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EXHIBIT 4(d)(i)
INDENTURE
between
GENERAL MOTORS CORPORATION
and
WILMINGTON TRUST COMPANY
Dated as of ________________, 1997
JUNIOR SUBORDINATED DEBENTURES
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS......................................................................... 1
SECTION 1.1 Definitions............................................................... 1
Additional Provisions ................................................................... 1
Affiliate ............................................................................... 1
Authenticating Agent..................................................................... 2
Bankruptcy Law........................................................................... 2
Board of Directors....................................................................... 2
Board Resolution......................................................................... 2
Business Day............................................................................. 2
Certificate.............................................................................. 2
Certificate of Authentication ........................................................... 2
Commission............................................................................... 2
Common Securities ....................................................................... 2
Common Securities Guarantee ............................................................. 2
Corporation ............................................................................. 2
Custodian ............................................................................... 2
Declaration ............................................................................. 2
Default ................................................................................. 2
Defaulted Interest....................................................................... 3
Defeasance Agent......................................................................... 3
Depository Institution................................................................... 3
Discharged............................................................................... 3
Event of Default......................................................................... 3
Exchange Act............................................................................. 3
General Motors Capital Trust............................................................. 3
General Motors Common Stock ............................................................. 3
Global Security ......................................................................... 3
Indenture ............................................................................... 3
Institutional Trustee ................................................................... 3
Interest................................................................................. 3
Interest Payment Date ................................................................... 3
Mortgage................................................................................. 3
Officers' Certificate ................................................................... 3
Opinion of Counsel....................................................................... 4
Other Financial Obligations ............................................................. 4
outstanding ............................................................................. 4
Person................................................................................... 4
Predecessor Security..................................................................... 4
Securities............................................................................... 4
"Preferred Securities Guarantee ......................................................... 5
Principal Office of the Debt Trustee..................................................... 5
Responsible Officer ..................................................................... 5
Security................................................................................. 5
Securities............................................................................... 5
Security Register ....................................................................... 5
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* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
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Securityholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
holder of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trust Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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. . . . . . . . . . . . . . 13
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. . . . . . . . . . . . . . . 14
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 COMPANY AND THE TRUSTEE . . . . . . . . . . . . . 15
SECTION 4.1 Securityholders' Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.2 Preservation and Disclosure of Lists.. . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.3 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. . . . . . . . . . . . . . . . . . 20
SECTION 5.4 Proceedings by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.5 Proceedings by Debt Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.6 Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5.7 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders . . 22
SECTION 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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
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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. . . . . . . . . . . . . . . . . . . . . 25
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 . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 6.11 Acceptance by Successor Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.12 Succession by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.13 Limitation on Rights of Debt Trustee as a Creditor . . . . . . . . . . . . . . . . 28
SECTION 6.14 Authenticating Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 7 CONCERNING THE SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 7.1 Action by Securityholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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 . . . . . . . . . . . . . . 30
SECTION 7.5 Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . 30
ARTICLE 8 SECURITYHOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 8.1 Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 8.2 Call of Meetings by Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 8.3 Call of Meetings by Corporation or Securityholders . . . . . . . . . . . . . . . . 31
SECTION 8.4 Qualifications for Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 8.5 Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 8.6 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 9 SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 9.1 Supplemental Indentures without Consent of Securityholders . . . . . . . . . . . . 32
SECTION 9.2 Supplemental Indentures with Consent of Securityholders. . . . . . . . . . . . . . 33
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Indentures . . . . . . 34
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 . . . . . . . . . . . . . . . . . . . . 35
SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms. . . . . . . . . . . . . . . . 35
SECTION 10.2 Successor Corporation to be Substituted for Corporation. . . . . . . . . . . . . . 35
SECTION 10.3 Opinion of Counsel to be Given Debt Trustee. . . . . . . . . . . . . . . . . . . . 36
ARTICLE 11 SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 11.1 Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 11.2 Deposited Moneys and U.S. Government Obligations to be Held in
Trust by Debt Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 11.3 Paying Agent to Repay Moneys Held. . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 11.4 Return of Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S. Government Obligations . . . . . . . . . 37
ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS . . . . . . . . . . . . . 38
SECTION 12.1 Indenture and Securities Solely Corporate Obligations . . . . . . . . . . . . . . 38
ARTICLE 13 MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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SECTION 13.1 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 13.2 Official Acts by Successor Corporation . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 13.3 Surrender of Corporation Powers. . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 13.4 Addresses for Notices, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 13.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 13.6 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . 39
SECTION 13.7 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 13.8 Trust Indenture Act to Control . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 13.9 Table of Contents, Headings, etc.. . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 13.10 Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 13.11 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 13.12 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 13.13 Acknowledgment of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 14 REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND . . . . . . . . . . . . 41
SECTION 14.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 14.2 Notice of Redemption; Selection of Securities. . . . . . . . . . . . . . . . . . . 41
SECTION 14.3 Payment of Securities Called for Redemption. . . . . . . . . . . . . . . . . . . . 41
SECTION 14.4 Mandatory and Optional Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 15 SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 15.1 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 15.2 Default on Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 15.3 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 15.4 Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 15.5 Debt Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . 46
SECTION 15.6 Notice by the Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 15.7 Rights of the Debt Trustee; Holders of Senior Indebtedness and Other
Financial Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 15.8 Subordination May Not Be Impaired. . . . . . . . . . . . . . . . . . . . . . . . . 47
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CROSS-REFERENCE TABLE
of provisions of the Trust Indenture Act to the provisions of the
Indenture dated as of ___________________, 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.
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THIS INDENTURE, dated as of ____________, 1997, between General Motors
Corporation, a Delaware corporation (hereinafter sometimes called the
"Corporation"), and the 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.
"Authenticating Agent" shall mean any agent or agents of the Debt Trustee
which at the time shall be appointed
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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.
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"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 2/3 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
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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.
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"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
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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);
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(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.
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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
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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.
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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.
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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.
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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.
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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,
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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 Company 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).
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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
COMPANY 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:
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(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 Company.
(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.
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(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
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(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
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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
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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
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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
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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.
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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.
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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.
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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.
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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
liquidation,
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
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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.
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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
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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.
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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;
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(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
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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
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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.
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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.
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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.
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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.
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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;
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(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, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, 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, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-
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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.
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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
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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
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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.
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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
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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.
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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
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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.
* * * * *
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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:
By:
Its:
[Seal] WILMINGTON TRUST COMPANY, as Debt Trustee
Attest:
By:
Its:
54
STATE OF DELAWARE )
COUNTY OF [ ] ) ss.:
On the ____ day of ________________________________, 1997 before
me personally came ______________________, to me known, who, being by me duly
sworn, did depose and say that he resides at ______________________________ ;
that he is ____________________ 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.
NOTARY PUBLIC
[seal] Commission expires:
STATE OF )
COUNTY OF ) ss.:
On the _____ day of ________________, 1997, before me personally came
__________________________, to me known, who, being by me duly sworn, did
depose and say that he resides at ___________________; that he is
___________________ of __________________________, 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.
NOTARY PUBLIC
[seal] Commission expires:
