Trustee, the
Institutional 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
Institutional Trustee and conforming to the
requirements of this Series G Declaration; but in
the case of any such certificates or opinions that
by any provision hereof are specifically required
to be furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Series G
Declaration;
(ii) the Institutional Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that
the Institutional Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Institutional 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 not less than a Majority in liquidation
amount of the Series G Securities relating to the time,
method and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or
exercising any trust or power conferred upon the
Institutional Trustee under this Series G Declaration;
(iv) no provision of this Series G Declaration shall
require the Institutional Trustee to expend or risk its
own funds or otherwise incur personal financial
liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to
it under the terms of this Series G Declaration or
adequate indemnity against such risk is not reasonably
assured to it;
(v)the Institutional Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of
the Series G Debentures and the Institutional Trustee
Account shall be to deal with such property in a similar
manner as the Institutional Trustee deals with similar
property for its own account, subject to the protections
and limitations on liability afforded to the
Institutional Trustee under this Series G Declaration
and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Series G
Debentures or the payment of any taxes or assessments
levied thereon or in connection therewith;
(vii) the Institutional Trustee shall not be liable for
any interest on any money received by it except as it
may otherwise agree with the Sponsor. Money held by the
Institutional Trustee need not be segregated from other
funds held by it except in relation to the Institutional
Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law;
(viii)the Institutional Trustee shall not be responsible
for monitoring the compliance by the Regular Trustees or
the Sponsor with their respective duties under this
Series G Declaration, nor shall the Institutional
Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor; and
(ix) the Institutional Trustee shall not be liable
for the acts or omissions of any paying agent,
registrar, authenticating agent or transfer agent if
other than the Institutional Trustee.
SECTION 3.10 Certain Rights of the Institutional
Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Institutional 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
or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper
party or parties;
(ii) any direction or act of the Sponsor or the
Regular Trustees contemplated by this Series G
Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Series G
Declaration, the Institutional Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Institutional Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or
the Regular Trustees;
(iv) the Institutional Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any filing under tax or securities laws)
or any rerecording, refiling or registration thereof;
(v)the Institutional Trustee may consult with counsel or
other experts and the advice or opinion of such counsel
and experts with respect to legal matters or advice
within the scope of such experts' area of expertise
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such
advice or opinion, which counsel may be counsel to the
Sponsor or any of its Affiliates, and may include any of
its employees. The Institutional Trustee shall have the
right at any time to seek instructions concerning the
administration of this Series G Declaration from any
court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Series G Declaration at the
request, order or direction of any Holder, unless such
Holder shall have provided to the Institutional Trustee
reasonable security and indemnity against the costs,
expenses (including attorneys' fees and expenses and the
expenses of the Institutional Trustee's agents, nominees
or custodians) and liabilities that might be incurred by
it in complying with such request or direction,
including such reasonable advances as may be requested
by the Institutional Trustee provided, that, nothing
contained in this Section 3.10(a)(vi) shall be taken to
relieve the Institutional Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Series G
Declaration;
(vii) the Institutional 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, consent, order,
approval, bond, debenture, coupon or other paper or
document, but the Institutional Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit;
(viii) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents,
custodians, nominees or attorneys and the Institutional
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(ix)any action taken by the Institutional Trustee or its
agents hereunder shall bind the Series G Trust and the
Holders, and the signature of the Institutional Trustee
or its agents alone shall be sufficient and effective to
perform any such action and no third party shall be
required to inquire as to the authority of the
Institutional Trustee to so act or as to its compliance
with any of the terms and provisions of this Series G
Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Series G
Declaration the Institutional Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request
instructions from the Holders which instructions may
only be given by the Holders of the same proportion in
liquidation amount of the Series G Securities as would
be entitled to direct the Institutional Trustee under
the terms of the Series G Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until
such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in or
accordance with such instructions; and
(xi) except as otherwise expressly provided by this
Series G Declaration, the Institutional Trustee shall
not be under any obligation to take any action that is
discretionary under the provisions of this Series G
Declaration.
(b) No provision of this Series G Declaration shall be deemed
to impose any duty or obligation on the Institutional Trustee
to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Institutional
Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to
exercise any such right, power, duty or obligation. No
permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Series G Declaration other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Institutional Trustee described
in this Series G Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. Notwithstanding anything
herein to the contrary, the Delaware Trustee shall not be liable for the acts or
omissions to act of the Series G Trust or of the Regular Trustees except such
acts as the Delaware Trustee is expressly obligated or authorized to undertake
under this Series G Declaration or the Business Trust Act and except for the
negligence or willful misconduct of the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any one of the
Regular Trustees is authorized to execute on behalf of the Series G Trust any
documents which the Regular Trustees have the power and authority to execute
pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance
of Series G Securities.
The recitals contained in this Series G Declaration and the Series G
Securities shall be taken as the statements of the Sponsor, and the Trustees do
not assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Series G
Trust or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Series G Declaration or the Series G Securities.
SECTION 3.14 Duration of Series G Trust.
The Series G Trust, unless dissolved pursuant to the provisions of Article
8 hereof, shall have existence until April 11, 2052.
SECTION 3.15 Mergers.
(a) The Series G Trust may not consolidate, amalgamate, merge
with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any
corporation or other body, except as described in Section
3.15(b) and (c).
(b) The Series G Trust may, with the consent of the Regular
Trustees or, if there are more than two, a majority of the
Regular Trustees, and without the consent of the Holders, the
Institutional Trustee or the Delaware Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust
organized as such under the laws of any State of the United
States; provided that:
(i) if the Series G Trust is not the survivor, such
successor entity (the "Successor Entity") either:
(A) expressly assumes all of
the obligations of the Series G Trust under the
Series G Securities; or
(B) substitutes for the Series G
Preferred Securities other securities having
substantially the same terms as the Series G
Preferred Securities (the "Successor Series G
Securities") so long as the Successor Series G
Securities rank the same as the Series G Preferred
Securities rank with respect to Distributions and
payments upon liquidation, redemption and
otherwise;
(ii) the Series G Debenture Issuer expressly acknowledges a
trustee of the Successor Entity that possesses the same
powers and duties as the Institutional Trustee as the
holder of the Series G Debentures;
(iii) the Series G Preferred Securities or
any Successor Series G Securities are listed, or any
Successor Series G Securities will be listed upon
notification of issuance, on any national securities
exchange or with another organization on which the
Series G Preferred Securities are then listed or quoted;
(iv) such merger, consolidation,
amalgamation or replacement does not cause the Series G
Preferred Securities (including any Successor Series G
Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation
or replacement does not adversely affect the rights,
preferences and privileges of the Holders (including any
Successor Series G Securities) in any material respect
(other than with respect to any dilution of such
Holders' interests in the Successor Entity);
(vi) such Successor Entity has a purpose
identical to that of the Series G Trust;
(vii) prior to such merger, consolidation,
amalgamation or replacement, the Series G Debenture
Issuer has received an opinion of a nationally
recognized independent counsel to the Series G Trust
experienced in such matters to the effect that:
(A) such merger,
consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges
of the Holders (including any Successor Series G
Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the
Successor Entity); and
(B) following such
merger, consolidation, amalgamation or replacement,
neither the Series G Trust nor the Successor Entity
will be required to register as an Investment Company;
and
(C) following such merger,
consolidation, amalgamation or replacement, the Series G
Trust (or the Successor Entity) will be treated as a
grantor trust for United States federal income tax
purposes; and
(viii) the Sponsor guarantees the
obligations of such Successor Entity under the Successor
Series G Securities at least to the extent provided by
the Series G Preferred Securities Guarantee and the
Series G Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Series G Trust shall
not, except with the consent of Holders of 100% in liquidation
amount of the Series G Securities, consolidate, amalgamate,
merge with or into, or be replaced by any other entity or
permit any other entity to consolidate, amalgamate, merge with
or into, or replace it, if such consolidation, amalgamation,
merger or replacement would cause the Series G Trust or
Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE 4
SPONSOR
SECTION 4.1 Sponsor's Purchase of Series G Common
Securities.
On the Closing Date, the Sponsor will purchase all of the Series G Common
Securities issued by the Series G Trust, in an amount at least equal to 3% of
the total capital of the Series G Trust, at the same time as the Series G
Preferred Securities are issued in exchange for Series G 9.12% Depositary Shares
in the Series G Offer.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Series G Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Series G Trust with the
Commission one or more registration statements on Form S-4
in relation to the Series G Preferred Securities, including
any amendments thereto;
(b)to determine the states in which to take appropriate action
to qualify or register for sale all or part of the Series G
Preferred Securities and to do any and all such acts, other
than actions which must be taken by the Series G Trust, and
advise the Series G Trust of actions it must take, and prepare
for execution and filing any documents to be executed and
filed by the Series G Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any
such states;
(c) to prepare for filing by the Series G Trust an
application to the NYSE, Inc. or any other national stock
exchange or the NASDAQ National Market for listing or
quotation upon notice of issuance of the Series G Preferred
Securities;
(d) to prepare for filing by the Series G Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Series G Preferred Securities under
Section 12(b) of the Exchange Act, including any amendments
thereto; and
(e) to negotiate the terms of the Dealer Manager
Agreement.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders to institute a Direct
Action as set forth in Section 3.8(e) hereto.
SECTION 4.4 Expenses.
In connection with the offering, sale and issuance of the Series G
Debentures to the Institutional Trustee and in connection with the issuance of
the Series G Securities by the Series G Trust, the Series G Debenture Issuer, in
its capacity as borrower with respect to the Series G Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale
and issuance of the Series G Debentures, including fees to the
dealer managers payable pursuant to the Dealer Manager
Agreement, and compensation of the Debt Trustee under the
Indenture in accordance with the provisions of Section 6.06 of
the Indenture;
(b) be responsible and shall pay all debts and obligations
(other than with respect to the Series G Securities) and all
costs and expenses of the Series G Trust (including, but not
limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Series G Trust, the offer,
sale and issuance of the Series G Securities (including fees
to the dealer managers in connection therewith), the fees and
expenses (including reasonable counsel fees and expenses) of
the Institutional Trustee, the Delaware Trustee and the
Regular Trustees (including any amounts payable under Article
10 of this Series G Declaration), the costs and expenses
relating to the operation of the Series G Trust, including,
without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating,
travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the
acquisition, financing and disposition of Series G Trust
assets and the enforcement by the Institutional Trustee of the
rights of Holders of the Series G Preferred Securities);
(c) be primarily liable for any indemnification
obligations arising with respect to this Series G
Declaration; and
(d)pay any and all taxes(other than United States withholding
taxes attributable to the Series G Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes
of the Series G Trust.
The Series G Debenture Issuer's obligations under this Section 4.4 shall
be for the benefit of, and shall be enforceable by, any person to whom such
debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether or
not such Creditor has received notice hereof. Any such Creditor may enforce the
Series G Debenture Issuer's obligations under this Section 4.4 directly against
the Series G Debenture Issuer and the Series G Debenture Issuer irrevocably
waives any right of remedy to require that any such Creditor take any action
against the Series G Trust or any other Person before proceeding against the
Series G Debenture Issuer. The Series G Debenture Issuer agrees to execute such
additional agreements as may be necessary or desirable in order to give full
effect to the provisions of this Section 4.4.
ARTICLE 5
TRUSTEES
SECTION 5.1 Number of Trustees.
(a)The number of Trustees initially shall be five.At any time
before the issuance of any Series G Securities, the Sponsor
may, by written instrument, increase or decrease the number of
Trustees. After the issuance of any Series G Securities, the
number of Trustees may be increased or decreased by vote of
the Holders of a majority in liquidation amount of the Series
G Common Securities voting as a class at a meeting of the
Holders of the Series G Common Securities; provided, however,
that, the number of Trustees shall in no event be less than
two; and provided further that (i) if required under Section
5.2 below, one Trustee shall be the Delaware Trustee; (ii)
there shall be at least one Trustee who is an employee or
officer of, or is affiliated with the Sponsor (a "Regular
Trustee"); and (iii) so long as required under Section 5.3,
one Trustee shall be the Institutional Trustee.
(b) Any action taken by Holders of Series G Common Securities
pursuant to this Article 5 shall be taken at a meeting of
Holders of Series G Common Securities convened for such
purpose or by written consent of such Holders.
(c) Except as otherwise provided herein, no amendment may be
made to this Section 5.1 which would change any rights with
respect to the number, existence or appointment and removal of
Trustees, except with the consent of each Holder of Series G
Common Securities.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise
meets the requirements of applicable law, provided that, if
the Institutional Trustee has its principal place of business
in the State of Delaware and otherwise meets the requirements
of applicable law, then the Institutional Trustee may also be
the Delaware Trustee and Section 3.11 shall have no
application.
The initial Delaware Trustee shall be Wilmington Trust Company until
removed or replaced in accordance with Section 5.6.
SECTION 5.3 Institutional Trustee; Eligibility.
(a) For so long as this Series G Declaration is required to
qualify as an indenture under the Trust Indenture Act, there
shall at all times be one Trustee (the "Institutional
Trustee") which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act
as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of
at least $50,000,000, and subject to supervision or
examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law
or to the requirements of the supervising or examining
authority referred to above, then for the purposes of
this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time an Institutional Trustee is required the
Institutional Trustee shall cease to be eligible to so act
under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth
in Section 5.6(c).
(c) If at any time an Institutional Trustee is required the
Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act or becomes a creditor of the Sponsor during the
time periods specified in Section 311 of the Trust Indenture
Act, the Institutional Trustee and the Holder of the Series G
Common Securities (as if it were the obligor referred to in
Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) and 311
of the Trust Indenture Act, as applicable.
(d)The Series G Preferred Securities Guarantee shall be deemed
to be specifically described in this Series G Declaration for
purposes of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be Wilmington
Trust Company until removed or replaced in accordance with
Section 5.6.
SECTION 5.4 Certain Qualifications of the Regular
Trustees and Delaware Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the Institutional
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be John D. Finnegan, Walter G. Borst
and Martin I. Darvick.
(a) Except as expressly set forth in this Series G Declaration
and except if a meeting of the Regular Trustees is called with
respect to any matter over which the Regular Trustees have
power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one of such Regular
Trustees;
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or
applicable law, any one of the Regular Trustees is authorized
to execute on behalf of the Series G Trust any documents which
the Regular Trustees have the power and authority to execute
pursuant to Section 3.6; and
(c)a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the
age of 21 his or her power for the purposes of signing any
documents which the Regular Trustees have power and authority
to cause the Series G Trust to execute pursuant to Section
3.6.
SECTION 5.6 Appointment, Removal and Resignation of
Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed
or removed without cause at any time:
(i) until the issuance of any Series G
Securities, by written instrument executed by the
Sponsor; and
(ii) after the issuance of any Series G
Securities, by vote of the Holders of a Majority in
liquidation amount of the Series G Common Securities
voting as a class at a meeting of the Holders of the
Series G Common Securities.
(b) (i) So long as an Institutional Trustee is required
under Section 5.3, the Trustee that acts as
Institutional Trustee shall not be removed in
accordance with Section 5.6(a) until a successor
institutional Trustee possessing the qualifications to
act as Institutional Trustee under Section 5.3(a) (a
"Successor Institutional Trustee") has been appointed
and has accepted such appointment by written
instrument executed by such Successor Institutional
Trustee and delivered to the Regular Trustees, the
Sponsor and the Institutional Trustee being removed;
and
(ii) so long as a Delaware Trustee is required under
Section 5.2, the Trustee that acts as Delaware Trustee
shall not be removed in accordance with this
Section 5.6(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware Trustee")
has been appointed and has accepted such appointment
by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular
Trustees, the Sponsor and the Delaware Trustee being
removed.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death,
removal or resignation as described herein. Any Trustee may
resign from office (without need for prior or subsequent
accounting) by an instrument (a "Resignation Request") in
writing signed by the Trustee and delivered to the Sponsor and
the Series G Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein;
provided, however, that:
(i) no such resignation of the Trustee that acts as
the Institutional Trustee shall be effective:
(A) until a Successor
Institutional Trustee has been appointed and has
accepted such appointment by instrument executed
by such Successor Institutional Trustee and
delivered to the Series G Trust, the Sponsor and
the resigning Institutional Trustee; or
(B) until the assets of the
Series G Trust have been completely liquidated and
the proceeds thereof distributed to the Holders of
the Series G Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Series G
Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Series G Common Securities shall use
their best efforts to promptly appoint a Successor
Institutional Trustee or Successor Delaware Trustee as the
case may be if the Institutional Trustee or the Delaware
Trustee delivers a Resignation Request in accordance with
this Section 5.6.
(e)If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as
provided in this Section 5.6 within 60 days after delivery to
the Sponsor and the Series G Trust of a Resignation Request,
the resigning Institutional Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction
for appointment of a Successor Institutional Trustee or
Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or
Successor Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor
Institutional Trustee or Successor Delaware Trustee, as the
case may be.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees, shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Series G Trust. Whenever a vacancy in the number of
Regular Trustees shall occur, until such vacancy is filled by the appointment of
a Regular Trustee in accordance with Section 5.6, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Series G Declaration.
SECTION 5.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Series G Declaration, any action of the Regular
Trustees may be taken at a meeting by vote of a majority of the Regular Trustees
present (whether in person or by telephone) and eligible to vote with respect to
such matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Regular Trustees. In the event there is only
one Regular Trustee, any and all action of such Regular Trustee shall be
evidenced by a written consent of such Regular Trustee.
SECTION 5.10 Delegation of Power.
The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Series G Trust the doing of such
things and the execution of such instruments either in the name of the Series G
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Series G Trust, as set forth
herein.
SECTION 5.11 Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE 6
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein) in accordance with
the applicable terms of the relevant Holder's Series G Securities as set forth
in Annex I. If and to the extent that the Series G Debenture Issuer makes a
payment of interest (including Compound Interest and Additional Interest),
premium and/or principal on the Series G Debentures held by the Institutional
Trustee (the amount of any such payment being a "Payment Amount"), the
Institutional Trustee shall and is directed, to the extent funds are available
for that purpose, to make a distribution (a "Distribution") of the Payment
Amount to Holders.
ARTICLE 7
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Series G
Securities.
(a) The Regular Trustees shall on behalf of the Series G Trust
issue the Series G Preferred Securities, which shall be one
class of preferred securities representing undivided preferred
beneficial ownership interests in the assets of the Series G
Trust having such terms as are set forth in Annex I (which
terms are incorporated by reference in, and made a part of,
this Series G Declaration as if specifically set forth herein)
and the Series G Common Securities, which shall be one class
of common securities representing undivided common beneficial
ownership interests in the assets of the Series G Trust having
such terms as are set forth in Annex I (which terms are
incorporated by reference in, and made a part of, this Series
G Declaration as if specifically set forth herein). The Series
G Trust shall issue no securities or other interests in the
assets of the Series G Trust other than the Series G Preferred
Securities and the Series G Common Securities. Each Security
shall be dated the date of its authentication.
(b) The Certificates shall be signed on behalf of the Series G
Trust by a Regular Trustee. Such signature shall be the manual
or facsimile signature of any present or any future Regular
Trustee. Typographical and other minor errors or defects in
any such reproduction of any such signature shall not affect
the validity of any Security. In case any Regular Trustee of
the Series G Trust who shall have signed any of the Series G
Securities shall cease to be such Regular Trustee before the
Certificates so signed shall be delivered by the Series G
Trust, such Certificates nevertheless may be delivered as
though the person who signed such Certificates had not ceased
to be such Regular Trustee; and any Certificate may be signed
on behalf of the Series G Trust by such persons who, at the
actual date of execution of such Security, shall be the
Regular Trustees of the Series G Trust, although at the date
of the execution and delivery of the Series G Declaration any
such person was not such a Regular Trustee. Certificates shall
be printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation of any stock
exchange on which Series G Securities may be listed, or to
conform to usage. Pending the preparation of definitive
Certificates, the Regular Trustees on behalf of the Series G
Trust may execute and the Institutional Trustee shall
authenticate, temporary Certificates (printed, lithographed or
typewritten), substantially in the form of the definitive
Certificates in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for
temporary Certificates all as may be determined by the Regular
Trustees on behalf of the Series G Trust upon the same
conditions and in substantially the same manner, and with like
effect, as definitive Certificates. Without unnecessary delay,
the Regular Trustees on behalf of the Series G Trust will
execute and furnish and the Institutional Trustee shall
authenticate, definitive Certificates and thereupon any or all
temporary Certificates may be surrendered to the transfer
agent and registrar in exchange therefor (without charge to
the Holders).
(c) A Security shall not be valid until authenticated by the
manual or facsimile signature of an authorized signatory of
the Institutional Trustee. The signature shall be conclusive
evidence that the Security has been authenticated under this
Series G Declaration.
The Institutional Trustee may appoint an authenticating agent acceptable
to the Series G Trust to authenticate Series G Securities. An authenticating
agent may authenticate Series G Securities whenever the Institutional Trustee
may do so. Each reference in this Series G Declaration to authentication by the
Institutional Trustee includes authentication by such agent. An authenticating
agent has the same rights as the Institutional Trustee to deal with the Sponsor
or an Affiliate, and may itself be an Affiliate of the Series G Trust or a
Related Party of the Sponsor. The Institutional Trustee hereby appoints The
First National Bank of Boston initially to act as authenticating agent for the
Series G Securities.
(d) The consideration received by the Series G Trust for the
issuance of the Series G Securities shall constitute a
contribution to the capital of the Series G Trust and shall
not constitute a loan to the Series G Trust.
(e) Upon issuance of the Series G Securities as provided in
this Series G Declaration, the Series G Securities so issued
shall be deemed to be validly issued, fully paid and
non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Series G Preferred Security Beneficial Owner in accordance
with the terms of this Series G Declaration, shall be deemed
to have expressly assented and agreed to the terms of, and
shall be bound by, this Series G Declaration.
ARTICLE 8
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Series G Trust.
(a) Notwithstanding anything to the contrary contained herein,
the Sponsor shall have the right at any time to dissolve the
Series G Trust and cause the distribution of all of the Series
G Debentures to the Holders in exchange for all of the Series
G Securities in accordance with the terms of the Series G
Securities. In addition, the Series G Trust shall dissolve:
(i) on April 11, 2052, the expiration of the term
of the Series G Trust;
(ii) upon the bankruptcy of the Sponsor or the
Series G Trust;
(iii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor, the filing
of a certificate of cancellation with respect to the
Series G Trust after having obtained the consent of the
Holders of at least a Majority in liquidation amount of
the Series G Securities voting together as a single
class to file such certificate of cancellation, or the
revocation of the Sponsor's charter and the expiration
of 90 days after the date of revocation without a
reinstatement thereof;
(iv) upon the entry of a decree of judicial
dissolution of the Holder of the Series G Common
Securities, the Sponsor or the Series G Trust;
(v) when all of the Series G Securities shall have been
called for redemption and the amounts necessary for
redemption thereof, including any Additional Interest or
Compound Interest, shall have been paid to the Holders
in accordance with the terms of the Series G Securities;
(vi) upon the distribution of all of the Series G
Debentures to the Holders in exchange for all of the
Series G Securities in accordance with the terms of
the Series G Securities; or
(vii) before the issuance of any Series G Securities,
with the consent of all of the Regular Trustees and
the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Trustees shall file a
certificate of cancellation with the Secretary of State of the
State of Delaware.
(c) The provisions of Article 10 shall survive the
dissolution of the Series G Trust.
ARTICLE 9
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Series G Securities.
(a)Series G Securities may only be transferred,in whole or in
part, in accordance with the terms and conditions set forth in
this Series G Declaration and in the terms of the Series G
Securities. Any transfer or purported transfer of any Security
not made in accordance with this Series G Declaration shall be
null and void.
(b) Subject to this Article 9, the Series G Preferred
Securities shall be freely transferable.
(c) The Sponsor may not transfer the Series G Common
Securities.
SECTION 9.2 Transfer of Certificates.
(a) The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such
indemnity as the Regular Trustees may require) in respect of
any tax or other government charges that may be imposed in
relation to it. Upon surrender for registration of transfer of
any Certificate, the Regular Trustees shall cause one or more
new Certificates to be issued and authenticated by the
Institutional Trustee in the name of the designated transferee
or transferees. Every Certificate surrendered for registration
of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for
registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to
the rights and subject to the obligations of a Holder
hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Series G
Declaration.
(b) Upon receipt by the Institutional Trustee of a Definitive
Series G Preferred Security Certificate, duly endorsed or
accompanied by appropriate instruments of transfer, in form
satisfactory to the Institutional Trustee, requesting transfer
of such Definitive Series G Preferred Security Certificate for
a beneficial interest in a Global Certificate, the
Institutional Trustee shall cancel such Definitive Series G
Preferred Security Certificate and cause, or direct the
Depository Institution to cause, the aggregate number of
Series G Preferred Securities represented by the appropriate
Global Certificate to be increased accordingly. If no Global
Certificates are then outstanding, the Series G Trust shall
issue and the Institutional Trustee shall authenticate, upon
written order of any Regular Trustee, an appropriate number of
Series G Preferred Securities in global form.
(c) Upon receipt by the Institutional Trustee from the
Depository Institution or its nominee on behalf of any Person
having a beneficial interest in a Global Certificate of
written instructions or such other form of instructions as is
customary for the Depository Institution or the person
designated by the Depository Institution, requesting transfer
of a beneficial interest in a Global Certificate for a
Definitive Series G Preferred Security Certificate, then the
Institutional Trustee or the securities custodian, at the
direction of the Institutional Trustee, will cause, in
accordance with the standing instructions and procedures
existing between the Depository Institution and the securities
custodian, the aggregate principal amount of the Global
Certificate to be reduced on its books and records and,
following such reduction, the Series G Trust will execute and
the Institutional Trustee will authenticate and deliver to the
transferee a Definitive Series G Preferred Security
Certificate.
Definitive Series G Preferred Security
Certificates issued in exchange for a beneficial interest in a
Global Certificate shall be registered in such names and in
such authorized denominations as the Depository Institution,
pursuant to instructions from its Depository Institution
Participants or indirect participants or otherwise, shall
instruct the Institutional Trustee. The Institutional Trustee
shall deliver such Series G Preferred Securities to the
persons in whose names such Series G Preferred Securities are
so registered in accordance with the instructions of the
Depository Institution. 1. Notwithstanding any other
provisions of this Series G Declaration, a Global Certificate
may not be transferred as a whole except by the Depository
Institution to a nominee of the Depository Institution or
another nominee of the Depository Institution or by the
Depository Institution or any such nominee to a successor
Depository Institution or a nominee of such successor
Depository Institution.
(d) The Institutional Trustee may appoint a transfer agent and
registrar ("Transfer Agent") acceptable to the Series G Trust
to perform the functions set forth in this Section 9.2. The
Transfer Agent may perform such functions whenever the
Institutional Trustee may do so. Each reference in this Series
G Declaration to registration and transfer of Series G
Preferred Securities by the Institutional Trustee includes
such activities by the Transfer Agent. The Transfer Agent has
the same rights as the Institutional Trustee to deal with the
Sponsor or an Affiliate, and itself may be the Series G Trust,
an Affiliate of the Series G Trust or a Related Party of the
Sponsor. The Institutional Trustee hereby appoints The First
National Bank of Boston initially to act as Transfer Agent for
the Series G Preferred Securities.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Series G Trust as the sole holder of
such Certificate and of the Series G Securities represented by such Certificate
for purposes of receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable or other claim
to or interest in such Certificate or in the Series G Securities represented by
such Certificate on the part of any Person, whether or not the Series G Trust
shall have actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
The Series G Preferred Securities Certificates, on original issuance, will
be executed and issued by the Series G Trust and authenticated by the
Institutional Trustee either (i) in the form of one or more, fully-registered,
global Series G Preferred Security Certificates (each a "Global Certificate"),
to be delivered to DTC or PDTC, the initial Depository Institutions, by, or on
behalf of, the Series G Trust to those tendering holders of Series G 9.12%
Depositary Shares held in global form or (ii) in certificated form (the
"Definitive Series G Preferred Security Certificates") to be held directly by
the Holder to those tendering holders of Series G 9.12% Depositary Shares held
directly in certificated form. Investors may elect to hold their Series G
Preferred Securities directly or hold their interest through a Global
Certificate. Global Certificates shall initially be registered on the books and
records of the Series G Trust in the name of DTC or PDTC, as applicable, or
their respective nominees. With respect to Series G Preferred Security
Beneficial Owners holding their interest in Series G Preferred Securities
pursuant to a Global Certificate:
(a) the Series G Trust and the Trustees shall be entitled to
deal with the Depository Institution, with respect to such
Series G Preferred Security Beneficial Owners, for all
purposes of this Series G Declaration (including the payment
of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of such
Series G Preferred Securities and the sole holder of the
Global Certificates and shall have no obligation to such
Series G Preferred Security Beneficial Owners;
(b) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Series G
Declaration, the provisions of this Section 9.4 shall
control; and
(c) the rights of such Series G Preferred Security Beneficial
Owners shall be exercised only through the Depository
Institution and shall be limited to those established by law
and agreements between such Series G Preferred Security
Beneficial Owners and the Depository Institution and/or the
Depository Institution Participants. The Depository
Institution will make book-entry transfers among the
Depository Institution Participants and receive and transmit
payments of Distributions on the Global Certificates to such
Depository Institution Participants.
Depository Institution Participants shall have no rights under this Series
G Declaration with respect to any Global Certificate held on their behalf by the
Depository Institution or by the Institutional Trustee as the custodian of the
Depository Institution or under such Global Certificate, and the Depository
Institution may be treated by the Series G Trust, the Institutional Trustee and
any agent of the Series G Trust or the Institutional Trustee as the absolute
owner of such Global Certificate for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Series G Trust, the
Institutional Trustee or any agent of the Series G Trust or the Institutional
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository Institution or impair, as between the
Depository Institution and its Depository Institution Participants, the
operation of customary practices of such Depository Institution governing the
exercise of the rights of a holder of a beneficial interest in any Global
Certificate.
At such time as all beneficial interests in a Global Certificate have
either been exchanged for Definitive Series G Preferred Security Certificates to
the extent permitted by this Series G Declaration or redeemed, repurchased or
canceled in accordance with the terms of this Series G Declaration, such Global
Certificate shall be returned to the Depository Institution for cancellation or
retained and canceled by the Institutional Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Certificate is exchanged
for Definitive Series G Preferred Security Certificates, or if Definitive Series
G Preferred Security Certificates are exchanged for a beneficial interest in a
Global Certificate, Series G Preferred Securities represented by such Global
Certificate shall be reduced or increased and an adjustment shall be made on the
books and records of the Institutional Trustee (if it is then the securities
custodian for such Global Certificate) with respect to such Global Certificate,
by the Institutional Trustee or the securities custodian, to reflect such
reduction or increase.
SECTION 9.5 Notices to Depository Institution.
Whenever a notice or other communication to the Series G Preferred
Security Holders is required under this Series G Declaration, unless and until
Definitive Series G Preferred Security Certificates shall have been issued to
the Series G Preferred Security Beneficial Owners pursuant to Sections 9.2, 9.4
or 9.7, the Regular Trustees shall give all such notices and communications
specified herein to be given to the Series G Preferred Security Holders to the
applicable Depository Institution, and shall have no notice obligations to the
Series G Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Depository
Institution.
If any Depository Institution elects to discontinue its services as
securities depositary with respect to the Series G Preferred Securities, the
Regular Trustees may, in their sole discretion, appoint a successor Depository
Institution with respect to such Series G Preferred Securities.
SECTION 9.7 Definitive Series G Preferred Security
Certificates.
If:
(a) a Depository Institution elects to discontinue its
services as securities depositary with respect to the Series
G Preferred Securities and a successor Depository
Institution is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with
the Sponsor to terminate the book-entry system through the
Depository Institutions with respect to the Series G
Preferred Securities; or
(c) there shall have occurred a Series G Declaration
Event of Default,
then:
(a) Definitive Series G Preferred Security Certificates
shall be prepared by the Regular Trustees on behalf of the
Series G Trust with respect to such Series G Preferred
Securities; and
(b)upon surrender of the Global Certificates by the applicable
Depository Institution, accompanied by registration
instructions, the Regular Trustees shall cause Definitive
Series G Preferred Security Certificates to be delivered to
Series G Preferred Security Beneficial Owners in accordance
with the instructions of such Depository Institution. Neither
the Trustees nor the Series G Trust shall be liable for any
delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on,
said instructions of the Depository Institution. The
Definitive Series G Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular
Trustees may deem appropriate, 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 Series G Preferred Securities may be listed, or to
conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates.
If:
(a) any mutilated Certificates should be surrendered to
the Regular Trustees, or if the Regular Trustees shall
receive evidence to their satisfaction of the destruction,
loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees, the
Institutional Trustee or any authenticating agent such
security or indemnity as may be required by them to keep
each of them harmless,
then, in the absence of notice that such Certificate shall
have been acquired by a bona fide purchaser, any Regular
Trustee on behalf of the Series G Trust shall execute and
deliver and the Institutional Trustee shall authenticate, in
exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under
this Section 9.8, the Regular Trustees may require the payment
of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the
relevant Series G Securities, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be
found at any time.
ARTICLE 10
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a)Except as expressly set forth in this Series G Declaration,
the Series G Securities Guarantees and the terms of the Series
G Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion
of the capital contributions (or any return thereon)
of the Holders which shall be made solely from assets
of the Series G Trust; and
(ii) be required to pay to the Series G Trust or to
any Holder any deficit upon dissolution of the Series
G Trust or otherwise.
(b) The Series G Debenture Issuer shall be liable for all of
the debts and obligations of the Series G Trust (other than
payments of distributions, if any, with respect to the Series
G Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the
State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Series G Trust or
any Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Series G
Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on
such Indemnified Person by this Series G Declaration or by
law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Series G Trust and upon
such information, opinions, reports or statements presented to
the Series G Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's
professional or expert competence and who has been selected
with reasonable care by or on behalf of the Series G Trust,
including information, opinions, reports or statements as to
the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders might
properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities
relating thereto to the Series G Trust or to any other Covered
Person, an Indemnified Person acting under this Series G
Declaration shall not be liable to the Series G Trust or to
any other Covered Person for its good faith reliance on the
provisions of this Series G Declaration. The provisions of
this Series G Declaration, to the extent that they restrict
the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on
the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest
exists or arises between an Indemnified Person and any
Covered Persons; or
(ii) whenever this Series G Declaration or
any other agreement contemplated herein or therein
provides that an Indemnified Person shall act in a
manner that is, or provides terms that are, fair and
reasonable to the Series G Trust or any Holder,
the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering
in each case the relative interest of each party (including
its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and
any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Indemnified
Person, the resolution, action or term so made, taken or
provided by the Indemnified Person shall not constitute a
breach of this Series G Declaration or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Series G Declaration an Indemnified
Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be
entitled to consider such interests and factors as it
desires, including its own interests, and shall have no
duty or obligation to give any consideration to any
interest of or factors affecting the Series G Trust or
any other Person; or
(ii) in its "good faith" or under another
express standard, the Indemnified Person shall act under
such express standard and shall not be subject to any
other or different standard imposed by this Series G
Declaration or by applicable law.
SECTION 10.4 Indemnification.
(a) (i) The Series G Debenture Issuer shall indemnify,
to the full extent permitted by law, any Sponsor
Indemnified Person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action, suit or proceeding,
whether civil, criminal, administrative or
investigative (other than an action by or in the right
of the Series G Trust) by reason of the fact that he
is or was a Sponsor Indemnified Person against
expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed
to the best interests of the Series G Trust, and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the Sponsor
Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not
opposed to the best interests of the Series G Trust,
and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) The Series G Debenture Issuer shall
indemnify, to the full extent permitted by law, any
Sponsor Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the
Series G Trust to procure a judgment in its favor by
reason of the fact that he is or was a Sponsor
Indemnified Person against expenses (including
attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the
best interests of the Series G Trust and except that no
such indemnification shall be made in respect of any
claim, issue or matter as to which such Sponsor
Indemnified Person shall have been adjudged to be liable
to the Series G Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon
application that, despite the adjudication of liability
but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity
for such expenses which such Court of Chancery or such
other court shall deem proper.
(iii) To the extent that a Sponsor
Indemnified Person shall be successful on the merits or
otherwise (including dismissal of an action without
prejudice or the settlement of an action without
admission of liability) in defense of any action, suit
or proceeding referred to in paragraphs (i) and (ii) of
this Section 10.4(a), or in defense of any claim, issue
or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him
in connection therewith.
(iv) Any indemnification under paragraphs
(i) and (ii) of this Section 10.4(a) (unless ordered by
a court) shall be made by the Series G Debenture Issuer
only as authorized in the specific case upon a
determination that indemnification of the Sponsor
Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct
set forth in paragraphs (i) and (ii). Such determination
shall be made (1) by the Regular Trustees by a majority
vote of a quorum consisting of such Regular Trustees who
were not parties to such action, suit or proceeding, (2)
if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a
written opinion, or (3) by the Series G Common Security
Holder of the Series G Trust.
(v) Expenses (including attorneys' fees)
incurred by a Sponsor Indemnified Person in defending a
civil, criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the Series
G Debenture Issuer in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Sponsor Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by
the Series G Debenture Issuer as authorized in this
Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Series G Debenture Issuer
if a determination is reasonably and promptly made (i)
by the Regular Trustees by a majority vote of a quorum
of disinterested Regular Trustees, (ii) if such a quorum
is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii)
by the Series G Debenture Issuer, that, based upon the
facts known to the Regular Trustees, counsel or the
Series G Debenture Issuer, as the case may be, at the
time such determination is made, such Sponsor
Indemnified Person acted in bad faith or in a manner
that such person did not believe to be in or not opposed
to the best interests of the Series G Trust, or, with
respect to any criminal proceeding, that such Sponsor
Indemnified Person believed or had reasonable cause to
believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees,
independent legal counsel or Series G Debenture Issuer
reasonably determine that such person deliberately
breached his duty to the Series G Trust or its Holders.
(vi) The indemnification and advancement of
expenses provided by, or granted pursuant to, the other
paragraphs of this Section 10.4(a) shall not be deemed
exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or
disinterested directors of the Series G Debenture Issuer
or Series G Preferred Security Holders of the Series G
Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while
holding such office. All rights to indemnification under
this Section 10.4(a) shall be deemed to be provided by a
contract between the Series G Debenture Issuer and each
Sponsor Indemnified Person who serves in such capacity
at any time while this Section 10.4(a) is in effect. Any
repeal or modification of this Section 10.4(a) shall not
affect any rights or obligations then existing.
(vii) The Series G Debenture Issuer or the
Series G Trust may purchase and maintain insurance on
behalf of any person who is or was a Sponsor Indemnified
Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of
his status as such, whether or not the Series G
Debenture Issuer would have the power to indemnify him
against such liability under the provisions of this
Section 10.4(a).
(viii) For purposes of this Section 10.4(a),
references to "the Series G Trust" shall include, in
addition to the resulting or surviving entity, any
constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so
that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or
was serving at the request of such constituent entity as
a director, trustee, officer, employee or agent of
another entity, shall stand in the same position under
the provisions of this Section 10.4(a) with respect to
the resulting or surviving entity as he would have with
respect to such constituent entity if its separate
existence had continued.
(ix) The indemnification and advancement of
expenses provided by, or granted pursuant to, this
Section 10.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has
ceased to be a Sponsor Indemnified Person and shall
inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Series G Debenture Issuer agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Institutional Trustee and the Delaware
Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee and the
Delaware Trustee (each of the Persons in (i) through (iv)
being referred to as a "Fiduciary Indemnified Person") for,
and to hold each Fiduciary Indemnified Person harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses
(including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set
forth in this Section 10.4(b) shall survive the satisfaction
and discharge of this Series G Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Series G Trust, and the Series G Trust and the
Holders shall have no rights by virtue of this Series G Declaration in and to
such independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the Series
G Trust, shall not be deemed wrongful or improper. No Covered Person, the
Sponsor, the Delaware Trustee, or the Institutional Trustee shall be obligated
to present any particular investment or other opportunity to the Series G Trust
even if such opportunity is of a character that, if presented to the Series G
Trust, could be taken by the Series G Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Institutional Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE 11
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Series G Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Series G Trust,
the Regular Trustees shall keep, or cause to be kept, full
books of account, records and supporting documents, which
shall reflect in reasonable detail, each transaction of the
Series G Trust. The books of account shall be maintained on
the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied. The
Series G Trust shall use the accrual method of accounting for
United States federal income tax purposes. The Regular
Trustees of the Series G Trust shall at all times cause the
Series G Trust to comply fully with all applicable accounting
requirements (including, without limitation, requirements with
respect to audits, reports and disclosure and dissemination of
financial statements) of any exchange on which any of the
Series G Securities may at such time be listed or which are
required under applicable law. The books and records of the
Series G Trust, together with a copy of the Series G
Declaration and a certified copy of the Certificate of Trust,
and any amendment thereto shall at all times be maintained at
the principal office of the Series G Trust and shall be open
for inspection for any examination by any Holder or its duly
authorized representative for any purpose reasonably related
to its interest in the Series G Trust during normal business
hours.
(b) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders, any annual United States
federal income tax information statement, required by the
Code, containing such information with regard to the Series G
Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the
Code to deliver any such statement at a later date, the
Regular Trustees shall endeavor to deliver all such statements
within 30 days after the end of each Fiscal Year of the Series
G Trust.
(c) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United
States federal income tax return, on a Form 1041 or such other
form required by United States federal income tax law, and any
other annual income tax returns required to be filed by the
Regular Trustees on behalf of the Series G Trust with any
state or local taxing authority.
SECTION 11.3 Banking.
The Series G Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Series G Trust; provided, however, that all
payments of funds in respect of the Series G Debentures held by the
Institutional Trustee shall be made directly to the Institutional Trustee
Account and no other funds of the Series G Trust shall be deposited in the
Institutional Trustee Account. The sole signatories for such accounts shall be
designated by the Regular Trustees; provided, however, that the Institutional
Trustee shall designate the signatories for the Institutional Trustee Account.
SECTION 11.4 Withholding.
The Series G Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Series G Trust shall request, and the Holders shall provide to the Series G
Trust, such forms or certificates as are necessary to establish an exemption
from withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Series G Trust to assist it in
determining the extent of, and in fulfilling, its withholding obligations. The
Regular Trustees shall file required forms with applicable jurisdictions and,
unless an exemption from withholding is properly established by a Holder, shall
remit amounts withheld with respect to the Holder to applicable jurisdictions.
To the extent that the Series G Trust is required to withhold and pay over any
amounts to any authority with respect to distributions or allocations to any
Holder, the amount withheld shall be deemed to be a distribution in the amount
of the withholding to the Holder. In the event of any claimed over withholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from actual Distributions
made, the Series G Trust may reduce subsequent Distributions by the amount of
such withholding.
ARTICLE 12
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Series G Declaration
or by any applicable terms of the Series G Securities, this
Series G Declaration may only be amended by a written
instrument approved and executed by:
(i) the Regular Trustees (or, if there are more
than two Regular Trustees, a majority of the Regular
Trustees);
(ii) if the amendment affects the rights,
powers, duties, obligations or immunities of the
Institutional Trustee, the Institutional Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the
Delaware Trustee;
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an
Officers' Certificate from each of the Series G Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Series G Declaration
(including the terms of the Series G Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations
or immunities of the Institutional Trustee, the
Institutional Trustee shall have first received:
(A) an Officers' Certificate
from each of the Series G Trust and the Sponsor
that such amendment is permitted by, and conforms
to, the terms of this Series G Declaration
(including the terms of the Series G Securities);
and
(B) an opinion of counsel (who
may be counsel to the Sponsor or the Series G
Trust) that such amendment is permitted by, and
conforms to, the terms of this Series G
Declaration (including the terms of the Series G
Securities); and
(iii) to the extent the result of such amendment
would be to:
(A) cause the trust to fail to
continue to be classified for purposes of United
States federal income taxation as a grantor trust;
(B) reduce or otherwise
adversely affect the powers of the Institutional
Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Series G Trust
to be deemed to be an Investment Company
required to be registered under the Investment
Company Act;
(c)At such time after the Series G Trust has issued any Series
G Securities that remain outstanding, any amendment that would
adversely affect the rights, privileges or preferences of any
Holder may be effected only with such additional requirements
as may be set forth in the terms of such Series G Securities;
(d) Sections 4.4, 9.1(c) and this Section 12.1 shall not
be amended without the consent of all of the Holders of the
Series G Securities;
(e) Article 4 shall not be amended without the consent of
the Holders of a Majority in liquidation amount of the
Series G Common Securities;
(f)The rights of the holders of the Series G Common Securities
under Article 5 to increase or decrease the number of, and
appoint and remove Trustees shall not be amended without the
consent of the Holders of a Majority in liquidation amount of
the Series G Common Securities; and
(g) Notwithstanding Section 12.1(c), this Series G
Declaration may be amended without the consent of the
Holders to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Series G Declaration that may be defective or
inconsistent with any other provision of this Series G
Declaration;
(iii) add to the covenants, restrictions or
obligations of the Sponsor;
(iv)conform to any change in Rule 3a-5 or written change
in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material
adverse effect on the right, preferences or privileges
of the Holders;
(v) preserve the status of the Series G Trust as a
grantor trust for federal income tax purposes; and
(vi) make any other change that does not adversely
affect the rights of the Holders.
It shall not be necessary for any consent of the Holders under this Section 12.1
to approve the particular form of any proposed amendment or modification to this
Series G Declaration, but it shall be sufficient if such consent shall approve
the substance thereof.
SECTION 12.2 Meetings of the Holders; Action by Written
Consent.
(a)Meetings of the Holders of any class of Series G Securities
may be called at any time by the Regular Trustees (or as
provided in the terms of the Series G Securities) to consider
and act on any matter on which Holders of such class of Series
G Securities are entitled to act under the terms of this
Series G Declaration, the terms of the Series G Securities or
the rules of any stock exchange on which the Series G
Preferred Securities are listed or admitted for trading. The
Regular Trustees shall call a meeting of the Holders of such
class if directed to do so by the Holders of at least 10% in
liquidation amount of such class of Series G Securities. Such
direction shall be given by delivering to the Regular Trustees
one or more calls in a writing stating that the signing
Holders wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any
Holders calling a meeting shall specify in writing the
Certificates held by the Holders exercising the right to call
a meeting and only those Series G Securities specified shall
be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph
has been met.
(b) Except to the extent otherwise provided in the terms
of the Series G Securities, the following provisions shall
apply to meetings of Holders:
(i) notice of any such meeting shall be given to all the
Holders having a right to vote thereat at least 7 days
and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the
Holders is permitted or required under this Series G
Declaration or the rules of any stock exchange on which
the Series G Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be given
at a meeting of the Holders. Any action that may be
taken at a meeting of the Holders may be taken without a
meeting if a consent in writing setting forth the action
so taken is signed by the Holders owning not less than
the minimum amount of Series G Securities in liquidation
amount that would be necessary to authorize or take such
action at a meeting at which all Holders having a right
to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given
to the Holders entitled to vote who have not consented
in writing. The Regular Trustees may specify that any
written ballot submitted to the Holders for the purpose
of taking any action without a meeting shall be returned
to the Series G Trust within the time specified by the
Regular Trustees;
(ii) each Holder may authorize any Person to act for it
by proxy on all matters in which a Holder is entitled to
participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be
valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the Holder
executing it. Except as otherwise provided herein, all
matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law
of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Series G
Trust were a Delaware corporation and the Holders were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders shall be conducted
by the Regular Trustees or by such other Person that
the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Series G
Declaration, the terms of the Series G Securities, the
Trust Indenture Act or the listing rules of any stock
exchange on which the Series G Preferred Securities are
then listed or trading, otherwise provides, the Regular
Trustees, in their sole discretion, shall establish all
other provisions relating to meetings of Holders,
including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any
Holders, waiver of any such notice, action by consent
without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such
right to vote.
ARTICLE 13
REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of
Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Series G Trust and to the Sponsor at the date of this Series G
Declaration, and each Successor Institutional Trustee represents and warrants to
the Series G Trust and the Sponsor at the time of the Successor Institutional
Trustee's acceptance of its appointment as Institutional Trustee that:
(a)the Institutional Trustee is a Delaware banking corporation
with trust powers, duly organized, validly existing and in
good standing under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this
Series G Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of this Series G Declaration has been
duly authorized by all necessary corporate action on the part
of the Institutional Trustee. This Series G Declaration has
been duly executed and delivered by the Institutional Trustee,
and constitutes the legal, valid and binding obligation of the
Institutional Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general
principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this
Series G Declaration by the Institutional Trustee does not
conflict with or constitute a breach of the Articles of
Incorporation or By-laws of the Institutional Trustee;
(d) no consent, approval or authorization of, or
registration with or notice to, any State or Federal banking
authority is required for the execution, delivery or
performance by the Institutional Trustee, of this Series G
Declaration;
(e) on the closing date of the Series G Offer, the
Institutional Trustee will be the record holder of the
Series G Debentures and the Institutional Trustee has not
knowingly created any liens or encumbrances on such Series G
Debentures; and
(f) the Institutional Trustee satisfies the
qualifications set forth in Section 5.3.
SECTION 13.2 Representations and Warranties of Delaware
Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Series G Trust and to the Sponsor at the date of this Series G
Declaration, and each Successor Delaware Trustee represents and warrants to the
Series G Trust and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee that:
(a)the Delaware Trustee is a Delaware banking corporation with
trust powers, duly organized, validly existing and in good
standing under the laws of the State of Delaware, with trust
power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, this Series G
Declaration;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Series G
Declaration. The Series G Declaration under Delaware law
constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding
in equity or at law);
(c) no consent, approval or authorization of, or
registration with or notice to, any State or Federal banking
authority is required for the execution, delivery or
performance by the Delaware Trustee, of this Series G
Declaration; and
(d) the Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business
in the State of Delaware.
ARTICLE 14
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Series G Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Series G Trust, in care of the
Regular Trustees at the Trust's mailing address set forth
below (or such other address as the Series G Trust may give
notice of to the Holders):
General Motors Capital Trust G
c/o General Motors Corporation
100 Renaissance Center
Detroit, Michigan 48243-7301
Attention: General Counsel
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as the
Delaware Trustee may give notice of to the Holders):
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(c) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or
such other address as the Institutional Trustee may give
notice of to the Holders):
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(d) if given to the Holder of the Series G Common Securities,
at the mailing address of the Sponsor set forth below (or such
other address as the Holder of the Series G Common Securities
may give notice to the Series G Trust):
General Motors Corporation
100 Renaissance Center
Detroit, Michigan 48243-7301
Attention: General Counsel
(e) if given to any other Holder, at the address set
forth on the books and records of the Series G Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
THIS SERIES G DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Series G Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Series G Declaration shall be interpreted to further this
intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Series G Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Series G Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns
Whenever in this Series G Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Series G Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Series G Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Series G Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
This Series G Declaration may contain more than one counterpart of the
signature page and this Series G Declaration may be executed by the affixing of
the signature of each of the Trustees to one of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one, and
they shall have the same force and effect as though all of the signers had
signed a single signature page.
* * * * *
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ John D. Finnegan
John D. Finnegan, as Regular Trustee
/s/ Walter G. Borst
Walter G. Borst, as Regular Trustee
/s/ Martin I. Darvick
Martin I. Darvick, as Regular Trustee
WILMINGTON TRUST COMPANY,
as Institutional Trustee and as
Delaware Trustee
By: /s/ Donald G. MacKelcan
Name: Donald G. MacKelcan
Title: Assistant Vice President
GENERAL MOTORS CORPORATION,
as Sponsor
By: /s/ John D. Finnegan
Name: John D. Finnegan
Title: Assistant Vice President
and Treasurer
<PAGE>
- --------------------
SM"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
ANNEX I
TERMS OF
9.87% TRUST ORIGINATED PREFERRED SECURITIES, SERIES G
9.87% TRUST ORIGINATED COMMON SECURITIES, SERIES G
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of July 9, 1997 (as amended from time to time, the "Series G
Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Series G Securities are set out below
(each capitalized term used but not defined herein has the meaning set forth in
the Series G Declaration or, if not defined in the Series G Declaration, as
defined in the Prospectus referred to below):
1. Designation and Number.
(a) Series G Preferred Securities. 5,064,489 Series G Preferred Securities
of the Series G Trust with an aggregate stated liquidation amount with respect
to the assets of the Series G Trust of One Hundred and Twenty-Six Million Six
Hundred and Twelve Thousand Two Hundred and Twenty-Five Dollars ($126,612,225)
and a stated liquidation amount with respect to the assets of the Series G Trust
of $25 per preferred security, are hereby designated for the purposes of
identification only as "9.87% Trust Originated Preferred SecuritiesSM
("TOPrSSM"), Series G" (the "Series G Preferred Securities"). The Series G
Preferred Security Certificates evidencing the Series G Preferred Securities
shall be substantially in the form of Exhibit A-1 to the Series G Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Series G Preferred Securities are listed. The Series
G Preferred Securities shall be issued to former holders of Series G 9.12%
Depositary Shares ("Series G 9.12% Depositary Shares"), each representing
one-fourth of a share of Series G 9.12% Preference Stock (the "Series G 9.12%
Preference Stock"), of General Motors Corporation (the "Sponsor") in exchange
for such Series G 9.12% Depositary Shares pursuant to the Series G Offer.
(b) Series G Common Securities. 156,634 Series G Common Securities of the
Series G Trust with an aggregate stated liquidation amount with respect to the
assets of the Series G Trust of Three Million Nine Hundred and Fifteen Thousand
Eight Hundred and Fifty Dollars ($3,915,850) and a stated liquidation amount
with respect to the assets of the Series G Trust of $25 per common security, are
hereby designated for the purposes of identification only as "9.87% Trust
Originated Common Securities, Series G" (the "Series G Common Securities"). The
Series G Common Security Certificates evidencing the Series G Common Securities
shall be substantially in the form of Exhibit A-2 to the Series G Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice. The Series G Common Securities
are to be issued and sold to the Sponsor in consideration of $3,914,798.20 in
cash. Series G Common Securities may be issued in fractional share amounts.
(c) The Series G Preferred Securities and the Series G Common Securities
represent undivided beneficial ownership interests in the assets of the Series G
Trust.
(d) In connection with the Series G Offer and the purchase by the Sponsor
of the Series G Common Securities, the Sponsor will deposit in the Series G
Trust, and the Series G Trust will purchase, respectively, as trust assets,
Series G Debentures of the Sponsor having an aggregate principal amount equal to
One Hundred and Thirty Million Five Hundred and Twenty-Eight Thousand
Seventy-Five Dollars ($130,528,075), and bearing interest at an annual rate
equal to the annual Distribution rate on the Series G Preferred Securities and
Series G Common Securities and having payment and redemption provisions which
correspond to the payment and redemption provisions of the Series G Preferred
Securities and Series G Common Securities.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of 9.87% (the "Coupon Rate") of the stated liquidation amount of $25 per
Security, such rate being the rate of interest payable on the Series G
Debentures to be held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
Coupon Rate ("Compound Interest") (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and any
such interest (including Additional Interest and Compound Interest) payable
unless otherwise stated. A Distribution will be made by the Institutional
Trustee only to the extent that payments are made in respect of the Series G
Debentures held by the Institutional Trustee and to the extent the Series G
Trust has funds available in the Institutional Trustee Account. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed. In addition, Holders of Series G Preferred
Securities will be entitled to an additional cash distribution at the rate of
9.12% per annum of the liquidation amount thereof from April 1, 1997 through
July 2, 1997 (the expiration date of the Series G Offer, the "Expiration Date"),
in lieu of dividends accumulating and unpaid from April 1, 1997 on Series G
9.12% Depositary Shares accepted for exchange in the Series G Offer, such
additional distributions to be made on August 1, 1997 to Holders of the Series G
Preferred Securities on the record date for such distribution ("Pre-Issuance
Interest"). Payment of Pre-Issuance Interest may not be deferred as provided in
subsection (b) below.
<PAGE>
(b) Distributions on the Series G Securities will be cumulative, will
accrue from July 3, 1997, the first date following the Expiration Date (the
"Series G Accrual Date"), and, except as otherwise described below, will be
payable quarterly on February 1, May 1, August 1 and November 1 of each year,
commencing on August 1, 1997, when, as and if available for payment (a
"Distribution Payment Date"). With the exception of Pre-Issuance Interest, so
long as the Series G Debenture Issuer shall not be in default in the payment of
interest on the Series G Debentures, the Series G Debenture Issuer has the right
under the Indenture to defer payments of interest on the Series G Debentures by
extending the interest payment period from time to time on the Series G
Debentures for a period not exceeding 20 consecutive quarters (each a "Series G
Extension Period"), during which Series G Extension Period no interest shall be
due and payable on the Series G Debentures, provided that no Series G Extension
Period shall last beyond the Series G Stated Maturity. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly to the
extent permitted by law during any such Series G Extension Period. Prior to the
termination of any such Series G Extension Period, the Series G Debenture Issuer
may further extend such Series G Extension Period; provided that such Series G
Extension Period, together with all such previous and further extensions
thereof, may not exceed 20 consecutive quarters or extend beyond the Series G
Stated Maturity. Any interest accrued on the Series G Debentures during a Series
G Extension Period shall be paid Pro Rata to holders of Series G Debentures on
the first payment date following the Series G Extension Period and the Payment
Amount shall be paid Pro Rata to the Holders on the first Distribution Payment
Date following the Series G Extension Period. Upon the termination of any Series
G Extension Period and the payment of all amounts then due, the Series G
Debenture Issuer may commence a new Series G Extension Period, subject to the
above requirements. In the event that the Series G Debenture Issuer exercises
this right, then the Series G Debenture Issuer shall not (i) declare or pay any
dividend on, make a distribution with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital stock
(other than (a) purchases or acquisitions of shares of its common stock
(including, without limitation, all classes of common stock now or hereafter
issued) in connection with the satisfaction by the Series G Debenture Issuer of
its obligations under any employee benefit plans or any other contractual
obligation of the Series G Debenture Issuer (other than a contractual obligation
ranking pari passu with or junior to the Series G Debentures), (b) the issuance
of capital stock in connection with a recapitalization or reclassification of
the Series G Debenture Issuer's capital stock or the exchange or conversion of
one class or series of the Series G Debenture Issuer's capital stock for another
class or series of the Series G Debenture Issuer's capital stock, in each case
by merger or otherwise, or (c) the purchase of fractional interests in shares of
the Series G Debenture Issuer's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged), (ii) make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities issued by the Series G
Debenture Issuer that rank pari passu with or junior to such Series G Debentures
(including any other series of debentures) and (iii) make any guarantee payments
with respect to the foregoing (other than pursuant to the Series G Series G
Preferred Securities Guarantee).
(c) Distributions on the Series G Securities will be payable promptly by
the Institutional Trustee upon receipt of immediately available funds to the
Holders thereof as they appear on the books and records of the Series G Trust on
the relevant record dates, which will be the 15th day of the month immediately
preceding the month which includes the relevant distribution dates. The record
dates and distribution dates shall be the same as the record dates and payment
dates on the Series G Debentures. Distributions payable on any Series G
Securities that are not punctually paid on any Distribution Payment Date, as a
result of the Series G Debenture Issuer having failed to make the corresponding
interest payment on the Series G Debentures, will forthwith cease to be payable
to the Person in whose name such Series G Securities are registered on the
relevant record date, and such defaulted Distribution will instead be payable to
the Person in whose name such Series G Securities are registered on the special
record date established by the Regular Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall not
be considered payable on any Distribution Payment Date falling within a Series G
Extension Period unless the Series G Debenture Issuer has elected to make a full
or partial payment of interest accrued on the Series G Debentures on such
Distribution Payment Date. Distributions on the Series G Securities will be paid
by the Series G Trust. All Distributions paid with respect to the Series G
Securities shall be paid on a Pro Rata basis to Holders thereof entitled
thereto. If any date on which Distributions are payable on the Series G
Securities is not a Business Day, then payment of the Distribution payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) If at any time while the Institutional Trustee is the Holder of any
Series G Securities, the Series G Trust or the Institutional Trustee is required
to pay any taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Series G Debenture Issuer will pay as
additional interest ("Additional Interest") on the Series G Securities held by
the Institutional Trustee, such amounts as shall be required so that the net
amounts received and retained by the Series G Trust and the Institutional
Trustee after paying any such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Series G Trust and the Institutional
Trustee would have received had no such taxes, duties, assessments or other
governmental charges been imposed.
(e) In the event that there is any money or other property held by or for
the Series G Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Series G Trust (each a "Liquidation"), the
Holders on the date of the Liquidation will be entitled to receive Pro Rata out
of the assets of the Series G Trust available for distribution to Holders after
satisfaction of liabilities of creditors distributions in an amount equal to the
aggregate of the stated liquidation amount of $25 per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such Liquidation, Series
G Debentures in an aggregate stated principal amount equal to the aggregate
stated liquidation amount of such Series G Securities, with an interest rate
equal to the Coupon Rate of, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Series G
Securities, shall be distributed on a Pro Rata basis to the Holders in exchange
for such Series G Securities.
4. Redemption and Distribution.
(a) Redemption of the Series G Securities will occur simultaneously with
any repayment of the Series G Debentures. The Series G Debentures will mature on
July 1, 2012 (which date may be shortened to a date no earlier than January 1,
2001, subject to certain conditions) (such date, including as so shortened, the
"Series G Stated Maturity"). Upon the repayment of the Series G Debentures at
maturity, the proceeds from such repayment shall be simultaneously applied to
redeem Series G Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Series G Debentures so repaid at a redemption
price of $25 per Security, plus an amount equal to accrued and unpaid
Distributions thereon at the date of the redemption, payable in cash (the
"Maturity Redemption Price"). Holders will be given not less than 30 nor more
than 60 days notice of such redemption. Such notice can be given either before
or after repayment of the Series G Debentures.
(b) If, at any time prior to January 1, 2001, a Tax Event shall occur and
be continuing, the Series G Debenture Issuer shall have the right, upon not less
than 30 and no more than 60 days notice to holders of the Series G Debentures,
at its option, to redeem the Series G Debentures, in whole (but not in part),
for cash within 90 days following the occurrence of such Tax Event at a
prepayment price (the "Series G Tax Event Prepayment Price") equal to (i) 114%
of the principal amount of the Series G Debentures if such Series G Debentures
are prepaid during the period commencing on the Series G Accrual Date through
and including December 31, 1997 and (ii) the percentage of the principal amount
of the Series G Debentures specified below, if such Series G Debentures are
prepaid during the 12-month period beginning January 1 of the years indicated
below, plus, in each case, any accrued and unpaid interest thereon to the date
of prepayment:
Year Percentage
1998 110.5%
1999 107
2000 103.5
2001 and thereafter 100
Upon such redemption, all Series G Securities shall be redeemed by the
Series G Trust at a redemption price equal to the Series G Tax Event Prepayment
Price (the "Series G Tax Event Redemption Price").
(c) The Series G Debentures are redeemable in whole or in part, from time
to time, on or after January 1, 2001 upon not less than 30 nor more than 60 days
notice, at a prepayment price (the "Series G Optional Prepayment Price") equal
to 100% of the principal amount thereof, plus any accrued and unpaid interest
thereon to the date of prepayment. Upon such prepayment, the proceeds from such
prepayment shall simultaneously be applied to redeem Series G Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Series G Debentures so prepaid at a redemption price equal to the Series G
Optional Prepayment Price (the "Series G Optional Redemption Price").
Notwithstanding anything to the contrary contained herein, the Series G
Debenture Issuer may not redeem fewer than all of the Series G Debentures unless
all accrued and unpaid interest on all of the Series G Debentures has been paid
for all quarterly periods terminating on or prior to the date of prepayment.
"Series G Redemption Price" means the Maturity Redemption Price, the Series
G Optional Redemption Price or the Series G Tax Event Redemption Price, as the
context requires.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Series G Securities, there is more than an
insubstantial risk that (i) the Series G Trust is, or will be within 90 days of
the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Series G Debentures, (ii) interest
payable on the Series G Debentures is not, or within 90 days of the date thereof
will not be, deductible by the Company, in whole or in part, for United States
federal income tax purposes, or (iii) the Series G Trust is, or will be within
90 days of the date thereof, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
(d) If fewer than all the outstanding Series G Securities are to be so
redeemed, the Series G Common Securities and the Series G Preferred Securities
will be redeemed Pro Rata (as such term is defined in Section 8 hereof) as
described in Section 4(g)(ii) below.
(e) The Series G Trust may not redeem fewer than all the outstanding
Series G Securities unless all accrued and unpaid Distributions have been paid
on all Series G Securities for all quarterly Distribution periods terminating on
or before the date of redemption.
(f) The Series G Debenture Issuer will have the right at any time to
liquidate the Series G Trust and cause the Series G Debentures to be distributed
to the Holders. If the Series G Debentures are distributed to the Holders and
the Series G Preferred Securities are then listed on an exchange, the Series G
Debenture Issuer will use its best efforts to cause the Series G Debentures to
be listed on the NYSE or on such other exchange as the Series G Preferred
Securities are then listed.
On the date fixed for any distribution of Series G Debentures upon
dissolution of the Series G Trust, (i) the Series G Preferred Securities will no
longer be deemed to be outstanding, (ii) the Depository Institution or its
nominee, as the record holder of the Series G Preferred Securities, will receive
a registered global certificate or certificates representing the Series G
Debentures to be delivered upon such distribution, and (iii) any certificates
representing Series G Preferred Securities not held by the Depository
Institution or its nominee will be deemed to represent Series G Debentures
having an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the distribution rate of, and
accrued and unpaid interest equal to accrued and unpaid distributions on, such
Series G Preferred Securities until such certificates are presented to the
Series G Debenture Issuer or its agent for transfer or reissuance.
(g) Redemption or Distribution Procedures.
(i) Notice of any redemption of the Series G Debentures, or notice of
distribution of Series G Debentures in exchange for the Series G Securities (a
"Series G Redemption/Distribution Notice") will be given by the Series G Trust
by mail to each Holder of Series G Securities to be redeemed or exchanged not
fewer than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date fixed for
redemption of the Series G Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which notices are given pursuant
to this Section 4(f)(i), a Series G Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders. Each Series G Redemption/Distribution Notice shall
be addressed to the Holders at the address of each such Holder appearing in the
books and records of the Series G Trust. No defect in the Series G
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Series G Securities
are to be redeemed, the Series G Securities to be redeemed shall be redeemed Pro
Rata from each Holder, it being understood that, in respect of Series G
Preferred Securities registered in the name of and held of record by the
Depository Institution or its nominee, the distribution of the proceeds of such
redemption will be made to each Depository Institution Participant (or Person on
whose behalf such nominee holds such securities) in accordance with the
procedures applied by such agency or nominee.
(iii) If Series G Securities are to be redeemed and the Series G Trust
gives a Series G Redemption/Distribution Notice, which notice may only be issued
if the Series G Debentures are redeemed as set out in this Section 4 (which
notice will be irrevocable), then by 12:00 noon, Eastern time, on the redemption
date, the Series G Debenture Issuer will deposit with one or more paying agents
an amount of money sufficient to redeem on the redemption date all the Series G
Securities so called for redemption at the Series G Redemption Price. If a
Series G Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to the close of
business on the date of such deposit, or on the redemption date, as applicable,
distributions will cease to accrue on the Series G Securities so called for
redemption and all rights of Holders of such Series G Securities so called for
redemption will cease, except the right of the Holders of such Series G
Securities to receive the Series G Redemption Price, but without interest on
such Series G Redemption Price. On presentation and surrender of such Series G
Securities at a place of payment specified in said notice, the said Series G
Securities or the specified portions thereof shall be paid and redeemed by the
Series G Trust at the applicable Series G Redemption Price. Neither the Regular
Trustees nor the Series G Trust shall be required to register or cause to be
registered the transfer of any Series G Securities that have been so called for
redemption. If any date fixed for redemption of Series G Securities is not a
Business Day, then payment of the Series G Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Series G
Redemption Price in respect of any Series G Securities is improperly withheld or
refused and not paid either by the Institutional Trustee or by the Sponsor as
guarantor pursuant to the relevant Series G Securities Guarantee, Distributions
on such Series G Securities will continue to accrue from the original redemption
date to the actual date of payment, in which case the actual payment date will
be considered the date fixed for redemption for purposes of calculating the
Series G Redemption Price.
(iv) The Series G Trust shall not be required to (i) issue, or register the
transfer or exchange of, any Series G Securities during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Series G Securities and ending at the close of business on the day of the
mailing of the relevant notice of redemption and (ii) register the transfer or
exchange of any Series G Securities so selected for redemption, in whole or in
part, except the unredeemed portion of any Series G Securities being redeemed in
part.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and regulations of the Federal
Reserve Board), the Sponsor or any of its subsidiaries may at any time and from
time to time purchase outstanding Series G Preferred Securities by tender, in
the open market or by private agreement.
5. Voting Rights -- Series G Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as otherwise required
by law and the Series G Declaration, the Holders of the Series G Preferred
Securities will have no voting rights.
(b) Subject to the requirements set forth in the immediately following
paragraph, the Holders of a majority in aggregate liquidation amount of the
Series G Preferred Securities, voting separately as a class, have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or to direct the exercise of any trust
or power conferred upon the Institutional Trustee under the Series G
Declaration, including the right to direct the Institutional Trustee, as holder
of the Series G Debentures, to (i) exercise the remedies available to it under
the Indenture as holder of the Series G Debentures, (ii) waive any past Event of
Default and its consequences that is waivable under Section 5.07 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Series G Debentures shall be due and payable, or (iv)
consent to any amendment, modification or termination of the Indenture or the
Series G Debentures where such consent shall be required; provided, however,
that, where a consent or action under the Indenture would require the consent or
act of a Super Majority, only the Holders of at least such Super Majority in
aggregate liquidation amount of the Series G Preferred Securities may direct the
Institutional Trustee to give such consent or take such action; and provided
further, that where a consent or action under the Indenture is only effective
against each holder of Series G Debentures who has consented thereto, such
consent or action will only be effective against a holder of Series G Preferred
Securities who directs the Institutional Trustee to give such consent or take
such action. A waiver of an Indenture Event of Default will constitute a waiver
of the corresponding Declaration Event of Default. The Institutional Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Series G Preferred Securities. If the Institutional Trustee fails
to enforce its rights under the Series G Debentures after a holder of record of
Series G Preferred Securities has made a written request, such holder of record
of Series G Preferred Securities may institute a legal proceeding directly
against the Series G Debenture Issuer to enforce the Institutional Trustee's
rights under the Series G Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Series G
Debenture Issuer to pay interest or principal on the Series G Debentures on the
date such interest or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Series G Preferred
Securities may institute a Direct Action for enforcement of payment to such
Holder of the principal of or interest on the Series G Debentures having a
principal amount equal to the aggregate liquidation amount of the Series G
Preferred Securities of such holder on or after the respective due date
specified in the Series G Debentures. Notwithstanding any payments made to such
Holder of Series G Preferred Securities by the Series G Debenture Issuer in
connection with a Direct Action, the Series G Debenture Issuer shall remain
obligated to pay the principal of or interest on the Series G Debentures held by
the Series G Trust or the Institutional Trustee of the Series G Trust, and the
Series G Debenture Issuer shall be subrogated to the rights of the Holder of
such Series G Preferred Securities with respect to payments on the Series G
Preferred Securities to the extent of any payments made by the Series G
Debenture Issuer to such Holder in any Direct Action. Except as provided in the
preceding sentences, the Holders of Series G Preferred Securities will not be
able to exercise directly any other remedy available to the holders of the
Series G Debentures.
Except with respect to directing the time, method and place of conducting
a proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clauses (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of a nationally-recognized tax counsel
experienced in such matters to the effect that, as a result of such action, the
Series G Trust will not fail to be classified as a grantor trust for United
States federal income tax purposes.
Any approval or direction of Holders of Series G Preferred Securities may
be given at a separate meeting of Holders of Series G Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Series G
Securities in the Series G Trust or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which Holders of Series G
Preferred Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each Holder of
record of Series G Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Series G Preferred Securities
will be required for the Series G Trust to redeem and cancel Series G Preferred
Securities or to distribute the Series G Debentures in accordance with the
Series G Declaration and the terms of the Series G Securities.
Notwithstanding that Holders of Series G Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Series G Preferred Securities that are owned by the Sponsor or any Affiliate of
the Sponsor shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
Holders of the Series G Preferred Securities will have no rights to
appoint or remove the Trustees, who may be appointed, removed or replaced solely
by the Sponsor, as Holder of all of the Series G Common Securities.
6. Voting Rights -- Series G Common Securities.
(a) Except as provided under Sections 6(b), (c) and 7 and as otherwise
required by law and the Series G Declaration, the Holders of the Series G Common
Securities will have no voting rights.
(b) The Holders of the Series G Common Securities are entitled, in
accordance with Article 5 of the Series G Declaration, to vote to appoint,
remove or replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Series G Declaration and only after the
Event of Default with respect to the Series G Preferred Securities has been
cured, waived, or otherwise eliminated and subject to the requirements of the
second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Series G Common Securities, voting separately as a
class, may direct the time, method, and place of conducting any proceeding for
any remedy available to the Institutional Trustee, or exercising any trust or
power conferred upon the Institutional Trustee under the Series G Declaration,
including (i) directing the time, method, place of conducting any proceeding for
any remedy available to the Debt Trustee, or exercising any trust or power
conferred on the Debt Trustee with respect to the Series G Debentures, (ii)
waive any past default and its consequences that is waivable under Section 5.07
of the Indenture, or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Series G Debentures shall be due and payable;
provided that, where a consent or action under the Indenture would require the
consent or act of a Super Majority of holders of Series G Debentures affected
thereby the Institutional Trustee may only give such consent or take such action
at the written direction of the holders of at least the proportion in
liquidation amount of the Series G Common Securities which the relevant Super
Majority represents of the aggregate principal amount of the Series G Debentures
outstanding; and provided further, that where a consent or action under the
Indenture would require the consent or action of each holder of Series G
Debentures, each Holder of Series G Preferred Securities must direct the
Institutional Trustee to give such consent or take such action. Pursuant to this
Section 6(c), the Institutional Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Series G Preferred
Securities. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Series G
Common Securities under this paragraph unless the Institutional Trustee has
obtained an opinion of a nationally-recognized tax counsel experienced in such
matters to the effect that, as a result of such action, the Series G Trust will
not fail to be classified as a grantor trust for United States federal income
tax purposes. If the Institutional Trustee fails to enforce its rights under the
Series G Declaration, any Holder of Series G Common Securities may institute a
legal proceeding directly against any Person to enforce the Institutional
Trustee's rights under the Series G Declaration, without first instituting a
legal proceeding against the Institutional Trustee or any other Person.
Any approval or direction of Holders of Series G Common Securities may be
given at a separate meeting of Holders of Series G Common Securities convened
for such purpose, at a meeting of all of the Holders of Series G Securities in
the Series G Trust or pursuant to written consent. The Regular Trustees will
cause a notice of any meeting at which Holders of Series G Common Securities are
entitled to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Series G Common
Securities. Each such notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Series G Common Securities will
be required for the Series G Trust to redeem and cancel Series G Common
Securities or to distribute the Series G Debentures in accordance with the
Series G Declaration and the terms of the Series G Securities.
7. Amendments to Series G Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the Series G
Declaration, if any proposed amendment to the Series G Declaration provides for,
or the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Series G
Securities, whether by way of amendment to the Series G Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of the Series G
Trust, other than as described in Section 8.1 of the Series G Declaration, then
the Holders of outstanding Series G Securities voting together as a single class
will be entitled to vote on such amendment or proposal (but not on any other
amendment or proposal) and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in liquidation
amount of the Series G Securities affected thereby, provided, that, if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Series G Preferred Securities or only the Series G Common Securities,
then only the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of Series G
Securities.
(b) In the event the consent of the Institutional Trustee, as the holder
of the Series G Debentures, is required under the Indenture with respect to any
amendment, modification or termination on the Indenture, the Institutional
Trustee shall request the written direction of the Holders of the Series G
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Series G Securities voting together as a
single class; provided, however, that where a consent under the Indenture would
require the consent of a Super Majority, the Institutional Trustee may only give
such consent at the direction of the Holders of at least the proportion in
liquidation amount of the Series G Securities which the relevant Super Majority
represents of the aggregate principal amount of the Series G Debentures
outstanding; provided, that where a consent or action under the Indenture is
only effective against each holder of Series G Debentures who has consented
thereto, such consent or action will only be effective against a holder of
Series G Preferred Securities who directs the Institutional Trustee to give such
consent or take such action; and provided further, that the Institutional
Trustee shall not take any action in accordance with the directions of the
Holders of the Series G Securities under this Section 7(b) unless the
Institutional Trustee has obtained an opinion of a nationally recognized tax
counsel experienced in such matters to the effect that for the purposes of
United States federal income tax the Series G Trust will not be classified as
other than a grantor trust on account of such action.
(c) Notwithstanding the foregoing, no amendment or modification may be
made to the Series G Declaration if such amendment or modification would (i)
cause the Series G Trust to be classified for purposes of United States federal
income taxation as other than a grantor trust, (ii) reduce or otherwise
adversely affect the powers of the Institutional Trustee or (iii) cause the
Series G Trust to be deemed an "investment company" which is required to be
registered under the Investment Company Act.
8. Pro Rata.
A reference in these terms of the Series G Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
according to the aggregate stated liquidation amount of the Series G Securities
held by the relevant Holder in relation to the aggregate stated liquidation
amount of all Series G Securities outstanding unless, in relation to a payment,
an Event of Default under the Series G Declaration has occurred and is
continuing, in which case any funds available to make such payment shall be paid
first to each Holder of the Series G Preferred Securities pro rata according to
the aggregate stated liquidation amount of Series G Preferred Securities held by
the relevant Holder relative to the aggregate stated liquidation amount of all
Series G Preferred Securities outstanding, and only after satisfaction of all
amounts owed to the Holders of the Series G Preferred Securities, to each Holder
of Series G Common Securities pro rata according to the aggregate stated
liquidation amount of Series G Common Securities held by the relevant Holder
relative to the aggregate stated liquidation amount of all Series G Common
Securities outstanding.
9. Ranking.
The Series G Preferred Securities rank pari passu, and payment thereon
shall be made Pro Rata, with the Series G Common Securities except that, where
an Event of Default occurs and is continuing, the rights of Holders of the
Series G Common Securities to receive payment of periodic Distributions and
payments upon liquidation, redemption and otherwise will be subordinated to the
rights of the Holders of the Series G Preferred Securities.
10. Listing.
The Regular Trustees shall use their best efforts to cause the Series G
Preferred Securities to be listed for quotation on the NYSE.
11. Acceptance of Series G Securities Guarantee and Indenture.
Each Holder of Series G Preferred Securities and Series G Common
Securities, by the acceptance thereof, agrees to the provisions of the Series G
Series G Preferred Securities Guarantee and the Series G Common Securities
Guarantee, respectively, including the subordination provisions therein, and to
the provisions of the Indenture.
12. No Preemptive Rights.
The Holders shall have no preemptive rights to subscribe for any
additional securities.
13. Miscellaneous.
These terms constitute a part of the Series G Declaration.
The Sponsor will provide a copy of the Series G Declaration, the Series G
Series G Preferred Securities Guarantee or the Series G Common Securities
Guarantee (as may be appropriate), and the Indenture to a Holder without charge
on written request to the Sponsor at its principal place of business.
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
Certificate Number _____ Number of Preferred Securities _____
CUSIP NO. 370440208
Certificate Evidencing Preferred Securities
of
GENERAL MOTORS CAPITAL TRUST G
9.87% Trust Originated Preferred Securities1M, Series G ("TOPrSSM")
(liquidation amount $25 per Preferred Security)
GENERAL MOTORS CAPITAL TRUST G, a statutory business trust formed under
the laws of the State of Delaware (the "Series G Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of preferred securities of
the Series G Trust representing undivided beneficial ownership interests in the
assets of the Series G Trust, designated the 9.87% Trust Originated Preferred
SecuritiesSM, Series G (liquidation amount $25 per Preferred Security) (the
"Series G Preferred Securities"). The Series G Preferred Securities are
transferable on the books and records of the Series G Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Series G Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Series G
Trust dated as of July 9, 1997, as the same may be amended from time to time
(the "Series G Declaration"), including the designation of the terms of the
Series G Preferred Securities as set forth in Annex I to the Series G
Declaration. Capitalized terms used herein but not defined shall have the
meanings given them in the Series G Declaration. The Holder is entitled to the
benefits of the Series G Preferred Securities Guarantee to the extent provided
therein. The Sponsor will provide a copy of the Series G Declaration, the Series
G Preferred Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Series G Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Series G
Declaration and is entitled to the benefits thereunder. In addition, the Holder
is deemed to have (i) agreed to the terms of the Indenture and the Series G
Debentures, including that the Series G Debentures are subordinate and junior in
right of payment to all present and future Senior Indebtedness and Other
Financial Obligations (as defined in the Indenture) as and to the extent
provided in the Indenture and (ii) agreed to the terms of the Series G Preferred
Securities Guarantee, including that the Series G Preferred Securities Guarantee
is subordinate and junior in right of payment to all other liabilities of the
Sponsor, including the Series G Debentures, except those made pari passu or
subordinate by their terms, and pari passu with the most senior preferred or
preference stock now or hereafter issued by the Sponsor and with any guarantee
now or hereafter entered into by the Sponsor in respect of any preferred or
preference stock of any Affiliate of the Sponsor.
By accepting this certificate, the Holder agrees to treat, for United
States federal income tax purposes, the Series G Debentures as indebtedness and
the Series G Preferred Securities as evidence of indirect beneficial ownership
in the Series G Debentures.
Unless the Authenticating Agent's Certificate of Authentication hereon has
been properly executed, these Series G Preferred Securities shall not be
entitled to any benefit under the Series G Declaration or be valid or obligatory
for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Series G Trust has caused this certificate to be
signed by its duly authorized Regular Trustees.
GENERAL MOTORS CAPITAL TRUST G
By:
Name:
Title: Regular Trustee
By:
Name:
Title: Regular Trustee
By:
Name:
Title: Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Series G Preferred Securities referred to in the
within-mentioned Series G Declaration.
Dated _____________, ________
-----------------------,
as Authenticating Agent
By:
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Series G Preferred Security will be fixed at
a rate per annum of 9.87% (the "Coupon Rate") of the stated liquidation amount
of $25 per Preferred Security, such rate being the rate of interest payable on
the Series G Debentures to be held by the Institutional Trustee. Distributions
in arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest (including Additional Interest and Compound
Interest) payable unless otherwise stated. A Distribution will be made by the
Institutional Trustee only to the extent that payments are made in respect of
the Series G Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available in the Institutional Trustee Account.
The amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed. In addition, Holders will be entitled to an
additional cash distribution at the rate of 9.12% per annum of the stated
liquidation amount from April 1, 1997 through July 2, 1997 (the expiration date
of the Series G Offer, the "Expiration Date") in lieu of dividends accumulating
and unpaid from April 1, 1997 on Series G 9.12% Depositary Shares accepted for
exchange in the Series G Offer, such additional distributions to be made on
August 1, 1997 to Holders of record on the record date for such distribution
("Pre-Issuance Interest"). Payment of such additional cash distribution may not
be deferred as provided in the succeeding paragraph.
Except as otherwise described below, Distributions on the Series G
Preferred Securities will be cumulative, will accrue from July 3, 1997, the
first date following the Expiration Date, and, except as otherwise described
below, will be payable quarterly on February 1, May 1, August 1 and November 1
of each year, commencing on August 1, 1997, to Holders of record on the relevant
record dates, which in each case will be the 15th day of the month immediately
preceding the month which includes the relevant distribution date. The record
dates and distribution dates shall be the same as the record dates and payment
dates on the Series G Debentures. With the exception of Pre-Issuance Interest,
so long as the Series G Debenture Issuer shall not be in default in the payment
of interest on the Series G Debentures, the Series G Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Series G Debentures for a
period not exceeding 20 consecutive quarters (each an "Series G Extension
Period"), provided that no Series G Extension Period shall last beyond Series G
Stated Maturity. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Series G Extension Period. Prior to
the termination of any such Series G Extension Period, the Series G Debenture
Issuer may further extend such Series G Extension Period; provided that such
Series G Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the Series G
Stated Maturity. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Series G Trust on the first record
date after the end of the Series G Extension Period. Upon the termination of any
Series G Extension Period and the payment of all amounts then due, the Series G
Debenture Issuer may commence a new Series G Extension Period, subject to the
above requirements.
The Series G Preferred Securities shall be redeemable as provided in the
Series G Declaration.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Series G
Preferred Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints ------------------------------------
to transfer this Series G Preferred Security Certificate on the books of
the Series G Trust. The agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other
side of this Series G Preferred Security
Certificate)
(Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Trustee, which requirements include membership
or participation in STAMP or such other "signature
guaranty program" as may be determined by the
Trustee in addition to or in substitution for
STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number __________ Number of Common Securities __________
Certificate Evidencing Common Securities
of
GENERAL MOTORS CAPITAL TRUST G
9.87% Trust Originated Common Securities, Series G
(liquidation amount $25 per Common Security)
GENERAL MOTORS CAPITAL TRUST G, a statutory business trust formed under
the laws of the State of Delaware (the "Series G Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of common securities of
the Series G Trust representing undivided beneficial ownership interests in the
assets of the Series G Trust, designated the 9.87% Trust Originated Common
Securities (liquidation amount $25 per Common Security) (the "Series G Common
Securities"). The Series G Common Securities are transferable on the books and
records of the Series G Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Series G Common Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Series G Trust dated as of July 9, 1997, as the same
may be amended from time to time (the "Series G Declaration"), including the
designation of the terms of the Series G Common Securities as set forth in Annex
I to the Series G Declaration. Capitalized terms used herein but not defined
shall have the meaning given them in the Series G Declaration. The Holder is
entitled to the benefits of the Series G Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Series G
Declaration, the Series G Common Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Sponsor at its principal place
of business.
Upon receipt of this certificate, the Sponsor is bound by the Series G
Declaration and is entitled to the benefits thereunder. In addition, the Holder
is deemed to have (i) agreed to the terms of the Indenture and the Series G
Debentures, including that the Series G Debentures are subordinate and junior in
right of payment to all present and future Senior Indebtedness and Other
Financial Obligations (as defined in the Indenture) as and to the extent
provided in the Indenture and (ii) agreed to the terms of the Series G Preferred
Securities Guarantee, including that the Series G Preferred Securities Guarantee
is subordinate and junior in right of payment to all other liabilities of the
Sponsor, including the Series G Debentures, except those made pari passu or
subordinate by their terms, and pari passu with the most senior preferred or
preference stock now or hereafter issued by the Sponsor and with any guarantee
now or hereafter entered into by the Sponsor in respect of any preferred or
preference stock of any Affiliate of the Sponsor.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Series G Debentures as indebtedness and the Series G
Common Securities as evidence of indirect beneficial ownership in the Series G
Debentures.
Unless the Authenticating Agent's Certificate of Authentication hereon has
been properly executed, these Series G Common Securities shall not be entitled
to any benefit under the Series G Declaration or be valid or obligatory for any
purpose.
<PAGE>
IN WITNESS WHEREOF, the Series G Trust has caused this certificate to be
signed by its duly authorized Regular Trustees.
GENERAL MOTORS CAPITAL TRUST G
By:
Name:
Title: Regular Trustee
By:
Name:
Title: Regular Trustee
By:
Name:
Title: Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Series G Common Securities referred to in the
within-mentioned Series G Declaration.
Dated _____________, ________
-----------------------------,
as Authenticating Agent
By:
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Series G Common Security will be fixed at a
rate per annum of 9.87% (the "Coupon Rate") of the stated liquidation amount of
$25 per Common Security, such rate being the rate of interest payable on the
Series G Debentures to be held by the Institutional Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by
applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest (including Additional Interest and Compound
Interest) payable unless otherwise stated. A Distribution will be made by the
Institutional Trustee only to the extent that payments are made in respect of
the Series G Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available in the Institutional Trustee Account.
The amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed.
Except as otherwise described below, distributions on the Series G Common
Securities will be cumulative, will accrue from July 3, 1997, the first date
following the expiration date of the Series G Offer, and, except as otherwise
described below, will be payable quarterly on February 1, May 1, August 1 and
November 1 of each year, commencing on August 1,1997, to Holders of record on
relevant record dates, which in each case will be the 15th day of the month
immediately preceding the month which includes the relevant distribution date.
The record dates and distribution dates shall be the same as the record and
payment dates on the Series G Debentures. So long as the Series G Debenture
Issuer shall not be in default in the payment of interest on the Series G
Debentures, the Series G Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period from time to
time on the Series G Debentures for a period not exceeding 20 consecutive
quarters (each an "Series G Extension Period"), provided that no Series G
Extension Period shall last beyond the Series G Stated Maturity. As a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Coupon Rate compounded
quarterly during any such Series G Extension Period. Prior to the termination of
any such Series G Extension Period, the Series G Debenture Issuer may further
extend such Series G Extension Period; provided that such Series G Extension
Period together with all such previous and further extensions thereof may not
exceed 20 consecutive quarters or extend beyond the Series G Stated Maturity.
Payments of accrued Distributions will be payable to Holders as they appear on
the books and records of the Series G Trust on the first record date after the
end of the Series G Extension Period. Upon the termination of any Series G
Extension Period and the payment of all amounts then due, the Series G Debenture
Issuer may commence a new Series G Extension Period, subject to the above
requirements.
The Series G Common Securities shall be redeemable as provided in the
Series G Declaration.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Series G
Common Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints _________________________________________ this
Series G Common Security Certificate on the books of the Series G
Trust. The agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other
side of this Series G Common Security Certificate)
(Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Trustee, which requirements include membership
or participation in STAMP or such other "signature
guaranty program" as may be determined by the
Trustee in addition to or in substitution for
STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
- --------
1SM"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
GMNEWIN.PB7
FOOTER B HAS BEEN ENTERED (DRAFT)
INDENTURE
between
GENERAL MOTORS CORPORATION
and
WILMINGTON TRUST COMPANY
Dated as of July 1, 1997
JUNIOR SUBORDINATED DEBENTURES
<PAGE>
TABLE OF CONTENTS*
Page
ARTICLE 1
DEFINITIONS 1
SECTION 1.1 Definitions. 1
ARTICLE 2
SECURITIES 6
SECTION 2.1 Forms Generally 6
SECTION 2.2 Form of Debt Trustee's Certificate of Authentication. 6
SECTION 2.3 Amount Unlimited; Issuable in Series. 6
SECTION 2.4 Authentication and Dating. 8
SECTION 2.5 Date and Denomination of Securities 9
SECTION 2.6 Execution of Securities 10
SECTION 2.7 Exchange and Registration of Transfer of Securities 10
SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Securities 11
SECTION 2.9 Temporary Securities 12
SECTION 2.10 Cancellation of Securities Paid, etc. 12
SECTION 2.11 Global Securities 12
ARTICLE 3
PARTICULAR COVENANTS OF THE CORPORATION 13
SECTION 3.1 Payment of Principal, Premium and Interest 13
SECTION 3.2 Offices for Notices and Payments, etc. 13
SECTION 3.3 Appointments to Fill Vacancies in Debt Trustee's Office 14
SECTION 3.4 Provision as to Paying Agent 14
SECTION 3.5 Certificate to Debt Trustee 14
SECTION 3.6 Compliance with Consolidation Provisions 14
SECTION 3.7 Limitation on Dividends; Transactions with Affiliates 15
SECTION 3.8 Covenants as to General Motors Capital Trusts 15
SECTION 3.9 Notice of Default 15
ARTICLE 4
SECURITYHOLDERS' LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE. 15
SECTION 4.1 Securityholders' Lists 15
SECTION 4.2 Preservation and Disclosure of Lists. 16
SECTION 4.3 Reports by Corporation 17
SECTION 4.4 Reports by the Debt Trustee 17
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT 18
SECTION 5.1 Events of Default 18
SECTION 5.2 Payment of Securities on Default; Suit Therefor 19
SECTION 5.3 Application of Moneys Collected by Debt Trustee 21
SECTION 5.4 Proceedings by Securityholders 21
SECTION 5.5 Proceedings by Debt Trustee 22
SECTION 5.6 Remedies Cumulative and Continuing 22
SECTION 5.7 Direction of Proceedings and Waiver of Defaults
by Majority of Securityholders 22
SECTION 5.8 Notice of Defaults 23
SECTION 5.9 Undertaking to Pay Costs 23
ARTICLE 6
CONCERNING THE TRUSTEE 23
SECTION 6.1 Duties and Responsibilities of Debt Trustee 23
SECTION 6.2 Reliance on Documents, Opinions, etc. 24
SECTION 6.3 No Responsibility for Recitals, etc. 25
SECTION 6.4 Debt Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or Registrar May Own Securities 25
SECTION 6.5 Moneys to be Held in Trust 25
SECTION 6.6 Compensation and Expenses of Debt Trustee 26
SECTION 6.7 Officers' Certificate as Evidence 26
SECTION 6.8 Conflicting Interest of Debt Trustee 26
SECTION 6.9 Eligibility of Debt Trustee 26
SECTION 6.10 Resignation or Removal of Debt Trustee 27
SECTION 6.11 Acceptance by Successor Debt Trustee 28
SECTION 6.12 Succession by Merger, etc 28
SECTION 6.13 Limitation on Rights of Debt Trustee as a Creditor 29
SECTION 6.14 Authenticating Agents 29
ARTICLE 7
CONCERNING THE SECURITYHOLDERS 30
SECTION 7.1 Action by Securityholders 30
SECTION 7.2 Proof of Execution by Securityholders 30
SECTION 7.3 Who Are Deemed Absolute Owners 30
SECTION 7.4 Securities Owned by Corporation Deemed Not Outstanding 31
SECTION 7.5 Revocation of Consents; Future Holders Bound 31
ARTICLE 8
SECURITYHOLDERS' MEETINGS 31
SECTION 8.1 Purposes of Meetings 31
SECTION 8.2 Call of Meetings by Debt Trustee 32
SECTION 8.3 Call of Meetings by Corporation or Securityholders 32
SECTION 8.4 Qualifications for Voting 32
SECTION 8.5 Regulations 32
SECTION 8.6 Voting 33
ARTICLE 9
SUPPLEMENTAL INDENTURES 33
SECTION 9.1 Supplemental Indentures without Consent of
Securityholders 33
SECTION 9.2 Supplemental Indentures with Consent of Securityholders 34
SECTION 9.3 Compliance with Trust Indenture Act;
Effect of Supplemental Indentures 35
SECTION 9.4 Notation on Securities 35
SECTION 9.5 Evidence of Compliance of Supplemental
Indenture to be Furnished Debt Trustee 35
ARTICLE 10
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE 36
SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms 36
SECTION 10.2 Successor Corporation to be Substituted for Corporation 36
SECTION 10.3 Opinion of Counsel to be Given Debt Trustee 36
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE 37
SECTION 11.1 Discharge of Indenture 37
SECTION 11.2 Deposited Moneys and U.S. Government Obligations
to be Held in Trust by Debt Trustee 37
SECTION 11.3 Paying Agent to Repay Moneys Held 37
SECTION 11.4 Return of Unclaimed Moneys 37
SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S.
Government Obligations 38
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS 39
SECTION 12.1 Indenture and Securities Solely Corporate Obligations 39
ARTICLE 13
MISCELLANEOUS PROVISIONS 39
SECTION 13.1 Successors 39
SECTION 13.2 Official Acts by Successor Corporation 39
SECTION 13.3 Surrender of Corporation Powers 39
SECTION 13.4 Addresses for Notices, etc. 40
SECTION 13.5 Governing Law 40
SECTION 13.6 Evidence of Compliance with Conditions Precedent 40
SECTION 13.7 Legal Holidays 40
SECTION 13.8 Trust Indenture Act to Control 40
SECTION 13.9 Table of Contents, Headings, etc. 41
SECTION 13.10 Execution in Counterparts 41
SECTION 13.11 Separability 41
SECTION 13.12 Assignment 41
SECTION 13.13 Acknowledgment of Rights 41
ARTICLE 14
REDEMPTION OF SECURITIES--MANDATORY ANDOPTIONAL SINKING FUND 41
SECTION 14.1 Applicability of Article 41
SECTION 14.2 Notice of Redemption; Selection of Securities 42
SECTION 14.3 Payment of Securities Called for Redemption 42
SECTION 14.4 Mandatory and Optional Sinking Fund 43
ARTICLE 15
SUBORDINATION OF SECURITIES 44
SECTION 15.1 Agreement to Subordinate 44
SECTION 15.2 Default on Senior Indebtedness 44
SECTION 15.3 Liquidation; Dissolution; Bankruptcy 45
SECTION 15.4 Subrogation 46
SECTION 15.5 Debt Trustee to Effectuate Subordination 46
SECTION 15.6 Notice by the Corporation 47
SECTION 15.7 Rights of the Debt Trustee; Holders of Senior
Indebtedness and Other Financial Obligations 47
SECTION 15.8 Subordination May Not Be Impaired 47
<PAGE>
CROSS-REFERENCE TABLE
of provisions of the Trust Indenture Act to the provisions of the Indenture
dated as of July 1, 1997 between General Motors Corporation and Wilmington Trust
Company, as Debt Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1).................................................. 6.9
310(a)(2).................................................. 6.9
310(a)(3).................................................. N/A
310(a)(4).................................................. N/A
310(b)..................................................... 6.8; 6.10(a), (b)
and (d)
310(c)..................................................... N/A
311(a) and (b)............................................. 6.13
311(c)..................................................... N/A
312(a)..................................................... 4.1; 4.2(a)
312(b) and (c)............................................. 4.2(b) and (c)
313(a)..................................................... 4.4(a)
313(b)(1).................................................. N/A
313(b)(2).................................................. 4.4(b)
313(c)..................................................... 4.4(c)
313(d)..................................................... 4.4(d)
314(a)..................................................... 4.3
314(b)..................................................... N/A
314(c)(1) and (2).......................................... 13.6
314(c)(3).................................................. N/A
314(d)..................................................... N/A
314(e)..................................................... 13.0
314(f)..................................................... N/A
315(a), (c) and (d)........................................ 6.1
315(b)..................................................... 5.8
315(e)..................................................... 5.9
316(a)(1).................................................. 5.1; 5.7
316(a)(2).................................................. Omitted
316(a) last sentence....................................... 7.4
316(b)..................................................... 5.4
317(a)..................................................... 5.2
317(b)..................................................... 3.4(a)
318(a)..................................................... 13.8
THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE AS EXECUTED.
<PAGE>
THIS INDENTURE, dated as of July 1, 1997, between General Motors
Corporation, a Delaware corporation (hereinafter sometimes called the
"Corporation"), and Wilmington Trust Company, a Delaware banking corporation, as
trustee (hereinafter sometimes called the "Debt Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Corporation has duly
authorized the issuance from time to time of its junior subordinated unsecured
debentures, notes or other evidence of indebtedness to be issued in one or more
series (the "Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture and,
to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Corporation has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms, have been done and performed;
NOW, THEREFORE, this Indenture Witnesseth:
In consideration of the premises, and the purchase of the Securities by
the holders thereof, the Corporation covenants and agrees with the Debt Trustee
for the equal and proportionate benefit of the respective holders from time to
time of the Securities or of a series thereof, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
The terms defined in this Section 1.1 (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 1.1. All other terms used in this
Indenture which are defined in the Trust Indenture Act, as amended (the "Trust
Indenture Act"), or which are by reference therein defined in the Securities Act
of 1933, as amended (the "Securities Act"), shall (except as herein otherwise
expressly provided or unless the context otherwise requires) have the meanings
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. All accounting
terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles and the
term "generally accepted accounting principles" means such accounting principles
as are generally accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
"Additional Provisions" shall have the meaning given to such term in
Section 15.1.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote, 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
<PAGE>
"Authenticating Agent" shall mean any agent or agents of the Debt Trustee
which at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" shall mean the Board of Directors or the Executive
Committee or any other duly authorized committee thereof of the Corporation.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an 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.
"Business Day" shall mean, with respect to any series of Securities, any
day other than a day on which Federal or State banking institutions in New York,
New York or Wilmington, Delaware are authorized or obligated by law, executive
order or regulation to close.
"Certificate" shall mean a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Corporation.
"Certificate of Authentication" shall mean the certificate issued by the
Debt Trustee or the Authenticating Agent as to the form of Security issued under
the Indenture.
"Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities" shall mean undivided beneficial ownership interests in
the assets of a General Motors Capital Trust which rank pari passu with
Preferred Securities issued by such General Motors Capital Trust; provided,
however, that upon the occurrence of an Event of Default, the rights of holders
of Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of Preferred Securities.
"Common Securities Guarantee" shall mean, with respect to a General Motors
Capital Trust, any guarantee that the Corporation may enter into with any Person
or Persons that operate directly or indirectly for the benefit of holders of
Common Securities of such General Motors Capital Trust.
"Corporation" shall mean General Motors Corporation, a Delaware
corporation, and, subject to the provisions of Article Ten, shall include its
successors and assigns.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debt Trustee" shall mean the Person identified as "Debt Trustee" in the
first paragraph hereof, and, subject to the provisions of Article Six hereof,
shall also include its successors and assigns as Debt Trustee hereunder. The
term "Debt Trustee" as used with respect to a particular series of the
Securities shall mean the trustee with respect to that series.
"Declaration", with respect to a General Motors Capital Trust, shall mean
the Declaration of Trust, as amended, of such General Motors Capital Trust.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the meaning given to such term in Section
2.5. "Defeasance Agent" shall have the meaning given to such term in
Section 11.5(c).
"Depository Institution" shall mean, with respect to Securities of any
series, for which the Corporation shall determine that such Securities will be
issued as a Global Security, The Depository Trust Company, New York, New York,
The Philadelphia Depository Trust Company, Philadelphia, Pennsylvania, another
clearing agency, or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or other
applicable statute or regulation, which, in each case, shall be designated by
the Corporation pursuant to either Section 2.3 or 2.11.
"Discharged" shall have the meaning given to such term in Section 11.5(b).
"Event of Default" shall mean, with respect to any series of Securities,
any event specified in Section 5.1, continued for the period of time, if any,
and after the giving of the notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"General Motors Capital Trust" shall mean each of General Motors Capital
Trust D and General Motors Capital Trust G, each a Delaware business trust, or
any other similar trust created for the purpose of issuing securities in
connection with the issuance of Securities under this Indenture.
"General Motors Common Stock" shall mean the common stock of the
Corporation (including, without limitation, the Class H Common Stock, par value
$0.10 per share, of the Corporation, the Common Stock, par value $1 per share,
of the Corporation and all other classes of common stock of the Corporation now
or hereafter issued) or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Global Security" means, with respect to any series of Securities, a
Security executed by the Corporation and delivered by the Debt Trustee to the
Depository Institution or pursuant to the Depository Institution's instruction,
all in accordance with the Indenture, which shall be registered in the name of
the applicable Depository Institution or its nominee.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of particular series of Securities
established as contemplated hereunder.
"Institutional Trustee", with respect to a General Motors Capital Trust,
has the meaning set forth in the Declaration of such General Motors Capital
Trust.
"Interest" shall mean, when used with respect to non-interest bearing
Securities, interest payable at maturity.
"Interest Payment Date", when used with respect to any installment of
interest on a Security of a particular series, shall mean the date specified in
such Security or in a Board Resolution or in an indenture supplemental hereto
with respect to such series as the fixed date on which an installment of
interest with respect to Securities of that series is due and payable.
"Mortgage" shall mean and include any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" shall mean a certificate signed by the Chairman of
the Board, the President or any Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of the Corporation and delivered to the Debt Trustee.
Each such certificate shall include the statements provided for in Section 13.6
if and to the extent provided by the provisions of such Section.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel experienced in the matters as to which such opinion is being delivered,
who may be an employee of or counsel to the Corporation, or may be other counsel
satisfactory to the Debt Trustee. Each such opinion shall include the statements
provided for in Section 13.6 if and to the extent required by the provisions of
such Section.
"Other Financial Obligations" means all obligations of the Corporation to
make payment pursuant to the terms of financial instruments, such as (i)
securities contracts and foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements (including interest rate and foreign
exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange rate agreements, options,
commodity futures contracts, commodity option contracts and (iii) in the case of
both (i) and (ii) above, similar financial instruments, other than (A)
obligations on account of Senior Indebtedness and (B) obligations on account of
indebtedness for money borrowed ranking pari passu with or subordinate to the
Securities.
The term "outstanding" (except as otherwise provided in Section 7.1), when
used with reference to Securities, shall, subject to the provisions of Section
7.4, mean, as of any particular time, all Securities authenticated and delivered
by the Debt Trustee or the Authenticating Agent under this Indenture, except
(a) Securities theretofore canceled by the
Debt Trustee or the Authenticating Agent or delivered to the
Debt 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 Debt 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, or portions thereof, are to
be redeemed prior to maturity thereof, notice of such
redemption shall have been given as in Article Fourteen
provided or provision satisfactory to the Debt Trustee shall
have been made for giving such notice; and
(c) Securities in lieu of or in substitution for
which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.8 unless proof
satisfactory to the Corporation and the trustee is presented
that any such Securities are held by bona fide holders in due
course.
"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.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt and as that evidenced by
such particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.8 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Preferred Securities" shall mean undivided beneficial ownership interests
in the assets of a General Motors Capital Trust which rank pari passu with
Common Securities issued by such General Motors Capital Trust; provided,
however, that upon the occurrence of an Event of Default, the rights of holders
of Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of Preferred Securities.
"Preferred Securities Guarantee" shall mean, with respect to a General
Motors Capital Trust, any guarantee that the Corporation may enter into with
Wilmington Trust Company or other Persons that operate directly or indirectly
for the benefit of holders of Preferred Securities of such General Motors
Capital Trust.
"Principal Office of the Debt Trustee", or other similar term, shall mean
the principal office of the Debt Trustee, at which at any particular time its
corporate trust business shall be administered.
"Responsible Officer" means, with respect to the Debt Trustee, any officer
within the corporate trust office of the Debt Trustee, including any
vice-president, any assistant vice-president, any assistant secretary, the
treasurer, any assistant treasurer or other officer of the corporate trust
office of the Debt Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Security" or "Securities" shall have the meaning stated in the first
recital of this Indenture and more particularly means any security or
securities, as the case may be, authenticated and delivered under this
Indenture.
"Security Register" shall have the meaning given to such term in
Section 2.7.
"Securityholder", "holder of Securities", or other similar terms, shall
mean any person in whose name at the time a particular Security is registered on
the register kept by the Corporation or the Debt Trustee for that purpose in
accordance with the terms hereof.
"Senior Indebtedness" means, with respect to the Corporation, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of the
Corporation for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Corporation, (ii)
all capital lease obligations of the Corporation, (iii) all obligations of the
Corporation issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Corporation and all obligations of the
Corporation under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business), (iv) all obligations of the
Corporation for the reimbursement of any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction, (v) all obligations of
the type referred to in clauses (i) through (iv) above of other persons for the
payment of which the Corporation is responsible or liable as obligor, guarantor
or otherwise and (vi) all obligations of the type referred to in clauses (i)
through (v) above of other persons secured by any lien on any property or asset
of the Corporation (whether or not such obligation is assumed by the
Corporation), except that Senior Indebtedness shall not include (i) the
Securities and any such indebtedness that is by its terms subordinated to or
ranks pari passu with the Securities and (ii) any indebtedness between and among
the Corporation or its affiliates, including all other debt securities and
guarantees in respect to those debt securities, issued to any other trust, or a
trustee of such trust, partnership or other entity affiliated with the
Corporation that is a financing vehicle of the Corporation (a "financing
entity") in connection with the issuance by such financing entity of Preferred
Securities or other securities that rank pari passu with, or junior to, the
Preferred Securities.
"Subsidiary" shall mean with respect to any Person, (i) any corporation at
least a majority of whose outstanding voting stock of which is owned, directly
or indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this definition, "voting
stock" means shares, interests, participations or other equivalents in the
equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as in
force at the date of execution of this Indenture, except as provided in Section
9.3.
"Trust Securities" shall mean, with respect to a General Motors Capital
Trust, Common Securities and Preferred Securities of such General Motors Capital
Trust.
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
ARTICLE 2
SECURITIES
SECTION 2.1 Forms Generally.
The Securities of each series shall be in substantially the form as shall
be established by or pursuant to a Board Resolution and as set forth in an
Officers' Certificate of the Corporation or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or all as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.2 Form of Debt Trustee's Certificate of Authentication.
The Debt Trustee's Certificate of Authentication on all Securities shall
be in substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ]
as Debt Trustee
By _______________________________________
Authorized Officer
SECTION 2.3 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 up to the aggregate principal amount of securities of that
series from time to time authorized by or pursuant to a Board Resolution of the
Corporation or pursuant to one or more indentures supplemental hereto. Prior to
the initial issuance of Securities of any series, there shall be established in
or pursuant to a Board Resolution of the Corporation and set forth in an
Officers' Certificate of the Corporation or established in one or more
indentures supplemental:
(a) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(b). 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 Sections
2.7, 2.8, 2.9, 9.4 or 14.3);
(c) the date or dates on which the principal of and premium, if any, on the
Securities of the series is payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such interest may be determined, the
date or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable or the manner of determination of such
Interest Payment Dates and the record dates for the determination of holders to
whom interest is payable on any such Interest Payment Dates;
(e) the place or places where the principal of, and premium, if any, and
any interest on Securities of the series shall be payable;
(f) the right, if any, to extend the interest payment periods and the
duration of such extension;
(g) the price or prices at which, the period or periods within which, the
event or events giving rise to, and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the option of
the Corporation, pursuant to any sinking fund or otherwise;
(h) the obligation, if any, of the Corporation to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Securityholder thereof and the price or prices at which, and
the period or periods within 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;
(i) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(j) any Events of Default with respect to the Securities of a particular
series, if not set forth herein;
(k) the form of the Securities of the series including the form of the
Certificate of Authentication of such series;
(l) any trustee, authenticating or paying agents, warrant agents, transfer
agents or registrars with respect to the Securities of such series;
(m) 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 Institution for such Global Security or Securities, and whether
beneficial owners of interests in any such Global Securities may exchange such
interests for other Securities of such series in the manner provided in Section
2.7, and the manner 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 2.7, and any other terms of the series relating to the global nature of
the Global Securities of such series and the exchange, registration or transfer
thereof and the payment of any principal thereof, or interest or premium, if
any, thereon; and
(n) 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
as to denomination and except as may otherwise be provided in or pursuant to
such resolution of the Board of Directors 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 of the Corporation, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Corporation and delivered to the Debt Trustee at or prior to the delivery of the
Officers' Certificate of the Corporation setting forth the terms of the series.
SECTION 2.4 Authentication and Dating.
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 to the Debt Trustee for authentication, and the Debt Trustee shall
thereupon authenticate and deliver said Securities to or upon the written order
of the Corporation, signed by its Chairman of the Board of Directors, President
or one of its Vice Presidents and by its Treasurer, any Assistant Treasurer,
Secretary or any Assistant Secretary, without any further action by the
Corporation hereunder. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Debt Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon:
(a) a copy of any Board Resolution or Resolutions relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant Secretary of
the Corporation;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 2.1 and 2.3, respectively; and
(d) an Opinion of Counsel prepared in accordance with Section 13.6 which
shall also state:
(i) that the form of such Securities has been
established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by
Section 2.1 in conformity with the provisions of this
Indenture;
(ii) that the terms of such Securities have
been established by or pursuant to a resolution of the Board
of Directors or by a supplemental indenture as permitted by
Section 2.3 in conformity with the provisions of this
Indenture;
(iii) that such Securities, when authenticated
and delivered by the Debt 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;
(iv) that all laws and requirements in respect
of the execution and delivery by the Corporation of the
Securities have been complied with and that authentication
and delivery of the Securities by the Debt Trustee will not
violate the terms of the Indenture; and
(V) such other matters as the Debt Trustee may
reasonably request.
The Debt Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Debt Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Debt
Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or vice presidents
shall determine that such action would expose the Debt Trustee to personal
liability to existing holders.
SECTION 2.5 Date and Denomination of Securities.
The Securities shall be issuable as registered Securities without coupons
and in such denominations as shall be specified as contemplated by Section 2.3.
In the absence of any such specification with respect to the Securities of any
series, the Securities of such Series shall be issuable in the denominations of
$1,000 and any multiple thereof. The Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plans as the
officers of the Corporation executing the same may determine with the approval
of the Debt Trustee as evidenced by the execution and authentication thereof.
Every Security shall be dated the date of its authentication, shall bear
interest, if any, from such date and shall be payable on such dates, in each
case, as contemplated by Section 2.3. The interest installment on any Security
that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date for Securities of that series shall be paid to the Person in whose
name said Security (or one or more Predecessor Securities) is registered at the
close of business on the regular record date for such interest installment. In
the event that any Security of a particular series or portion thereof is called
for redemption and the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Security will be paid upon presentation and surrender of
such Security as provided in Section 3.1.
Any interest on any Security that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for any Security of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder, and such Defaulted Interest shall be paid by the Corporation,
at its election, as provided in clause (1) or clause (2) below:
(a) The Corporation may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Corporation shall notify the Debt Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each such Security
and the date of the proposed payment, and at the same time the Corporation shall
deposit with the Debt Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Debt Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Debt Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15 nor less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Debt Trustee of the notice of the proposed payment. The
Debt Trustee shall promptly notify the Corporation of such special record date
and, in the name and at the expense of the Corporation, shall cause notice of
the proposed payment of such Defaulted Interest and the special record date
therefor to be mailed, first class postage prepaid, to each Securityholder at
his or her address as it appears in the Security Register (as hereinafter
defined), not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date and shall be no longer
payable pursuant to the following clause (b).
(b) The Corporation may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Corporation to the Debt Trustees of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the Debt Trustee.
Unless otherwise set forth in a Board Resolution of the Corporation or one
or more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.1 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of the
month in which an Interest Payment Date established for such series pursuant to
Section 2.1 hereof shall occur, if such Interest Payment Date is the last day of
a month, or the last day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.1
hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.6 Execution of Securities.
The Securities shall be signed in the name and on behalf of the
Corporation by the facsimile signature of its Chairman of the Board of
Directors, President or one of its Vice Presidents and by the facsimile
signature of its Treasurer, one of its Assistant Treasurers, Secretary or one of
its Assistant Secretaries, under its corporate seal which may be affixed thereto
or printed, engraved or otherwise reproduced thereon, by facsimile or otherwise,
and which need not be attested. Only such Securities as shall bear thereon a
Certificate of Authentication substantially in the form hereinbefore recited,
executed by the Debt Trustee or the Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Debt Trustee or the Authenticating Agent upon any Security
executed by the Corporation shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
In case any officer of the Corporation who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Debt Trustee or the Authenticating
Agent, or disposed of by the Corporation, such Securities nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Securities had not ceased to be such officer of the Corporation; and any
Security may be signed on behalf of the Corporation by such persons as, at the
actual date of the execution of such Security, shall be the proper officers of
the Corporation, although at the date of the execution of this Indenture any
such person was not such an officer.
SECTION 2.7 Exchange and Registration of Transfer of Securities.
Subject to Section 2.3(i), Securities of any series may be exchanged for a
like aggregate principal amount of Securities of the same series of other
authorized denominations. Securities to be exchanged may be surrendered at the
Principal Office of the Debt Trustee or at any office or agency to be maintained
by the Corporation for such purpose as provided in Section 3.2, and the
Corporation or the Debt Trustee shall execute and register and the Debt Trustee
or the Authenticating Agent shall authenticate and deliver in exchange therefor
the Security or Securities which the Securityholder making the exchange shall be
entitled to receive. Upon due presentment for registration of transfer of any
Security of any series at the Principal Office of the Debt Trustee or at any
office or agency of the Corporation maintained for such purpose as provided in
Section 3.2, the Corporation or the Debt Trustee shall execute and register and
the Debt Trustee or the Authenticating Agent shall authenticate and deliver in
the name of the transferee or transferees a new Security or Securities of the
same series for a like aggregate principal amount. Registration or registration
of transfer of any Security by the Debt Trustee or by any agent of the
Corporation appointed pursuant to Section 3.2, and delivery of such Security,
shall be deemed to complete the registration or registration of transfer of such
Security.
The Corporation or the Debt Trustee shall keep, at the Principal Office of
the Debt Trustee, a register for each series of Securities issued hereunder (the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Corporation or the Debt Trustee shall register all Securities and
shall register the transfer of all Securities as in this Article Two provided.
Such register shall be in written form or in any other form capable of being
converted into written form within a reasonable time.
All Securities presented for registration of transfer or for exchange or
payment shall (if so required by the Corporation or the Debt Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation
and the Debt Trustee or the Authenticating Agent 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 Securities, but the Corporation or the Debt Trustee may require
payment of a sum sufficient to cover any tax, fee or other governmental charge
that may be imposed in connection therewith.
The Corporation or the Debt Trustee shall not be required to exchange or
register a transfer of (a) any Security for a period of 15 days next preceding
the date of selection of Securities of such series for redemption, or (b) any
Securities of any series selected, called or being called for redemption in
whole or in part, except in the case of any Securities of any series to be
redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Corporation shall execute, and upon its request
the Debt Trustee shall authenticate and deliver, a new Security of the same
series 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. In every case the applicant for a
substituted Security shall furnish to the Corporation and the Debt 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 the Debt Trustee evidence to their satisfaction
of the destruction, loss or theft of such Security and of the ownership thereof.
The Debt 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, 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. In case any Security which has matured or is about to mature or has
been called for redemption in full shall become mutilated or be destroyed, lost
or stolen, the Corporation may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Corporation and the Debt Trustee such security or indemnity as may be required
by them to save each of them harmless and, in case of destruction, loss or
theft, evidence satisfactory to the Corporation and to the Debt Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to the provisions
of this Section 2.8 by virtue of the fact that any such Security is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Corporation, whether or not the destroyed, lost or stolen Security 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 of the same series
duly issued hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by applicable law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and shall 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 2.9 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Corporation may execute and the Debt Trustee shall authenticate and deliver
temporary Securities (printed or lithographed). Temporary Securities shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities but with such omissions, insertions and variations as may
be appropriate for temporary Securities, all as may be determined by the
Corporation. Every such temporary Security shall be executed by the Corporation
and be authenticated by the Debt Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Corporation will execute and deliver
to the Debt Trustee or the Authenticating Agent definitive Securities and
thereupon any or all temporary Securities of such series may be surrendered in
exchange therefor, at the Principal Office of the Debt Trustee or at any office
or agency maintained by the Corporation for such purpose as provided in Section
3.2, and the Debt Trustee or the Authenticating Agent shall authenticate and
deliver in exchange for such temporary Securities a like aggregate principal
amount of such definitive Securities. Such exchange shall be made by the
Corporation at its own expense and without any charge therefor except that in
case of any such exchange involving a registration of transfer the Corporation
may require payment of a sum sufficient to cover any tax, fee or other
governmental charge that may be imposed in relation thereto. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same series
authenticated and delivered hereunder.
SECTION 2.10 Cancellation of Securities Paid, etc.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to the Corporation
or any paying agent, be surrendered to the Debt Trustee and promptly canceled by
it, or, if surrendered to the Debt Trustee or any Authenticating Agent, shall be
promptly canceled by it, and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. All
Securities canceled by any Authenticating Agent shall be delivered to the Debt
Trustee. The Debt Trustee shall destroy canceled Securities and shall deliver a
certificate of such destruction to the Corporation. If the Corporation shall
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Debt Trustee for cancellation.
SECTION 2.11 Global Securities.
(a) If the Corporation shall establish pursuant to Section 2.3 that
the Securities of a particular series are to be issued as a Global Security,
then the Corporation shall execute and the Debt Trustee shall, in accordance
with Section 2.4, authenticate and deliver, a Global Security that (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Securities of such series, (ii)
shall be registered in the name of the Depository Institution or its nominee,
(iii) shall be delivered by the Debt Trustee to the Depository Institution or
pursuant to the Depository Institution's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depository Institution or to a
successor Depository Institution or to a nominee of such successor Depository
Institution."
(b) Notwithstanding the provisions of Section 2.7, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.7, only to another nominee of the Depository
Institution for such series or to a successor Depository Institution for such
series selected or approved by the Corporation or to a nominee of such successor
Depository Institution.
(c) If at any time the Depository Institution for a series of the
Securities notifies the Corporation that it is unwilling or unable to continue
as Depository Institution for such series or if at any time the Depository
Institution for such series shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute or regulation, and a
successor Depository Institution for such series is not appointed by the
Corporation within 90 days after the Corporation receives such notice or becomes
aware of such condition, as the case may be, this Section 2.11 shall no longer
be applicable to the Securities of such series and the Corporation will execute,
and subject to Section 2.7, the Debt Trustee will authenticate and deliver, the
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Corporation may at any time determine that the
Securities of any series shall no longer be represented by a Global Security and
that the provisions of this Section 2.11 shall no longer apply to the Securities
of such series. In such event the Corporation will execute and, subject to
Section 2.7, the Debt Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Corporation, will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Debt Trustee. Such Securities in
definitive registered form issued in exchange for the Global Security pursuant
to this Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depository Institution, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Debt Trustee.
The Debt Trustee shall deliver such Securities to the Depository Institution for
delivery to the Persons in whose names such Securities are so registered.
ARTICLE 3
PARTICULAR COVENANTS OF THE CORPORATION.
SECTION 3.1 Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, and premium, if any, and interest on, each of the Securities of
that series at the place, at the respective times and in the manner provided in
such Securities. Each installment of interest on the Securities of any series
may be paid at the option of the Corporation by mailing checks payable to the
order of the holders of Securities entitled thereto as they appear on the
Security Register.
SECTION 3.2 Offices for Notices and Payments, etc.
So long as any of the Securities remains outstanding, the Corporation will
designate and maintain in Wilmington, Delaware or New York, New York an office
or agency where the Securities of each series may be presented for payment, an
office or agency where the Securities of that 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 that 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 Debt Trustee notice of the location of
any such office or agency and of any change of location thereof. Until otherwise
designated from time to time by the Corporation in a notice to the Debt Trustee,
or specified as contemplated by Section 2.3, any such office or agency for all
of the above purposes shall be the office or agency of the Debt Trustee in
Wilmington, Delaware. In case the Corporation shall fail to maintain any such
office or agency in Wilmington, Delaware or New York, New York or shall fail to
give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the Principal
Office of the Debt Trustee, and the Corporation hereby appoints the Debt Trustee
as its agent to receive all such presentations, demands and notices.
In addition to any such office or agency, the Corporation may from time to
time designate one or more offices or agencies outside Wilmington, Delaware or
New York, New York, where the Securities may be presented for registration of
transfer and for exchange in the manner provided in this Indenture, and the
Corporation may from time to time rescind such designation, as the Corporation
may deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Corporation of its obligation to
maintain any such office or agency in Wilmington, Delaware or New York, New
York, for the purposes above mentioned. The Corporation will give to the Debt
Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.3 Appointments to Fill Vacancies in Debt Trustee's Office.
The Corporation, whenever necessary to avoid or fill a vacancy in the
office of Debt Trustee, will appoint, in the manner provided in Section 6.10, a
Debt Trustee, so that there shall at all times be a Debt Trustee hereunder.
SECTION 3.4 Provision as to Paying Agent.
(a) If the Corporation shall appoint a paying agent other than the
Debt Trustee with respect to the Securities of any series, it will cause such
paying agent to execute and deliver to the Debt Trustee an instrument in which
such agent shall agree with the Debt Trustee, subject to the provision of this
Section 3.4:
(1) that it will hold all sums held by it as such agent for
the payment of the principal of, and premium, if any, or interest,
if any, on, the Securities of such series (whether such sums have
been paid to it by the Corporation or by any other obligor on the
Securities of such series) in trust for the benefit of the holders
of the Securities of such series;
(2) that it will give the Debt 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, and premium,
if any, or interest, 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
written request of the Debt Trustee, forthwith pay to the Debt
Trustee all sums so held 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, 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 a sum sufficient to
pay such principal, premium or interest so becoming due and will notify the Debt
Trustee of any failure to take such action.
(c) Anything in this Section 3.4 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 Debt Trustee all sums held
in trust for any such series by the Debt Trustee or any paying agent hereunder,
as required by this Section 3.4, such sums to be held by the Debt Trustee upon
the trusts herein contained.
(d) Anything in this Section 3.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.4 is subject to
Sections 11.3 and 11.4.
SECTION 3.5 Certificate to Debt Trustee.
The Corporation will deliver to the Debt Trustee, within 120 days after
the end of each fiscal year, commencing with the first calendar year following
the issuance of Securities of any series under this Indenture, so long as
Securities of any series are outstanding hereunder, an Officers' Certificate
stating that in the course of the performance by the signers of their duties as
officers of the Corporation they would normally have knowledge of any default by
the Corporation in the performance of any covenants contained herein, stating
whether or not they have knowledge of any such default and, if so, specifying
each such default of which the signers have knowledge and the nature thereof.
SECTION 3.6 Compliance with Consolidation Provisions.
The Corporation will not, while any of the Securities remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article Ten hereof are complied with.
SECTION 3.7 Limitation on Dividends; Transactions with Affiliates.
If Securities are issued to a General Motors Capital Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such General
Motors Capital Trust and (i) there shall have occurred an Event of Default with
respect to such Securities, or (ii) the Corporation shall be in default with
respect to its payment of any obligations under a Preferred Securities Guarantee
or Common Securities Guarantee relating to such General Motors Capital Trust,
then the Corporation shall not (a) declare or pay any dividend on, make any
distribution with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock (other than (i) purchases or
acquisitions of shares of General Motors Common Stock in connection with the
satisfaction by the Corporation of its obligations under any employee benefit
plans or any other contractual obligation of the Corporation (other than a
contractual obligation ranking pari passu with or junior to the Securities),
(ii) issuance of capital stock in connection with a recapitalization or
reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock for another
class or series of the Corporation's capital stock , in each case by merger or
otherwise, or (iii) the purchase of fractional interests in shares of the
Corporation's capital stock pursuant to the conversion or exchange provisions of
such Corporation capital stock or the security being converted or exchanged),
(b) make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Corporation that rank
pari passu with or junior to such Securities (including any other series of
Securities issued to a General Motors Capital Trust) and (c) make any guarantee
payments with respect to the foregoing (other than pursuant to a Preferred
Securities Guarantee relating to such General Motors Capital Trust).
SECTION 3.8 Covenants as to General Motors Capital Trusts.
In the event Securities are issued to a General Motors Capital Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such General Motors Capital Trust, for so long as such Trust Securities remain
outstanding, the Corporation will (i) maintain 100% direct or indirect ownership
of the Common Securities of such General Motors Capital Trust; provided,
however, that any permitted successor of the Corporation under the Indenture may
succeed to the Corporation's ownership of the Common Securities, (ii) use its
reasonable efforts to cause such General Motors Capital Trust (a) to remain a
statutory business trust, except in connection with a distribution of
Securities, the redemption of all of the Trust Securities of such General Motors
Capital Trust or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration relating to such General Motors Capital Trust, and
(b) to otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes and
(iii) use its reasonable efforts to cause each holder of Trust Securities to be
treated as owning an undivided beneficial interest in the Securities.
SECTION 3.9 Notice of Default.
The Corporation shall file with the Debt Trustee written notice of the
occurrence of any Event of Default within 30 business days of its becoming aware
of any such Event of Default.
ARTICLE 4
SECURITYHOLDERS' LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE.
SECTION 4.1 Securityholders' Lists.
The Corporation covenants and agrees that it will furnish or cause to be
furnished to the Debt Trustee:
(a) on a semi-annual basis on each regular record date for each
series of Securities, a list, in such form as the Debt Trustee may reasonably
require, of the names and addresses of the Securityholders of such series of
Securities as of such record date (and on dates to be determined pursuant to
Section 2.3 for non-interest bearing securities in each year); and
(b) at such other times as the Debt Trustee may request in writing,
within 30 days after the receipt by the Corporation, of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time
such list is furnished, except that no such lists need be furnished so long as
the Debt Trustee is in possession thereof by reason of its acting as Security
registrar for such series.
SECTION 4.2 Preservation and Disclosure of Lists.
(a) The Debt 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 (1) contained in the most recent list
furnished to it as provided in Section 4.1 or (2) received by it in the capacity
of Securities registrar (if so acting) hereunder.
The Debt Trustee may destroy any list furnished to it as provided in
Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Debt Trustee
and furnish to the Debt Trustee reasonable proof that each such applicant has
owned a Security of such series for a period of at least 6 months preceding the
date of such application, and such application states that the applicants desire
to communicate with other holders of Securities of such series or with holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Debt Trustee
shall within 5 Business Days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information preserved
at the time by the Debt Trustee in accordance with the provisions of
subsection (a) of this Section 4.2; or
(2) inform such applicants as to the approximate number of
holders 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 Debt Trustee in accordance with the provisions of subsection
(a) of this Section 4.2, 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 Debt Trustee shall elect not to afford such applicants access
to such information, the Debt Trustee shall, upon the written
request of such applicants, mail to each Securityholder 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 Debt Trustee
in accordance with the provisions of subsection (a) of this Section
4.2 a copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a tender
to the Debt Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing,
unless within 5 days after such tender, the Debt Trustee shall mail
to such applicants and file with the Commission, together with a
copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Debt 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 the Commission, after opportunity for
a hearing upon the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Debt Trustee
shall mail copies of such material to all such Securityholders with
reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Debt 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 Debt Trustee that neither the
Corporation nor the Debt Trustee nor any paying agent 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 4.2, regardless of the source from which such
information was derived, and that the Debt Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under said
subsection (b).
SECTION 4.3 Reports by Corporation.
(a) The Corporation covenants and agrees to file with the Debt
Trustee, within 15 days after the Corporation is required to file the same with
the Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Corporation may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; or, if the Corporation is not required to
file information, documents or reports pursuant to either of such sections, then
to file with the Debt Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act 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) The Corporation covenants and agrees to file with the Debt
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the 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) The Corporation covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such holders appear upon
the Security Register, within 30 days after the filing thereof with the Debt
Trustee, such summaries of any information, documents and reports required to be
filed by the Corporation pursuant to subsections (a) and (b) of this Section 4.3
as may be required by rules and regulations prescribed from time to time by the
Commission.
(d) The Corporation covenants and agrees to furnish to the Debt
Trustee within 120 days of the end of each fiscal year, the compliance
certificate required by Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.4 Reports by the Debt Trustee.
(a) The term "reporting date", as used in this Section, shall be May
15 of each year, commencing with the first May 15 after the first issuance of
Securities of a series for which the Debt Trustee is acting as Debt Trustee
pursuant to this Indenture. Within 60 days after the reporting date in each
year, the Debt Trustee shall transmit by mail to all holders of Securities as
provided in Section 313(c) of the Trust Indenture Act, as their names and
addresses appear in the Security Register, a brief report dated as of such
reporting date, if required by Section 313(a) of the Trust Indenture Act.
(b) The Debt Trustee shall transmit to the Securityholders for each
series, as hereinafter provided, a brief report with respect to the character
and amount of any advances (and if the Debt Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Debt Trustee (as
such), since the date of the last report transmitted pursuant to the provisions
of subsection (a) of this Section 4.4 (or, if no such report has yet been so
transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of such series on property or funds held or collected by it as
Debt Trustee, and which it has not previously reported pursuant to this
subsection, if such advances remaining unpaid at any time aggregate more than
10% of the principal amount of Securities for such series outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 4.4 shall be transmitted by
mail, first class postage prepaid to all holders of Securities as required by
Section 313(c) of the Trust Indenture Act.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Debt Trustee with each stock
exchange upon which the Securities of any applicable series are listed and also
with the Commission. The Corporation will notify the Debt Trustee when and as
the Securities of any series become listed on any stock exchange.
(e) The Debt Trustee shall comply with Sections 313(b) and 313(c)
of the Trust Indenture Act.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 5.1 Events of Default.
In case one or more of the following Events of Default with respect to
Securities of any series or such other events as may be established with respect
to the Securities of that series as contemplated by Section 2.3 hereof shall
have occurred and be continuing:
(a) default in the payment of any installment of interest upon any
Securities of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; provided, however, that a valid extension
of an interest payment period by the Corporation in accordance with the terms of
any particular series of Securities established as contemplated in this
Indenture, shall not constitute a default in the payment of interest for
purposes of this Indenture; or
(b) default in the payment of all or any part of the principal of, or
premium, if any, on, any Securities of that series as and when the same shall
become due and payable either at maturity, upon redemption (including redemption
for a sinking fund, if any), by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty of
the Corporation in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically
dealt with and other than those set forth exclusively in terms of any particular
series of Securities established as contemplated in this Indenture), and
continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Corporation by the Debt
Trustee or to the Corporation and the Debt Trustee by the holders of at least
25% in principal amount of the outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; 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 90
consecutive days; or
(e) the Corporation shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, 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 other
similar official) of the Corporation or of any substantial part of its property,
or shall make any general assignment for the benefit of creditors; or
(f)in the event Securities of such series are issued to a General Motors
Capital Trust or a trustee of such trust in connection with the issuance of
Trust Securities by such General Motors Capital Trust, such General Motors
Capital Trust shall have voluntarily or involuntarily dissolved, wound-up its
business or otherwise terminated its existence except in connection with (i) the
distribution of Securities to holders of Trust Securities in liquidation of
their interests in such General Motors Capital Trust, (ii) the redemption of all
of the outstanding Trust Securities of such General Motors Capital Trust or
(iii) certain mergers, consolidations or amalgamations, each as permitted by the
Declaration of such General Motors Capital Trust.
If an Event of Default with respect to a series of Securities occurs and
is continuing, then, and in each and every such case, unless the principal of
all of the Securities of such series shall have already become due and payable,
either the Debt Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of that series then outstanding hereunder, by
notice in writing to the Corporation (and to the Debt Trustee if given by
Securityholders), may declare the entire principal of all Securities of that
series and the interest accrued thereon and unpaid, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal of the Securities of any series (or of all the
Securities, 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 Debt Trustee a sum sufficient to pay all matured installments
of interest 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 any and all
Securities of such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest 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, at the
same rate as the rate of interest specified in the Securities of such series (or
at the respective rates of interest of all the Securities, as the case may be),
to the date of such payment or deposit) and such amount as shall be sufficient
to cover reasonable compensation to the Debt Trustee and each predecessor Debt
Trustee, their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Debt Trustee and each
predecessor Debt Trustee except as a result of negligence or bad faith, and if
any and all Events of Default under the Indenture, other than the non-payment of
the principal of or premium, if any, on Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
in this Indenture, 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 Debt Trustee, may waive all defaults with respect to that
series (or with respect to all Securities, as the case may be, in such case,
treated as a single class) 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.
In case the Debt Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Debt Trustee, then and in every such case the
Corporation, the Debt Trustee and the holders of the applicable 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
Debt Trustee and the holders of such Securities shall continue as though no such
proceedings had been taken.
SECTION 5.2 Payment of Securities on Default; Suit Therefor.
The Corporation covenants that (a) in case an Event of Default with
respect to a series of Securities under Section 5.1(a), (b), (c) or (f) shall
have occurred and be continuing, then, upon demand of the Debt Trustee, the
Corporation will pay to the Debt Trustee, for the benefit of the holders of the
Securities of that series, the whole amount that then shall have become due and
payable on all such Securities of that series for principal and premium, if any,
or interest, or both, 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 and, if the Securities are held by a General
Motors Capital Trust or a trustee of such trust, without duplication of any
other amounts paid by General Motors Capital Trust or trustee in respect
thereof) upon the overdue installments of interest at the rate borne by the
Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Debt Trustee, its agents, attorneys and counsel,
and any other amounts owing to the Debt Trustee hereunder other than through its
negligence or bad faith.
In case the Corporation shall fail forthwith to pay such amounts upon such
demand, the Debt Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Corporation or any other obligor on
such Securities and collect in the manner provided by law out of the property of
the Corporation or any other obligor on such Securities wherever situated the
moneys adjudged or decreed to be payable.
In case an Event of Default with respect to a series of Securities under
Section 5.1(d) or (e) shall have occurred, the Debt 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 Debt Trustee shall have made any demand pursuant to the provisions
of this Section 5.2, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of the Securities
of such series and, in case of any judicial proceedings, to file such proofs of
claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Debt Trustee (including any claim for reasonable
compensation to the Debt Trustee and each predecessor Debt Trustee, and their
respective agents, attorneys and counsel, and for any other amounts owing to the
Debt Trustee and each predecessor Debt Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in such judicial proceedings
relative to the Corporation or any other obligor on the Securities of any
series, or to the creditors or property of the Corporation or such other
obligor, unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities of any series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the Securityholders to make
such payments to the Debt Trustee, and, in the event that the Debt Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Debt Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Debt Trustee, each predecessor Debt Trustee and their
respective agents, attorneys and counsel, and all other amounts owing to the
Debt Trustee and each predecessor Debt Trustee except as a result of negligence
or bad faith.
Nothing herein contained shall be construed to authorize the Debt Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any series or the rights of any holder thereof or to authorize the
Debt Trustee to vote in respect of the claim of any Securityholder 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 Debt Trustee without the
possession of any of the Securities, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Debt Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall be for the ratable benefit of the
holders of the Securities.
In any proceedings brought by the Debt Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Debt Trustee shall be a party) the Debt Trustee shall be held to represent all
the holders of the Securities, and it shall not be necessary to make any holders
of the Securities parties to any such proceedings.
SECTION 5.3 Application of Moneys Collected by Debt Trustee.
Any moneys collected by the Debt Trustee shall be applied in the order
following, at the date or dates fixed by the Debt Trustee for the distribution
of such moneys, upon presentation of the several Securities 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 costs and expenses of collection applicable to
such series and reasonable compensation to the Debt Trustee, its agents,
attorneys and counsel, and of all other amounts owing to the Debt Trustee except
as a result of its negligence or bad faith;
Second: To the payment of all Senior Indebtedness and Other Financial
Obligations of the Corporation if and to the extent required by Article Fifteen;
Third: In case the principal of the outstanding Securities in respect of
which moneys have been collected shall not have become due and be unpaid, to the
payment of the amounts then due and unpaid upon Securities of such series for
principal (and premium, if any), and interest on the Securities of such series,
in respect of which or for the benefit of which money has been collected,
ratably, without preference of priority of any kind, according to the amounts
due on such Securities for principal (and premium, if any) and interest,
respectively.
SECTION 5.4 Proceedings by Securityholders.
No holder of any Security of any series shall have any right by virtue of
or by availing of any provision of this Indenture to institute any suit, action
or proceeding in equity or at law 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 Debt
Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default,
as hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Securities of that series then outstanding
shall have made written request upon the Debt Trustee to institute such action,
suit or proceeding in its own name as Debt Trustee hereunder and shall have
offered to the Debt Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Debt Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action, suit or proceeding, 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 Debt Trustee,
that no one or more holders of Securities of any series shall have any right in
any manner whatever by virtue of or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other holder of
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 of the applicable series.
Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Security to receive payment of the principal of (premium,
if any) and interest, if any, on such Security, on or after the same shall have
become due and payable, or to institute suit for the enforcement of any such
payment, shall not be impaired or affected without the consent of such holder
and by accepting a Security hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Security of such series with every
other such taker and holder and the Debt Trustee, that no one or more holders of
Securities of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other 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 of such
series. For the protection and enforcement of the provisions of this Section,
each and every Securityholder and the Debt Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 5.5 Proceedings by Debt Trustee.
In case of an Event of Default hereunder the Debt 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 Debt Trustee shall
deem most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding 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 Debt Trustee by this
Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing.
Except as otherwise provided in the last paragraph of Section 2.8 with
respect to the replacement or payment of mutilated, lost or stolen Securities,
all powers and remedies given by this Article Five to the Debt Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any other powers and remedies available to the Debt Trustee or
the holders of the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such series, and no delay or
omission of the Debt Trustee or of any holder of any of the Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.4, every power and remedy given by this
Article Five or by law to the Debt Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Debt Trustee or by the Securityholders.
SECTION 5.7 Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders.
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 Debt Trustee, or exercising any trust
or power conferred on the Debt Trustee; provided, however, that (subject to the
provisions of Section 6.1) the Debt Trustee shall have the right to decline to
follow any such direction if the Debt Trustee shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Debt Trustee being advised by counsel determines that the
action or proceeding so directed may not lawfully be taken or if the Debt
Trustee in good faith by its board of directors or trustees, 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 Debt Trustee in personal liability. Prior to any declaration
accelerating the maturity of any series of the Securities, or of all the
Securities, as the case may be, the holders of a majority in aggregate principal
amount of the Securities of that 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 including any default established pursuant to Section 2.3 and
its consequences except a default (a) in the payment of principal of, premium,
if any, or interest on any of the Securities, (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
holder of each Security affected, or (c) a default of the covenants contained in
Section 3.6; provided, however, that if the Securities of such series are held
by a General Motors Capital Trust or a trustee of such trust, such waiver or
modification to such waiver shall not be effective until the holders of a
majority in liquidation preference of Trust Securities of the applicable General
Motors Capital Trust shall have consented to such waiver or modification to such
waiver; provided further, that if the consent of the Holder of each outstanding
Security is required, such waiver shall not be effective until each holder of
the Trust Securities of the applicable General Motors Capital Trust shall have
consented to such waiver. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the
Corporation, the Debt 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 impair any
right consequent thereon. Upon any such waiver the Corporation, the Debt Trustee
and the holders of the Securities of that series (or of all Securities, as the
case may be) 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 5.7, said default or Event of Default shall for all purposes of the
Securities of that series (or of all Securities, as the case may be) and this
Indenture be deemed to have been cured and to be not continuing.
The foregoing provisions shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such sections are hereby expressly
excluded from this Indenture and the Securities, as permitted by the Trust
Indenture Act.
SECTION 5.8 Notice of Defaults.
The Debt Trustee shall, within 90 days after the occurrence of a default
with respect to the Securities of any series, mail to all Securityholders of
that series, as the names and addresses of such holders appear upon the Security
Register, notice of all defaults with respect to that series known to the Debt
Trustee, unless such defaults shall have been cured before the giving of such
notice (the term "defaults" for the purpose of this Section 5.8 being hereby
defined to be the events specified in clauses (a), (b), (c), (d), (e) and (f) of
Section 5.1, not including periods of grace, if any, provided for therein, and
irrespective of the giving of written notice specified in clause (c) of Section
5.1); and provided that, except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the Securities of such
series, the Debt Trustee shall (i) not be deemed to have knowledge of a default
unless a Responsible Officer has actual knowledge or receives written notice and
(ii) be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers of the Debt Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series; and provided further, that in the case of any default of the character
specified in Section 5.1(c), no such notice to Securityholders of such series
shall be given until at least 60 days after the occurrence thereof but shall be
given within 90 days after such occurrence.
SECTION 5.9 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 Debt Trustee for any action taken or
omitted by it as Debt 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 5.9 shall not apply to any suit instituted by the
Debt Trustee, to any suit instituted by any Securityholder, or group of
Securityholders of any series, holding in the aggregate more than 10% in
principal amount of the Securities of that series outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security against the
Corporation on or after the same shall have become due and payable.
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of Debt Trustee.
With respect to the holders of any series of Securities issued hereunder,
the Debt Trustee, prior to the occurrence of an Event of Default with respect to
securities of that series and after the curing or waiving of all Events of
Default which may have occurred, with respect to securities of that series,
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 the
Securities of a series has occurred (which has not been cured or waived) the
Debt 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 Debt
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
Securities of a series and after the curing or waiving of all Events of Default
with respect to that series which may have occurred
(1) the duties and obligations of the Debt Trustee with
respect to Securities of a series shall be determined solely by the
express provisions of this Indenture, and the Debt Trustee shall not
be liable except for the performance of such duties and obligations
with respect to such series as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Debt Trustee; and
(2) in the absence of bad faith on the part of the Debt
Trustee, the Debt 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 Debt
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
Debt Trustee, the Debt 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 Debt Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Debt Trustee, unless it
shall be proved that the Debt Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Debt 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 Securityholders pursuant to Section 5.7, relating to the time, method and
place of conducting any proceeding for any remedy available to the Debt Trustee,
or exercising any trust or power conferred upon the Debt Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the Debt
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.2 Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.1:
(a) the Debt 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, note, debenture 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 Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any Board
Resolution may be evidenced to the Debt Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Corporation;
(c) the Debt Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Debt 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 Debt Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Debt Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Debt Trustee of the obligation, upon the occurrence
of an Event of Default with respect to a series of the Securities (that has not
been cured or waived) to exercise with respect to Securities of that series such
of the rights and powers vested in it by this Indenture, and to use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs;
(f)the Debt 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, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing to do so by the
holders of not less than a majority in principal amount of the outstanding
Securities of the series affected thereby; provided, however, that if the
payment within a reasonable time to the Debt Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Debt Trustee, not reasonably assured to the Debt Trustee
by the security afforded to it by the terms of this Indenture, the Debt Trustee
may require reasonable indemnity against such expense or liability as a
condition to so proceeding; and
(g) the Debt Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents (including
any Authenticating Agent), custodians, nominees or attorneys, and the Debt
Trustee shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed by it with due care.
SECTION 6.3 No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Debt Trustee or the Authenticating Agent)
shall be taken as the statements of the Corporation and the Debt Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Debt Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Debt Trustee
and the Authenticating Agent shall not be accountable for the use or application
by the Corporation of any Securities or the proceeds of any Securities
authenticated and delivered by the Debt Trustee or the Authenticating Agent in
conformity with the provisions of this Indenture.
SECTION 6.4 Debt Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities.
The Debt Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Debt Trustee, Authenticating Agent, paying agent,
transfer agent or Security registrar.
SECTION 6.5 Moneys to be Held in Trust.
Subject to the provisions of Section 11.4, all moneys received by the Debt
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Debt
Trustee and any paying agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Corporation.
So long as no Event of Default with respect to a series of Securities 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 the
Chairman of the Board of Directors, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Corporation.
SECTION 6.6 Compensation and Expenses of Debt Trustee.
The Corporation, as borrower, covenants and agrees to pay to the Debt
Trustee from time to time, and the Debt Trustee shall be entitled to,
compensation as agreed from time to time between the Corporation and the Debt
Trustee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Corporation will pay or
reimburse the Debt Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Debt Trustee in accordance
with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ and any amounts paid by the Debt Trustee to
any Authenticating Agent pursuant to Section 6.14) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Corporation also covenants to indemnify the Debt Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of the
Debt Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Corporation under this Section 6.6 to compensate and indemnify the Debt Trustee
and to pay or reimburse the Debt Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder, and shall survive
the resignation or removal of the Debt Trustee and the termination of this
Indenture. 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 Debt
Trustee as such, except funds held in trust for the benefit of the holders of
particular Securities.
SECTION 6.7 Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.1 and 6.2, whenever in the
administration of the provisions of this Indenture the Debt Trustee shall deem
it necessary or desirable that a matter be proved or established prior to taking
or omitting any action 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 Debt Trustee, be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Debt Trustee, and
such certificate, in the absence of negligence or bad faith on the part of the
Debt Trustee, shall be full warrant to the Debt Trustee for any action taken or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Conflicting Interest of Debt Trustee.
If the Debt Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Debt Trustee and
the Corporation shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 6.9 Eligibility of Debt Trustee.
The Debt Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. 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 6.9 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
The Corporation may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Corporation, serve
as Debt Trustee.
In case at any time the Debt Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, the Debt Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation or Removal of Debt Trustee.
(a) The Debt Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of Securities
by giving written notice of such resignation to the Corporation and by mailing
notice thereof to the holders of the applicable series of Securities 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 or trustees with respect to the applicable series by written instrument,
in duplicate, executed by order of its Board of Directors, one copy of which
instrument shall be delivered to the resigning Debt Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed with
respect to any series of Securities and have accepted appointment within 30 days
after the mailing of such notice of resignation to the affected Securityholders,
the resigning Debt 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 5.9, 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 Debt Trustee shall fail to comply with the provisions
of Section 6.8 after written request therefor by the
Corporation or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least six
months, or
(ii) the Debt Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and shall fail to resign
after written request therefor by the Corporation or by any
such Securityholder, or
(iii) the Debt Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver
of the Debt Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Debt
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or iquidation,
then, in any such case, the Corporation may remove the Debt Trustee and appoint
a successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to the
Debt Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 5.9, any Securityholder 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 Debt Trustee and the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Debt Trustee and appoint
a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding may at any time remove the Debt
Trustee with respect to such series and nominate a successor trustee with
respect to the applicable series of Securities or all series, as the case may
be, which shall be deemed appointed as successor trustee with respect to the
applicable series unless within 10 days after such nomination the Corporation
objects thereto, in which case the Debt Trustee so removed or any Securityholder
of the applicable series, upon the terms and conditions and otherwise as
provided in subsection (a) of this Section 6.10, may petition any court of
competent jurisdiction for an appointment of a successor trustee with respect to
such series.
(d) Any resignation or removal of the Debt Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11 Acceptance by Successor Debt Trustee.
Any successor trustee appointed as provided in Section 6.10 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 retiring 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 6.6, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring trustee thereunder. Upon request of any
such successor trustee, the Corporation shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming 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
6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Corporation, the retiring 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 retiring 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 trustee 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
6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.8 and eligible under the provisions
of Section 6.9.
Upon acceptance of appointment by a successor trustee as provided in this
Section 6.11, the Corporation shall mail notice of the succession of such
trustee hereunder to the holders of Securities of any applicable series at their
addresses as they shall appear on the Security Register. If the Corporation
fails to mail such notice within 10 days after the acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
mailed at the expense of the Corporation.
SECTION 6.12 Succession by Merger, etc.
Any corporation into which the Debt 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 Debt Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Debt Trustee, shall be the successor of the Debt Trustee
hereunder without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
In case at the time such successor to the Debt Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Debt
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Securities so authenticated; and in case at that time any of
the Securities of any series shall not have been authenticated, any successor to
the Debt Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Debt Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Debt Trustee or authenticate
Securities of any series in the name of any predecessor Debt Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 6.13 Limitation on Rights of Debt Trustee as a Creditor.
The Debt Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Debt Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14 Authenticating Agents.
There may be one or more Authenticating Agents appointed by the Debt
Trustee upon the request of the Corporation with power to act on its behalf and
subject to its direction in the authentication and delivery of Securities of any
series issued upon exchange or transfer thereof as fully to all intents and
purposes as though any such Authenticating Agent had been expressly authorized
to authenticate and deliver Securities of such series; provided, that the Debt
Trustee shall have no liability to the Corporation for any acts or omissions of
the Authenticating Agent with respect to the authentication and delivery of
Securities of any series. Any such Authenticating Agent shall at all times 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 authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $5,000,000 and being subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually pursuant to law or
the requirements of such authority, then for the purposes of this Section 6.14
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect to one or
more or all series of Securities by giving written notice of resignation to the
Debt Trustee and to the Corporation. The Debt Trustee may at any time terminate
the agency of any Authenticating Agent with respect to one or more or all series
of Securities by giving written notice of termination to such Authenticating
Agent and to the Corporation. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent shall
cease to be eligible under this Section 6.14, the Debt Trustee may, and upon the
request of the Corporation shall, promptly appoint a successor Authenticating
Agent with respect to the applicable series eligible under this Section 6.14,
shall give written notice of such appointment to the Corporation and shall mail
notice of such appointment to all holders of the applicable series of Securities
as the names and addresses of such holders appear on the Security Register. Any
successor Authenticating Agent with respect to all or any series upon acceptance
of its appointment hereunder shall become vested with all rights, powers, duties
and responsibilities with respect to such series of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent herein.
The Debt Trustee agrees to pay to any Authenticating Agent from time to
time reasonable compensation for its services, and the Debt Trustee shall be
entitled to be reimbursed for such payments, subject to Section 6.6. Any
Authenticating Agent shall have no responsibility or liability for any action
taken by it as such in accordance with the directions of the Debt Trustee.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 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 such Securityholders in
person or by agent or proxy appointed in writing, or (b) by the record of such
holders of Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders.
If the Corporation shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Corporation may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Corporation shall
have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action may be
given before or after the record date, but only the Securityholders of record at
the close of business on the record date shall be deemed to be Securityholders
for the purposes of determining whether Securityholders of the requisite
proportion of outstanding Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the outstanding Securities of that
series shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 7.2 Proof of Execution by Securityholders.
Subject to the provisions of Section 6.1, 6.2 and 8.5, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Debt Trustee or in such manner as shall be satisfactory
to the Debt Trustee. The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security registrar. The Debt Trustee may
require such additional proof of any matter referred to in this Section as it
shall deem necessary.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 8.6.
SECTION 7.3 Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security, the
Corporation, the Debt Trustee, any Authenticating Agent, any paying agent, any
transfer agent and any Security registrar may deem the person in whose name such
Security shall be registered upon the Security Register to be, and may treat him
as, the absolute owner of such Security (whether or not such Security shall be
overdue) for the purpose of receiving payment of or on account of the principal
of, premium, if any, and interest on such Security and for all other purposes;
and neither the Corporation nor the Debt Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Security registrar shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being or upon his order shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 7.4 Securities Owned by Corporation Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate principal
amount of Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Corporation or any other
obligor on the Securities or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Corporation or
any other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Debt Trustee shall be protected in relying
on any such direction, consent or waiver, only Securities which the Debt Trustee
knows are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section 7.4 if the pledgee shall establish to the satisfaction of the Debt
Trustee the pledgee's right to vote such Securities and that the pledgee is not
the Corporation or any such other obligor or person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Corporation or any such other obligor. In the case of a dispute as to such
right, any decision by the Debt Trustee taken upon the advice of counsel shall
be full protection to the Debt Trustee.
SECTION 7.5 Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Debt Trustee,
as provided in Section 7.1, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Security specified in this
Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor) the
serial 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 Debt Trustee at the Principal Office of the Debt Trustee and upon proof
of holding as provided in Section 7.2, revoke such action so far as concerns
such Security (or so far as concerns the principal amount represented by any
exchanged or substituted 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 or any Security issued in
exchange or substitution therefor.
ARTICLE 8
SECURITYHOLDERS' MEETINGS
SECTION 8.1 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 Eight for
any of the following purposes:
(a) to give any notice to the Corporation or to the Debt Trustee, or to
give any directions to the Debt Trustee, or to consent to the waiving of 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
Five;
(b) to remove the Debt Trustee and nominate a successor trustee pursuant to
the provisions of Article Six;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 9.2; or
(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of such Securities under any
other provision of this Indenture or under applicable law.
SECTION 8.2 Call of Meetings by Debt Trustee.
The Debt Trustee may at any time call a meeting of Securityholders of any
or all series to take any action specified in Section 8.1, to be held at such
time and at such place in New York, New York or Wilmington, Delaware, as the
Debt Trustee shall determine. Notice of every meeting of the Securityholders of
any or all series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to holders of Securities of each series affected at their addresses as they
shall appear on the Securities register of such series. Such notice shall be
mailed not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
SECTION 8.3 Call of Meetings by Corporation or Securityholders.
In case at any time the Corporation pursuant to a resolution of the Board
of Directors, or the holders of at least 10% in aggregate principal amount of
the Securities of any or all series, as the case may be, then outstanding, shall
have requested the Debt Trustee to call a meeting of Securityholders of any or
all series, as the case may be, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Debt Trustee
shall not have mailed the notice of such meeting within 20 days after receipt of
such request, then the Corporation or such Securityholders may determine the
time and the place in said New York, New York or Wilmington, Delaware, as
applicable, for such meeting and may call such meeting to take any action
authorized in Section 8.1, by mailing notice thereof as provided in Section 8.2.
SECTION 8.4 Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a person shall
(a) be a holder of one or more Securities with respect to which the meeting is
being held or (b) a person appointed by an instrument in writing as proxy by a
holder of one or more such Securities. The only persons who shall be entitled to
be present or to speak at any meeting of Securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representatives of
the Debt Trustee and its counsel and any representatives of the Corporation and
its counsel.
SECTION 8.5 Regulations.
Notwithstanding any other provisions of this Indenture, the Debt 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 Debt 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 8.3, in which case the
Corporation or the Securityholders 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 majority vote of the
meeting.
Subject to the provisions of Section 7.4, at any meeting each holder of
Securities with respect to which such meeting is being held or proxy therefor
shall be entitled to one vote for each $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 to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Securities held
by him or instruments in writing as aforesaid duly designating him as the person
to vote on behalf of other Securityholders. Any meeting of Securityholders duly
called pursuant to the provisions of Section 8.2 or 8.3 may be adjourned from
time to time by a majority of those present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
SECTION 8.6 Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or 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 written reports in triplicate 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 affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.2. The record shall show the serial
numbers of the Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Corporation and the other to the Debt Trustee to be preserved by the Debt
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 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Securityholders.
The Corporation and the Debt 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 as then in effect), without the
consent of the Securityholders, 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 the successor corporation of
the covenants, agreements and obligations of the Corporation pursuant to Article
Ten hereof;
(b) to add to the covenants of the Corporation such further covenants,
restrictions or conditions for the protection of the holders of all or any
series of Securities (and if such covenants are to be for the benefit of less
than all series of Securities stating that such covenants are expressly being
included for the benefit of such series) as the Board of Directors and the Debt
Trustee shall consider to be for the protection of the holders of such
Securities, and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions or conditions a
default or an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Debt Trustee upon such
default;
(c) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities issued
hereunder in fully registered form and to make all appropriate changes for such
purpose;
(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;
(e) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities of one or more series and to
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, pursuant to the requirements of Section 6.11;
(f) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms and
conditions of the Securities of any series, to establish the form of any
certifications required to be furnished pursuant to the terms of this Indenture
or any series of Securities, or to add to the rights of the holders of any
series of Securities.
The Debt 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 and assignment of any property thereunder, but the Debt
Trustee shall not be obligated to, but may in its discretion, enter into any
such supplemental indenture which affects the Debt Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.1 may be executed by the Corporation and the Debt Trustee without the consent
of the holders of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.2.
SECTION 9.2 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 7.1) of the holders of
not less than a majority in aggregate principal amount of the Securities at the
time outstanding of all series affected by such supplemental indenture (voting
as a class), and in the case of Securities issued to a General Motors Capital
Trust, the holders of a majority in aggregate liquidation amount of the related
Preferred Securities, the Corporation, when authorized by a Board Resolution,
and the Debt 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 then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Securities of each series so affected;
provided, however, that no such supplemental indenture shall, without the
consent of the holders of each Security affected thereby, (i) extend the fixed
maturity of any Security of any series, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or any
premium thereon, or reduce any amount payable on redemption thereof or make the
principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in the Securities, or impair or affect the
right of any Securityholder to institute suit for payment thereof or the right
of repayment, if any, at the option of the holder, without the consent of the
holder of each Security so affected or (ii) reduce the aforesaid percentage of
Securities the holders of which are required to consent to any such supplemental
indenture; provided, further, that if the Securities of such series are held by
a General Motors Capital Trust or a trustee of such trust, such supplemental
indenture shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the applicable General Motors Capital Trust
shall have consented to such supplemental indenture; provided further, that if
the consent of the holder of each outstanding Security is required, such
supplemental indenture shall not be effective until each holder of the Trust
Securities of the applicable General Motors Capital Trust shall have consented
to such supplemental indenture.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Securityholders of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture or the
Securityholders of any other series.
Upon the request of the Corporation accompanied by a copy of a resolution
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Debt Trustee of evidence of the consent of Securityholders as
aforesaid, the Debt Trustee shall join with the Corporation in the execution of
such supplemental indenture unless such supplemental indenture affects the Debt
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Debt Trustee may in its discretion, but shall not be obligated
to, enter into such supplemental indenture. The Debt Trustee may receive an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms
to, the terms of this Article and that it is proper for the Debt Trustee under
the provisions of this Article to join in the execution thereof.
Promptly after the execution by the Corporation and the Debt Trustee of
any supplemental indenture pursuant to the provisions of this Section, the Debt
Trustee shall transmit, at the Corporation's expense, by mail, first class
postage prepaid, a notice, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders of all series affected thereby as
their names and addresses appear upon the Security Register. Any failure of the
Debt Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.3 Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article Nine shall comply with the Trust Indenture Act, as then in effect. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article Nine, 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 Debt Trustee, the
Corporation and the holders of Securities of each series affected thereby 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.
SECTION 9.4 Notation on Securities.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture affecting such series pursuant to the provisions
of this Article Nine may bear a notation in form approved by the Corporation as
to any matter provided for in such supplemental indenture. If the Corporation
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Corporation, to any modification of this Indenture contained
in any such supplemental indenture may be prepared and executed by the
Corporation, authenticated by the Debt Trustee or the Authenticating Agent and
delivered in exchange for the Securities of any series then outstanding.
SECTION 9.5 Evidence of Compliance of Supplemental Indenture to be
Furnished Debt Trustee.
The Debt Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article Nine.
ARTICLE 10
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE.
SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Corporation with or into any other
corporation or corporations organized under the laws of a domestic jurisdiction
(whether or not affiliated with the Corporation, as the case may be), or
successive consolidations or mergers in which the Corporation, as the case may
be, or its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance, transfer or other disposition of the property of the
Corporation, as the case may be, or its successor or successors as an entirety,
or substantially as an entirety, to any other corporation organized under the
laws of a domestic jurisdiction (whether or not affiliated with the Corporation,
as the case may be, or its successor or successors) authorized to acquire and
operate the same; provided, however, that the Corporation hereby covenants and
agrees that, upon any such consolidation, merger, sale, conveyance, transfer or
other disposition, the due and punctual payment, in the case of the Corporation,
of the principal of (premium, if any) and interest on all of the Securities of
all series in accordance with the terms of each series, according to their tenor
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or established with
respect to such series to be kept or performed by the Corporation as the case
may be, shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Debt Trustee executed and delivered to the Debt
Trustee by the entity formed by such consolidation, or into which the
Corporation, as the case may be, shall have been merged, or by the entity which
shall have acquired such property; provided, further, that after giving effect
thereto, no Default shall have occurred and be continuing hereunder.
SECTION 10.2 Successor Corporation to be Substituted for Corporation.
In case of any such consolidation, merger, conveyance or transfer and upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Debt Trustee and satisfactory in form to the Debt Trustee,
of the due and punctual payment of the principal of and premium, if any, and
interest on all of the Securities and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the 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, and the Corporation
thereupon shall be relieved of any further liability or obligation hereunder or
upon the Securities. 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 issuable hereunder which theretofore
shall not have been signed by the Corporation and delivered to the Debt Trustee
or the Authenticating Agent; 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 Debt Trustee or the Authenticating
Agent shall authenticate and deliver any Securities which previously shall have
been signed and delivered by the officers of the Corporation to the Debt Trustee
or the Authenticating Agent for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Debt Trustee or the Authenticating Agent for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Indentures had been issued at
the date of the execution hereof.
SECTION 10.3 Opinion of Counsel to be Given Debt Trustee.
The Debt Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, conveyance or transfer, and any assumption, permitted or required by the
terms of this Article Ten complies with the provisions of this Article Ten.
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 11.1 Discharge of Indenture.
When (a) the Corporation shall deliver to the Debt Trustee for
cancellation all Securities theretofore authenticated (other than any Securities
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.8) and not theretofore canceled, or
(b) all the Securities not theretofore canceled or delivered to the Debt 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 Debt Trustee for the giving of
notice of redemption, and the Corporation shall deposit with the Debt Trustee,
in trust, funds sufficient to pay at maturity or upon redemption all of the
Securities (other than any Securities which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.8)
not theretofore canceled or delivered to the Debt Trustee for cancellation,
including principal and premium, if any, and interest due or to become due to
such date of maturity or redemption date, as the case may be, but excluding,
however, the amount of any moneys for the payment of principal of, and premium,
if any, or interest on the Securities (1) theretofore repaid to the Corporation
in accordance with the provisions of Section 11.4, or (2) paid to any State or
to the District of Columbia pursuant to its unclaimed property or similar laws,
and if in either case the Corporation shall also pay or cause to be paid all
other sums payable hereunder by the Corporation, then this Indenture shall cease
to be of further effect, except that the provisions of Sections 2.5, 2.7, 2.8,
3.1, 3.2, 3.4, 6.6, 6.10 and 11.4 hereof shall survive until such Securities
shall mature and be paid. Thereafter, Sections 6.6 and 11.4 shall survive, and
the Debt Trustee, on demand of the Corporation accompanied by any Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Corporation, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture, the Corporation, however, hereby agreeing to
reimburse the Debt Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Debt Trustee in connection with this Indenture or the
Securities.
SECTION 11.2 Deposited Moneys and U.S. Government Obligations to
be Held in Trust by Debt Trustee.
Subject to the provisions of Section 11.4, all moneys and U.S. Government
Obligations deposited with the Debt Trustee pursuant to Sections 11.1 or 11.5
shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including the Corporation if acting as its own paying
agent), to the holders of the particular Securities for the payment of which
such moneys or U.S. Government Obligations have been deposited with the Debt
Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest.
SECTION 11.3 Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then held
by any paying agent of the Securities (other than the Debt Trustee) shall, upon
demand of the Corporation, be repaid to it or paid to the Debt Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 11.4 Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Debt Trustee or any paying agent
for payment of the principal of, and premium, if any, or interest on Securities
and not applied but remaining unclaimed by the holders of Securities for 3 years
after the date upon which the principal of, and premium, if any, or interest on
such Securities, as the case may be, shall have become due and payable, shall be
repaid to the Corporation by the Debt Trustee or such paying agent on written
demand; and the holder of any of the Securities shall thereafter look only to
the Corporation for any payment which such holder may be entitled to collect and
all liability of the Debt Trustee or such paying agent with respect to such
moneys shall thereupon cease.
SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
(a) The Corporation shall be deemed to have been Discharged (as
defined below) from its respective obligations with respect to any series of
Securities upon satisfaction of the applicable conditions set forth below with
respect to such series of Securities:
(i) The Corporation shall have deposited or caused to be
deposited irrevocably with the Debt Trustee or the Defeasance Agent
(as defined below) as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the holders of
the Securities of such series (A) money in an amount, or (B) U.S.
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination of (A) and (B), sufficient,
in the opinion (with respect to (B) and (C)) of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Debt Trustee and the
Defeasance Agent, if any, to pay and discharge each installment of
principal (including any mandatory sinking fund payments) of, and
interest and premium, if any, on, the outstanding Securities of such
series on the dates such installments of principal, interest or
premium are due;
(ii) if the Securities of such series are then listed on any
national securities exchange, the Corporation shall have delivered
to the Debt Trustee and the Defeasance Agent, if any, an Opinion of
Counsel to the effect that the exercise of the option under this
Section 11.5 would not cause such Securities to be delisted from
such exchange;
(iii) no Event of Default or event which with notice or lapse of
time would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on
the date of such deposit; and
(iv) the Corporation shall have delivered to the Debt Trustee
and the Defeasance Agent, if any, an Opinion of Counsel to the
effect that holders of the Securities of such series will not
recognize income, gain or loss for United States Federal income tax
purposes as a result of the exercise of the option under this
Section 11.5 and will be subject to United States Federal income tax
on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised, and,
in the case of the Securities of such series being Discharged, such
opinion shall be accompanied by a private letter ruling to that
effect received from the United States Internal Revenue Service or a
revenue ruling pertaining to a comparable form of transaction to
that effect published by the United States Internal Revenue Service.
(b)"Discharged" means that the Corporation shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Securities of such series and to have satisfied all the obligations
under this Indenture relating to the Securities of such series (and the Debt
Trustee, at the expense of the Corporation, shall execute proper instruments
acknowledging the same), except (A) the rights of holders of Securities of such
series to receive, from the trust fund described in clause (1) above, payment of
the principal of and the interest and premium, if any, on such Securities when
such payments are due; (B) the Corporation's obligations with respect to such
Securities under Sections 2.7, 2.8, 5.2 and 11.4; and (C) the rights, powers,
trusts, duties and immunities of the Debt Trustee hereunder.
(c) "Defeasance Agent" means another financial institution which is
eligible to act as Debt Trustee hereunder and which assumes all of the
obligations of the Debt Trustee necessary to enable the Debt Trustee to act
hereunder. In the event such a Defeasance Agent is appointed pursuant to this
section, the following conditions shall apply:
(i) The Debt Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting forth
such Defeasance Agent's rights and responsibilities;
(ii) The Defeasance Agent shall provide verification to the Debt
Trustee acknowledging receipt of sufficient money and/or U.S.
Government Obligations to meet the applicable conditions set forth
in this Section 11.5;
(iii) The Debt Trustee shall determine whether the Corporation
shall be deemed to have been Discharged from its respective
obligations with respect to any series of Securities.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 12.1 Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation of the Corporation, either directly or through the Corporation or
any successor corporation of the Corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS.
SECTION 13.1 Successors.
All the covenants, stipulations, promises and agreements in this Indenture
contained by the Corporation shall bind its successors and assigns whether so
expressed or not.
SECTION 13.2 Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Corporation shall and may be done and performed with like force and effect by
the like board, committee or officer of any corporation that shall at the time
be the lawful sole successor of the Corporation.
SECTION 13.3 Surrender of Corporation Powers.
The Corporation by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Debt Trustee may
surrender any of the powers reserved to the Corporation, and thereupon such
power so surrendered shall terminate both as to the Corporation, as the case may
be, and as to any successor corporation.
SECTION 13.4 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 Debt Trustee or by the holders of
Securities on the Corporation may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Corporation with the Debt Trustee for the
purpose) to the Corporation, 100 Renaissance Center, Detroit, Michigan
48243-7301, Attention: General Counsel. Any notice, direction, request or demand
by any Securityholder to or upon the Debt Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
office of the Debt Trustee, addressed to the Debt Trustee, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
SECTION 13.5 Governing Law.
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.
SECTION 13.6 Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Corporation to the Debt Trustee to
take any action under any of the provisions of this Indenture, the Corporation
shall furnish to the Debt Trustee an Officers' Certificate stating that in the
opinion of the signers all conditions precedent, if any, 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.
Each certificate or opinion provided for in this Indenture and delivered
to the Debt 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 13.7 Legal Holidays.
In any case where the date of payment of interest on or principal of the
Securities will be in New York, New York or Wilmington, Delaware a legal holiday
or a day on which banking institutions are authorized by law to close, the
payment of such interest on or principal of the Securities need not be made on
such date but may be made on the next succeeding day not in the City a legal
holiday or a day on which banking institutions are authorized by law to close,
with the same force and effect as if made on the date of payment and no interest
shall accrue for the period from and after such date.
SECTION 13.8 Trust Indenture Act to Control.
(a) If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such required provision shall control.
(b) Notwithstanding the foregoing any provisions contained in this
Indenture as to directions and waivers by Securityholders or impairment of
Securityholders' rights to payment shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such sections are hereby expressly
excluded from this Indenture and the Securities, as permitted by the Trust
Indenture Act.
SECTION 13.9 Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10 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 13.11 Separability.
In case any one or more of the provisions contained in this Indenture or
in the Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12 Assignment.
The Corporation will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly-owned Subsidiary of the Corporation, provided that, in the event of any
such assignment, the Corporation, as the case may be, will remain liable for all
such obligations. Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties hereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties hereto.
SECTION 13.13 Acknowledgment of Rights.
The Corporation acknowledges that, with respect to any Securities held by
a General Motors Capital Trust or a trustee of such trust, if the Institutional
Trustee of such Trust fails to enforce its rights under this Indenture as the
holder of the series of Securities held as the assets of such General Motors
Capital Trust, any holder of Preferred Securities may institute legal
proceedings directly against the Corporation to enforce such Institutional
Trustee's rights under this Indenture without first instituting any legal
proceedings against such Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Corporation to
pay interest or principal on the applicable series of Securities on the date
such interest or principal is otherwise payable (or in the case of redemption,
on the redemption date), the Corporation acknowledges that a holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such holder of the principal of or interest on the applicable series of
Securities having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder on or after the respective due date
specified in the applicable series of Securities.
ARTICLE 14
REDEMPTION OF SECURITIES--MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.1 Applicability of Article.
The provisions of this Article shall be applicable to the Securities of
any series which are redeemable before their maturity or to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.3 for Securities of such series.
SECTION 14.2 Notice of Redemption; Selection of Securities.
In case the Corporation shall desire to exercise the right to redeem all,
or, as the case may be, any part of the Securities of any series in accordance
with their terms, it shall fix a date for redemption and shall mail a notice of
such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the holders of Securities of such series so 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 first class mail. The notice if mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice. In any case, failure to give
such 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 date fixed for
redemption, the redemption price at which Securities of such series are to be
redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice, and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all the Securities of such series are to be
redeemed the notice of redemption shall specify the numbers of the Securities of
that series to be redeemed. In case any Security of a series 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 on and after the date fixed
for redemption, upon surrender of such Security, a new Security or Securities of
that series in principal amount equal to the unredeemed portion thereof will be
issued.
Prior to the redemption date specified in the notice of redemption given
as provided in this Section, the Corporation will deposit with the Debt Trustee
or with one or more paying agents an amount of money sufficient to redeem on the
redemption date all the Securities so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption.
If less than all the Securities of a series are to be redeemed, the
Corporation will give the Debt Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount of Securities of that
series to be redeemed and the Debt Trustee shall select, in such manner as in
its sole discretion it shall deem appropriate and fair, the Securities of that
series or portions thereof (in integral multiples of $1,000, except as otherwise
set forth in the applicable form of Security) to be redeemed.
SECTION 14.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as provided in Section 14.2 or
Section 14.4, the Securities or portions of Securities of the series with
respect to which such notice has been given shall become due and payable on the
date and at the place or places stated in such notice at the applicable
redemption price, together with interest 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
accrued to said date) interest on the Securities or portions of Securities of
any series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities at a place of payment specified in said notice, the
said Securities or the specified portions thereof shall be paid and redeemed by
the Corporation at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption.
Upon presentation of any Security of any series redeemed in part only, the
Corporation shall execute and the Debt Trustee shall authenticate and deliver to
the holder thereof, at the expense of the Corporation, a new Security or
Securities of such series of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 14.4 Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". The last date on which any such payment may be made is herein
referred to as a "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Securities of a series in cash, the Corporation may at its
option (a) deliver to the Debt Trustee Securities of that series theretofore
purchased by the Corporation and (b) may apply as a credit Securities of that
series which have been redeemed either at the election of the Corporation
pursuant to the terms of such Securities or through the application of optional
sinking fund payments pursuant to the next succeeding paragraph, in each case in
satisfaction of all or any part of any mandatory sinking fund payment, provided
that such Securities have not been previously so credited. Each such Security so
delivered or applied as a credit shall be credited at the sinking fund
redemption price for such Securities and the amount of any mandatory sinking
fund shall be reduced accordingly. If the Corporation intends so to deliver or
credit such Securities with respect to any mandatory sinking fund payment it
shall deliver to the Debt Trustee at least 60 days prior to the next succeeding
sinking fund payment date for such series (a) a certificate signed by any Vice
President, the Treasurer or any Assistant Treasurer of the Corporation
specifying the portion of such sinking fund payment, if any, to be satisfied by
payment of cash and the portion of such sinking fund payment, if any, which is
to be satisfied by delivering and crediting such Securities and (b) any
Securities to be so delivered. All Securities so delivered to the Debt Trustee
shall be canceled by the Debt Trustee and no Securities shall be authenticated
in lieu thereof. If the Corporation fails to deliver such certificate and
Securities at or before the time provided above, the Corporation shall not be
permitted to satisfy any portion of such mandatory sinking fund payment by
delivery or credit of Securities.
At its option the Corporation may pay into the sinking fund for the
retirement of Securities of any particular series, on or before each sinking
fund payment date for such series, any additional sum in cash as specified by
the terms of such series of Securities. If the Corporation intends to exercise
its right to make any such optional sinking fund payment, it shall deliver to
the Debt Trustee at least 60 days prior to the next succeeding sinking fund
payment date for such Series a certificate signed by any Vice President, the
Treasurer or any Assistant Treasurer of the Corporation stating that the
Corporation intends to exercise such optional right and specifying the amount
which the Corporation intends to pay on such sinking fund payment date. If the
Corporation fails to deliver such certificate at or before the time provided
above, the Corporation shall not be permitted to make any optional sinking fund
payment with respect to such sinking fund payment date. To the extent that such
right is not exercised in any year it shall not be cumulative or carried forward
to any subsequent year.
If the sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Corporation shall so request) with
respect to the Securities of any particular series, it shall be applied by the
Debt Trustee or one or more paying agents on the next succeeding sinking fund
payment date to the redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. The Debt Trustee shall select, in the manner provided in Section
14.2, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and the Debt Trustee shall, at the expense and in the name of the Corporation,
thereupon cause notice of redemption of Securities of such series to be given in
substantially the manner and with the effect provided in Sections 14.2 and 14.3
for the redemption of Securities of that series in part at the option of the
Corporation, except that the notice of redemption shall also state that the
Securities of such series are being redeemed for the sinking fund. Any sinking
fund moneys not so applied or allocated by the Debt Trustee or any paying agent
to the redemption of Securities of that series shall be added to the next cash
sinking fund payment received by the Debt Trustee or such paying agent and,
together with such payment, shall be applied in accordance with the provisions
of this Section 14.4. Any and all sinking fund moneys held by the Debt Trustee
or any paying agent on the maturity date of the Securities of any particular
series, and not held for the payment or redemption of particular Securities of
such series, shall be applied by the Debt Trustee or such paying agent, together
with other moneys, if necessary, to be deposited sufficient for the purpose, to
the payment of the principal of the Securities of that series at maturity.
On or before each sinking fund payment date, the Corporation shall pay to
the Debt Trustee or to one or more paying agents in cash a sum equal to all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date pursuant to this Section.
Neither the Debt Trustee nor any paying agent shall redeem any Securities
of a series with sinking fund moneys, and the Debt Trustee shall not mail any
notice of redemption of Securities for such series by operation of the sinking
fund, during the continuance of a default in payment of interest on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph), except that if the notice of redemption of
any Securities shall theretofore have been mailed in accordance with the
provisions hereof, the Debt Trustee or any paying agent shall redeem such
Securities if cash sufficient for that purpose shall be deposited with the Debt
Trustee or such paying agent for that purpose in accordance with the terms of
this Article Fourteen. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall occur
and any moneys thereafter paid into the sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of all such Securities; provided, however, that in case such Event of
Default or default shall have been cured or waived as provided herein, such
moneys shall thereafter be applied on the next succeeding sinking fund payment
date on which such moneys may be applied pursuant to the provisions of this
Section 14.4.
ARTICLE 15
SUBORDINATION OF SECURITIES
SECTION 15.1 Agreement to Subordinate.
The Corporation covenants and agrees, and each holder of Securities issued
hereunder and under any supplemental indenture or by any resolutions by the
Board of Directors ("Additional Provisions") by such Securityholder's acceptance
thereof likewise covenants and agrees, that all Securities of all series shall
be issued subject to the provisions of this Article Fifteen; and each holder of
a Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Corporation of the principal of, premium, if any, and
interest on all Securities issued hereunder and under any Additional Provisions
shall, to the extent and in the manner hereinafter set forth, be subordinated
and junior in right of payment to the prior payment in full of all Senior
Indebtedness and Other Financial Obligations of the Corporation and rank pari
passu and equivalent to creditor obligations of those holding general unsecured
claims not entitled to statutory priority under the United States Bankruptcy
Code or otherwise, in each case whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article Fifteen shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 15.2 Default on Senior Indebtedness.
No payment may be made of the principal of, premium, if any, or interest
on the Securities, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Securities, at any time when (i) there is a
default in the payment of the principal of, premium, if any, interest on or
otherwise in respect of any Senior Indebtedness, whether at maturity or at a
date fixed for prepayment or by declaration or otherwise, or (ii) any event of
default with respect to any Senior Indebtedness has occurred and is continuing,
pursuant to which the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) have accelerated the maturity thereof.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Debt Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.2, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness and Other Financial Obligations or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness and Other Financial Obligations may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness and Other Financial Obligations (or
their representative or representatives or a trustee) notify the Debt Trustee in
writing within 90 days of such payment of the amounts then due and owing on the
Senior Indebtedness and Other Financial Obligations and only the amounts
specified in such notice to the Debt Trustee shall be paid to the holders of
Senior Indebtedness and Other Financial Obligations.
SECTION 15.3 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Corporation or distribution of assets of the
Corporation of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
and Other Financial Obligations of the Corporation shall first be paid in full,
or payment thereof provided for in money in accordance with their terms, before
any payment is made by the Corporation on account of the principal (and premium,
if any) or interest on the Securities; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Corporation, or
distribution of assets of the Corporation of any kind or character, whether in
cash, property or securities, to which the Securityholders or the Debt Trustee
would be entitled to receive from the Corporation, except under the provisions
of this Article Fifteen, shall be paid by the Corporation or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the Securityholders or by the Debt Trustee under
the Indenture if received by them or it, directly to the holders of Senior
Indebtedness and Other Financial Obligations of the Corporation (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness and
Other Financial Obligations held by such holders, as calculated by the
Corporation) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness and Other Financial Obligations may have been issued, as
their respective interests may appear, to the extent necessary to pay such
Senior Indebtedness and Other Financial Obligations in full, in money or money's
worth, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness and Other Financial Obligations, before
any payment or distribution is made to the Securityholders or to the Debt
Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Corporation of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Debt Trustee before all Senior Indebtedness and Other Financial Obligations
of the Corporation are paid in full, or provision is made for such payment in
money in accordance with its terms, such payment or distribution shall be held
in trust for the benefit of and shall be paid over or delivered to the holders
of such Senior Indebtedness and Other Financial Obligations or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
and Other Financial Obligations may have been issued, and their respective
interests may appear, as calculated by the Corporation, for application to the
payment of all Senior Indebtedness and Other Financial Obligations of the
Corporation, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness and Other Financial Obligations in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness
and Other Financial Obligations.
For purposes of this Article Fifteen, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Corporation as
reorganized or readjusted, or securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article
Fifteen with respect to the Securities to the payment of all Senior Indebtedness
and Other Financial Obligations of the Corporation, as the case may be, that may
at the time be outstanding, provided that (i) such Senior Indebtedness and Other
Financial Obligations is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
such Senior Indebtedness and Other Financial Obligations are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Corporation with, or the merger of the Corporation into,
another corporation or the liquidation or dissolution of the Corporation
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Ten of this Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 15.3 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article Ten
of this Indenture. Nothing in Section 15.2 or in this Section 15.3 shall apply
to claims of, or payments to, the Debt Trustee under or pursuant to Section 6.6
of this Indenture.
SECTION 15.4 Subrogation.
Subject to the payment in full of all Senior Indebtedness and Other
Financial Obligations of the Corporation, the rights of the Securityholders
shall be subrogated to the rights of the holders of such Senior Indebtedness and
Other Financial Obligations to receive payments or distributions of cash,
property or securities of the Corporation, as the case may be, applicable to
such Senior Indebtedness and Other Financial Obligations until all amounts owing
on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness and Other Financial Obligations of any cash, property or securities
to which the Securityholders or the Debt Trustee would be entitled except under
the provisions of this Article Fifteen, and no payment over pursuant to the
provisions of this Article Fifteen to or for the benefit of the holders of such
Senior Indebtedness and Other Financial Obligations by Securityholders or the
Debt Trustee, shall, as between the Corporation, its creditors other than
holders of Senior Indebtedness and Other Financial Obligations of the
Corporation, and the holders of the Securities, be deemed to be a payment by the
Corporation to or on account of such Senior Indebtedness and Other Financial
Obligations. It is understood that the provisions of this Article Fifteen are
and are intended solely for the purposes of defining the relative rights of the
holders of the Securities, on the one hand, and the holders of such Senior
Indebtedness and Other Financial Obligations, on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this Indenture,
any Additional Provisions or in the Securities is intended to or shall impair,
as between the Corporation, its creditors other than the holders of Senior
Indebtedness and Other Financial Obligations of the Corporation, and the holders
of the Securities, the obligation of the Corporation, which is absolute and
unconditional, to pay to the holders of the Securities the principal of,
premium, if any, and interest on, the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Securities and creditors
of the Corporation, as the case may be, other than the holders of Senior
Indebtedness and Other Financial Obligations of the Corporation, as the case may
be, nor shall anything herein or therein prevent the Debt Trustee or the holder
of any Security from exercising all remedies otherwise permitted by applicable
law upon default under the Indenture, subject to the rights, if any, under this
Article Fifteen of the holders of such Senior Indebtedness and Other Financial
Obligations in respect of cash, property or securities of the Corporation, as
the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Corporation referred to
in this Article Fifteen, the Debt Trustee, subject to the provisions of Article
Six of this Indenture, and the Securityholders shall be entitled to conclusively
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment or distribution,
delivered to the Debt Trustee or to the Securityholders, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness, Other Financial Obligations and other
indebtedness of the Corporation, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fifteen.
SECTION 15.5 Debt Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof authorizes
and directs the Debt Trustee on such Securityholder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article Fifteen and appoints the Debt Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.6 Notice by the Corporation.
The Corporation shall give prompt written notice to a Responsible Officer
of any fact known to the Corporation that would prohibit the making of any
payment of monies to or by the Debt Trustee in respect of the Securities
pursuant to the provisions of this Article Fifteen. Notwithstanding the
provisions of this Article Fifteen or any other provision of this Indenture or
any Additional Provisions, the Debt Trustee shall not be charged with knowledge
of the existence of any facts that would prohibit the making of any payment of
monies to or by the Debt Trustee in respect of the Securities pursuant to the
provisions of this Article Fifteen, unless and until a Responsible Officer shall
have received written notice thereof from the Corporation or a holder or holders
of Senior Indebtedness or Other Financial Obligations or from any trustee
therefor; and before the receipt of any such written notice, the Debt Trustee,
subject to the provisions of Article Six of this Indenture, shall be entitled in
all respects to assume that no such facts exist; provided, however, that if the
Debt Trustee shall not have received the notice provided for in this Section
15.6 at least two Business Days prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Security),
then, anything herein contained to the contrary notwithstanding, the Debt
Trustee shall have full power and authority to receive such money and to apply
the same to the purposes for which they were received, and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.
The Debt Trustee, subject to the provisions of Article Six of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness or Other Financial Obligations of the Corporation, as the case may
be (or a trustee on behalf of such holder), to establish that such notice has
been given by a holder of such Senior Indebtedness or Other Financial
Obligations or a trustee on behalf of any such holder or holders. In the event
that the Debt Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of such Senior Indebtedness
or Other Financial Obligations to participate in any payment or distribution
pursuant to this Article Fifteen, the Debt Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Debt Trustee as to the
amount of such Senior Indebtedness or Other Financial Obligations held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Fifteen, and, if such evidence is not furnished, the
Debt Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 15.7 Rights of the Debt Trustee; Holders of Senior Indebtedness
and Other Financial Obligations.
The Debt Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Fifteen in respect of any Senior Indebtedness
or Other Financial Obligations at any time held by it, to the same extent as any
other holder of Senior Indebtedness or Other Financial Obligations, and nothing
in this Indenture or any Additional Provisions shall deprive the Debt Trustee of
any of its rights as such holder.
With respect to the holders of Senior Indebtedness or Other Financial
Obligations of the Corporation, the Debt Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth
in this Article Fifteen, and no implied covenants or obligations with respect to
the holders of such Senior Indebtedness or Other Financial Obligations shall be
read into this Indenture or any Additional Provisions against the Debt Trustee.
The Debt Trustee shall not be deemed to owe any fiduciary duty to the holders of
such Senior Indebtedness or Other Financial Obligations and, subject to the
provisions of Article Six of this Indenture, the Debt Trustee shall not be
liable to any holder of such Senior Indebtedness or Other Financial Obligations
if it shall pay over or deliver to Securityholders, the Corporation or any other
Person money or assets to which any holder of such Senior Indebtedness or Other
Financial Obligations shall be entitled by virtue of this Article Fifteen or
otherwise.
SECTION 15.8 Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness or
Other Financial Obligations of the Corporation to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Corporation, as the case may be, or by
any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Corporation, as the case may be, with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof that any
such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness or Other Financial Obligations of the Corporation
may, at any time and from time to time, without the consent of or notice to the
Debt Trustee or the Securityholders, without incurring responsibility to the
Securityholders and without impairing or releasing the subordination provided in
this Article Fifteen or the obligations hereunder of the holders of the
Securities to the holders of such Senior Indebtedness or Other Financial
Obligations, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness or Other Financial Obligations, or otherwise amend or
supplement in any manner such Senior Indebtedness or Other Financial Obligations
or any instrument evidencing the same or any agreement under which such Senior
Indebtedness or Other Financial Obligations is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness or Other Financial Obligations; (iii) release
any Person liable in any manner for the collection of such Senior Indebtedness
or Other Financial Obligations; and (iv) exercise or refrain from exercising any
rights against the Corporation, as the case may be, and any other Person.
* * * * *
<PAGE>
The Debt Trustee hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized and their
respective corporate seals to be hereunto duly affixed and attested, all as of
the day and year first above written.
[Seal] GENERAL MOTORS CORPORATION
Attest:
/s/ Walter G. Borst By: /s/ John D. Finnegan
Its: Vice President and Treasurer
[Seal] WILMINGTON TRUST COMPANY, as Debt Trustee
Attest:
/s/ Patricia A. Evans By: /s/ Donald G. MacKelcan
Patricia A. Evans Donald G. MacKelcan
Financial Services Officer Its: Assistant Vice President
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On the_______ day of _________________, 1997 before me personally came
John D. Finnegan, to me known, who, being by me duly sworn, did depose and say
that he resides at______________; that he is Treasurer of General Motors
Corporation, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to the said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
/s/ John Russell
NOTARY PUBLIC
[seal] Commission expires: JOHN RUSSELL
Notary Public, State of New York
No. 31-4627519
Qualified in New York County
Commission Expires March 30, 1998
STATE OF DELAWARE )
COUNTY OF NEW CASTLE ) ss.:
On the ____day of ________________, 1997, before me personally came Donald
G. MacKelcan, to me known, who, being by me duly sworn, did depose and say that
he resides at Wilmington, Delaware; that he is Assistant Vice President of
Wilmington Trust Co., one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Kathleen A. Pedelini
NOTARY PUBLIC
[seal] Commission expires: KATHLEEN A. PEDELINI
NOTARY PUBLIC
My Commission expires October 31, 1998
- --------
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A
PART OF THE INDENTURE.
GMNEWIND.WP1
FOOTER B HAS BEEN ENTERED (DRAFT)
FIRST SUPPLEMENTAL INDENTURE
between
GENERAL MOTORS CORPORATION
and
WILMINGTON TRUST COMPANY
Dated as of July 9, 1997
WITH RESPECT TO THE
SERIES D JUNIOR SUBORDINATED DEBENTURES
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS 2
SECTION 1.1 Definition of Terms. 2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES 3
SECTION 2.1 Designation and Principal Amount. 3
SECTION 2.2 Maturity. 3
SECTION 2.3 Form and Payment. 3
SECTION 2.4 Series D Global Debenture. 4
SECTION 2.5 Interest. 5
ARTICLE 3
REDEMPTION OF THE DEBENTURES 5
SECTION 3.1 Tax Event Redemption. 5
SECTION 3.2 Series D Optional Redemption by Corporation. 6
SECTION 3.3 No Sinking Fund. 6
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD 6
SECTION 4.1 Extension of Interest Payment Period. 6
SECTION 4.2 Notice of Extension. 7
SECTION 4.3 Limitation of Transactions. 7
ARTICLE 5
EXPENSES 8
SECTION 5.1 Payment of Expenses. 8
SECTION 5.2 Payment Upon Resignation or Removal. 8
ARTICLE 6
COVENANT TO LIST ON EXCHANGE 9
SECTION 6.1 Listing on an Exchange. 9
ARTICLE 7
FORM OF DEBENTURE 9
SECTION 7.1 Form of Series D Debenture. 9
ARTICLE 8
ORIGINAL ISSUE OF DEBENTURES 9
SECTION 8.1 Original Issue of Series D Debentures. 9
ARTICLE 9
MISCELLANEOUS 9
SECTION 9.1 Ratification of Indenture. 9
SECTION 9.2 Debt Trustee Not Responsible for Recitals. 9
SECTION 9.3 Governing Law. 10
SECTION 9.4 Separability. 10
SECTION 9.5 Counterparts. 10
Exhibit A Form of Debenture
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
WITH RESPECT TO THE
SERIES D JUNIOR SUBORDINATED DEBENTURES
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of July 9, 1997 (the "First
Supplemental Indenture"), between General Motors Corporation, a Delaware
corporation (the "Corporation"), and Wilmington Trust Company, as trustee (the
"Debt Trustee") under the Indenture dated as of July 1, 1997 between the
Corporation and the Debt Trustee (the "Indenture").
WHEREAS, the Corporation executed and delivered the Indenture to provide
for the future issuance of the Corporation's unsecured junior subordinated debt
securities to be issued from time to time in one or more series as may be
determined by the Corporation under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Corporation desires
to provide for the establishment of a new series of such securities to be known
as its 8.67% Junior Subordinated Deferrable Interest Debentures, Series D, due
2012 (the "Series D Debentures"), the form and substance of such Series D
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this First Supplemental Indenture;
WHEREAS, the Corporation and General Motors Capital Trust D, a Delaware
statutory business trust (the "Series D Trust"), have made an offer to exchange
(the "Series D Offer") the Series D Trust's 8.67% Trust Originated Preferred
Securities, Series D (the "Series D Preferred Securities"), representing
preferred undivided beneficial ownership interests in the assets of the Series D
Trust, for any and all of the Corporation's depositary shares (the "Series D
7.92% Depositary Shares"), each representing one-fourth of a share of Series D
7.92% Preference Stock, $0.10 par value per share, of the Corporation not owned
by the Corporation;
WHEREAS, concurrently with the issuance of the Series D Preferred
Securities in exchange for Series D 7.92% Depositary Shares validly tendered in
the Series D Offer, (a) the Series D Trust will issue and sell to the
Corporation 8.67% Trust Originated Common Securities, Series D (the "Series D
Common Securities"), in an aggregate stated liquidation amount equal to at least
3% of the total capital of the Series D Trust and (b) the Corporation will
deposit in the Series D Trust as trust assets the Series D Debentures having an
aggregate principal amount equal to the aggregate stated liquidation amount of
the Series D Preferred Securities and the Series D Common Securities so issued;
and
WHEREAS, the Corporation has requested that the Debt Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to make
this First Supplemental Indenture a valid instrument in accordance with its
terms, and to make the Series D Debentures, when executed by the Corporation and
authenticated and delivered by the Debt Trustee, the valid obligations of the
Corporation, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Series D Debentures by the Holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Series D
Debentures and the terms, provisions and conditions thereof, the Corporation
covenants and agrees with the Debt Trustee as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Series D Declaration: (i) Dealer Manager Agreement; (ii) Delaware Trustee;
(iii) Distributions; (iv) Institutional Trustee; (v) Series D Preferred
Securities Guarantee; (vi) Preferred Security Certificate and (vii) Regular
Trustee.
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Compound Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Creditor" shall have the meaning set forth in Section 5.1
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means the dissolution of the Series D Trust and
distribution of the Series D Debentures held by the Institutional Trustee pro
rata to the holders of the Series D Trust Securities in accordance with the
Series D Declaration, such event to occur at the option of the Corporation at
any time.
"Holder" means any person in whose name at the time a Series D Debenture
is registered on the Security Register.
"Interest Payment Date" shall have the meaning set forth in
Section 2.5(a).
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a).
"Series D Redemption Price" shall mean either the Series D Tax Event
Prepayment Price or the Series D Optional Prepayment Price, as the context
requires.
"Series D Declaration" means the Amended and Restated Declaration of Trust
of General Motors Capital Trust D, a Delaware statutory business trust, dated as
of July 9, 1997, as amended from time to time.
"Series D Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Series D Global Debenture" shall have the meaning set forth in Section
2.4(a).
"Series D Optional Prepayment Price" shall have the meaning set forth in
Section 3.2.
"Series D Stated Maturity" means the date on which the Series D Debentures
mature and on which the principal shall be due and payable, together with all
accrued and unpaid interest thereon including Compound Interest and Additional
Interest, if any, which date shall be July 1, 2012, unless shortened to a date
not earlier than August 1, 1999, as more fully described in Section 2.2.
"Series D Tax Event Prepayment Price" shall have the meaning set forth in
Section 3.1.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Series D Debentures, there is more than an
insubstantial risk that (i) the Series D Trust is, or will be within 90 days of
the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Series D Debentures, (ii) interest
payable by the Corporation on the Series D Debentures is not, or within 90 days
of the date thereof will not be, deductible by the Corporation, in whole or in
part, for United States federal income tax purposes, or (iii) the Series D Trust
is, or will be within 90 days of the date of such opinion, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "8.67%
Junior Subordinated Deferrable Interest Debentures, Series D, due 2012", limited
in aggregate principal amount to the aggregate stated liquidation amount of the
Series D Preferred Securities and Series D Common Securities to be issued by the
Series D Trust, which amount shall be as set forth in any written order of the
Corporation for the authentication and delivery of Series D Debentures pursuant
to Section 2.4 of the Indenture.
SECTION 2.2 Maturity.
(a) The Series D Debentures shall mature on July 1, 2012. The
Corporation has the right at any time to shorten the maturity of the Series D
Debentures to a date not earlier than August 1, 1999.
(b) In the event that the Corporation elects to shorten the maturity
date of the Series D Debentures, it shall give notice to the Debt Trustee, and
the Debt Trustee shall give notice of such shortening or extension to the
holders of the Series D Debentures no more than 90 and no less than 30 days
prior to the effectiveness thereof.
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Series D Debentures shall be issued
in fully registered certificated form without interest coupons. Principal and
interest on the Series D Debentures issued in certificated form will be payable,
the transfer of such Series D Debentures will be registrable and such Series D
Debentures will be exchangeable for Series D Debentures bearing identical terms
and provisions at the office or agency of the Debt Trustee in Wilmington,
Delaware or New York, New York, as applicable; provided, however, that payment
of interest may be made at the option of the Corporation by check mailed to the
Holder entitled thereto at such address as shall appear in the Security Register
or by wire transfer to an account appropriately designated by the Holder
entitled thereto. Notwithstanding the foregoing, so long as the Holder of any
Series D Debentures is the Institutional Trustee, the payment of the principal
of and interest (including Compound Interest and Additional Interest, if any) on
such Series D Debentures held by the Institutional Trustee will be made at such
place and to such account as may be designated by the Institutional Trustee.
SECTION 2.4 Series D Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Series D Debentures in certificated form may be presented to
the Debt Trustee by the Institutional Trustee in exchange for a global Series D
Debenture in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Series D Debentures (a "Global Series D Debenture"),
to be registered in the name of the Depository Institution, or its nominee, and
delivered by the Debt Trustee to the Depository Institution for crediting to the
accounts of its participants pursuant to the instructions of the Regular
Trustees. The Corporation upon any such presentation shall execute a Global
Series D Debenture in such aggregate principal amount and deliver the same to
the Debt Trustee for authentication and delivery in accordance with the
Indenture and this First Supplemental Indenture. Payments on the Series D
Debentures issued as a Global Series D Debenture will be made to the Depository
Institution; and
(ii) if any Series D Preferred Securities are held in non book-entry
certificated form, the Series D Debentures in certificated form may be presented
to the Debt Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Series D Preferred Securities other than Series D
Preferred Securities held by the Depository Institution or its nominee ("Non
Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Series D Debentures presented to the Debt Trustee by the
Institutional Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificates are presented to the Security registrar for
transfer or reissuance, at which time such Preferred Security Certificates will
be canceled and a Series D Debenture, registered in the name of the holder of
the Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred Security
Certificate canceled, will be executed by the Corporation and delivered to the
Debt Trustee for authentication and delivery in accordance with the Indenture
and this First Supplemental Indenture. On issue of such Series D Debentures,
Series D Debentures with an equivalent aggregate principal amount that were
presented by the Institutional Trustee to the Debt Trustee will be deemed to
have been canceled.
(b) A Global Series D Debenture may be transferred, in whole but not
in part, only to another nominee of the Depository Institution, or to a
successor Depository Institution selected or approved by the Corporation or to a
nominee of such successor Depository Institution.
(c) If (i) at any time the Depository Institution notifies the
Corporation that it is unwilling or unable to continue as Depository Institution
or if at any time the Depository Institution for such series shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, and a successor Depository
Institution for such series is not appointed by the Corporation within 90 days
after the Corporation receives such notice or becomes aware of such condition,
as the case may be, (ii) the Corporation at any time determines that the Series
D Debentures shall no longer be represented by a Global Series D Debenture or
(iii) there shall have occurred an Event of Default with respect to the Series D
Debentures, then the Corporation will execute, and, subject to Article 2 of the
Indenture, the Debt Trustee, upon written notice from the Corporation, will
authenticate and deliver the Series D Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Series D Debenture in
exchange for such Global Series D Debenture. In such event the Corporation will
execute, and subject to Section 2.7 of the Indenture, the Debt Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Corporation, will authenticate and deliver the Series D Debentures in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Series D
Debenture in exchange for such Global Series D Debenture. Upon the exchange of
the Global Series D Debenture for such Series D Debentures in definitive
registered form without coupons, in authorized denominations, the Global Series
D Debenture shall be canceled by the Debt Trustee. Such Series D Debentures in
definitive registered form issued in exchange for the Global Series D Debenture
shall be registered in such names and in such authorized denominations as the
Depository Institution, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Debt Trustee. The Debt Trustee
shall deliver such Securities to the Depository Institution for delivery to the
Persons in whose names such Securities are so registered.
SECTION 2.5 Interest.
(a) Each Series D Debenture will bear interest at the rate of 8.67%
per annum (the "Coupon Rate") from July 3, 1997, the first date following the
expiration date of the Series D Offer (the "Accrual Date"), until the principal
thereof becomes due and payable, and on any overdue principal and, to the extent
that payment of such interest is enforceable under applicable law, on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable quarterly on February 1, May 1, August 1 and November 1 of each year
(each, an "Interest Payment Date"), commencing on August 1, 1997, to the Person
in whose name such Series D Debenture or any predecessor Series D Debenture is
registered, at the close of business on the 15th day of January, April, July and
October prior to the applicable Interest Payment Date, except as otherwise
provided herein. Payments of interest may be deferred by the Corporation
pursuant to the provisions of Article 4 hereof. The Series D Debentures will
also accrue interest at the rate of 7.92% per annum of the principal amount
thereof from April 1, 1997 through and including July 2, 1997, the expiration
date of the Series D Offer, payable on August 1, 1997 to the Person in whose
name such Series D Debentures is registered on the 15th day of July, 1997
("Pre-Issuance Interest"). No deferral of interest will be permitted with
respect to Pre-Issuance Interest.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest is computed, will be computed on
the basis of the actual number of days elapsed. In the event that any date on
which interest is payable on the Series D Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the holder of
any of the Series D Debentures, the Series D Trust or the Institutional Trustee
is required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, then, in any such case, the Corporation will pay as
additional interest ("Additional Interest") on the Series D Debentures held by
the Institutional Trustee, such additional amounts as shall be required so that
the net amounts received and retained by the Series D Trust and the
Institutional Trustee after paying such taxes, duties, assessments or other
governmental charges will not be less than the amounts the Series D Trust and
the Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
ARTICLE 3
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Tax Event Redemption.
If, prior to August 1, 1999, a Tax Event has occurred and is continuing,
the Corporation shall have the right, upon not less than 30 days and no more
than 60 days notice to the Holders, at its option, to redeem the Series D
Debentures, in whole (but not in part), for cash within 90 days following the
occurrence of such Tax Event at a prepayment price (the "Series D Tax Event
Prepayment Price") equal to (i) 105% of the principal amount of the Series D
Debentures if prepaid during the period commencing on the Accrual Date through
and including July 31, 1997 and (ii) the percentage of the principal amount of
the Series D Debentures specified below, if prepaid during the 12-month period
beginning August 1 of the years indicated below, plus, in each case, any accrued
and unpaid interest thereon to the date of prepayment:
Year Percentage
1997 105 %
1998 102.5
1999 and thereafter 100
The Series D Tax Event Prepayment Price shall be paid prior to 12:00 noon,
Eastern time, on the date of such redemption or such earlier time as the
Corporation determines; provided that the Corporation shall deposit with the
Debt Trustee an amount sufficient to pay the Series D Tax Event Prepayment Price
by 10:00 a.m., Eastern time, on the date such Series D Tax Event Prepayment
Price is to be paid.
SECTION 3.2 Series D Optional Redemption by Corporation.
Subject to the provisions of Article 14 of the Indenture, except as
otherwise may be specified in this First Supplemental Indenture, the Corporation
shall have the right, upon not less than 30 days and no more than 60 days notice
to the Holders, to redeem the Series D Debentures, in whole or in part, from
time to time, on or after August 1, 1999, for cash at a prepayment price (the
"Series D Optional Prepayment Price") equal to 100% of the principal amount
thereof, plus any accrued and unpaid interest thereon to the redemption date.
Notwithstanding anything to the contrary contained herein, the Corporation may
not redeem fewer than all of the Series D Debentures unless all accrued and
unpaid interest on all of the Series D Debentures has been paid for all
quarterly periods terminating on or prior to the redemption date. If the Series
D Debentures are only partially redeemed pursuant to this Section 3.2, the
Series D Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Debt Trustee; provided, that if at the time of redemption the
Series D Debentures are registered as a Global Series D Debenture, the
Depository Institution shall determine, in accordance with its procedures, the
principal amount of such Series D Debentures held by each Holder to be redeemed.
The Series D Optional Prepayment Price shall be paid prior to 12:00 noon,
Eastern time, on the date of such redemption or at such earlier time as the
Corporation determines; provided that the Corporation shall deposit with the
Debt Trustee an amount sufficient to pay the Series D Optional Prepayment Price
by 10:00 a.m., Eastern time, on the date such Series D Optional Prepayment Price
is to be paid.
SECTION 3.3 No Sinking Fund.
The Series D Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
With the exception of Pre-Issuance Interest, so long as the Corporation
shall not be in default in the payment of interest on the Series D Debentures,
the Corporation shall have the right, at any time and from time to time during
the term of the Series D Debentures, to defer payments of interest by extending
the interest payment period of such Series D Debentures for a period not
exceeding 20 consecutive quarters (the "Series D Extended Interest Payment
Period"), during which Series D Extended Interest Payment Period no interest
shall be due and payable; provided that no Series D Extended Interest Payment
Period may extend beyond the Series D Stated Maturity. To the extent permitted
by applicable law, interest, the payment of which has been deferred because of
the extension of the interest payment period pursuant to this Section 4.1, will
bear interest thereon at the Coupon Rate compounded quarterly for each quarter
of the Series D Extended Interest Payment Period ("Compound Interest"). At the
end of the Series D Extended Interest Payment Period, the Corporation shall pay
all interest accrued and unpaid on the Series D Debentures, including any
Additional Interest and Compound Interest (together, "Deferred Interest") that
shall be payable to the Holders in whose names the Series D Debentures are
registered in the Security Register on the first record date after the end of
the Series D Extended Interest Payment Period. Before the termination of any
Series D Extended Interest Payment Period, the Corporation may further extend
such period, provided that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters, or extend beyond the Series D
Stated Maturity. Upon the termination of any Series D Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the Corporation
may commence a new Series D Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during a Series D
Extended Interest Payment Period, except at the end thereof, but the Corporation
may prepay at any time all or any portion of the interest accrued during a
Series D Extended Interest Payment Period.
SECTION 4.2 Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder at the
time the Corporation selects a Series D Extended Interest Payment Period, the
Corporation shall give written notice to the Regular Trustees, the Institutional
Trustee and the Debt Trustee of its selection of such Series D Extended Interest
Payment Period one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Series D Trust Securities issued by the
Series D Trust are payable, or (ii) the date the Series D Trust is required to
give notice of the record date, or the date such Distributions are payable, to
the New York Stock Exchange or other applicable self-regulatory organization or
to holders of the Series D Preferred Securities issued by the Series D Trust,
but in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder at the time
the Corporation selects a Series D Extended Interest Payment Period, the
Corporation shall give the Holders of the Series D Debentures and the Debt
Trustee written notice of its selection of such Series D Extended Interest
Payment Period at least ten Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Corporation is required
to give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
Holders of the Series D Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Series D Extended Interest Payment Period permitted
under Section 4.1.
SECTION 4.3 Limitation of Transactions.
If (i) the Corporation shall exercise its right to defer payment of
interest as provided in Section 4.1, or (ii) there shall have occurred any Event
of Default, as defined in the Indenture, with respect to the Series D
Debentures, or (iii) there shall have occurred any Event of Default, as defined
in the Series D Preferred Securities Guarantee, then the Corporation shall not
(a) declare or pay any dividend on, make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (1) purchases or acquisitions of shares of its
common stock (including, without limitation, all classes of common stock now or
hereafter issued) in connection with the satisfaction by the Corporation of its
obligations under any employee benefit plans or any other contractual obligation
of the Corporation (other than a contractual obligation ranking pari passu with
or junior to the Series D Debentures), (2) the issuance of capital stock in
connection with a recapitalization or reclassification of the Corporation's
capital stock or the exchange or conversion of one class or series of the
Corporation's capital stock for another class or series of the Corporation's
capital stock, in each case by merger or otherwise, or (3) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged), (b) make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Corporation that rank pari passu with or junior to the Series D Debentures
and (c) make any guarantee payments with respect to the foregoing (other than
pursuant to the Series D Preferred Securities Guarantee).
ARTICLE 5
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the Series D
Debentures to the Institutional Trustee and in connection with the sale of the
Series D Trust Securities by the Series D Trust, the Corporation, in its
capacity as borrower with respect to the Series D Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Series D Debentures, including fees to the dealer managers
payable pursuant to the Dealer Manager Agreement and compensation of the Debt
Trustee under the Indenture in accordance with the provisions of Section 6.6 of
the Indenture;
(b) be responsible for and shall pay all debts and obligations (other
than payments of principal, interest and premium, if any, with respect to the
Series D Trust Securities) and costs and expenses of the Series D Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Series D Trust, the offer, sale and issuance
of the Series D Trust Securities (including fees to the dealer managers in
connection therewith), the fees and expenses (including reasonable counsel fees
and expenses) of the Institutional Trustee, the Delaware Trustee and the Regular
Trustees (including any amounts payable under Article 10 of the Series D
Declaration), the costs and expenses relating to the operation of the Series D
Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Series D Trust assets and the
enforcement by the Institutional Trustee of the rights of the holders of the
Series D Preferred Securities);
(c) be primarily liable for any indemnification obligations
arising with respect to the Series D Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Series D Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Series D Trust.
The Corporation's obligations under this Section 5.1 shall be for the
benefit of, and shall be enforceable by, any person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Corporation's obligations under this Section 5.1 directly against the
Corporation and the Corporation irrevocably waives any right of remedy to
require that any such Creditor take any action against the Series D Trust or any
other Person before proceeding against the Corporation. The Corporation agrees
to execute such additional agreements as may be necessary or desirable in order
to give full effect to the provisions of this Section 5.1.
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the Indenture or
the removal or resignation of the Debt Trustee, unless otherwise stated, the
Corporation shall pay to the Debt Trustee all amounts accrued to the date of
such termination, removal or resignation. Upon termination of the Series D
Declaration or the removal or resignation of the Delaware Trustee or the
Institutional Trustee, as the case may be, pursuant to Section 5.6 of the Series
D Declaration, the Corporation shall pay to the Delaware Trustee or the
Institutional Trustee, as the case may be, all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE 6
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange.
If the Series D Debentures are distributed to the holders of the Series D
Preferred Securities issued by the Series D Trust, and the Series D Preferred
Securities are then so listed, the Corporation will use its best efforts to list
the Series D Debentures on the New York Stock Exchange, Inc. or on such other
exchange as the Series D Preferred Securities are then listed.
ARTICLE 7
FORM OF DEBENTURE
SECTION 7.1 Form of Series D Debenture.
The Series D Debentures and the Certificate of Authentication to be
endorsed thereon are to be substantially in the form attached hereto as Exhibit
A.
ARTICLE 8
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Series D Debentures.
Series D Debentures in the aggregate principal amount of the aggregate
stated liquidation amount of the Series D Preferred Securities and Series D
Common Securities to be issued by the Series D Trust, may, upon execution of
this First Supplemental Indenture or any written order of the Corporation
setting forth the amount therefor, be executed by the Corporation and delivered
to the Debt Trustee for authentication, and the Debt Trustee shall thereupon
authenticate and deliver said Series D Debentures to or upon the written order
of the Corporation, signed by its Chairman, its President, or any Vice President
and its Treasurer, its Secretary, any Assistant Treasurer, or any Assistant
Secretary, without any further action by the Corporation.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 9.2 Debt Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Corporation and not by the
Debt Trustee, and the Debt Trustee assumes no responsibility for the correctness
thereof. The Debt Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 9.3 Governing Law.
This First Supplemental Indenture and each Series D Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
SECTION 9.4 Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Series D Debentures shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Series D Debentures, but this First
Supplemental Indenture and the Series D Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein or
therein.
SECTION 9.5 Counterparts.
This First Supplemental 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.
* * * * * *
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
GENERAL MOTORS CORPORATION
By: /s/John D. Finnegan
Name: John D. Finnegan
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY
as Debt Trustee
By: /s/Donald G. MacKelcan
Name: Donald G. MacKelcan
Title: Assistant Vice President
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On the ____ day of __________, 1997 before me personally came John
Finnegan, to me known, who, being by me duly sworn, did depose and say that he
resides at _________________________________; that he is Vice President and
Treasurer of General Motors Corporation, one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Melinda Hopkins
NOTARY PUBLIC
[seal] Commission expires: MELINDA HOPKINS
Notary Public, State of New York
No. 31-4784820
Qualified in New York County
My Commission Expires 8/31/97
STATE OF DELAWARE )
COUNTY OF NEW CASTLE ) ss.:
On the _____ day of ________________, 1997, before me personally came
Donald G. MacKelcan, to me known, who, being by me duly sworn, did depose and
say that he resides at Wilmington, Delaware; that he is Assistant Vice President
of Wilmington Trust Company, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Kathleen A. Pedelini
NOTARY PUBLIC
[seal] Commission expires: KATHLEEN A. PEDELINI
NOTARY PUBLIC
My Commission expires October 31, 1998
<PAGE>
EXHIBIT A
No. ______________________________
GENERAL MOTORS CORPORATION
8.67% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE, SERIES D
DUE 2012
GENERAL MOTORS CORPORATION, a Delaware corporation (the "Corporation",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Wilmington Trust
Company, as Institutional Trustee of General Motors Capital Trust D under that
certain Amended and Restated Declaration of Trust dated as of July 9, 1997, or
registered assigns, the principal sum of ____________________ Dollars
($___________) on July 1, 2012 (such date, as it may be shortened as provided
below, the "Series D Stated Maturity"), and to pay interest on said principal
sum from July 3, 1997, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, payable quarterly on February 1, May 1, August 1 and November 1 of
each year, commencing August 1, 1997, at the rate of 8.67% per annum until the
principal hereof shall have become due and payable, and on any overdue principal
and premium, if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Series D Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Series D Debenture (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the 15th
day of the month immediately preceding the month during which the applicable
Interest Payment Date occurs. Payments of interest may be deferred by the
Corporation pursuant to the provisions of Article 4 of the First Supplemental
Indenture. The Series D Debentures will also accrue interest at the rate of
7.92% per annum of the principal amount thereof from April 1, 1997 through July
2, 1997, payable on August 1, 1997 to holders of the Series D Debentures on the
record date for such distribution. No deferral of interest will be permitted
with respect to interest accruing from April 1, 1997 through July 2, 1997. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such regular record
date and may be paid to the Person in whose name this Series D Debenture (or one
or more Predecessor Securities) is registered at the close of business on a
special record date to be fixed by the Debt Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered Holders of
this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series D
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Series D Debenture shall be payable at
the office or agency of the Debt Trustee maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Corporation by check mailed to the
registered Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Series D Debenture
is the Institutional Trustee, the payment of the principal of (and premium, if
any) and interest on this Series D Debenture will be made at such place and to
such account as may be designated by the Institutional Trustee.
The Corporation has the right at any time to shorten the maturity of the
Series D Debentures to a date not earlier than August 1, 1999.
The indebtedness evidenced by this Series D Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and Other Financial
Obligations, and this Series D Debenture is issued subject to the provisions of
the Indenture with respect thereto. Each Holder of this Series D Debenture, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Debt Trustee on his or her behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Debt Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness and Other Financial Obligations, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Series D Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Debt Trustee.
This Debenture is one of a duly authorized series of Debentures of the
Corporation (herein sometimes referred to as the "Series D Debentures"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of July 1, 1997, duly executed and
delivered between the Corporation and Wilmington Trust Company as Trustee (the
"Debt Trustee"), as supplemented by the First Supplemental Indenture dated as of
July 9, 1997, between the Corporation and the Debt Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Debt
Trustee, the Corporation and the Holders of the Series D Debentures. By the
terms of the Indenture, the securities provided for thereunder are issuable in
series that may vary as to amount, date of maturity, rate of interest and in
other respects as provided in the Indenture. This series of Debentures is
limited in aggregate principal amount as specified in said First Supplemental
Indenture.
If, prior to August 1, 1999, a Tax Event has occurred and is continuing,
the Corporation shall have the right, upon not less than 30 days and no more
than 60 days notice to the Holders, at its option, to redeem the Series D
Debentures, in whole (but not in part), for cash within 90 days following the
occurrence of such Tax Event at a prepayment price (the "Series D Tax Event
Prepayment Price") equal to (i) 105% of the principal amount of the Series D
Debentures if prepaid during the period commencing on July 3, 1997 through and
including July 31, 1997, and (ii) the percentage of the principal amount of the
Series D Debentures specified below, if prepaid during the 12-month period
beginning August 1 of the years indicated below, plus, in each case, any accrued
and unpaid interest thereon to the date of prepayment:
Year Percentage
1997 105 %
1998 102.5
1999 and thereafter 100
Subject to the provisions of Article 14 of the Indenture, except as
otherwise may be specified in the First Supplemental Indenture, the Corporation
shall have the right, upon not less than 30 days and no more than 60 days notice
to the Holder, to redeem the Series D Debentures, in whole or in part, from time
to time, on or after August 1, 1999 (a "Series D Optional Redemption"), for cash
at a prepayment price (the "Series D Optional Prepayment Price") equal to 100%
of the principal amount thereof, plus any accrued and unpaid interest thereon to
the date of prepayment. Notwithstanding anything to the contrary contained
herein, the Corporation may not redeem fewer than all of the Series D Debentures
unless all accrued and unpaid interest on all of the Series D Debentures has
been paid for all quarterly periods terminating on or prior to the redemption
date.
The Series D Redemption Price shall be paid prior to 12:00 noon, Eastern
time, on the date of such redemption or at such earlier time as the Corporation
determines; provided that the Corporation shall deposit with the Debt Trustee an
amount sufficient to pay the Series D Redemption Price by 10:00 a.m., Eastern
time, on the date such Series D Redemption Price is to be paid. If the Series D
Debentures are only partially redeemed by the Corporation pursuant to a Series D
Optional Redemption, the Series D Debentures will be redeemed pro rata or by lot
or by any other method utilized by the Debt Trustee; provided that if, at the
time of redemption, the Series D Debentures are registered as a Global Series D
Debenture, the Depository Institution shall determine the principal amount of
such Series D Debentures held by each Holder to be redeemed in accordance with
its procedures.
In the event of redemption of this Series D Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, with respect to
the Series D Debentures shall have occurred and be continuing, the principal of
all of the Series D Debentures may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the Debt
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Series D Debentures;
provided, however, that no such supplemental indenture shall, without the
consent of the holders of each Series D Debenture then outstanding and affected
thereby, (i) extend the fixed maturity of any Debentures of any series, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable
on redemption thereof or make the principal thereon or any interest or premium
thereon payable in any coin or currency other than that provided in this Series
D Debenture, or impair or affect the right of any Holder of a Series D Debenture
to institute suit for payment thereof or the right of repayment, if any, at the
option of the Holder, without the consent of the Holder of each Series D
Debenture so affected, or (ii) reduce the aforesaid percentage of Series D
Debentures, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Series D
Debenture then outstanding and affected thereby; provided, further, that if the
Series D Debentures are held by a General Motors Capital Trust or a trustee of
such trust, such supplemental indenture shall not be effective until the holders
of a majority in liquidation preference of the Series D Debentures shall have
consented to such supplemental indenture; provided further, that if the consent
of the holder of each outstanding Series D Debenture is required, such
supplemental indenture shall not be effective until each holder of the Series D
Debentures have consented to such supplemental indenture. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding affected thereby,
on behalf of all of the Holders of the Debentures of such series, to waive any
past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such series,
and its consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Debentures of such series. Any such
consent or waiver by the registered Holder of this Series D Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Series D Debenture and of
any Series D Debenture issued in exchange hereof or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Series D Debenture.
No reference herein to the Indenture and no provision of this Series D
Debenture or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Series D Debenture at the time and place
and at the rate and in the money herein prescribed.
The Corporation shall have the right at any time during the term of the
Series D Debentures and from time to time to extend the interest payment period
of such Series D Debentures for up to 20 consecutive quarters (a "Series D
Extended Interest Payment Period"), at the end of which period the Corporation
shall pay all interest then accrued and unpaid (together with interest thereon
at the rate specified for the Series D Debentures to the extent that payment of
such interest is enforceable under applicable law); provided that no Series D
Extended Interest Payment Period may last beyond the Series D Stated Maturity.
Before the termination of any such Series D Extended Interest Payment Period,
the Corporation may further extend such Series D Extended Interest Payment
Period, provided that such Series D Extended Interest Payment Period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters or last beyond the Series D Stated Maturity date. At the termination of
any such Series D Extended Interest Payment Period and upon the payment of all
accrued and unpaid interest and any additional amounts then due, the Corporation
may commence a new Series D Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein
set forth, this Series D Debenture is transferable by the registered Holder
hereof on the Security Register (as defined in the Indenture), upon surrender of
this Series D Debenture for registration of transfer at the office or agency of
the Debt Trustee in Wilmington, Delaware or New York, New York, as applicable,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Corporation or the Debt Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Series D Debentures of authorized denominations and
for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Series D
Debenture, the Corporation, the Debt Trustee, any paying agent and the Security
registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Series D Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Security registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon and
for all other purposes, and neither the Corporation nor the Debt Trustee nor any
paying agent nor any Security registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Series D Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Series D Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed.
Dated: __________ __, ____
GENERAL MOTORS CORPORATION
Attest:
By:____________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
Wilmington Trust Company, as Debt Trustee
By _______________________________________
Authorized Officer
GMNEW.IN1
FOOTER B HAS BEEN ENTERED (DRAFT)
SECOND SUPPLEMENTAL INDENTURE
between
GENERAL MOTORS CORPORATION
and
WILMINGTON TRUST COMPANY
Dated as of July 9, 1997
WITH RESPECT TO THE
SERIES G JUNIOR SUBORDINATED DEBENTURES
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS 2
SECTION 1.1 Definition of Terms. 2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES 3
SECTION 2.1 Designation and Principal Amount. 3
SECTION 2.2 Maturity. 3
SECTION 2.3 Form and Payment. 3
SECTION 2.4 Series G Global Debenture. 4
SECTION 2.5 Interest. 5
ARTICLE 3
REDEMPTION OF THE DEBENTURES 6
SECTION 3.1 Tax Event Redemption. 6
SECTION 3.2 Series G Optional Redemption by Corporation. 6
SECTION 3.3 No Sinking Fund. 6
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD 7
SECTION 4.1 Extension of Interest Payment Period. 7
SECTION 4.2 Notice of Extension. 7
SECTION 4.3 Limitation of Transactions. 7
ARTICLE 5
EXPENSES 8
SECTION 5.1 Payment of Expenses. 8
SECTION 5.2 Payment Upon Resignation or Removal. 9
ARTICLE 6
COVENANT TO LIST ON EXCHANGE 9
SECTION 6.1 Listing on an Exchange. 9
ARTICLE 7
FORM OF DEBENTURE 9
SECTION 7.1 Form of Series G Debenture. 9
ARTICLE 8
ORIGINAL ISSUE OF DEBENTURES 9
SECTION 8.1 Original Issue of Series G Debentures. 9
ARTICLE 9
MISCELLANEOUS 10
SECTION 9.1 Ratification of Indenture. 10
SECTION 9.2 Debt Trustee Not Responsible for Recitals. 10
SECTION 9.3 Governing Law. 10
SECTION 9.4 Separability. 10
SECTION 9.5 Counterparts. 10
Exhibit A Form of Debenture
<PAGE>
SECOND SUPPLEMENTAL INDENTURE
WITH RESPECT TO THE
SERIES G JUNIOR SUBORDINATED DEBENTURES
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of July 9, 1997 (the "Second
Supplemental Indenture"), between General Motors Corporation, a Delaware
corporation (the "Corporation"), and Wilmington Trust Company, as trustee (the
"Debt Trustee") under the Indenture dated as of July 1, 1997 between the
Corporation and the Debt Trustee (the "Indenture").
WHEREAS, the Corporation executed and delivered the Indenture to provide
for the future issuance of the Corporation's unsecured junior subordinated debt
securities to be issued from time to time in one or more series as may be
determined by the Corporation under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Corporation desires
to provide for the establishment of a new series of such securities to be known
as its 9.87% Junior Subordinated Deferrable Interest Debentures, Series G, due
2012 (the "Series G Debentures"), the form and substance of such Series G
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this Second Supplemental Indenture;
WHEREAS, the Corporation and General Motors Capital Trust G, a Delaware
statutory business trust (the "Series G Trust"), have made an offer to exchange
(the "Series G Offer") the Series G Trust's 9.87% Trust Originated Preferred
Securities, Series G (the "Series G Preferred Securities"), representing
preferred undivided beneficial ownership interests in the assets of the Series G
Trust, for any and all of the Corporation's depositary shares (the "Series G
9.12% Depositary Shares"), each representing one-fourth of a share of Series G
9.12% Preference Stock, $0.10 par value per share, of the Corporation not owned
by the Corporation;
WHEREAS, concurrently with the issuance of the Series G Preferred
Securities in exchange for Series G 9.12% Depositary Shares validly tendered in
the Series G Offer, (a) the Series G Trust will issue and sell to the
Corporation 9.87% Trust Originated Common Securities, Series G (the "Series G
Common Securities"), in an aggregate stated liquidation amount equal to at least
3% of the total capital of the Series G Trust and (b) the Corporation will
deposit in the Series G Trust as trust assets the Series G Debentures having an
aggregate principal amount equal to the aggregate stated liquidation amount of
the Series G Preferred Securities and the Series G Common Securities so issued;
and
WHEREAS, the Corporation has requested that the Debt Trustee execute and
deliver this Second Supplemental Indenture and all requirements necessary to
make this Second Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Series G Debentures, when executed by the Corporation
and authenticated and delivered by the Debt Trustee, the valid obligations of
the Corporation, have been performed, and the execution and delivery of this
Second Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Series G Debentures by the Holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Series G
Debentures and the terms, provisions and conditions thereof, the Corporation
covenants and agrees with the Debt Trustee as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Series G Declaration: (i) Dealer Manager Agreement; (ii) Delaware Trustee;
(iii) Distributions; (iv) Institutional Trustee; (v) Series G Preferred
Securities Guarantee; (vi) Preferred Security Certificate and (vii) Regular
Trustee.
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Compound Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Creditor" shall have the meaning set forth in Section 5.1
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means the dissolution of the Series G Trust and
distribution of the Series G Debentures held by the Institutional Trustee pro
rata to the holders of the Series G Trust Securities in accordance with the
Series G Declaration, such event to occur at the option of the Corporation at
any time.
"Holder" means any person in whose name at the time a Series G Debenture
is registered on the Security Register.
"Interest Payment Date" shall have the meaning set forth in
Section 2.5(a).
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a).
"Series G Redemption Price" shall mean either the Series G Tax Event
Prepayment Price or the Series G Optional Prepayment Price, as the context
requires.
"Series G Declaration" means the Amended and Restated Declaration of Trust
of General Motors Capital Trust G, a Delaware statutory business trust, dated as
of July 9, 1997, as amended from time to time.
"Series G Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Series G Global Debenture" shall have the meaning set forth in Section
2.4(a).
"Series G Optional Prepayment Price" shall have the meaning set forth in
Section 3.2.
"Series G Stated Maturity" means the date on which the Series G Debentures
mature and on which the principal shall be due and payable, together with all
accrued and unpaid interest thereon including Compound Interest and Additional
Interest, if any, which date shall be July 1, 2012, unless shortened to a date
not earlier than January 1, 2001, as more fully described in Section 2.2.
"Series G Tax Event Prepayment Price" shall have the meaning set forth in
Section 3.1.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Series G Debentures, there is more than an
insubstantial risk that (i) the Series G Trust is, or will be within 90 days of
the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Series G Debentures, (ii) interest
payable by the Corporation on the Series G Debentures is not, or within 90 days
of the date thereof will not be, deductible by the Corporation, in whole or in
part, for United States federal income tax purposes, or (iii) the Series G Trust
is, or will be within 90 days of the date of such opinion, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "9.87%
Junior Subordinated Deferrable Interest Debentures, Series G, due 2012", limited
in aggregate principal amount to the aggregate stated liquidation amount of the
Series G Preferred Securities and Series G Common Securities to be issued by the
Series G Trust, which amount shall be as set forth in any written order of the
Corporation for the authentication and delivery of Series G Debentures pursuant
to Section 2.4 of the Indenture.
SECTION 2.2 Maturity.
(a) The Series G Debentures shall mature on July 1, 2012. The
Corporation has the right at any time to shorten the maturity of the Series G
Debentures to a date not earlier than January 1, 2001.
(b) In the event that the Corporation elects to shorten the maturity
date of the Series G Debentures, it shall give notice to the Debt Trustee, and
the Debt Trustee shall give notice of such shortening or extension to the
holders of the Series G Debentures no more than 90 and no less than 30 days
prior to the effectiveness thereof.
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Series G Debentures shall be issued
in fully registered certificated form without interest coupons. Principal and
interest on the Series G Debentures issued in certificated form will be payable,
the transfer of such Series G Debentures will be registrable and such Series G
Debentures will be exchangeable for Series G Debentures bearing identical terms
and provisions at the office or agency of the Debt Trustee in Wilmington,
Delaware or New York, New York, as applicable; provided, however, that payment
of interest may be made at the option of the Corporation by check mailed to the
Holder entitled thereto at such address as shall appear in the Security Register
or by wire transfer to an account appropriately designated by the Holder
entitled thereto. Notwithstanding the foregoing, so long as the Holder of any
Series G Debentures is the Institutional Trustee, the payment of the principal
of and interest (including Compound Interest and Additional Interest, if any) on
such Series G Debentures held by the Institutional Trustee will be made at such
place and to such account as may be designated by the Institutional Trustee.
SECTION 2.4 Series G Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Series G Debentures in certificated form may be presented to
the Debt Trustee by the Institutional Trustee in exchange for a global Series G
Debenture in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Series G Debentures (a "Global Series G Debenture"),
to be registered in the name of the Depository Institution, or its nominee, and
delivered by the Debt Trustee to the Depository Institution for crediting to the
accounts of its participants pursuant to the instructions of the Regular
Trustees. The Corporation upon any such presentation shall execute a Global
Series G Debenture in such aggregate principal amount and deliver the same to
the Debt Trustee for authentication and delivery in accordance with the
Indenture and this Second Supplemental Indenture. Payments on the Series G
Debentures issued as a Global Series G Debenture will be made to the Depository
Institution; and
(ii) if any Series G Preferred Securities are held in non book-entry
certificated form, the Series G Debentures in certificated form may be presented
to the Debt Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Series G Preferred Securities other than Series G
Preferred Securities held by the Depository Institution or its nominee ("Non
Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Series G Debentures presented to the Debt Trustee by the
Institutional Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificates are presented to the Security registrar for
transfer or reissuance, at which time such Preferred Security Certificates will
be canceled and a Series G Debenture, registered in the name of the holder of
the Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred Security
Certificate canceled, will be executed by the Corporation and delivered to the
Debt Trustee for authentication and delivery in accordance with the Indenture
and this Second Supplemental Indenture. On issue of such Series G Debentures,
Series G Debentures with an equivalent aggregate principal amount that were
presented by the Institutional Trustee to the Debt Trustee will be deemed to
have been canceled.
(b) A Global Series G Debenture may be transferred, in whole but not
in part, only to another nominee of the Depository Institution, or to a
successor Depository Institution selected or approved by the Corporation or to a
nominee of such successor Depository Institution.
(c) If (i) at any time the Depository Institution notifies the
Corporation that it is unwilling or unable to continue as Depository Institution
or if at any time the Depository Institution for such series shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, and a successor Depository
Institution for such series is not appointed by the Corporation within 90 days
after the Corporation receives such notice or becomes aware of such condition,
as the case may be, (ii) the Corporation at any time determines that the Series
G Debentures shall no longer be represented by a Global Series G Debenture or
(iii) there shall have occurred an Event of Default with respect to the Series G
Debentures, then the Corporation will execute, and, subject to Article 2 of the
Indenture, the Debt Trustee, upon written notice from the Corporation, will
authenticate and deliver the Series G Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Series G Debenture in
exchange for such Global Series G Debenture. In such event the Corporation will
execute, and subject to Section 2.7 of the Indenture, the Debt Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Corporation, will authenticate and deliver the Series G Debentures in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Series G
Debenture in exchange for such Global Series G Debenture. Upon the exchange of
the Global Series G Debenture for such Series G Debentures in definitive
registered form without coupons, in authorized denominations, the Global Series
G Debenture shall be canceled by the Debt Trustee. Such Series G Debentures in
definitive registered form issued in exchange for the Global Series G Debenture
shall be registered in such names and in such authorized denominations as the
Depository Institution, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Debt Trustee. The Debt Trustee
shall deliver such Securities to the Depository Institution for delivery to the
Persons in whose names such Securities are so registered.
SECTION 2.5 Interest.
(a) Each Series G Debenture will bear interest at the rate of 9.87%
per annum (the "Coupon Rate") from July 3, 1997, the first date following the
expiration date of the Series G Offer (the "Accrual Date"), until the principal
thereof becomes due and payable, and on any overdue principal and, to the extent
that payment of such interest is enforceable under applicable law, on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable quarterly on February 1, May 1, August 1 and November 1 of each year
(each, an "Interest Payment Date"), commencing on August 1, 1997, to the Person
in whose name such Series G Debenture or any predecessor Series G Debenture is
registered, at the close of business on the 15th day of January, April, July and
October prior to the applicable Interest Payment Date, except as otherwise
provided herein. Payments of interest may be deferred by the Corporation
pursuant to the provisions of Article 4 hereof. The Series G Debentures will
also accrue interest at the rate of 9.12% per annum of the principal amount
thereof from April 1, 1997 through and including July 2, 1997, the expiration
date of the Series G Offer, payable on August 1, 1997 to the Person in whose
name such Series G Debentures is registered on the 15th day of July, 1997
("Pre-Issuance Interest"). No deferral of interest will be permitted with
respect to Pre-Issuance Interest.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest is computed, will be computed on
the basis of the actual number of days elapsed. In the event that any date on
which interest is payable on the Series G Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the holder of
any of the Series G Debentures, the Series G Trust or the Institutional Trustee
is required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, then, in any such case, the Corporation will pay as
additional interest ("Additional Interest") on the Series G Debentures held by
the Institutional Trustee, such additional amounts as shall be required so that
the net amounts received and retained by the Series G Trust and the
Institutional Trustee after paying such taxes, duties, assessments or other
governmental charges will not be less than the amounts the Series G Trust and
the Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
ARTICLE 3
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Tax Event Redemption.
If, prior to January 1, 2001, a Tax Event has occurred and is continuing,
the Corporation shall have the right, upon not less than 30 days and no more
than 60 days notice to the Holders, at its option, to redeem the Series G
Debentures, in whole (but not in part), for cash within 90 days following the
occurrence of such Tax Event at a prepayment price (the "Series G Tax Event
Prepayment Price") equal to (i) 114% of the principal amount of the Series G
Debentures if prepaid during the period commencing on the Accrual Date through
and including December 31, 1997 and (ii) the percentage of the principal amount
of the Series G Debentures specified below, if prepaid during the 12-month
period beginning August 1 of the years indicated below, plus, in each case, any
accrued and unpaid interest thereon to the date of prepayment:
Year Percentage
1998 110.5%
1999 107
2000 103.5
2001 and thereafter 100
The Series G Tax Event Prepayment Price shall be paid prior to 12:00 noon,
Eastern time, on the date of such redemption or such earlier time as the
Corporation determines; provided that the Corporation shall deposit with the
Debt Trustee an amount sufficient to pay the Series G Tax Event Prepayment Price
by 10:00 a.m., Eastern time, on the date such Series G Tax Event Prepayment
Price is to be paid.
SECTION 3.2 Series G Optional Redemption by Corporation.
Subject to the provisions of Article 14 of the Indenture, except as
otherwise may be specified in this Second Supplemental Indenture, the
Corporation shall have the right, upon not less than 30 days and no more than 60
days notice to the Holders, to redeem the Series G Debentures, in whole or in
part, from time to time, on or after January 1, 2001, for cash at a prepayment
price (the "Series G Optional Prepayment Price") equal to 100% of the principal
amount thereof, plus any accrued and unpaid interest thereon to the redemption
date. Notwithstanding anything to the contrary contained herein, the Corporation
may not redeem fewer than all of the Series G Debentures unless all accrued and
unpaid interest on all of the Series G Debentures has been paid for all
quarterly periods terminating on or prior to the redemption date. If the Series
G Debentures are only partially redeemed pursuant to this Section 3.2, the
Series G Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Debt Trustee; provided, that if at the time of redemption the
Series G Debentures are registered as a Global Series G Debenture, the
Depository Institution shall determine, in accordance with its procedures, the
principal amount of such Series G Debentures held by each Holder to be redeemed.
The Series G Optional Prepayment Price shall be paid prior to 12:00 noon,
Eastern time, on the date of such redemption or at such earlier time as the
Corporation determines; provided that the Corporation shall deposit with the
Debt Trustee an amount sufficient to pay the Series G Optional Prepayment Price
by 10:00 a.m., Eastern time, on the date such Series G Optional Prepayment Price
is to be paid.
SECTION 3.3 No Sinking Fund.
The Series G Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
With the exception of Pre-Issuance Interest, so long as the Corporation
shall not be in default in the payment of interest on the Series G Debentures,
the Corporation shall have the right, at any time and from time to time during
the term of the Series G Debentures, to defer payments of interest by extending
the interest payment period of such Series G Debentures for a period not
exceeding 20 consecutive quarters (the "Series G Extended Interest Payment
Period"), during which Series G Extended Interest Payment Period no interest
shall be due and payable; provided that no Series G Extended Interest Payment
Period may extend beyond the Series G Stated Maturity. To the extent permitted
by applicable law, interest, the payment of which has been deferred because of
the extension of the interest payment period pursuant to this Section 4.1, will
bear interest thereon at the Coupon Rate compounded quarterly for each quarter
of the Series G Extended Interest Payment Period ("Compound Interest"). At the
end of the Series G Extended Interest Payment Period, the Corporation shall pay
all interest accrued and unpaid on the Series G Debentures, including any
Additional Interest and Compound Interest (together, "Deferred Interest") that
shall be payable to the Holders in whose names the Series G Debentures are
registered in the Security Register on the first record date after the end of
the Series G Extended Interest Payment Period. Before the termination of any
Series G Extended Interest Payment Period, the Corporation may further extend
such period, provided that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters, or extend beyond the Series G
Stated Maturity. Upon the termination of any Series G Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the Corporation
may commence a new Series G Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during a Series G
Extended Interest Payment Period, except at the end thereof, but the Corporation
may prepay at any time all or any portion of the interest accrued during a
Series G Extended Interest Payment Period.
SECTION 4.2 Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder at the
time the Corporation selects a Series G Extended Interest Payment Period, the
Corporation shall give written notice to the Regular Trustees, the Institutional
Trustee and the Debt Trustee of its selection of such Series G Extended Interest
Payment Period one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Series G Trust Securities issued by the
Series G Trust are payable, or (ii) the date the Series G Trust is required to
give notice of the record date, or the date such Distributions are payable, to
the New York Stock Exchange or other applicable self-regulatory organization or
to holders of the Series G Preferred Securities issued by the Series G Trust,
but in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder at the time
the Corporation selects a Series G Extended Interest Payment Period, the
Corporation shall give the Holders of the Series G Debentures and the Debt
Trustee written notice of its selection of such Series G Extended Interest
Payment Period at least ten Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Corporation is required
to give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
Holders of the Series G Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Series G Extended Interest Payment Period permitted
under Section 4.1.
SECTION 4.3 Limitation of Transactions.
If (i) the Corporation shall exercise its right to defer payment of
interest as provided in Section 4.1, or (ii) there shall have occurred any Event
of Default, as defined in the Indenture, with respect to the Series G
Debentures, or (iii) there shall have occurred any Event of Default, as defined
in the Series G Preferred Securities Guarantee, then the Corporation shall not
(a) declare or pay any dividend on, make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (1) purchases or acquisitions of shares of its
common stock (including, without limitation, all classes of common stock now or
hereafter issued) in connection with the satisfaction by the Corporation of its
obligations under any employee benefit plans or any other contractual obligation
of the Corporation (other than a contractual obligation ranking pari passu with
or junior to the Series G Debentures), (2) the issuance of capital stock in
connection with a recapitalization or reclassification of the Corporation's
capital stock or the exchange or conversion of one class or series of the
Corporation's capital stock for another class or series of the Corporation's
capital stock, in each case by merger or otherwise, or (3) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged), (b) make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Corporation that rank pari passu with or junior to the Series G Debentures
and (c) make any guarantee payments with respect to the foregoing (other than
pursuant to the Series G Preferred Securities Guarantee).
ARTICLE 5
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the Series G
Debentures to the Institutional Trustee and in connection with the sale of the
Series G Trust Securities by the Series G Trust, the Corporation, in its
capacity as borrower with respect to the Series G Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Series G Debentures, including fees to the dealer managers
payable pursuant to the Dealer Manager Agreement and compensation of the Debt
Trustee under the Indenture in accordance with the provisions of Section 6.6 of
the Indenture;
(b) be responsible for and shall pay all debts and obligations (other
than payments of principal, interest and premium, if any, with respect to the
Series G Trust Securities) and costs and expenses of the Series G Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Series G Trust, the offer, sale and issuance
of the Series G Trust Securities (including fees to the dealer managers in
connection therewith), the fees and expenses (including reasonable counsel fees
and expenses) of the Institutional Trustee, the Delaware Trustee and the Regular
Trustees (including any amounts payable under Article 10 of the Series G
Declaration), the costs and expenses relating to the operation of the Series G
Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Series G Trust assets and the
enforcement by the Institutional Trustee of the rights of the holders of the
Series G Preferred Securities);
(c) be primarily liable for any indemnification obligations
arising with respect to the Series G Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Series G Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Series G Trust.
The Corporation's obligations under this Section 5.1 shall be for the
benefit of, and shall be enforceable by, any person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Corporation's obligations under this Section 5.1 directly against the
Corporation and the Corporation irrevocably waives any right of remedy to
require that any such Creditor take any action against the Series G Trust or any
other Person before proceeding against the Corporation. The Corporation agrees
to execute such additional agreements as may be necessary or desirable in order
to give full effect to the provisions of this Section 5.1.
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this Second Supplemental Indenture or the Indenture or
the removal or resignation of the Debt Trustee, unless otherwise stated, the
Corporation shall pay to the Debt Trustee all amounts accrued to the date of
such termination, removal or resignation. Upon termination of the Series G
Declaration or the removal or resignation of the Delaware Trustee or the
Institutional Trustee, as the case may be, pursuant to Section 5.6 of the Series
G Declaration, the Corporation shall pay to the Delaware Trustee or the
Institutional Trustee, as the case may be, all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE 6
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange.
If the Series G Debentures are distributed to the holders of the Series G
Preferred Securities issued by the Series G Trust, and the Series G Preferred
Securities are then so listed, the Corporation will use its best efforts to list
the Series G Debentures on the New York Stock Exchange, Inc. or on such other
exchange as the Series G Preferred Securities are then listed.
ARTICLE 7
FORM OF DEBENTURE
SECTION 7.1 Form of Series G Debenture.
The Series G Debentures and the Certificate of Authentication to be
endorsed thereon are to be substantially in the form attached hereto as Exhibit
A.
ARTICLE 8
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Series G Debentures.
Series G Debentures in the aggregate principal amount of the aggregate
stated liquidation amount of the Series G Preferred Securities and Series G
Common Securities to be issued by the Series G Trust, may, upon execution of
this Second Supplemental Indenture or any written order of the Corporation
setting forth the amount therefor, be executed by the Corporation and delivered
to the Debt Trustee for authentication, and the Debt Trustee shall thereupon
authenticate and deliver said Series G Debentures to or upon the written order
of the Corporation, signed by its Chairman, its President, or any Vice President
and its Treasurer, its Secretary, any Assistant Treasurer, or any Assistant
Secretary, without any further action by the Corporation.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
The Indenture, as supplemented by this Second Supplemental Indenture, is
in all respects ratified and confirmed, and this Second Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 9.2 Debt Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Corporation and not by the
Debt Trustee, and the Debt Trustee assumes no responsibility for the correctness
thereof. The Debt Trustee makes no representation as to the validity or
sufficiency of this Second Supplemental Indenture.
SECTION 9.3 Governing Law.
This Second Supplemental Indenture and each Series G Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
SECTION 9.4 Separability.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Series G Debentures shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Second Supplemental Indenture or of the Series G Debentures, but this Second
Supplemental Indenture and the Series G Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein or
therein.
SECTION 9.5 Counterparts.
This Second Supplemental 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.
* * * * * *
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
GENERAL MOTORS CORPORATION
By: /s/John D. Finnegan
Name: John D. Finnegan
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY
as Debt Trustee
By: /s/Donald G. MacKelcan
Name: Donald G. MacKelcan
Title: Assistant Vice President
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On the ____ day of __________, 1997 before me personally came John
Finnegan, to me known, who, being by me duly sworn, did depose and say that he
resides at _________________________________; that he is Vice President and
Treasurer of General Motors Corporation, one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Melinda Hopkins
NOTARY PUBLIC
[seal] Commission expires: MELINDA HOPKINS
Notary Public, State of New York
No. 31-4784820
Qualified in New York County
My Commission Expires 8/31/97
STATE OF DELAWARE )
COUNTY OF NEW CASTLE ) ss.:
On the _____ day of ________________, 1997, before me personally came
Donald G. MacKelcan, to me known, who, being by me duly sworn, did depose and
say that he resides at Wilmington, Delaware; that he is Assistant Vice-President
of Wilmington Trust Company, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Kathleen A. Pedelini
NOTARY PUBLIC
[seal] Commission expires: KATHLEEN A. PEDELINI
NOTARY PUBLIC
My Commission expires October 31, 1998
<PAGE>
EXHIBIT A
No. ______________________________
GENERAL MOTORS CORPORATION
9.87% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE, SERIES G
DUE 2012
GENERAL MOTORS CORPORATION, a Delaware corporation (the "Corporation",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Wilmington Trust
Company, as Institutional Trustee of General Motors Capital Trust G under that
certain Amended and Restated Declaration of Trust dated as of July 9, 1997, or
registered assigns, the principal sum of ____________________ Dollars
($___________) on July 1, 2012 (such date, as it may be shortened as provided
below, the "Series G Stated Maturity"), and to pay interest on said principal
sum from July 3, 1997, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, payable quarterly on February 1, May 1, August 1 and November 1 of
each year, commencing August 1, 1997, at the rate of 9.87% per annum until the
principal hereof shall have become due and payable, and on any overdue principal
and premium, if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Series G Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Series G Debenture (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the 15th
day of the month immediately preceding the month during which the applicable
Interest Payment Date occurs. Payments of interest may be deferred by the
Corporation pursuant to the provisions of Article 4 of the Second Supplemental
Indenture. The Series G Debentures will also accrue interest at the rate of
9.12% per annum of the principal amount thereof from April 1, 1997 through July
2, 1997, payable on August 1, 1997 to holders of the Series G Debentures on the
record date for such distribution. No deferral of interest will be permitted
with respect to interest accruing from April 1, 1997 through July 2, 1997. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such regular record
date and may be paid to the Person in whose name this Series G Debenture (or one
or more Predecessor Securities) is registered at the close of business on a
special record date to be fixed by the Debt Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered Holders of
this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series G
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Series G Debenture shall be payable at
the office or agency of the Debt Trustee maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Corporation by check mailed to the
registered Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Series G Debenture
is the Institutional Trustee, the payment of the principal of (and premium, if
any) and interest on this Series G Debenture will be made at such place and to
such account as may be designated by the Institutional Trustee.
The Corporation has the right at any time to shorten the maturity of the
Series G Debentures to a date not earlier than January 1, 2001.
The indebtedness evidenced by this Series G Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and Other Financial
Obligations, and this Series G Debenture is issued subject to the provisions of
the Indenture with respect thereto. Each Holder of this Series G Debenture, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Debt Trustee on his or her behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Debt Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness and Other Financial Obligations, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Series G Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Debt Trustee.
This Debenture is one of a duly authorized series of Debentures of the
Corporation (herein sometimes referred to as the "Series G Debentures"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of July 1, 1997, duly executed and
delivered between the Corporation and Wilmington Trust Company as Trustee (the
"Debt Trustee"), as supplemented by the Second Supplemental Indenture dated as
of July 9, 1997, between the Corporation and the Debt Trustee (the Indenture as
so supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Debt
Trustee, the Corporation and the Holders of the Series G Debentures. By the
terms of the Indenture, the securities provided for thereunder are issuable in
series that may vary as to amount, date of maturity, rate of interest and in
other respects as provided in the Indenture. This series of Debentures is
limited in aggregate principal amount as specified in said Second Supplemental
Indenture.
If, prior to January 1, 2001, a Tax Event has occurred and is continuing,
the Corporation shall have the right, upon not less than 30 days and no more
than 60 days notice to the Holders, at its option, to redeem the Series G
Debentures, in whole (but not in part), for cash within 90 days following the
occurrence of such Tax Event at a prepayment price (the "Series G Tax Event
Prepayment Price") equal to (i) 114% of the principal amount of the Series G
Debentures if prepaid during the period commencing on July 3, 1997 through and
including December 31, 1997, and (ii) the percentage of the principal amount of
the Series G Debentures specified below, if prepaid during the 12-month period
beginning January 1 of the years indicated below, plus, in each case, any
accrued and unpaid interest thereon to the date of prepayment:
Year Percentage
1998 110.5%
1999 107
2000 103.5
2001 and thereafter 100
Subject to the provisions of Article 14 of the Indenture, except as
otherwise may be specified in the Second Supplemental Indenture, the Corporation
shall have the right, upon not less than 30 days and no more than 60 days notice
to the Holder, to redeem the Series G Debentures, in whole or in part, from time
to time, on or after January 1, 2001 (a "Series G Optional Redemption"), for
cash at a prepayment price (the "Series G Optional Prepayment Price") equal to
100% of the principal amount thereof, plus any accrued and unpaid interest
thereon to the date of prepayment. Notwithstanding anything to the contrary
contained herein, the Corporation may not redeem fewer than all of the Series G
Debentures unless all accrued and unpaid interest on all of the Series G
Debentures has been paid for all quarterly periods terminating on or prior to
the redemption date.
The Series G Redemption Price shall be paid prior to 12:00 noon, Eastern
time, on the date of such redemption or at such earlier time as the Corporation
determines; provided that the Corporation shall deposit with the Debt Trustee an
amount sufficient to pay the Series G Redemption Price by 10:00 a.m., Eastern
time, on the date such Series G Redemption Price is to be paid. If the Series G
Debentures are only partially redeemed by the Corporation pursuant to a Series G
Optional Redemption, the Series G Debentures will be redeemed pro rata or by lot
or by any other method utilized by the Debt Trustee; provided that if, at the
time of redemption, the Series G Debentures are registered as a Global Series G
Debenture, the Depository Institution shall determine the principal amount of
such Series G Debentures held by each Holder to be redeemed in accordance with
its procedures.
In the event of redemption of this Series G Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, with respect to
the Series G Debentures shall have occurred and be continuing, the principal of
all of the Series G Debentures may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the Debt
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Series G Debentures;
provided, however, that no such supplemental indenture shall, without the
consent of the holders of each Series G Debenture then outstanding and affected
thereby, (i) extend the fixed maturity of any Debentures of any series, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable
on redemption thereof or make the principal thereon or any interest or premium
thereon payable in any coin or currency other than that provided in this Series
G Debenture, or impair or affect the right of any Holder of a Series G Debenture
to institute suit for payment thereof or the right of repayment, if any, at the
option of the Holder, without the consent of the Holder of each Series G
Debenture so affected, or (ii) reduce the aforesaid percentage of Series G
Debentures, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Series G
Debenture then outstanding and affected thereby; provided, further, that if the
Series G Debentures are held by a General Motors Capital Trust or a trustee of
such trust, such supplemental indenture shall not be effective until the holders
of a majority in liquidation preference of the Series G Debentures shall have
consented to such supplemental indenture; provided further, that if the consent
of the holder of each outstanding Series G Debenture is required, such
supplemental indenture shall not be effective until each holder of the Series G
Debentures have consented to such supplemental indenture. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding affected thereby,
on behalf of all of the Holders of the Debentures of such series, to waive any
past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such series,
and its consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Debentures of such series. Any such
consent or waiver by the registered Holder of this Series G Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Series G Debenture and of
any Series G Debenture issued in exchange hereof or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Series G Debenture.
No reference herein to the Indenture and no provision of this Series G
Debenture or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Series G Debenture at the time and place
and at the rate and in the money herein prescribed.
The Corporation shall have the right at any time during the term of the
Series G Debentures and from time to time to extend the interest payment period
of such Series G Debentures for up to 20 consecutive quarters (a "Series G
Extended Interest Payment Period"), at the end of which period the Corporation
shall pay all interest then accrued and unpaid (together with interest thereon
at the rate specified for the Series G Debentures to the extent that payment of
such interest is enforceable under applicable law); provided that no Series G
Extended Interest Payment Period may last beyond the Series G Stated Maturity.
Before the termination of any such Series G Extended Interest Payment Period,
the Corporation may further extend such Series G Extended Interest Payment
Period, provided that such Series G Extended Interest Payment Period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters or last beyond the Series G Stated Maturity date. At the termination of
any such Series G Extended Interest Payment Period and upon the payment of all
accrued and unpaid interest and any additional amounts then due, the Corporation
may commence a new Series G Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein
set forth, this Series G Debenture is transferable by the registered Holder
hereof on the Security Register (as defined in the Indenture), upon surrender of
this Series G Debenture for registration of transfer at the office or agency of
the Debt Trustee in Wilmington, Delaware or New York, New York, as applicable,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Corporation or the Debt Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Series G Debentures of authorized denominations and
for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Series G
Debenture, the Corporation, the Debt Trustee, any paying agent and the Security
registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Series G Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Security registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon and
for all other purposes, and neither the Corporation nor the Debt Trustee nor any
paying agent nor any Security registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Series G Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Series G Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed.
Dated: __________ __, ____
GENERAL MOTORS CORPORATION
Attest:
By:____________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
Wilmington Trust Company, as Debt Trustee
By _______________________________________
Authorized Officer
GMNEWGP1.D1
SERIES D PREFERRED SECURITIES GUARANTEE AGREEMENT
General Motors Capital Trust D
Dated as of July 9, 1997
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INTERPRETATION 2
SECTION 1.1 Definitions and Interpretation 2
ARTICLE 2
TRUST INDENTURE ACT 4
SECTION 2.1 Trust Indenture Act; Application 4
SECTION 2.2 Lists of Preferred Holders of Securities 4
SECTION 2.3 Reports by the Series D Preferred Guarantee Trustee 4
SECTION 2.4 Periodic Reports to Series D Preferred Guarantee Trustee 4
SECTION 2.5 Evidence of Compliance with Conditions Precedent 5
SECTION 2.6 Events of Default; Waiver 5
SECTION 2.7 Event of Default; Notice 5
SECTION 2.8 Conflicting Interests 5
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF SERIES D PREFERRED 5
SECTION 3.1 Powers and Duties of the Series D Preferred Guarantee
Trustee 5
SECTION 3.2 Certain Rights of Series D Preferred Guarantee Trustee 7
SECTION 3.3 Not Responsible for Recitals or Issuance of Series D
Preferred Securities Guarantee 8
ARTICLE 4SERIES D PREFERRED GUARANTEE TRUSTEE 8
SECTION 4.1 Series D Preferred Guarantee Trustee; Eligibility 8
SECTION 4.2 Appointment, Removal and Resignation of Series D
Preferred Guarantee Trustee 9
ARTICLE 5
GUARANTEE 9
SECTION 5.1 Guarantee 9
SECTION 5.2 Waiver of Notice and Demand 10
SECTION 5.3 Obligations Not Affected 10
SECTION 5.4 Enforcement of Guarantee; Rights of Preferred Holders 10
SECTION 5.5 Guarantee of Payment 11
SECTION 5.6 Subrogation 11
SECTION 5.7 Independent Obligations 11
ARTICLE 6
LIMITATION OF TRANSACTIONS; RANKING 11
SECTION 6.1 Limitation of Transactions 11
SECTION 6.2 Ranking 12
ARTICLE 7
TERMINATION 12
SECTION 7.1 Termination 12
ARTICLE 8
INDEMNIFICATION 12
SECTION 8.1 Exculpation 12
SECTION 8.2 Fees; Indemnification 12
ARTICLE 9
MISCELLANEOUS 13
SECTION 9.1 Successors and Assigns 13
SECTION 9.2 Amendments 13
SECTION 9.3 Notices 13
SECTION 9.4 Benefit 14
SECTION 9.5 Governing Law 14
SECTION 9.6 Genders 14
SECTION 9.7 Counterparts 14
<PAGE>
CROSS REFERENCE TABLE
of the provisions of the Trust Indenture Act with Series D, Preferred
Securities Guarantee Agreement dated as of July 9, 1997 between General Motors
Corporation and Wilmington Trust Company
Preferred Securities Guarantee
Act Section Section
310(a)(1) 4.1(a)(ii)
310(a)(2) 4.1(a)(ii)
310(a)(3) N/A
310(a)(4) N/A
310(a)(5) 4.1(a)(i)
310(b) 2.8, 4.1(c)
310(c) N/A
311(a) & (b) 2.2(b)
311(c) N/A
312(a) 2.2(a)
312(b) 2.2(b)
312(c) Omitted
313 2.3
314(a) 2.4
314(b) N/A
314(c)(1) & (2) 2.5
314(c)(3) N/A
314(d) N/A
314(e) 2.5
314(f) N/A
315(a)(1) 3.1(e)(1)(A)
315(a)(2) 3.1(e)(1)(B)
315(b) 2.7
315(c) 3.1(d)
315(d) 3.1(e)
315(e) Omitted
316(a)(1) 5.4(c)
316(a)(2) N/A
316(b) 2.6(b)
316(c) Omitted
317(a) 5.4(b), 3.1(b)
317(b) Omitted
318(a) 2.1(b)
THIS CROSS-REFERENCE TABLE IS NOT PART OF THE SERIES D PREFERRED SECURITIES
GUARANTEE AS EXECUTED.
<PAGE>
- ------------------
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
SERIES D PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series D Preferred Securities Guarantee"),
dated as of July 9, 1997, is executed and delivered by General Motors
Corporation, a Delaware corporation (the "Guarantor"), and Wilmington Trust
Company, a Delaware banking corporation, as trustee (the "Series D Preferred
Guarantee Trustee"), for the benefit of the Preferred Holders (as defined
herein) of General Motors Capital Trust D, a Delaware statutory business trust
(the "Series D Trust").
WHEREAS, Guarantor and the Series D Trust have made an offer to exchange
(the "Series D Offer") 8.67% Trust Originated Preferred Securities SM ("TOPrS
"), Series D, representing preferred undivided beneficial ownership interests in
the assets of the Series D Trust (the "Series D Preferred Securities"), for up
to 5,462,917 of the Guarantor's depositary shares (the "Series D 7.92%
Depositary Shares"), each representing one-fourth of a share of Series D 7.92%
Preference Stock, $0.10 par value per share, of the Guarantor (the "Series D
7.92% Preference Stock") not owned by the Guarantor; and
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Series D Declaration"), dated as of July 9, 1997, among the trustees of the
Series D Trust, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Series D Trust,
the Series D Trust is issuing on the date hereof one Series D Preferred Security
in exchange for each Series D 7.92% Depositary Share validly tendered in the
Series D Offer; and
WHEREAS, concurrently with the issuance of the Series D Preferred
Securities in exchange for Series D 7.92% Depositary Shares validly tendered in
the Series D Offer, (a) the Series D Trust will issue and sell to the Guarantor
8.67% Trust Originated Common Securities, Series D (the "Series D Common
Securities"), in an aggregate liquidation amount equal to at least 3% of the
total capital of the Series D Trust and (b) the Guarantor will deposit into the
Series D Trust as trust assets its 8.67% Junior Subordinated Deferrable Interest
Debentures, Series D, due 2012 (the "Series D Debentures"), having an aggregate
principal amount equal to the aggregate stated liquidation amount of the Series
D Preferred Securities and the Series D Common Securities so issued; and
WHEREAS, as incentive for the holders of Series D 7.92% Depositary Shares
to exchange the Series D 7.92% Depositary Shares for Series D Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Series D Preferred Securities Guarantee, to pay to
the Preferred Holders the Series D Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Series D Common Securities Guarantee") in substantially
identical terms to this Series D Preferred Securities Guarantee for the benefit
of the holders of the Series D Common Securities (as defined herein), except
that if an event of default under the Indenture (as defined herein) with respect
to the Series D Debentures (an "Indenture Event of Default") has occurred and is
continuing, the rights of holders of the Series D Common Securities to receive
Series D Guarantee Payments under the Series D Common Securities Guarantee are
subordinated to the rights of Preferred Holders to receive Series D Guarantee
Payments under this Series D Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Preferred Holder,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Series D Preferred Securities Guarantee for
the benefit of the Preferred Holders.
<PAGE>
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Series D Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Series D Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Series D Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Series D Preferred Securities Guarantee" or
"this Series D Preferred Securities Guarantee" are to this Series D Preferred
Securities Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Series D Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Series D Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Series D Preferred Securities Guarantee, unless otherwise defined
in this Series D Preferred Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a day on which Federal or State
banking institutions in New York, New York or Wilmington, Delaware are
authorized or obligated by any law, executive order or regulation to close.
"Corporate Trust Office" means the office of the Series D Preferred
Guarantee Trustee at which the corporate trust business of the Series D
Preferred Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is located
at 1100 North Market Street, Wilmington, Delaware 19890.
"Covered Person" means any Preferred Holder or beneficial owner of Series
D Preferred Securities.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Series D Preferred Securities Guarantee.
"Indemnified Person" means the Series D Preferred Guarantee Trustee, any
Affiliate of the Series D Preferred Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Series D Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of July 1, 1997, between the
Guarantor (the "Series D Debenture Issuer") and Wilmington Trust Company, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Series D Debenture Issuer are to be issued
to the Institutional Trustee of the Series D Trust, in each case as amended.
"Majority in liquidation amount of the Series D Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Preferred
Holder(s), voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Series D
Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series D Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Holder" means any holder, as registered on the books and
records of the Series D Trust, of any Series D Preferred Securities; provided,
however, that, in determining whether the holders of the requisite percentage of
Series D Preferred Securities have given any request, notice, consent or waiver
hereunder, "Preferred Holder" shall not include the Guarantor or any Affiliate
of the Guarantor, but only to the extent that the Series D Trust or the Series D
Preferred Guarantee Trustee has actual knowledge of such ownership.
"Resignation Request" has the meaning set forth in Section 4.2(c).
"Responsible Officer" means, with respect to the Series D Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the Series D
Preferred Guarantee Trustee, including any vice president, any assistant vice
president, any assistant secretary, the treasurer, any assistant treasurer or
other officer of the Corporate Trust Office of the Series D Preferred Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Series D Common Securities" means the securities representing common
undivided beneficial ownership interests in the assets of the Series D Trust.
"Series D Debentures" means the 8.67% Junior Subordinated Deferrable
Interest Debentures, Series D, due 2012, issued by the Guarantor to the
Institutional Trustee of the Series D Trust.
"Series D Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series D Preferred
Securities, to the extent not paid or made by the Series D Trust: (i) any
accrued and unpaid Distributions (as defined in the Series D Declaration) that
are required to be paid on such Series D Preferred Securities to the extent the
Series D Trust shall have funds available therefor, (ii) the redemption price,
including all accrued and unpaid Distributions to the date of redemption (the
"Series D Redemption Price") to the extent the Series D Trust has funds
available therefor, with respect to any Series D Preferred Securities called for
redemption by the Series D Trust, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Series D Trust (other than in
connection with the distribution of Series D Debentures to the Preferred Holders
or the redemption of all of the Series D Preferred Securities as provided in the
Series D Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid Distributions on the Series D Preferred Securities to
the date of payment, to the extent the Series D Trust shall have funds available
therefor, and (b) the amount of assets of the Series D Trust remaining available
for distribution to Preferred Holders in liquidation of the Series D Trust (in
either case, the "Series D Liquidation Distribution"). If an Indenture Event of
Default has occurred and is continuing, the rights of holders of the Series D
Common Securities to receive payments under the Series D Common Securities
Guarantee Agreement are subordinated to the rights of Preferred Holders to
receive Series D Guarantee Payments.
"Series D Preferred Guarantee Trustee" means Wilmington Trust Company, a
Delaware banking corporation, until a Successor Series D Preferred Guarantee
Trustee (as defined below) has been appointed and has accepted such appointment
pursuant to the terms of this Series D Preferred Securities Guarantee and
thereafter means each such Successor Series D Preferred Guarantee Trustee.
"Series D Trust Securities" means the Series D Common Securities and the
Series D Preferred Securities.
"Successor Series D Preferred Guarantee Trustee" means a successor Series
D Preferred Guarantee Trustee possessing the qualifications to act as Series D
Preferred Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Series D Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Series D Preferred Securities Guarantee and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Series D Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
(c) The application of the Trust Indenture Act to this Series D Preferred
Securities Guarantee shall not affect the nature of the Preferred Securities as
equity securities representing undivided beneficial interest in the assets of
the Trust.
SECTION 2.2 Lists of Preferred Holders of Securities.
(a) The Guarantor shall provide the Series D Preferred Guarantee Trustee
with a list, in such form as the Series D Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Preferred Holders ("List
of Preferred Holders") as of such date, (i) within one Business Day after
January 1 and June 30 of each year, and (ii) at any other time within 30 days of
receipt by the Guarantor of a written request for a List of Preferred Holders.
Such list shall be as of a date no more than 14 days before such List of
Preferred Holders is given to the Series D Preferred Guarantee Trustee. The
Guarantor shall not be obligated to provide such List of Preferred Holders if at
any time the List of Preferred Holders does not differ from the most recent List
of Preferred Holders given to the Series D Preferred Guarantee Trustee by the
Guarantor. The Series D Preferred Guarantee Trustee may destroy any List of
Preferred Holders previously given to it on receipt of a new List of Preferred
Holders.
(b) The Series D Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Series D Preferred Guarantee Trustee.
Within 60 days after April 11 of each year, the Series D Preferred
Guarantee Trustee shall provide to the Preferred Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Series D
Preferred Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Series D Preferred Guarantee Trustee.
The Guarantor shall provide to the Series D Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Series D Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Series D Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Preferred Holders of a Majority in liquidation amount of Series D
Preferred Securities may, by vote, on behalf of all of the Preferred Holders
waive any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Series D
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
(b) Notwithstanding the provisions of subsection (a) of this Section 2.6,
the right of any Preferred Holder of Series D Preferred Securities to receive
payment of the Series D Guarantee Payments in accordance with this Series D
Preferred Securities Guarantee, or to institute suit for the enforcement of any
such payment, shall not be impaired without the consent of each such Preferred
Holder.
SECTION 2.7 Event of Default; Notice.
(a) The Series D Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Preferred Holders, notices of all Events of Default actually
known to a Responsible Officer of the Series D Preferred Guarantee Trustee,
unless such defaults have been cured before the giving of such notice, provided,
that, the Series D Preferred Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer in good faith determines
that the withholding of such notice is in the interests of the Preferred Holders
of the Series D Preferred Securities.
(b) The Series D Preferred Guarantee Trustee shall not be deemed to have
actual knowledge of any Event of Default unless the Series D Preferred Guarantee
Trustee shall have received written notice, or of which a Responsible Officer
charged with the administration of this Series D Preferred Securities Guarantee
shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests.
The Series D Declaration shall be deemed to be specifically described in
this Series D Preferred Securities Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF SERIES D PREFERRED
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Series D Preferred Guarantee Trustee.
(a) This Series D Preferred Securities Guarantee shall be held by the
Series D Preferred Guarantee Trustee in trust for the benefit of the Preferred
Holders, and the Series D Preferred Guarantee Trustee shall not transfer its
right, title and interest in this Series D Preferred Securities Guarantee to any
Person except a Preferred Holder exercising his or her rights pursuant to
Section 5.4(d) or to a Successor Series D Preferred Guarantee Trustee on
acceptance by such Successor Series D Preferred Guarantee Trustee of its
appointment to act as Successor Series D Preferred Guarantee Trustee. The right,
title and interest of the Series D Preferred Guarantee Trustee shall
automatically vest in any Successor Series D Preferred Guarantee Trustee, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Series D Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer has
occurred and is continuing, the Series D Preferred Guarantee Trustee shall
enforce this Series D Preferred Securities Guarantee for the benefit of the
Preferred Holders.
(c) This Series D Preferred Securities Guarantee and all moneys received by
the Series D Preferred Guarantee Trustee hereunder in respect of the Series D
Guarantee Payments will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of, or for the benefit of, the Series D
Preferred Guarantee Trustee or its agents or their creditors.
(d) The Series D Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Series D Preferred Securities Guarantee, and no implied covenants
shall be read into this Series D Preferred Securities Guarantee against the
Series D Preferred Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is actually
known to a Responsible Officer, the Series D Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Series D Preferred
Securities Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(e) No provision of this Series D Preferred Securities Guarantee shall be
construed to relieve the Series D Preferred Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Series D
Preferred Guarantee Trustee shall be determined solely
by the express provisions of this Series D Preferred
Securities Guarantee, and the Series D Preferred
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Series D Preferred
Securities Guarantee, and no implied covenants or
obligations shall be read into this Series D Preferred
Securities Guarantee against the Series D Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Series D Preferred Guarantee Trustee, the Series D
Preferred Guarantee 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 Series D Preferred Guarantee
Trustee and conforming to the requirements of this
Series D Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Series D Preferred Guarantee Trustee,
the Series D Preferred Guarantee Trustee shall be under
a duty to examine the same to determine whether or not
they conform to the requirements of this Series D
Preferred Securities Guarantee;
(ii) the Series D Preferred Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Series D Preferred Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Series D Preferred Guarantee 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 Preferred Holders of
not less than a Majority in liquidation amount of the Series D Preferred
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Series D Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the Series D
Preferred Guarantee Trustee under this Series D Preferred Securities
Guarantee; and
(iv) no provision of this Series D Preferred Securities
Guarantee shall require the Series D Preferred Guarantee Trustee to expend
or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers, if the Series D Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Series D
Preferred Securities Guarantee or indemnity, reasonably satisfactory to
the Series D Preferred Guarantee Trustee, against such risk or liability
is not reasonably assured to it.
SECTION 3.2 Certain Rights of Series D Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Series D Preferred Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or refraining
from acting upon, any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it in good faith to be genuine and to have been signed, sent
or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Series D Preferred Securities Guarantee shall be sufficiently
evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Series D
Preferred Securities Guarantee, the Series D Preferred Guarantee Trustee
shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Series D Preferred
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor.
(iv) The Series D Preferred Guarantee Trustee shall have no
duty to see to any recording, filing or registration of any instrument (or
any rerecording, refiling or registration thereof).
(v) The Series D Preferred Guarantee Trustee may consult
with counsel, and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Series D Preferred Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Series D Preferred Securities Guarantee from any
court of competent jurisdiction.
(vi) The Series D Preferred Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Series D Preferred Securities Guarantee at the request or direction of any
Preferred Holder, unless such Preferred Holder shall have provided to the
Series D Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Series D Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and
the expenses of the Series D Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Series D Preferred Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall relieve
the Series D Preferred Guarantee Trustee, upon the occurrence of an Event
of Default which has not been cured or waived, of its obligation to
exercise the rights and powers vested in it by this Series D Preferred
Securities Guarantee and to use the same degree of care and skill in this
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(vii) The Series D Preferred Guarantee 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, other evidence
of indebtedness or other paper or document, but the Series D Preferred
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Series D Preferred Guarantee Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Series D Preferred Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Series D Preferred Guarantee
Trustee or its agents hereunder shall bind the Preferred Holders, and the
signature of the Series D Preferred Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the Series D
Preferred Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Series D Preferred Securities Guarantee,
both of which shall be conclusively evidenced by the Series D Preferred
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series D
Preferred Securities Guarantee the Series D Preferred Guarantee Trustee
shall deem it desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the Series D
Preferred Guarantee Trustee (i) may request instructions from the
Preferred Holders of a Majority in liquidation amount of the Series D
Preferred Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in
accordance with such instructions.
(b) No provision of this Series D Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Series D Preferred Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Series D Preferred Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Series D Preferred Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series D
Preferred Securities Guarantee.
The recitals contained in this Series D Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Series D Preferred
Guarantee Trustee does not assume any responsibility for their correctness. The
Series D Preferred Guarantee Trustee makes no representation as to the validity
or sufficiency of this Series D Preferred Securities Guarantee.
ARTICLE 4
SERIES D PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Series D Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Series D Preferred Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to
act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Series D Preferred Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Series D Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Series D Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Series D Preferred Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Series D Preferred
Guarantee Trustee.
(a) Subject to Section 4.2(b), the Series D Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor.
(b) The Series D Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Series D Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Series D Preferred Guarantee Trustee and
delivered to the Guarantor and to the Series D Preferred Guarantee Trustee being
removed.
(c) The Series D Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Series D Preferred Guarantee Trustee shall have
been appointed or until its removal or resignation as set forth herein. The
Series D Preferred Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument (a "Resignation Request") in
writing executed by the Series D Preferred Guarantee Trustee and delivered to
the Guarantor which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that no such
resignation of the Series D Preferred Guarantee Trustee shall be effective until
a Successor Series D Preferred Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Series D Preferred Guarantee Trustee and delivered to the Guarantor and the
resigning Series D Preferred Guarantee Trustee.
(d) If no Successor Series D Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of a Resignation Request, the resigning
Series D Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Series D Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Series D Preferred Guarantee Trustee.
(e) No Series D Preferred Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Series D Preferred Guarantee Trustee.
(f) Upon termination of this Series D Preferred Securities Guarantee or
removal or resignation of the Series D Preferred Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Series D Preferred Guarantee
Trustee all amounts payable to such Series D Preferred Guarantee Trustee accrued
to the date of such termination, removal or resignation.
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Preferred Holders the Series D Guarantee Payments (without duplication of
amounts theretofore paid by the Series D Trust), as and when due, regardless of
any defense, right of set-off or counterclaim that the Series D Trust may have
or assert. The Guarantor's obligation to make a Series D Guarantee Payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Preferred Holders or by causing the Series D Trust to pay such amounts to the
Preferred Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Series D
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Series D Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Series D Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Series D Trust of any express or implied
agreement, covenant, term or condition relating to the Series D Preferred
Securities to be performed or observed by the Series D Trust;
(b) the extension of time for the payment by the Series D Trust of all
or any portion of the Distributions, Series D Redemption Price, Series D
Liquidation Distribution or any other sums payable under the terms of the Series
D Preferred Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Series D Preferred
Securities (other than an extension of time for payment of Distributions, Series
D Redemption Price, Series D Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the Series D
Debentures);
(c) any failure, omission, delay or lack of diligence on the part of the
Preferred Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Preferred Holders pursuant to the terms of the Series D
Preferred Securities, or any action on the part of the Series D Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Series D Trust or any of the assets
of the Series D Trust;
(e) any invalidity of, or defect or deficiency in, the Series D Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Preferred Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Enforcement of Guarantee; Rights of Preferred Holders.
The Guarantor and the Series D Preferred Guarantee Trustee expressly
acknowledge that:
(a) this Series D Preferred Securities Guarantee will be deposited with
the Series D Preferred Guarantee Trustee to be held for the benefit of the
Preferred Holders;
(b) the Series D Preferred Guarantee Trustee has the right to enforce
this Series D Preferred Securities Guarantee on behalf of the Preferred Holders;
(c) the Preferred Holders of a Majority in liquidation amount of the
Series D Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Series D
Preferred Guarantee Trustee in respect of this Series D Preferred Securities
Guarantee or exercising any trust or power conferred upon the Series D Preferred
Guarantee Trustee under this Series D Preferred Securities Guarantee; and
(d) any Preferred Holder may institute a legal proceeding directly
against the Guarantor to enforce the Series D Preferred Guarantee Trustee's
rights and the obligations of the Guarantor under this Series D Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Series D Trust, the Series D Preferred Guarantee Trustee or any other person or
entity, and the Guarantor waives any right or remedy to require that any action
be brought first against the Series D Trust or any other person or entity before
proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment.
This Series D Preferred Securities Guarantee creates a guarantee of
payment and not of collection. This Series D Preferred Securities Guarantee will
not be discharged except by payment of the Series D Guarantee Payments in full
(without duplication of amounts therefor paid by the Series D Trust).
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Preferred
Holders against the Series D Trust in respect of any amounts paid to such
Preferred Holders by the Guarantor under this Series D Preferred Securities
Guarantee; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
right that it may acquire by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under this Series D
Preferred Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Series D Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Preferred Holders and
to pay over such amount to the Preferred Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Series D Trust with respect to the Series D Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Series D Guarantee Payments pursuant to the terms of this
Series D Preferred Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions.
So long as any Series D Preferred Securities remain outstanding, if (a)
there shall have occurred an Event of Default, (b) there shall have occurred an
Indenture Event of Default or (c) the Guarantor has exercised its option to
defer interest payments on the Series D Debentures by extending the interest
payment period and such period or extension thereof shall be continuing, then
the Guarantor shall not (i) declare or pay any dividend on, make any
distribution with respect to, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Guarantor's common stock (including,
without limitation, all classes of common stock now or hereafter issued) in
connection with the satisfaction by the Guarantor of its obligations under any
employee benefit plans or any other contractual obligation of the Guarantor
(other than a contractual obligation ranking pari passu with or junior to the
Series D Debentures), (B) the issuance of capital stock in connection with a
recapitalization or a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock, in each case by
merger or otherwise, or (C) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged), (ii) make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Guarantor that rank pari passu with
or junior to the Series D Debentures or (iii) make any guarantee payments with
respect to the foregoing (other than pursuant to this Series D Preferred
Securities Guarantee).
In addition, so long as any Series D Preferred Securities remain
outstanding, the Guarantor (i) will remain the sole direct or indirect owner of
all of the outstanding Series D Common Securities to be transferred; provided
that any permitted successor of the Guarantor under the Indenture may succeed to
the Guarantor's ownership of the Series D Common Securities and (ii) will not
take any action which would cause the Series D Trust to cease to be treated as a
grantor trust for United States federal income tax purposes except in connection
with a distribution of Series D Debentures as provided in the Series D
Declaration.
SECTION 6.2 Ranking.
This Series D Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, except those made pari passu
or subordinate by their terms (including, without limitation, the Series D
Preferred Securities Guarantee Agreement, dated as of the date hereof, by and
between General Motors Corporation and Wilmington Trust Company), (ii) pari
passu with the most senior preferred or preference stock now or hereafter issued
by the Guarantor and with any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's common stock (including,
without limitation, all classes of common stock now or hereafter issued).
ARTICLE 7
TERMINATION
SECTION 7.1 Termination.
This Series D Preferred Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the Series D Redemption Price
of all Series D Preferred Securities, (ii) upon the distribution of the Series D
Debentures to all of the Preferred Holders or (iii) upon full payment of the
amounts payable in accordance with the Series D Declaration upon liquidation of
the Series D Trust. Notwithstanding the foregoing, this Series D Preferred
Securities Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any Preferred Holder must restore payment of any
sums paid under the Series D Preferred Securities or under this Series D
Preferred Securities Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Series D
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Series D Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Preferred Holders might properly be paid.
SECTION 8.2 Fees; Indemnification.
The Guarantor shall pay the Series D Preferred Guarantee Trustee
compensation as agreed between the Guarantor and the Series D Preferred
Guarantee Trustee, and shall reimburse the Series D Preferred Guarantee Trustee
for all reasonable expenses (including, without limitation, fees and expenses of
counsel) incurred in connection with the performance or enforcement of this
Series D Preferred Guarantee Agreement. To the fullest extent permitted by
applicable law, the Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any loss, liability or
expense incurred by such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 8.2 shall survive the termination of
this Series D Preferred Securities Guarantee.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Series D Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Preferred
Holders of the Series D Preferred Securities then outstanding. Except in
connection with any merger or consolidation of the Guarantor with or into
another entity or any sale, transfer or lease of the Guarantor's assets to
another entity, each as permitted by the Indenture, the Guarantor may not assign
its rights or delegate its obligations under this Series D Preferred Securities
Guarantee without the prior approval of the Preferred Holders of at least a
Majority in liquidation amount of the Series D Preferred Securities then
outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not adversely affect the rights
of Preferred Holders (in which case no consent of Preferred Holders will be
required), this Series D Preferred Securities Guarantee may only be amended with
the prior approval of the Preferred Holders of at least a Majority in
liquidation amount of all the outstanding Series D Preferred Securities. The
provisions of Section 12.2 of the Series D Declaration with respect to meetings
of Preferred Holders apply to the giving of such approval.
SECTION 9.3 Notices.
All notices provided for in this Series D Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Series D Preferred Guarantee Trustee, at the
Series D Preferred Guarantee Trustee's mailing address set forth below (or such
other address as the Series D Preferred Guarantee Trustee may give notice of to
the Preferred Holders):
Wilmington Trust Company
1100 North Market
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Preferred Holders):
General Motors Corporation
100 Renaissance Corporation
Detroit, Michigan 48243-7301
Attention: General Counsel
(c) If given to any Preferred Holder, at the address set forth on the
books and records of the Series D Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Series D Preferred Securities Guarantee is solely for the benefit of
the Preferred Holders and, subject to Section 3.1(a), is not separately
transferable from the Series D Preferred Securities.
SECTION 9.5 Governing Law.
THIS SERIES D PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 9.6 Genders.
The masculine, feminine and neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 9.7 Counterparts.
This Series D Preferred Securities Guarantee may be executed in
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
* * * * * *
<PAGE>
THIS SERIES D PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
GENERAL MOTORS CORPORATION,
as Guarantor
By: /s/ John D. Finnegan
Name: John D. Finnegan
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Series D Preferred Guarantee Trustee
By: /s/ Donald G. MacKelcan
Name: Donald G. MacKelcan
Title: Assistant Vice President
GMNEWGP1.G1
SERIES G PREFERRED SECURITIES GUARANTEE AGREEMENT
General Motors Capital Trust G
Dated as of July 9, 1997
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INTERPRETATION 2
SECTION 1.1 Definitions and Interpretation 2
ARTICLE 2
TRUST INDENTURE ACT 4
SECTION 2.1 Trust Indenture Act; Application 4
SECTION 2.2 Lists of Preferred Holders of Securities 4
SECTION 2.3 Reports by the Series G Preferred Guarantee Trustee 4
SECTION 2.4 Periodic Reports to Series G Preferred Guarantee Trustee 4
SECTION 2.5 Evidence of Compliance with Conditions Precedent 5
SECTION 2.6 Events of Default; Waiver 5
SECTION 2.7 Event of Default; Notice 5
SECTION 2.8 Conflicting Interests 5
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF SERIES G PREFERRED 5
SECTION 3.1 Powers and Duties of the Series G Preferred Guarantee
Trustee 5
SECTION 3.2 Certain Rights of Series G Preferred Guarantee Trustee 7
SECTION 3.3 Not Responsible for Recitals or Issuance of Series G
Preferred Securities Guarantee 8
ARTICLE 4
SERIES G PREFERRED GUARANTEE TRUSTEE 8
SECTION 4.1 Series G Preferred Guarantee Trustee; Eligibility 8
SECTION 4.2 Appointment, Removal and Resignation of Series G
Preferred Guarantee Trustee 9
ARTICLE 5
GUARANTEE 9
SECTION 5.1 Guarantee 9
SECTION 5.2 Waiver of Notice and Demand 9
SECTION 5.3 Obligations Not Affected 10
SECTION 5.4 Enforcement of Guarantee; Rights of Preferred Holders 10
SECTION 5.5 Guarantee of Payment 11
SECTION 5.6 Subrogation 11
SECTION 5.7 Independent Obligations 11
ARTICLE 6
LIMITATION OF TRANSACTIONS; RANKING 11
SECTION 6.1 Limitation of Transactions 11
SECTION 6.2 Ranking 11
ARTICLE 7
TERMINATION 12
SECTION 7.1 Termination 12
ARTICLE 8
INDEMNIFICATION 12
SECTION 8.1 Exculpation 12
SECTION 8.2 Fees; Indemnification 12
ARTICLE 9
MISCELLANEOUS 13
SECTION 9.1 Successors and Assigns 13
SECTION 9.2 Amendments 13
SECTION 9.3 Notices 13
SECTION 9.4 Benefit 14
SECTION 9.5 Governing Law 14
SECTION 9.6 Genders 14
SECTION 9.7 Counterparts 14
<PAGE>
CROSS REFERENCE TABLE
of the provisions of the Trust Indenture Act with Series G, Preferred
Securities Guarantee Agreement dated as of July 9, 1997 between General Motors
Corporation and Wilmington Trust Company
Preferred Securities Guarantee
Act Section Section
310(a)(1) 4.1(a)(ii)
310(a)(2) 4.1(a)(ii)
310(a)(3) N/A
310(a)(4) N/A
310(a)(5) 4.1(a)(i)
310(b) 2.8, 4.1(c)
310(c) N/A
311(a) & (b) 2.2(b)
311(c) N/A
312(a) 2.2(a)
312(b) 2.2(b)
312(c) Omitted
313 2.3
314(a) 2.4
314(b) N/A
314(c)(1) & (2) 2.5
314(c)(3) N/A
314(d) N/A
314(e) 2.5
314(f) N/A
315(a)(1) 3.1(e)(1)(A)
315(a)(2) 3.1(e)(1)(B)
315(b) 2.7
315(c) 3.1(d)
315(d) 3.1(e)
315(e) Omitted
316(a)(1) 5.4(c)
316(a)(2) N/A
316(b) 2.6(b)
316(c) Omitted
317(a) 5.4(b), 3.1(b)
317(b) Omitted
318(a) 2.1(b)
THIS CROSS-REFERENCE TABLE IS NOT PART OF THE SERIES G PREFERRED SECURITIES
GUARANTEE AS EXECUTED.
<PAGE>
- ------------------
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co.
SERIES G PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series G Preferred Securities Guarantee"),
dated as of July 9, 1997, is executed and delivered by General Motors
Corporation, a Delaware corporation (the "Guarantor"), and Wilmington Trust
Company, a Delaware banking corporation, as trustee (the "Series G Preferred
Guarantee Trustee"), for the benefit of the Preferred Holders (as defined
herein) of General Motors Capital Trust G, a Delaware statutory business trust
(the "Series G Trust").
WHEREAS, Guarantor and the Series G Trust have made an offer to exchange
(the "Series G Offer") 9.87% Trust Originated Preferred Securities SM ("TOPrS
"), Series G, representing preferred undivided beneficial ownership interests in
the assets of the Series G Trust (the "Series G Preferred Securities"), for up
to 9,071,910 of the Guarantor's depositary shares (the "Series G 9.12%
Depositary Shares"), each representing one-fourth of a share of Series G 9.12%
Preference Stock, $0.10 par value per share, of the Guarantor (the "Series G
9.12% Preference Stock") not owned by the Guarantor; and
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Series G Declaration"), dated as of July 9, 1997, among the trustees of the
Series G Trust, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Series G Trust,
the Series G Trust is issuing on the date hereof one Series G Preferred Security
in exchange for each Series G 9.12% Depositary Share validly tendered in the
Series G Offer; and
WHEREAS, concurrently with the issuance of the Series G Preferred
Securities in exchange for Series G 9.12% Depositary Shares validly tendered in
the Series G Offer, (a) the Series G Trust will issue and sell to the Guarantor
9.87% Trust Originated Common Securities, Series G (the "Series G Common
Securities"), in an aggregate liquidation amount equal to at least 3% of the
total capital of the Series G Trust and (b) the Guarantor will deposit into the
Series G Trust as trust assets its 9.87% Junior Subordinated Deferrable Interest
Debentures, Series G, due 2012 (the "Series G Debentures"), having an aggregate
principal amount equal to the aggregate stated liquidation amount of the Series
G Preferred Securities and the Series G Common Securities so issued; and
WHEREAS, as incentive for the holders of Series G 9.12% Depositary Shares
to exchange the Series G 9.12% Depositary Shares for Series G Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Series G Preferred Securities Guarantee, to pay to
the Preferred Holders the Series G Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Series G Common Securities Guarantee") in substantially
identical terms to this Series G Preferred Securities Guarantee for the benefit
of the holders of the Series G Common Securities (as defined herein), except
that if an event of default under the Indenture (as defined herein) with respect
to the Series G Debentures (an "Indenture Event of Default") has occurred and is
continuing, the rights of holders of the Series G Common Securities to receive
Series G Guarantee Payments under the Series G Common Securities Guarantee are
subordinated to the rights of Preferred Holders to receive Series G Guarantee
Payments under this Series G Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Preferred Holder,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Series G Preferred Securities Guarantee for
the benefit of the Preferred Holders.
<PAGE>
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Series G Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Series G Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Series G Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Series G Preferred Securities Guarantee" or
"this Series G Preferred Securities Guarantee" are to this Series G Preferred
Securities Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Series G Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Series G Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Series G Preferred Securities Guarantee, unless otherwise defined
in this Series G Preferred Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a day on which Federal or State
banking institutions in New York, New York or Wilmington, Delaware are
authorized or obligated by any law, executive order or regulation to close.
"Corporate Trust Office" means the office of the Series G Preferred
Guarantee Trustee at which the corporate trust business of the Series G
Preferred Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is located
at 1100 North Market Street, Wilmington, Delaware 19890.
"Covered Person" means any Preferred Holder or beneficial owner of Series
G Preferred Securities.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Series G Preferred Securities Guarantee.
"Indemnified Person" means the Series G Preferred Guarantee Trustee, any
Affiliate of the Series G Preferred Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Series G Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of July 1, 1997, between the
Guarantor (the "Series G Debenture Issuer") and Wilmington Trust Company, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Series G Debenture Issuer are to be issued
to the Institutional Trustee of the Series G Trust, in each case as amended.
"Majority in liquidation amount of the Series G Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Preferred
Holder(s), voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Series G
Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series G Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Holder" means any holder, as registered on the books and
records of the Series G Trust, of any Series G Preferred Securities; provided,
however, that, in determining whether the holders of the requisite percentage of
Series G Preferred Securities have given any request, notice, consent or waiver
hereunder, "Preferred Holder" shall not include the Guarantor or any Affiliate
of the Guarantor, but only to the extent that the Series G Trust or the Series G
Preferred Guarantee Trustee has actual knowledge of such ownership.
"Resignation Request" has the meaning set forth in Section 4.2(c).
"Responsible Officer" means, with respect to the Series G Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the Series G
Preferred Guarantee Trustee, including any vice president, any assistant vice
president, any assistant secretary, the treasurer, any assistant treasurer or
other officer of the Corporate Trust Office of the Series G Preferred Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Series G Common Securities" means the securities representing common
undivided beneficial ownership interests in the assets of the Series G Trust.
"Series G Debentures" means the 9.87% Junior Subordinated Deferrable
Interest Debentures, Series G, due 2012, issued by the Guarantor to the
Institutional Trustee of the Series G Trust.
"Series G Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series G Preferred
Securities, to the extent not paid or made by the Series G Trust: (i) any
accrued and unpaid Distributions (as defined in the Series G Declaration) that
are required to be paid on such Series G Preferred Securities to the extent the
Series G Trust shall have funds available therefor, (ii) the redemption price,
including all accrued and unpaid Distributions to the date of redemption (the
"Series G Redemption Price") to the extent the Series G Trust has funds
available therefor, with respect to any Series G Preferred Securities called for
redemption by the Series G Trust, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Series G Trust (other than in
connection with the distribution of Series G Debentures to the Preferred Holders
or the redemption of all of the Series G Preferred Securities as provided in the
Series G Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid Distributions on the Series G Preferred Securities to
the date of payment, to the extent the Series G Trust shall have funds available
therefor, and (b) the amount of assets of the Series G Trust remaining available
for distribution to Preferred Holders in liquidation of the Series G Trust (in
either case, the "Series G Liquidation Distribution"). If an Indenture Event of
Default has occurred and is continuing, the rights of holders of the Series G
Common Securities to receive payments under the Series G Common Securities
Guarantee Agreement are subordinated to the rights of Preferred Holders to
receive Series G Guarantee Payments.
"Series G Preferred Guarantee Trustee" means Wilmington Trust Company, a
Delaware banking corporation, until a Successor Series G Preferred Guarantee
Trustee (as defined below) has been appointed and has accepted such appointment
pursuant to the terms of this Series G Preferred Securities Guarantee and
thereafter means each such Successor Series G Preferred Guarantee Trustee.
"Series G Trust Securities" means the Series G Common Securities and the
Series G Preferred Securities.
"Successor Series G Preferred Guarantee Trustee" means a successor Series
G Preferred Guarantee Trustee possessing the qualifications to act as Series G
Preferred Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Series G Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Series G Preferred Securities Guarantee and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Series G Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
(c) The application of the Trust Indenture Act to this Series G Preferred
Securities Guarantee shall not affect the nature of the Preferred Securities as
equity securities representing undivided beneficial interest in the assets of
the Trust.
SECTION 2.2 Lists of Preferred Holders of Securities.
(a) The Guarantor shall provide the Series G Preferred Guarantee Trustee
with a list, in such form as the Series G Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Preferred Holders ("List
of Preferred Holders") as of such date, (i) within one Business Day after
January 1 and June 30 of each year, and (ii) at any other time within 30 days of
receipt by the Guarantor of a written request for a List of Preferred Holders.
Such list shall be as of a date no more than 14 days before such List of
Preferred Holders is given to the Series G Preferred Guarantee Trustee. The
Guarantor shall not be obligated to provide such List of Preferred Holders if at
any time the List of Preferred Holders does not differ from the most recent List
of Preferred Holders given to the Series G Preferred Guarantee Trustee by the
Guarantor. The Series G Preferred Guarantee Trustee may destroy any List of
Preferred Holders previously given to it on receipt of a new List of Preferred
Holders.
(b) The Series G Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Series G Preferred Guarantee Trustee.
Within 60 days after April 11 of each year, the Series G Preferred
Guarantee Trustee shall provide to the Preferred Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Series G
Preferred Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Series G Preferred Guarantee Trustee.
The Guarantor shall provide to the Series G Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Series G Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Series G Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Preferred Holders of a Majority in liquidation amount of Series G
Preferred Securities may, by vote, on behalf of all of the Preferred Holders
waive any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Series G
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
(b) Notwithstanding the provisions of subsection (a) of this Section 2.6,
the right of any Preferred Holder of Series G Preferred Securities to receive
payment of the Series G Guarantee Payments in accordance with this Series G
Preferred Securities Guarantee, or to institute suit for the enforcement of any
such payment, shall not be impaired without the consent of each such Preferred
Holder.
SECTION 2.7 Event of Default; Notice.
(a) The Series G Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Preferred Holders, notices of all Events of Default actually
known to a Responsible Officer of the Series G Preferred Guarantee Trustee,
unless such defaults have been cured before the giving of such notice, provided,
that, the Series G Preferred Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer in good faith determines
that the withholding of such notice is in the interests of the Preferred Holders
of the Series G Preferred Securities.
(b) The Series G Preferred Guarantee Trustee shall not be deemed to have
actual knowledge of any Event of Default unless the Series G Preferred Guarantee
Trustee shall have received written notice, or of which a Responsible Officer
charged with the administration of this Series G Preferred Securities Guarantee
shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests.
The Series G Declaration shall be deemed to be specifically described in
this Series G Preferred Securities Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF SERIES G PREFERRED
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Series G Preferred Guarantee Trustee.
(a) This Series G Preferred Securities Guarantee shall be held by the
Series G Preferred Guarantee Trustee in trust for the benefit of the Preferred
Holders, and the Series G Preferred Guarantee Trustee shall not transfer its
right, title and interest in this Series G Preferred Securities Guarantee to any
Person except a Preferred Holder exercising his or her rights pursuant to
Section 5.4(d) or to a Successor Series G Preferred Guarantee Trustee on
acceptance by such Successor Series G Preferred Guarantee Trustee of its
appointment to act as Successor Series G Preferred Guarantee Trustee. The right,
title and interest of the Series G Preferred Guarantee Trustee shall
automatically vest in any Successor Series G Preferred Guarantee Trustee, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Series G Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer has
occurred and is continuing, the Series G Preferred Guarantee Trustee shall
enforce this Series G Preferred Securities Guarantee for the benefit of the
Preferred Holders.
(c) This Series G Preferred Securities Guarantee and all moneys received by
the Series G Preferred Guarantee Trustee hereunder in respect of the Series G
Guarantee Payments will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of, or for the benefit of, the Series G
Preferred Guarantee Trustee or its agents or their creditors.
(d) The Series G Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Series G Preferred Securities Guarantee, and no implied covenants
shall be read into this Series G Preferred Securities Guarantee against the
Series G Preferred Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is actually
known to a Responsible Officer, the Series G Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Series G Preferred
Securities Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(e) No provision of this Series G Preferred Securities Guarantee shall be
construed to relieve the Series G Preferred Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Series G
Preferred Guarantee Trustee shall be determined solely
by the express provisions of this Series G Preferred
Securities Guarantee, and the Series G Preferred
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Series G Preferred
Securities Guarantee, and no implied covenants or
obligations shall be read into this Series G Preferred
Securities Guarantee against the Series G Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Series G Preferred Guarantee Trustee, the Series G
Preferred Guarantee 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 Series G Preferred Guarantee
Trustee and conforming to the requirements of this
Series G Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Series G Preferred Guarantee Trustee,
the Series G Preferred Guarantee Trustee shall be under
a duty to examine the same to determine whether or not
they conform to the requirements of this Series G
Preferred Securities Guarantee;
(ii) the Series G Preferred Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Series G Preferred Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Series G Preferred Guarantee 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 Preferred Holders of
not less than a Majority in liquidation amount of the Series G Preferred
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Series G Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the Series G
Preferred Guarantee Trustee under this Series G Preferred Securities
Guarantee; and
(iv) no provision of this Series G Preferred Securities
Guarantee shall require the Series G Preferred Guarantee Trustee to expend
or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers, if the Series G Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Series G
Preferred Securities Guarantee or indemnity, reasonably satisfactory to
the Series G Preferred Guarantee Trustee, against such risk or liability
is not reasonably assured to it.
SECTION 3.2 Certain Rights of Series G Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Series G Preferred Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or refraining
from acting upon, any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it in good faith to be genuine and to have been signed, sent
or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Series G Preferred Securities Guarantee shall be sufficiently
evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Series G
Preferred Securities Guarantee, the Series G Preferred Guarantee Trustee
shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Series G Preferred
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor.
(iv) The Series G Preferred Guarantee Trustee shall have no
duty to see to any recording, filing or registration of any instrument (or
any rerecording, refiling or registration thereof).
(v) The Series G Preferred Guarantee Trustee may consult
with counsel, and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Series G Preferred Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Series G Preferred Securities Guarantee from any
court of competent jurisdiction.
(vi) The Series G Preferred Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Series G Preferred Securities Guarantee at the request or direction of any
Preferred Holder, unless such Preferred Holder shall have provided to the
Series G Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Series G Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and
the expenses of the Series G Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Series G Preferred Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall relieve
the Series G Preferred Guarantee Trustee, upon the occurrence of an Event
of Default which has not been cured or waived, of its obligation to
exercise the rights and powers vested in it by this Series G Preferred
Securities Guarantee and to use the same degree of care and skill in this
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(vii) The Series G Preferred Guarantee 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, other evidence
of indebtedness or other paper or document, but the Series G Preferred
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Series G Preferred Guarantee Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Series G Preferred Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Series G Preferred Guarantee
Trustee or its agents hereunder shall bind the Preferred Holders, and the
signature of the Series G Preferred Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the Series G
Preferred Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Series G Preferred Securities Guarantee,
both of which shall be conclusively evidenced by the Series G Preferred
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series G
Preferred Securities Guarantee the Series G Preferred Guarantee Trustee
shall deem it desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the Series G
Preferred Guarantee Trustee (i) may request instructions from the
Preferred Holders of a Majority in liquidation amount of the Series G
Preferred Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in
accordance with such instructions.
(b) No provision of this Series G Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Series G Preferred Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Series G Preferred Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Series G Preferred Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series G
Preferred Securities Guarantee.
The recitals contained in this Series G Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Series G Preferred
Guarantee Trustee does not assume any responsibility for their correctness. The
Series G Preferred Guarantee Trustee makes no representation as to the validity
or sufficiency of this Series G Preferred Securities Guarantee.
ARTICLE 4
SERIES G PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Series G Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Series G Preferred Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to
act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Series G Preferred Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Series G Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Series G Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Series G Preferred Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Series G Preferred
Guarantee Trustee.
(a) Subject to Section 4.2(b), the Series G Preferred Guarantee Trustee may
be appointed or removed without cause at any time by the Guarantor.
(b) The Series G Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Series G Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Series G Preferred Guarantee Trustee and
delivered to the Guarantor and to the Series G Preferred Guarantee Trustee being
removed.
(c) The Series G Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Series G Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation as set forth herein. The Series G
Preferred Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in writing
executed by the Series G Preferred Guarantee Trustee and delivered to the
Guarantor which resignation shall take effect upon such delivery or upon such
later date as is specified therein; provided, however, that no such resignation
of the Series G Preferred Guarantee Trustee shall be effective until a Successor
Series G Preferred Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Series G
Preferred Guarantee Trustee and delivered to the Guarantor and the resigning
Series G Preferred Guarantee Trustee.
(d) If no Successor Series G Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of a Resignation Request, the resigning
Series G Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Series G Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Series G Preferred Guarantee Trustee.
(e) No Series G Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Series G Preferred Guarantee Trustee.
(f) Upon termination of this Series G Preferred Securities Guarantee or
removal or resignation of the Series G Preferred Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Series G Preferred Guarantee
Trustee all amounts payable to such Series G Preferred Guarantee Trustee accrued
to the date of such termination, removal or resignation.
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Preferred Holders the Series G Guarantee Payments (without duplication of
amounts theretofore paid by the Series G Trust), as and when due, regardless of
any defense, right of set-off or counterclaim that the Series G Trust may have
or assert. The Guarantor's obligation to make a Series G Guarantee Payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Preferred Holders or by causing the Series G Trust to pay such amounts to the
Preferred Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Series G
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Series G Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Series G Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Series G Trust of any express or implied
agreement, covenant, term or condition relating to the Series G Preferred
Securities to be performed or observed by the Series G Trust;
(b) the extension of time for the payment by the Series G Trust of all or
any portion of the Distributions, Series G Redemption Price, Series G
Liquidation Distribution or any other sums payable under the terms of the Series
G Preferred Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Series G Preferred
Securities (other than an extension of time for payment of Distributions, Series
G Redemption Price, Series G Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the Series G
Debentures);
(c) any failure, omission, delay or lack of diligence on the part of the
Preferred Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Preferred Holders pursuant to the terms of the Series G
Preferred Securities, or any action on the part of the Series G Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Series G Trust or any of the assets
of the Series G Trust;
(e) any invalidity of, or defect or deficiency in, the Series G Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Preferred Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Enforcement of Guarantee; Rights of Preferred Holders.
The Guarantor and the Series G Preferred Guarantee Trustee expressly
acknowledge that:
(a) this Series G Preferred Securities Guarantee will be deposited with the
Series G Preferred Guarantee Trustee to be held for the benefit of the Preferred
Holders;
(b) the Series G Preferred Guarantee Trustee has the right to enforce this
Series G Preferred Securities Guarantee on behalf of the Preferred Holders;
(c) the Preferred Holders of a Majority in liquidation amount of the Series
G Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Series G Preferred
Guarantee Trustee in respect of this Series G Preferred Securities Guarantee or
exercising any trust or power conferred upon the Series G Preferred Guarantee
Trustee under this Series G Preferred Securities Guarantee; and
(d) any Preferred Holder may institute a legal proceeding directly against
the Guarantor to enforce the Series G Preferred Guarantee Trustee's rights and
the obligations of the Guarantor under this Series G Preferred Securities
Guarantee, without first instituting a legal proceeding against the Series G
Trust, the Series G Preferred Guarantee Trustee or any other person or entity,
and the Guarantor waives any right or remedy to require that any action be
brought first against the Series G Trust or any other person or entity before
proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment.
This Series G Preferred Securities Guarantee creates a guarantee of
payment and not of collection. This Series G Preferred Securities Guarantee will
not be discharged except by payment of the Series G Guarantee Payments in full
(without duplication of amounts therefor paid by the Series G Trust).
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Preferred
Holders against the Series G Trust in respect of any amounts paid to such
Preferred Holders by the Guarantor under this Series G Preferred Securities
Guarantee; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
right that it may acquire by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under this Series G
Preferred Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Series G Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Preferred Holders and
to pay over such amount to the Preferred Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Series G Trust with respect to the Series G Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Series G Guarantee Payments pursuant to the terms of this
Series G Preferred Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions.
So long as any Series G Preferred Securities remain outstanding, if (a)
there shall have occurred an Event of Default, (b) there shall have occurred an
Indenture Event of Default or (c) the Guarantor has exercised its option to
defer interest payments on the Series G Debentures by extending the interest
payment period and such period or extension thereof shall be continuing, then
the Guarantor shall not (i) declare or pay any dividend on, make any
distribution with respect to, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Guarantor's common stock (including,
without limitation, all classes of common stock now or hereafter issued) in
connection with the satisfaction by the Guarantor of its obligations under any
employee benefit plans or any other contractual obligation of the Guarantor
(other than a contractual obligation ranking pari passu with or junior to the
Series G Debentures), (B) the issuance of capital stock in connection with a
recapitalization or a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock, in each case by
merger or otherwise, or (C) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged), (ii) make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Guarantor that rank pari passu with
or junior to the Series G Debentures or (iii) make any guarantee payments with
respect to the foregoing (other than pursuant to this Series G Preferred
Securities Guarantee).
In addition, so long as any Series G Preferred Securities remain
outstanding, the Guarantor (i) will remain the sole direct or indirect owner of
all of the outstanding Series G Common Securities to be transferred; provided
that any permitted successor of the Guarantor under the Indenture may succeed to
the Guarantor's ownership of the Series G Common Securities and (ii) will not
take any action which would cause the Series G Trust to cease to be treated as a
grantor trust for United States federal income tax purposes except in connection
with a distribution of Series G Debentures as provided in the Series G
Declaration.
SECTION 6.2 Ranking.
This Series G Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, except those made pari passu
or subordinate by their terms (including, without limitation, the Series G
Preferred Securities Guarantee Agreement, dated as of the date hereof, by and
between General Motors Corporation and Wilmington Trust Company), (ii) pari
passu with the most senior preferred or preference stock now or hereafter issued
by the Guarantor and with any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's common stock (including,
without limitation, all classes of common stock now or hereafter issued).
ARTICLE 7
TERMINATION
SECTION 7.1 Termination.
This Series G Preferred Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the Series G Redemption Price
of all Series G Preferred Securities, (ii) upon the distribution of the Series G
Debentures to all of the Preferred Holders or (iii) upon full payment of the
amounts payable in accordance with the Series G Declaration upon liquidation of
the Series G Trust. Notwithstanding the foregoing, this Series G Preferred
Securities Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any Preferred Holder must restore payment of any
sums paid under the Series G Preferred Securities or under this Series G
Preferred Securities Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Series G Preferred
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Series G Preferred Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Preferred Holders might properly be paid.
SECTION 8.2 Fees; Indemnification.
The Guarantor shall pay the Series G Preferred Guarantee Trustee
compensation as agreed between the Guarantor and the Series G Preferred
Guarantee Trustee, and shall reimburse the Series G Preferred Guarantee Trustee
for all reasonable expenses (including, without limitation, fees and expenses of
counsel) incurred in connection with the performance or enforcement of this
Series G Preferred Guarantee Agreement. To the fullest extent permitted by
applicable law, the Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any loss, liability or
expense incurred by such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 8.2 shall survive the termination of
this Series G Preferred Securities Guarantee.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Series G Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Preferred
Holders of the Series G Preferred Securities then outstanding. Except in
connection with any merger or consolidation of the Guarantor with or into
another entity or any sale, transfer or lease of the Guarantor's assets to
another entity, each as permitted by the Indenture, the Guarantor may not assign
its rights or delegate its obligations under this Series G Preferred Securities
Guarantee without the prior approval of the Preferred Holders of at least a
Majority in liquidation amount of the Series G Preferred Securities then
outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not adversely affect the rights
of Preferred Holders (in which case no consent of Preferred Holders will be
required), this Series G Preferred Securities Guarantee may only be amended with
the prior approval of the Preferred Holders of at least a Majority in
liquidation amount of all the outstanding Series G Preferred Securities. The
provisions of Section 12.2 of the Series G Declaration with respect to meetings
of Preferred Holders apply to the giving of such approval.
SECTION 9.3 Notices.
All notices provided for in this Series G Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Series G Preferred Guarantee Trustee, at the Series G
Preferred Guarantee Trustee's mailing address set forth below (or such other
address as the Series G Preferred Guarantee Trustee may give notice of to the
Preferred Holders):
Wilmington Trust Company
1100 North Market
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the
Preferred Holders):
General Motors Corporation
100 Renaissance Corporation
Detroit, Michigan 48243-7301
Attention: General Counsel
(c) If given to any Preferred Holder, at the address set forth on the books
and records of the Series G Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Series G Preferred Securities Guarantee is solely for the benefit of
the Preferred Holders and, subject to Section 3.1(a), is not separately
transferable from the Series G Preferred Securities.
SECTION 9.5 Governing Law.
THIS SERIES G PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 9.6 Genders.
The masculine, feminine and neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 9.7 Counterparts.
This Series G Preferred Securities Guarantee may be executed in
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
* * * * * *
<PAGE>
THIS SERIES G PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
GENERAL MOTORS CORPORATION,
as Guarantor
By: /s/ John D. Finnegan
Name: John D. Finnegan
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Series G Preferred Guarantee Trustee
By: /s/ Donald G. MacKelcan
Name: Donald G. MacKelcan
Title: Assistant Vice President
GMNEWGC_.D1
FOOTER B HAS BEEN ENTERED (DRAFT)
SERIES D COMMON SECURITIES GUARANTEE AGREEMENT
General Motors Capital Trust D
Dated as of July 9, 1997
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INTERPRETATION 1
SECTION 1.1 Definitions and Interpretation. 1
ARTICLE 2
GUARANTEE 3
SECTION 2.1 Guarantee 3
SECTION 2.2 Subordination 3
SECTION 2.3 Waiver of Notice and Demand 3
SECTION 2.4 Obligations Not Affected 3
SECTION 2.5 Rights of Common Holders 4
SECTION 2.6 Guarantee of Payment 4
SECTION 2.7 Subrogation 4
SECTION 2.8 Independent Obligations 5
ARTICLE 3
LIMITATION OF TRANSACTIONS; RANKING 5
SECTION 3.1 Limitation of Transactions 5
SECTION 3.2 Ranking 5
ARTICLE 4
TERMINATION 6
SECTION 4.1 Termination 6
ARTICLE 5
MISCELLANEOUS 6
SECTION 5.1 Successors and Assigns 6
SECTION 5.2 Amendments 6
SECTION 5.3 Notices 6
SECTION 5.4 Benefit 7
SECTION 5.5 Governing Law 7
SECTION 5.6 Genders 7
<PAGE>
SERIES D COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series D Common Securities Guarantee"),
dated as of July 9, 1997, is executed and delivered by General Motors
Corporation, a Delaware corporation (the "Guarantor"), for the benefit of the
Common Holders (as defined herein) of General Motors Capital Trust D, a Delaware
statutory business trust (the "Series D Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Series D Declaration") dated as of July 9, 1997, among the trustees of the
Series D Trust, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Series D Trust,
the Series D Trust is issuing on the date hereof 94,493 common securities,
having an aggregate liquidation amount of $2,362,325, designated the 8.67%
Common Securities, Series D (the "Series D Common Securities");
WHEREAS, as incentive for the Common Holders to purchase the Series D
Common Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Series D Common Securities Guarantee, to
pay to the Common Holders the Series D Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Series D Preferred Securities Guarantee") in substantially
identical terms to this Series D Common Securities Guarantee for the benefit of
the holders of the Series D Preferred Securities (as defined herein), except
that if an event of default under the Indenture (as defined herein) with respect
to the Series D Debentures (an "Indenture Event of Default") has occurred and is
continuing, the rights of holders of the Series D Preferred Securities to
receive Series D Guarantee Payments under the Series D Preferred Securities
Guarantee will rank senior and prior in right to the rights of Common Holders to
receive Series D Guarantee Payments under this Series D Common Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Common Holder,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Series D Common Securities Guarantee for
the benefit of the Common Holders.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Series D Common Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Series D Common Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Series D Common Securities Guarantee
has the same meaning throughout;
(c) all references to "the Series D Common Securities Guarantee" or "this
Series D Common Securities Guarantee" are to this Series D Common Securities
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Series D Common Securities Guarantee to Articles
and Sections are to Articles and Sections of this Series D Common Securities
Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Series D Common Securities Guarantee, unless otherwise defined in
this Series D Common Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Business Day" means any day other than a day on which Federal or State
banking institutions in New York, New York or Wilmington, Delaware, are
authorized or obligated by any law, executive order or regulation to close.
"Common Holder" means any holder, as registered on the books and records
of the Series D Trust, of any Series D Common Securities.
"Covered Person" means any Common Holder or beneficial owner of Series D
Common Securities.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Series D Common Securities Guarantee.
"Indenture" means the Indenture dated as of July 1, 1997, between the
Guarantor (the "Series D Debenture Issuer") and Wilmington Trust Company, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Series D Debenture Issuer are to be issued
to the Institutional Trustee of the Series D Trust, in each case as amended.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series D Common Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Series D Debentures" means the 8.67% Junior Subordinated Deferrable
Interest Debentures, Series D, due 2012, issued by the Guarantor to the
Institutional Trustee of the Series D Trust.
"Series D Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series D Common
Securities, to the extent not paid or made by the Series D Trust: (i) any
accrued and unpaid Distributions (as defined in the Series D Declaration) that
are required to be paid on such Series D Common Securities, to the extent the
Series D Trust shall have funds available therefor, (ii) the redemption price,
including all accrued and unpaid Distributions to the date of redemption (the
"Series D Redemption Price"), to the extent the Series D Trust has funds
available therefor, with respect to any Series D Common Securities called for
redemption by the Series D Trust, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Series D Trust (other than in
connection with the distribution of Series D Debentures to the Common Holders or
the redemption of all of the Series D Common Securities as provided in the
Series D Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid Distributions on the Series D Common Securities to
the date of payment, to the extent the Series D Trust shall have funds available
therefor, and (b) the amount of assets of the Series D Trust remaining available
for distribution to Common Holders in liquidation of the Series D Trust (in
either case, the "Series D Liquidation Distribution"). If an Indenture Event of
Default has occurred and is continuing, the rights of holders of the Series D
Preferred Securities to receive payments under the Series D Preferred Securities
Guarantee Agreement shall rank senior and prior in right to the rights of Common
Holders to receive Series D Guarantee Payments.
"Series D Preferred Securities" mean the preferred securities of the
Series D Trust having an aggregate liquidation amount of $76,381,375, designated
the 8.67% Trust Originated Preferred Securities, Series D.
"Series D Trust Securities" means the Series D Common Securities and the
Series D Preferred Securities.
ARTICLE 2
GUARANTEE
SECTION 2.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Common Holders the Series D Guarantee Payments (without duplication of amounts
theretofore paid by the Series D Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Series D Trust may have or
assert. The Guarantor's obligation to make a Series D Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Common Holders or by causing the Series D Trust to pay such amounts to the
Common Holders.
SECTION 2.2 Subordination.
If (a) an Event of Default or (b) an Indenture Event of Default has
occurred and is continuing, the rights of Common Holders to receive Series D
Guarantee Payments under this Series D Common Securities Guarantee are
subordinated to the rights of holders of Series D Preferred Securities to
receive Series D Guarantee Payments (as defined in the Series D Preferred
Securities Guarantee) under the Series D Preferred Securities Guarantee.
SECTION 2.3 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Series D Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Series D Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 2.4 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Series D Common Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Series D Trust of any express or implied
agreement, covenant, term or condition relating to the Series D Common
Securities to be performed or observed by the Series D Trust;
(b) the extension of time for the payment by the Series D Trust of all or
any portion of the Distributions, Series D Redemption Price, Series D
Liquidation Distribution or any other sums payable under the terms of the Series
D Common Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Series D Common
Securities (other than an extension of time for payment of Distributions, Series
D Redemption Price, Series D Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the Series D
Debentures);
(c) any failure, omission, delay or lack of diligence on the part of the
Common Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Common Holders pursuant to the terms of the Series D
Common Securities, or any action on the part of the Series D Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Series D Trust or any of the assets
of the Series D Trust;
(e) any invalidity of, or defect or deficiency in, the Series D Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.4 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Common Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.5 Rights of Common Holders.
The Guarantor expressly acknowledges that any Common Holder may institute
a legal proceeding directly against the Guarantor to enforce its rights under
this Series D Common Securities Guarantee without first instituting a legal
proceeding against the Series D Trust or any other Person.
SECTION 2.6 Guarantee of Payment.
This Series D Common Securities Guarantee creates a guarantee of payment
and not of collection. This Series D Common Securities Guarantee will not be
discharged except by payment of the Series D Guarantee Payments in full (without
duplication of amounts therefor paid by the Series D Trust).
SECTION 2.7 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Common
Holders against the Series D Trust in respect of any amounts paid to such Common
Holders by the Guarantor under this Series D Common Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Series D Common
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Series D Common Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Common Holders and to pay over such
amount to the Common Holders.
SECTION 2.8 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Series D Trust with respect to the Series D Common
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Series D Guarantee Payments pursuant to the terms of this
Series D Common Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 2.4 hereof.
ARTICLE 3
LIMITATION OF TRANSACTIONS; RANKING
SECTION 3.1 Limitation of Transactions.
So long as any Series D Common Securities remain outstanding, if (a) there
shall have occurred an Event of Default, (b) there shall have occurred an
Indenture Event of Default or (c) the Guarantor has exercised its option to
defer interest payments on the Series D Debentures by extending the interest
payment period and such period or extension thereof shall be continuing, then
the Guarantor shall not (i) declare or pay any dividend on, make any
distribution with respect to, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Guarantor's common stock (including,
without limitation, all classes of common stock now or hereafter issued) in
connection with the satisfaction by the Guarantor of its obligations under any
employee benefit plans or any other contractual obligation of the Guarantor
(other than a contractual obligation ranking pari passu with or junior to the
Series D Debentures), (B) the issuance of capital stock in connection with a
recapitalization or a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock, in each case by
merger or otherwise, or (C) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged), (ii) make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Guarantor that rank pari passu with
or junior to the Series D Debentures or (iii) make any guarantee payments with
respect to the foregoing (other than pursuant to this Series D Common Securities
Guarantee).
In addition, so long as any Series D Common Securities remain outstanding,
the Guarantor (i) will remain the sole direct or indirect owner of all of the
outstanding Series D Common Securities to be transferred, provided that any
permitted successor of the Guarantor under the Indenture may succeed to the
Guarantor's ownership of the Series D Common Securities; and (ii) will not take
any action which would cause the Series D Trust to cease to be treated as a
grantor trust for United States federal income tax purposes except in connection
with a distribution of Series D Debentures as provided in the Series D
Declaration.
SECTION 3.2 Ranking.
This Series D Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, except those made pari passu
or subordinate by their terms (including, without limitation, the Series D
Common Securities Guarantee Agreement dated as of the date hereof, by General
Motors Corporation for the benefit of holders of common securities of General
Motors Capital Trust D), (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock (including, without limitation, all classes of common
stock now or hereafter issued); provided that, in accordance with Section 2.2,
this Series D Common Securities Guarantee will rank subordinate and junior in
right of payment to the Series D Preferred Securities Guarantee.
ARTICLE 4
TERMINATION
SECTION 4.1 Termination.
This Series D Common Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the amount payable upon
redemption of the Series D Common Securities, (ii) upon the distribution of the
Series D Debentures to all of the holders of the Series D Preferred Securities
or (iii) upon full payment of the amounts payable in accordance with the Series
D Declaration upon liquidation of the Series D Trust. Notwithstanding the
foregoing, this Series D Common Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Common
Holder must restore payment of any sums paid under the Series D Common
Securities or under this Series D Common Securities Guarantee.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 Successors and Assigns.
All guarantees and agreements contained in this Series D Common Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Common
Holders of the Series D Common Securities then outstanding. Except in connection
with any merger or consolidation of the Guarantor with or into another entity or
any sale, transfer or lease of the Guarantor's assets to another entity, each as
permitted by the Indenture, the Guarantor may not assign its rights or delegate
its obligations under this Series D Common Securities Guarantee without the
prior approval of the Common Holders of at least a Majority in liquidation
amount of the Series D Common Securities then outstanding.
SECTION 5.2 Amendments.
Except with respect to any changes that do not adversely affect the rights
of Common Holders (in which case no consent of Common Holders will be required),
this Series D Common Securities Guarantee may only be amended with the prior
approval of the Common Holders of at least a majority in liquidation amount of
all the outstanding Series D Common Securities. The provisions of Section 12.2
of the Series D Declaration with respect to meetings of Common Holders apply to
the giving of such approval.
SECTION 5.3 Notices.
All notices provided for in this Series D Common Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the Common
Holders):
General Motors Corporation
100 Renaissance Center
Detroit, Michigan 48243-7301
Attention: General Counsel
(b) If given to any Common Holder, at the address set forth on the books
and records of the Series D Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 5.4 Benefit.
This Series D Common Securities Guarantee is solely for the benefit of the
Common Holders and is not separately transferable from the Series D Common
Securities.
SECTION 5.5 Governing Law.
THIS SERIES D COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 5.6 Genders.
The masculine, feminine and neuter genders used herein shall include the
masculine, feminine and neuter genders.
* * * * * *
<PAGE>
THIS SERIES D COMMON SECURITIES GUARANTEE is executed as of the day and
year first above written.
GENERAL MOTORS CORPORATION,
as Guarantor
By: /s/John D. Finnegan
Name: John D. Finnegan
Title: Vice President and
Treasurer
GMNEWGC_.G1
FOOTER B HAS BEEN ENTERED (DRAFT)
SERIES G COMMON SECURITIES GUARANTEE AGREEMENT
General Motors Capital Trust G
Dated as of July 9, 1997
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INTERPRETATION 1
SECTION 1.1 Definitions and Interpretation. 1
ARTICLE 2
GUARANTEE 3
SECTION 2.1 Guarantee 3
SECTION 2.2 Subordination 3
SECTION 2.3 Waiver of Notice and Demand 3
SECTION 2.4 Obligations Not Affected 3
SECTION 2.5 Rights of Common Holders 4
SECTION 2.6 Guarantee of Payment 4
SECTION 2.7 Subrogation 4
SECTION 2.8 Independent Obligations 5
ARTICLE 3
LIMITATION OF TRANSACTIONS; RANKING 5
SECTION 3.1 Limitation of Transactions 5
SECTION 3.2 Ranking 5
ARTICLE 4
TERMINATION 6
SECTION 4.1 Termination 6
ARTICLE 5
MISCELLANEOUS 6
SECTION 5.1 Successors and Assigns 6
SECTION 5.2 Amendments 6
SECTION 5.3 Notices 6
SECTION 5.4 Benefit 7
SECTION 5.5 Governing Law 7
SECTION 5.6 Genders 7
<PAGE>
SERIES G COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series G Common Securities Guarantee"),
dated as of July 9, 1997, is executed and delivered by General Motors
Corporation, a Delaware corporation (the "Guarantor"), for the benefit of the
Common Holders (as defined herein) of General Motors Capital Trust G, a Delaware
statutory business trust (the "Series G Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Series G Declaration") dated as of July 9, 1997, among the trustees of the
Series G Trust, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Series G Trust,
the Series G Trust is issuing on the date hereof 156,634 common securities,
having an aggregate liquidation amount of $3,915,850, designated the 9.87%
Common Securities, Series G (the "Series G Common Securities");
WHEREAS, as incentive for the Common Holders to purchase the Series G
Common Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Series G Common Securities Guarantee, to
pay to the Common Holders the Series G Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Series G Preferred Securities Guarantee") in substantially
identical terms to this Series G Common Securities Guarantee for the benefit of
the holders of the Series G Preferred Securities (as defined herein), except
that if an event of default under the Indenture (as defined herein) with respect
to the Series G Debentures (an "Indenture Event of Default") has occurred and is
continuing, the rights of holders of the Series G Preferred Securities to
receive Series G Guarantee Payments under the Series G Preferred Securities
Guarantee will rank senior and prior in right to the rights of Common Holders to
receive Series G Guarantee Payments under this Series G Common Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Common Holder,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Series G Common Securities Guarantee for
the benefit of the Common Holders.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Series G Common Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Series G Common Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Series G Common Securities Guarantee
has the same meaning throughout;
(c) all references to "the Series G Common Securities Guarantee" or "this
Series G Common Securities Guarantee" are to this Series G Common Securities
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Series G Common Securities Guarantee to Articles
and Sections are to Articles and Sections of this Series G Common Securities
Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Series G Common Securities Guarantee, unless otherwise defined in
this Series G Common Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Business Day" means any day other than a day on which Federal or State
banking institutions in New York, New York or Wilmington, Delaware, are
authorized or obligated by any law, executive order or regulation to close.
"Common Holder" means any holder, as registered on the books and records
of the Series G Trust, of any Series G Common Securities.
"Covered Person" means any Common Holder or beneficial owner of Series G
Common Securities.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Series G Common Securities Guarantee.
"Indenture" means the Indenture dated as of July 1, 1997, between the
Guarantor (the "Series G Debenture Issuer") and Wilmington Trust Company, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Series G Debenture Issuer are to be issued
to the Institutional Trustee of the Series G Trust, in each case as amended.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series G Common Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Series G Debentures" means the 9.87% Junior Subordinated Deferrable
Interest Debentures, Series G, due 2012, issued by the Guarantor to the
Institutional Trustee of the Series G Trust.
"Series G Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series G Common
Securities, to the extent not paid or made by the Series G Trust: (i) any
accrued and unpaid Distributions (as defined in the Series G Declaration) that
are required to be paid on such Series G Common Securities, to the extent the
Series G Trust shall have funds available therefor, (ii) the redemption price,
including all accrued and unpaid Distributions to the date of redemption (the
"Series G Redemption Price"), to the extent the Series G Trust has funds
available therefor, with respect to any Series G Common Securities called for
redemption by the Series G Trust, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Series G Trust (other than in
connection with the distribution of Series G Debentures to the Common Holders or
the redemption of all of the Series G Common Securities as provided in the
Series G Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid Distributions on the Series G Common Securities to
the date of payment, to the extent the Series G Trust shall have funds available
therefor, and (b) the amount of assets of the Series G Trust remaining available
for distribution to Common Holders in liquidation of the Series G Trust (in
either case, the "Series G Liquidation Distribution"). If an Indenture Event of
Default has occurred and is continuing, the rights of holders of the Series G
Preferred Securities to receive payments under the Series G Preferred Securities
Guarantee Agreement shall rank senior and prior in right to the rights of Common
Holders to receive Series G Guarantee Payments.
"Series G Preferred Securities" mean the preferred securities of the
Series G Trust having an aggregate liquidation amount of $126,612,225,
designated the 9.87% Trust Originated Preferred Securities, Series G.
"Series G Trust Securities" means the Series G Common Securities and the
Series G Preferred Securities.
ARTICLE 2
GUARANTEE
SECTION 2.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Common Holders the Series G Guarantee Payments (without duplication of amounts
theretofore paid by the Series G Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Series G Trust may have or
assert. The Guarantor's obligation to make a Series G Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Common Holders or by causing the Series G Trust to pay such amounts to the
Common Holders.
SECTION 2.2 Subordination.
If (a) an Event of Default or (b) an Indenture Event of Default has
occurred and is continuing, the rights of Common Holders to receive Series G
Guarantee Payments under this Series G Common Securities Guarantee are
subordinated to the rights of holders of Series G Preferred Securities to
receive Series G Guarantee Payments (as defined in the Series G Preferred
Securities Guarantee) under the Series G Preferred Securities Guarantee.
SECTION 2.3 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Series G Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Series G Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 2.4 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Series G Common Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Series G Trust of any express or implied
agreement, covenant, term or condition relating to the Series G Common
Securities to be performed or observed by the Series G Trust;
(b) the extension of time for the payment by the Series G Trust of all or
any portion of the Distributions, Series G Redemption Price, Series G
Liquidation Distribution or any other sums payable under the terms of the Series
G Common Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Series G Common
Securities (other than an extension of time for payment of Distributions, Series
G Redemption Price, Series G Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the Series G
Debentures);
(c) any failure, omission, delay or lack of diligence on the part of the
Common Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Common Holders pursuant to the terms of the Series G
Common Securities, or any action on the part of the Series G Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Series G Trust or any of the assets
of the Series G Trust;
(e) any invalidity of, or defect or deficiency in, the Series G Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.4 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Common Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.5 Rights of Common Holders.
The Guarantor expressly acknowledges that any Common Holder may institute
a legal proceeding directly against the Guarantor to enforce its rights under
this Series G Common Securities Guarantee without first instituting a legal
proceeding against the Series G Trust or any other Person.
SECTION 2.6 Guarantee of Payment.
This Series G Common Securities Guarantee creates a guarantee of payment
and not of collection. This Series G Common Securities Guarantee will not be
discharged except by payment of the Series G Guarantee Payments in full (without
duplication of amounts therefor paid by the Series G Trust).
SECTION 2.7 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Common
Holders against the Series G Trust in respect of any amounts paid to such Common
Holders by the Guarantor under this Series G Common Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Series G Common
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Series G Common Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Common Holders and to pay over such
amount to the Common Holders.
SECTION 2.8 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Series G Trust with respect to the Series G Common
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Series G Guarantee Payments pursuant to the terms of this
Series G Common Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 2.4 hereof.
ARTICLE 3
LIMITATION OF TRANSACTIONS; RANKING
SECTION 3.1 Limitation of Transactions.
So long as any Series G Common Securities remain outstanding, if (a) there
shall have occurred an Event of Default, (b) there shall have occurred an
Indenture Event of Default or (c) the Guarantor has exercised its option to
defer interest payments on the Series G Debentures by extending the interest
payment period and such period or extension thereof shall be continuing, then
the Guarantor shall not (i) declare or pay any dividend on, make any
distribution with respect to, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Guarantor's common stock (including,
without limitation, all classes of common stock now or hereafter issued) in
connection with the satisfaction by the Guarantor of its obligations under any
employee benefit plans or any other contractual obligation of the Guarantor
(other than a contractual obligation ranking pari passu with or junior to the
Series G Debentures), (B) the issuance of capital stock in connection with a
recapitalization or a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock, in each case by
merger or otherwise, or (C) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged), (ii) make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Guarantor that rank pari passu with
or junior to the Series G Debentures or (iii) make any guarantee payments with
respect to the foregoing (other than pursuant to this Series G Common Securities
Guarantee).
In addition, so long as any Series G Common Securities remain outstanding,
the Guarantor (i) will remain the sole direct or indirect owner of all of the
outstanding Series G Common Securities to be transferred, provided that any
permitted successor of the Guarantor under the Indenture may succeed to the
Guarantor's ownership of the Series G Common Securities; and (ii) will not take
any action which would cause the Series G Trust to cease to be treated as a
grantor trust for United States federal income tax purposes except in connection
with a distribution of Series G Debentures as provided in the Series G
Declaration.
SECTION 3.2 Ranking.
This Series G Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, except those made pari passu
or subordinate by their terms (including, without limitation, the Series G
Common Securities Guarantee Agreement dated as of the date hereof, by General
Motors Corporation for the benefit of holders of common securities of General
Motors Capital Trust G), (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock (including, without limitation, all classes of common
stock now or hereafter issued); provided that, in accordance with Section 2.2,
this Series G Common Securities Guarantee will rank subordinate and junior in
right of payment to the Series G Preferred Securities Guarantee.
ARTICLE 4
TERMINATION
SECTION 4.1 Termination.
This Series G Common Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the amount payable upon
redemption of the Series G Common Securities, (ii) upon the distribution of the
Series G Debentures to all of the holders of the Series G Preferred Securities
or (iii) upon full payment of the amounts payable in accordance with the Series
G Declaration upon liquidation of the Series G Trust. Notwithstanding the
foregoing, this Series G Common Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Common
Holder must restore payment of any sums paid under the Series G Common
Securities or under this Series G Common Securities Guarantee.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 Successors and Assigns.
All guarantees and agreements contained in this Series G Common Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Common
Holders of the Series G Common Securities then outstanding. Except in connection
with any merger or consolidation of the Guarantor with or into another entity or
any sale, transfer or lease of the Guarantor's assets to another entity, each as
permitted by the Indenture, the Guarantor may not assign its rights or delegate
its obligations under this Series G Common Securities Guarantee without the
prior approval of the Common Holders of at least a Majority in liquidation
amount of the Series G Common Securities then outstanding.
SECTION 5.2 Amendments.
Except with respect to any changes that do not adversely affect the rights
of Common Holders (in which case no consent of Common Holders will be required),
this Series G Common Securities Guarantee may only be amended with the prior
approval of the Common Holders of at least a majority in liquidation amount of
all the outstanding Series G Common Securities. The provisions of Section 12.2
of the Series G Declaration with respect to meetings of Common Holders apply to
the giving of such approval.
SECTION 5.3 Notices.
All notices provided for in this Series G Common Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the Common
Holders):
General Motors Corporation
100 Renaissance Center
Detroit, Michigan 48243-7301
Attention: General Counsel
(b) If given to any Common Holder, at the address set forth on the books
and records of the Series G Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 5.4 Benefit.
This Series G Common Securities Guarantee is solely for the benefit of the
Common Holders and is not separately transferable from the Series G Common
Securities.
SECTION 5.5 Governing Law.
THIS SERIES G COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 5.6 Genders.
The masculine, feminine and neuter genders used herein shall include the
masculine, feminine and neuter genders.
* * * * * *
<PAGE>
THIS SERIES G COMMON SECURITIES GUARANTEE is executed as of the day and
year first above written.
GENERAL MOTORS CORPORATION,
as Guarantor
By: /s/John D. Finnegan
Name: John D. Finnegan
Title: Vice President and
Treasurer
