GMNEWGC_.D1
FOOTER B HAS BEEN ENTERED (DRAFT)
SERIES D COMMON SECURITIES GUARANTEE AGREEMENT
General Motors Capital Trust D
Dated as of July 9, 1997
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INTERPRETATION 1
SECTION 1.1 Definitions and Interpretation. 1
ARTICLE 2
GUARANTEE 3
SECTION 2.1 Guarantee 3
SECTION 2.2 Subordination 3
SECTION 2.3 Waiver of Notice and Demand 3
SECTION 2.4 Obligations Not Affected 3
SECTION 2.5 Rights of Common Holders 4
SECTION 2.6 Guarantee of Payment 4
SECTION 2.7 Subrogation 4
SECTION 2.8 Independent Obligations 5
ARTICLE 3
LIMITATION OF TRANSACTIONS; RANKING 5
SECTION 3.1 Limitation of Transactions 5
SECTION 3.2 Ranking 5
ARTICLE 4
TERMINATION 6
SECTION 4.1 Termination 6
ARTICLE 5
MISCELLANEOUS 6
SECTION 5.1 Successors and Assigns 6
SECTION 5.2 Amendments 6
SECTION 5.3 Notices 6
SECTION 5.4 Benefit 7
SECTION 5.5 Governing Law 7
SECTION 5.6 Genders 7
SERIES D COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series D Common Securities Guarantee"),
dated as of July 9, 1997, is executed and delivered by General Motors
Corporation, a Delaware corporation (the "Guarantor"), for the benefit of the
Common Holders (as defined herein) of General Motors Capital Trust D, a Delaware
statutory business trust (the "Series D Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Series D Declaration") dated as of July 9, 1997, among the trustees of the
Series D Trust, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Series D Trust,
the Series D Trust is issuing on the date hereof 94,493 common securities,
having an aggregate liquidation amount of $2,362,325, designated the 8.67%
Common Securities, Series D (the "Series D Common Securities");
WHEREAS, as incentive for the Common Holders to purchase the Series D
Common Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Series D Common Securities Guarantee, to
pay to the Common Holders the Series D Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Series D Preferred Securities Guarantee") in substantially
identical terms to this Series D Common Securities Guarantee for the benefit of
the holders of the Series D Preferred Securities (as defined herein), except
that if an event of default under the Indenture (as defined herein) with respect
to the Series D Debentures (an "Indenture Event of Default") has occurred and is
continuing, the rights of holders of the Series D Preferred Securities to
receive Series D Guarantee Payments under the Series D Preferred Securities
Guarantee will rank senior and prior in right to the rights of Common Holders to
receive Series D Guarantee Payments under this Series D Common Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Common Holder,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Series D Common Securities Guarantee for
the benefit of the Common Holders.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Series D Common Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Series D Common Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Series D Common Securities Guarantee
has the same meaning throughout;
(c) all references to "the Series D Common Securities Guarantee" or "this
Series D Common Securities Guarantee" are to this Series D Common Securities
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Series D Common Securities Guarantee to Articles
and Sections are to Articles and Sections of this Series D Common Securities
Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Series D Common Securities Guarantee, unless otherwise defined in
this Series D Common Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Business Day" means any day other than a day on which Federal or State
banking institutions in New York, New York or Wilmington, Delaware, are
authorized or obligated by any law, executive order or regulation to close.
"Common Holder" means any holder, as registered on the books and records
of the Series D Trust, of any Series D Common Securities.
"Covered Person" means any Common Holder or beneficial owner of Series D
Common Securities.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Series D Common Securities Guarantee.
"Indenture" means the Indenture dated as of July 1, 1997, between the
Guarantor (the "Series D Debenture Issuer") and Wilmington Trust Company, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Series D Debenture Issuer are to be issued
to the Institutional Trustee of the Series D Trust, in each case as amended.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series D Common Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Series D Debentures" means the 8.67% Junior Subordinated Deferrable
Interest Debentures, Series D, due 2012, issued by the Guarantor to the
Institutional Trustee of the Series D Trust.
"Series D Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series D Common
Securities, to the extent not paid or made by the Series D Trust: (i) any
accrued and unpaid Distributions (as defined in the Series D Declaration) that
are required to be paid on such Series D Common Securities, to the extent the
Series D Trust shall have funds available therefor, (ii) the redemption price,
including all accrued and unpaid Distributions to the date of redemption (the
"Series D Redemption Price"), to the extent the Series D Trust has funds
available therefor, with respect to any Series D Common Securities called for
redemption by the Series D Trust, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Series D Trust (other than in
connection with the distribution of Series D Debentures to the Common Holders or
the redemption of all of the Series D Common Securities as provided in the
Series D Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid Distributions on the Series D Common Securities to
the date of payment, to the extent the Series D Trust shall have funds available
therefor, and (b) the amount of assets of the Series D Trust remaining available
for distribution to Common Holders in liquidation of the Series D Trust (in
either case, the "Series D Liquidation Distribution"). If an Indenture Event of
Default has occurred and is continuing, the rights of holders of the Series D
Preferred Securities to receive payments under the Series D Preferred Securities
Guarantee Agreement shall rank senior and prior in right to the rights of Common
Holders to receive Series D Guarantee Payments.
"Series D Preferred Securities" mean the preferred securities of the
Series D Trust having an aggregate liquidation amount of $76,381,375, designated
the 8.67% Trust Originated Preferred Securities, Series D.
"Series D Trust Securities" means the Series D Common Securities and the
Series D Preferred Securities.
ARTICLE 2
GUARANTEE
SECTION 2.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Common Holders the Series D Guarantee Payments (without duplication of amounts
theretofore paid by the Series D Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Series D Trust may have or
assert. The Guarantor's obligation to make a Series D Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Common Holders or by causing the Series D Trust to pay such amounts to the
Common Holders.
SECTION 2.2 Subordination.
If (a) an Event of Default or (b) an Indenture Event of Default has
occurred and is continuing, the rights of Common Holders to receive Series D
Guarantee Payments under this Series D Common Securities Guarantee are
subordinated to the rights of holders of Series D Preferred Securities to
receive Series D Guarantee Payments (as defined in the Series D Preferred
Securities Guarantee) under the Series D Preferred Securities Guarantee.
SECTION 2.3 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Series D Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Series D Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 2.4 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Series D Common Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Series D Trust of any express or implied
agreement, covenant, term or condition relating to the Series D Common
Securities to be performed or observed by the Series D Trust;
(b) the extension of time for the payment by the Series D Trust of all or
any portion of the Distributions, Series D Redemption Price, Series D
Liquidation Distribution or any other sums payable under the terms of the Series
D Common Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Series D Common
Securities (other than an extension of time for payment of Distributions, Series
D Redemption Price, Series D Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the Series D
Debentures);
(c) any failure, omission, delay or lack of diligence on the part of the
Common Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Common Holders pursuant to the terms of the Series D
Common Securities, or any action on the part of the Series D Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Series D Trust or any of the assets
of the Series D Trust;
(e) any invalidity of, or defect or deficiency in, the Series D Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.4 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Common Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.5 Rights of Common Holders.
The Guarantor expressly acknowledges that any Common Holder may institute
a legal proceeding directly against the Guarantor to enforce its rights under
this Series D Common Securities Guarantee without first instituting a legal
proceeding against the Series D Trust or any other Person.
SECTION 2.6 Guarantee of Payment.
This Series D Common Securities Guarantee creates a guarantee of payment
and not of collection. This Series D Common Securities Guarantee will not be
discharged except by payment of the Series D Guarantee Payments in full (without
duplication of amounts therefor paid by the Series D Trust).
SECTION 2.7 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Common
Holders against the Series D Trust in respect of any amounts paid to such Common
Holders by the Guarantor under this Series D Common Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Series D Common
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Series D Common Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Common Holders and to pay over such
amount to the Common Holders.
SECTION 2.8 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Series D Trust with respect to the Series D Common
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Series D Guarantee Payments pursuant to the terms of this
Series D Common Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 2.4 hereof.
ARTICLE 3
LIMITATION OF TRANSACTIONS; RANKING
SECTION 3.1 Limitation of Transactions.
So long as any Series D Common Securities remain outstanding, if (a) there
shall have occurred an Event of Default, (b) there shall have occurred an
Indenture Event of Default or (c) the Guarantor has exercised its option to
defer interest payments on the Series D Debentures by extending the interest
payment period and such period or extension thereof shall be continuing, then
the Guarantor shall not (i) declare or pay any dividend on, make any
distribution with respect to, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Guarantor's common stock (including,
without limitation, all classes of common stock now or hereafter issued) in
connection with the satisfaction by the Guarantor of its obligations under any
employee benefit plans or any other contractual obligation of the Guarantor
(other than a contractual obligation ranking pari passu with or junior to the
Series D Debentures), (B) the issuance of capital stock in connection with a
recapitalization or a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock, in each case by
merger or otherwise, or (C) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged), (ii) make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Guarantor that rank pari passu with
or junior to the Series D Debentures or (iii) make any guarantee payments with
respect to the foregoing (other than pursuant to this Series D Common Securities
Guarantee).
In addition, so long as any Series D Common Securities remain outstanding,
the Guarantor (i) will remain the sole direct or indirect owner of all of the
outstanding Series D Common Securities to be transferred, provided that any
permitted successor of the Guarantor under the Indenture may succeed to the
Guarantor's ownership of the Series D Common Securities; and (ii) will not take
any action which would cause the Series D Trust to cease to be treated as a
grantor trust for United States federal income tax purposes except in connection
with a distribution of Series D Debentures as provided in the Series D
Declaration.
SECTION 3.2 Ranking.
This Series D Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, except those made pari passu
or subordinate by their terms (including, without limitation, the Series D
Common Securities Guarantee Agreement dated as of the date hereof, by General
Motors Corporation for the benefit of holders of common securities of General
Motors Capital Trust D), (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock (including, without limitation, all classes of common
stock now or hereafter issued); provided that, in accordance with Section 2.2,
this Series D Common Securities Guarantee will rank subordinate and junior in
right of payment to the Series D Preferred Securities Guarantee.
ARTICLE 4
TERMINATION
SECTION 4.1 Termination.
This Series D Common Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the amount payable upon
redemption of the Series D Common Securities, (ii) upon the distribution of the
Series D Debentures to all of the holders of the Series D Preferred Securities
or (iii) upon full payment of the amounts payable in accordance with the Series
D Declaration upon liquidation of the Series D Trust. Notwithstanding the
foregoing, this Series D Common Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Common
Holder must restore payment of any sums paid under the Series D Common
Securities or under this Series D Common Securities Guarantee.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 Successors and Assigns.
All guarantees and agreements contained in this Series D Common Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Common
Holders of the Series D Common Securities then outstanding. Except in connection
with any merger or consolidation of the Guarantor with or into another entity or
any sale, transfer or lease of the Guarantor's assets to another entity, each as
permitted by the Indenture, the Guarantor may not assign its rights or delegate
its obligations under this Series D Common Securities Guarantee without the
prior approval of the Common Holders of at least a Majority in liquidation
amount of the Series D Common Securities then outstanding.
SECTION 5.2 Amendments.
Except with respect to any changes that do not adversely affect the rights
of Common Holders (in which case no consent of Common Holders will be required),
this Series D Common Securities Guarantee may only be amended with the prior
approval of the Common Holders of at least a majority in liquidation amount of
all the outstanding Series D Common Securities. The provisions of Section 12.2
of the Series D Declaration with respect to meetings of Common Holders apply to
the giving of such approval.
SECTION 5.3 Notices.
All notices provided for in this Series D Common Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the Common
Holders):
General Motors Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
(b) If given to any Common Holder, at the address set forth on the books
and records of the Series D Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 5.4 Benefit.
This Series D Common Securities Guarantee is solely for the benefit of the
Common Holders and is not separately transferable from the Series D Common
Securities.
SECTION 5.5 Governing Law.
THIS SERIES D COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 5.6 Genders.
The masculine, feminine and neuter genders used herein shall include the
masculine, feminine and neuter genders.
* * * * * *
THIS SERIES D COMMON SECURITIES GUARANTEE is executed as of the day and
year first above written.
GENERAL MOTORS CORPORATION,
as Guarantor
By: /s/Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
