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EXHIBIT 4(g)(i)
SERIES __ PREFERRED SECURITIES GUARANTEE AGREEMENT
General Motors Capital Trust __
Dated as of , 1997
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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 __ Preferred Guarantee
Trustee............................................. 4
SECTION 2.4 Periodic Reports to Series __ 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 __ PREFERRED ............. 5
SECTION 3.1 Powers and Duties of the Series __ Preferred
Guarantee Trustee .................................. 5
SECTION 3.2 Certain Rights of Series __ Preferred Guarantee
Trustee ............................................ 7
SECTION 3.3 Not Responsible for Recitals or Issuance
of Series __ Preferred Securities Guarantee ........ 8
ARTICLE 4 SERIES __ PREFERRED GUARANTEE TRUSTEE ........................ 8
SECTION 4.1 Series __ Preferred Guarantee Trustee; Eligibility... 8
SECTION 4.2 Appointment, Removal and Resignation of
Series __ Preferred Guarantee Trustee .............. 8
ARTICLE 5 GUARANTEE .................................................... 9
SECTION 5.1 Guarantee ............................................ 9
SECTION 5.2 Waiver of Notice and Demand .......................... 9
SECTION 5.3 Obligations Not Affected ............................. 9
SECTION 5.4 Enforcement of Guarantee; Rights of
Preferred Holders.................................... 10
SECTION 5.5 Guarantee of Payment ................................. 10
SECTION 5.6 Subrogation .......................................... 10
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 .................................................. 11
SECTION 7.1 Termination .......................................... 11
ARTICLE 8 INDEMNIFICATION .............................................. 12
SECTION 8.1 Exculpation .......................................... 12
SECTION 8.2 Fees; Indemnification ................................ 12
ARTICLE 9 MISCELLANEOUS ................................................ 12
SECTION 9.1 Successors and Assigns ............................... 12
SECTION 9.2 Amendments ........................................... 12
SECTION 9.3 Notices .............................................. 13
SECTION 9.4 Benefit .............................................. 13
SECTION 9.5 Governing Law ........................................ 13
SECTION 9.6 Genders .............................................. 13
SECTION 9.7 Counterparts ......................................... 13
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CROSS REFERENCE TABLE
of the provisions of the Trust Indenture Act with Series __, Preferred
Securities Guarantee Agreement dated as of ____________, 1997 between General
Motors Corporation and Wilmington Trust Company
PREFERRED SECURITIES
ACT SECTION GUARANTEE 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 __ PREFERRED SECURITIES
GUARANTEE AS EXECUTED.
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SERIES __ PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series __ Preferred Securities Guarantee"),
dated as of ________________, 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 __ Preferred
Guarantee Trustee"), for the benefit of the Preferred Holders (as defined
herein) of General Motors Capital Trust __, a Delaware statutory business trust
(the "Series __ Trust").
WHEREAS, Guarantor and the Series __ Trust have made an offer to exchange
(the "Series __ Offer") ___% Trust Originated Preferred Securities (SM)
("TOPrS"(SM)), Series __, representing preferred undivided beneficial ownership
interests in the assets of the Series __ Trust (the "Series __ Preferred
Securities"), for up to _____________ of the Guarantor s depositary shares (the
"Series __ ___% Depositary Shares"), each representing one-fourth of a share of
Series __ ___% Preference Stock, $0.10 par value per share, of the Guarantor
(the "Series __ __% Preference Stock") not owned by the Guarantor; and
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Series __ Declaration"), dated as of ____________________, 1997, among the
trustees of the Series __ Trust, the Guarantor, as sponsor, and the holders from
time to time of undivided beneficial ownership interests in the assets of the
Series __ Trust, the Series __ Trust is issuing on the date hereof one Series __
Preferred Security in exchange for each Series __ ____% Depositary Share validly
tendered in the Series __ Offer; and
WHEREAS, concurrently with the issuance of the Series __ Preferred
Securities in exchange for Series __ ___% Depositary Shares validly tendered in
the Series __ Offer, (a) the Series __ Trust will issue and sell to the
Guarantor ___% Trust Originated Common Securities, Series __ (the "Series __
Common Securities"), in an aggregate liquidation amount equal to at least 3% of
the total capital of the Series __ Trust and (b) the Guarantor will deposit into
the Series __ Trust as trust assets its ___% Junior Subordinated Deferrable
Interest Debentures, Series ____, due 2012 (the "Series __ Debentures") having
an aggregate principal amount equal to the aggregate stated liquidation amount
of the Series __ Preferred Securities and the Series __ Common Securities so
issued; and
WHEREAS, as incentive for the holders of Series __ ___% Depositary Shares
to exchange the Series __ ___% Depositary Shares for Series __ Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Series __ Preferred Securities Guarantee, to pay to
the Preferred Holders the Series __ 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 __ Common Securities Guarantee") in substantially
identical terms to this Series __ Preferred Securities Guarantee for the benefit
of the holders of the Series __ Common Securities (as defined herein), except
that if an event of default under the Indenture (as defined herein) with
respect to the Series __ Debentures (an "Indenture Event of Default") has
occurred and is continuing, the rights of holders of the Series __ Common
Securities to receive Series __ Guarantee Payments under the Series __ Common
Securities Guarantee are subordinated to the rights of Preferred Holders to
receive Series __ Guarantee Payments under this Series __ 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 __ Preferred Securities Guarantee
for the benefit of the Preferred Holders.
___________________
(SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks
of Xxxxxxx Xxxxx & Co.
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Series __ Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Series __ 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 __ Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Series __ Preferred Securities Guarantee"
or "this Series __ Preferred Securities Guarantee" are to this Series __
Preferred Securities Guarantee as modified, supplemented or amended from time to
time;
(d) all references in this Series __ Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Series __ Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Series __ Preferred Securities Guarantee, unless otherwise
defined in this Series __ 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 __ Preferred
Guarantee Trustee at which the corporate trust business of the Series __
Preferred Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is
located at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
"Covered Person" means any Preferred Holder or beneficial owner of Series
__ Preferred Securities.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Series __ Preferred Securities Guarantee.
"Indemnified Person" means the Series __ Preferred Guarantee Trustee, any
Affiliate of the Series __ Preferred Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Series __ Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of the date hereof, between the
Guarantor (the "Series __ Debenture Issuer") and Wilmington Trust Company, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Series __ Debenture Issuer are to be issued
to the Institutional Trustee of the Series __ Trust, in each case as amended.
"Majority in liquidation amount of the Series __ 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 __
Preferred Securities.
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"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 __ 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 __ Trust, of any Series __ Preferred Securities;
provided, however, that, in determining whether the holders of the requisite
percentage of Series __ 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 __
Trust or the Series __ 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 __ Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the Series
__ 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 __ 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 __ Common Securities" means the securities representing common
undivided beneficial ownership interests in the assets of the Series __ Trust.
"Series __ Debentures" means the ___% Junior Subordinated Deferrable
Interest Debentures, Series ____, due 2012, issued by the Guarantor to the
Institutional Trustee of the Series __ Trust.
"Series __ Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series __ Preferred
Securities, to the extent not paid or made by the Series __ Trust: (i) any
accrued and unpaid Distributions (as defined in the Series __ Declaration) that
are required to be paid on such Series __ Preferred Securities to the extent
the Series __ Trust shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Series __ Redemption Price") to the extent the Series __ Trust has funds
available therefor, with respect to any Series __ Preferred Securities called
for redemption by the Series __ Trust, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Series __ Trust
(other than in connection with the distribution of Series __ Debentures to the
Preferred Holders or the redemption of all of the Series __ Preferred
Securities as provided in the Series __ Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions on
the Series __ Preferred Securities to the date of payment, to the extent the
Series __ Trust shall have funds available therefor, and (b) the amount of
assets of the Series __ Trust remaining available for distribution to Preferred
Holders in liquidation of the Series __ Trust (in either case, the "Series __
Liquidation Distribution"). If an Indenture Event of Default has occurred and
is continuing, the rights of holders of the Series __ Common Securities to
receive payments under the Series __ Common Securities Guarantee Agreement are
subordinated to the rights of Preferred Holders to receive Series __ Guarantee
Payments.
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"Series __ Preferred Guarantee Trustee" means Wilmington Trust Company, a
Delaware banking corporation, until a Successor Series __ Preferred Guarantee
Trustee (as defined below) has been appointed and has accepted such appointment
pursuant to the terms of this Series __ Preferred Securities Guarantee and
thereafter means each such Successor Series __ Preferred Guarantee Trustee.
"Series __ Trust Securities" means the Series __ Common Securities and the
Series __ Preferred Securities.
"Successor Series __ Preferred Guarantee Trustee" means a successor Series
__ Preferred Guarantee Trustee possessing the qualifications to act as Series __
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 __ Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Series __ 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 __ 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 __
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 __ Preferred Guarantee
Trustee with a list, in such form as the Series __ 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 __ 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 __ Preferred Guarantee Trustee by the
Guarantor. The Series __ 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 __ 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 __ Preferred Guarantee Trustee.
Within 60 days after April 11 of each year, the Series __ 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 __
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 __ Preferred Guarantee Trustee.
The Guarantor shall provide to the Series __ 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.
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SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Series __ Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Series __ 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
__ 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
__ 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 __ Preferred Securities to
receive payment of the Series __ Guarantee Payments in accordance with this
Series __ 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 __ 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 __ Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, the Series __ 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 __ Preferred Securities.
(b) The Series __ Preferred Guarantee Trustee shall not be deemed to
have actual knowledge of any Event of Default unless the Series __ Preferred
Guarantee Trustee shall have received written notice, or of which a Responsible
Officer charged with the administration of this Series __ Preferred Securities
Guarantee shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests.
The Series __ Declaration shall be deemed to be specifically described in
this Series __ 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 __ PREFERRED
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Series __ Preferred Guarantee Trustee.
(a) This Series __ Preferred Securities Guarantee shall be held by the
Series __ Preferred Guarantee Trustee in trust for the benefit of the Preferred
Holders, and the Series __ Preferred Guarantee Trustee shall not transfer its
right, title and interest in this Series __ 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 __ Preferred Guarantee Trustee on
acceptance by such Successor Series __ Preferred Guarantee Trustee of its
appointment to act as Successor Series __ Preferred Guarantee Trustee. The
right, title and interest of the Series __ Preferred Guarantee Trustee shall
automatically vest in any Successor Series __ 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 __ Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer has
occurred and is continuing, the Series __ Preferred Guarantee Trustee shall
enforce this Series __ Preferred Securities Guarantee for the benefit of the
Preferred Holders.
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(c) This Series __ Preferred Securities Guarantee and all moneys
received by the Series __ Preferred Guarantee Trustee hereunder in respect of
the Series __ 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 __ Preferred Guarantee Trustee or its agents or their creditors.
(d) The Series __ 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 __ Preferred Securities Guarantee, and no implied covenants
shall be read into this Series __ Preferred Securities Guarantee against the
Series __ 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 __ Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Series __ 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 __ Preferred Securities Guarantee shall
be construed to relieve the Series __ 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 __ Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Series __ Preferred Securities Guarantee,
and the Series __ Preferred Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Series __
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Series __ Preferred
Securities Guarantee against the Series __ Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Series __
Preferred Guarantee Trustee, the Series __ 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 __ Preferred Guarantee Trustee and conforming to the
requirements of this Series __ 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 __ Preferred Guarantee
Trustee, the Series __ 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 __ Preferred
Securities Guarantee;
(ii) the Series __ 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 __ Preferred Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Series __ 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 __ Preferred
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Series __ Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the Series __
Preferred Guarantee Trustee under this Series __ Preferred Securities
Guarantee; and
(iv) no provision of this Series __ Preferred Securities Guarantee
shall require the Series __ 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 __ 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 __ Preferred
Securities Guarantee or indemnity, reasonably satisfactory to the Series __
Preferred Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
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SECTION 3.2 Certain Rights of Series __ Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Series __ 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 __ Preferred Securities Guarantee shall be sufficiently evidenced by
an Officers' Certificate.
(iii) Whenever, in the administration of this Series __ Preferred
Securities Guarantee, the Series __ Preferred Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Series __ 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 __ 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 __ 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 __ Preferred Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Series __ Preferred Securities Guarantee from any court of competent
jurisdiction.
(vi) The Series __ Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Series __ Preferred Securities Guarantee at the request or direction of any
Preferred Holder, unless such Preferred Holder shall have provided to the
Series __ Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Series __ Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and the
expenses of the Series __ 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 __ Preferred Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi) shall relieve the Series __
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 __ 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 __ 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 __ 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 __ 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 __ 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 __ Preferred Guarantee Trustee
or its agents hereunder shall bind the Preferred Holders, and the signature
of the Series __ 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 __ Preferred
Guarantee Trustee to so act or as to its compliance with
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any of the terms and provisions of this Series __ Preferred Securities
Guarantee, both of which shall be conclusively evidenced by the Series __
Preferred Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series __ Preferred
Securities Guarantee the Series __ 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 __ Preferred
Guarantee Trustee (i) may request instructions from the Preferred Holders
of a Majority in liquidation amount of the Series __ 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 __ Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Series __ 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 __ 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 __ Preferred Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series __ Preferred
Securities Guarantee.
The recitals contained in this Series __ Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Series __ Preferred
Guarantee Trustee does not assume any responsibility for their correctness. The
Series __ Preferred Guarantee Trustee makes no representation as to the validity
or sufficiency of this Series __ Preferred Securities Guarantee.
ARTICLE 4
SERIES __ PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Series __ Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Series __ 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 __ Preferred Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Series __ Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Series __ Preferred Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Series __ 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 __ Preferred
Guarantee Trustee.
(a) Subject to Section 4.2(b), the Series __ Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor.
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(b) The Series __ Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Series __ Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Series __ Preferred Guarantee Trustee and
delivered to the Guarantor and to the Series __ Preferred Guarantee Trustee
being removed.
(c) The Series __ Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Series __ Preferred Guarantee Trustee shall have
been appointed or until its removal or resignation as set forth herein. The
Series __ 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 __ 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 __ Preferred Guarantee Trustee shall be effective
until a Successor Series __ Preferred Guarantee Trustee has been appointed and
has accepted such appointment by instrument in writing executed by such
Successor Series __ Preferred Guarantee Trustee and delivered to the Guarantor
and the resigning Series __ Preferred Guarantee Trustee.
(d) If no Successor Series __ 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 __ Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Series __ Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Series __ Preferred Guarantee Trustee.
(e) No Series __ Preferred Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Series __ Preferred Guarantee Trustee.
(f) Upon termination of this Series __ Preferred Securities Guarantee or
removal or resignation of the Series __ Preferred Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Series __ Preferred Guarantee
Trustee all amounts payable to such Series __ 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 __ Guarantee Payments (without duplication of
amounts theretofore paid by the Series __ Trust), as and when due, regardless
of any defense, right of set-off or counterclaim that the Series __ Trust may
have or assert. The Guarantor's obligation to make a Series __ Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Preferred Holders or by causing the Series __ 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 __
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 __ 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 __ 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 __ Trust of any express or implied
agreement, covenant, term or condition relating to the Series __ Preferred
Securities to be performed or observed by the Series __ Trust;
(b) the extension of time for the payment by the Series __ Trust of all
or any portion of the Distributions, Series __ Redemption Price, Series __
Liquidation Distribution or any other sums payable under the terms of the
Series
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__ Preferred Securities or the extension of time for the performance of any
other obligation under, arising out of, or in connection with, the Series __
Preferred Securities (other than an extension of time for payment of
Distributions, Series __ Redemption Price, Series __ Liquidation Distribution
or other sum payable that results from the extension of any interest payment
period on the Series __ 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 __
Preferred Securities, or any action on the part of the Series __ 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 __ Trust or any of the assets
of the Series __ Trust;
(e) any invalidity of, or defect or deficiency in, the Series __
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 __ Preferred Guarantee Trustee expressly
acknowledge that:
(a) this Series __ Preferred Securities Guarantee will be deposited with
the Series __ Preferred Guarantee Trustee to be held for the benefit of the
Preferred Holders;
(b) the Series __ Preferred Guarantee Trustee has the right to enforce
this Series __ Preferred Securities Guarantee on behalf of the Preferred
Holders;
(c) the Preferred Holders of a Majority in liquidation amount of the
Series __ Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Series __
Preferred Guarantee Trustee in respect of this Series __ Preferred Securities
Guarantee or exercising any trust or power conferred upon the Series __
Preferred Guarantee Trustee under this Series __ Preferred Securities Guarantee;
and
(d) any Preferred Holder may institute a legal proceeding directly
against the Guarantor to enforce the Series __ Preferred Guarantee Trustee's
rights and the obligations of the Guarantor under this Series __ Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Series __ Trust, the Series __ 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 __ Trust or any other person or
entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment.
This Series __ Preferred Securities Guarantee creates a guarantee of
payment and not of collection. This Series __ Preferred Securities Guarantee
will not be discharged except by payment of the Series __ Guarantee Payments in
full (without duplication of amounts therefor paid by the Series __ Trust).
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Preferred
Holders against the Series __ Trust in respect of any amounts paid to such
Preferred Holders by the Guarantor under this Series __ 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 __ Preferred Securities Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Series __ Preferred
Securities Guarantee.
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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 __ Trust with respect to the Series __
Preferred Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Series __ Guarantee Payments pursuant to the terms of
this Series __ 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 __ 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 __ 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 __ 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 __ Debentures or (iii) make any guarantee payments with
respect to the foregoing (other than pursuant to this Series __ Preferred
Securities Guarantee).
In addition, so long as any Series __ Preferred Securities remain
outstanding, the Guarantor (i) will remain the sole direct or indirect owner of
all of the outstanding Series __ 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 __ Common Securities and (ii) will not
take any action which would cause the Series __ 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 __ Debentures as provided in the Series
__ Declaration.
SECTION 6.2 Ranking.
This Series __ 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
__ 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 __ Preferred Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the Series __ Redemption
Price of all Series __ Preferred Securities, (ii) upon the distribution of the
Series
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__ Debentures to all of the Preferred Holders or (iii) upon full payment of the
amounts payable in accordance with the Series __ Declaration upon liquidation of
the Series __ Trust. Notwithstanding the foregoing, this Series __ 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 __ Preferred Securities or under this Series __
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 __ 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 __ 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 __ Preferred Guarantee Trustee
compensation as agreed between the Guarantor and the Series __ Preferred
Guarantee Trustee, and shall reimburse the Series __ 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 __ 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 __ Preferred Securities Guarantee.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Series __ 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 __ 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 __ Preferred
Securities Guarantee without the prior approval of the Preferred Holders of at
least a Majority in liquidation amount of the Series __ 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 __ Preferred Securities Guarantee may only be amended
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with the prior approval of the Preferred Holders of at least a Majority in
liquidation amount of all the outstanding Series __ Preferred Securities. The
provisions of Section 12.2 of the Series __ 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 __ 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 __ Preferred Guarantee Trustee, at the Series
__ Preferred Guarantee Trustee's mailing address set forth below (or such other
address as the Series __ Preferred Guarantee Trustee may give notice of to the
Preferred Holders):
Wilmington Trust Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
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
000 Xxxxxxxxxxx Xxxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
(c) If given to any Preferred Holder, at the address set forth on the
books and records of the Series __ 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 __ 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 __ Preferred Securities.
SECTION 9.5 Governing Law.
THIS SERIES __ 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 __ 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.
* * * * * *
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THIS SERIES __ PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
GENERAL MOTORS CORPORATION,
as Guarantor
By: __________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Series __ Preferred Guarantee
Trustee
By: __________________________
Name:
Title:
