GMNEWGP1.D1
SERIES D PREFERRED SECURITIES GUARANTEE AGREEMENT
General Motors Capital Trust D
Dated as of July 9, 1997
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INTERPRETATION 2
SECTION 1.1 Definitions and Interpretation 2
ARTICLE 2
TRUST INDENTURE ACT 4
SECTION 2.1 Trust Indenture Act; Application 4
SECTION 2.2 Lists of Preferred Holders of Securities 4
SECTION 2.3 Reports by the Series D Preferred Guarantee Trustee 4
SECTION 2.4 Periodic Reports to Series D Preferred Guarantee Trustee 4
SECTION 2.5 Evidence of Compliance with Conditions Precedent 5
SECTION 2.6 Events of Default; Waiver 5
SECTION 2.7 Event of Default; Notice 5
SECTION 2.8 Conflicting Interests 5
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF SERIES D PREFERRED 5
SECTION 3.1 Powers and Duties of the Series D Preferred Guarantee
Trustee 5
SECTION 3.2 Certain Rights of Series D Preferred Guarantee Trustee 7
SECTION 3.3 Not Responsible for Recitals or Issuance of Series D
Preferred Securities Guarantee 8
ARTICLE 4SERIES D PREFERRED GUARANTEE TRUSTEE 8
SECTION 4.1 Series D Preferred Guarantee Trustee; Eligibility 8
SECTION 4.2 Appointment, Removal and Resignation of Series D
Preferred Guarantee Trustee 9
ARTICLE 5
GUARANTEE 9
SECTION 5.1 Guarantee 9
SECTION 5.2 Waiver of Notice and Demand 10
SECTION 5.3 Obligations Not Affected 10
SECTION 5.4 Enforcement of Guarantee; Rights of Preferred Holders 10
SECTION 5.5 Guarantee of Payment 11
SECTION 5.6 Subrogation 11
SECTION 5.7 Independent Obligations 11
ARTICLE 6
LIMITATION OF TRANSACTIONS; RANKING 11
SECTION 6.1 Limitation of Transactions 11
SECTION 6.2 Ranking 12
ARTICLE 7
TERMINATION 12
SECTION 7.1 Termination 12
ARTICLE 8
INDEMNIFICATION 12
SECTION 8.1 Exculpation 12
SECTION 8.2 Fees; Indemnification 12
ARTICLE 9
MISCELLANEOUS 13
SECTION 9.1 Successors and Assigns 13
SECTION 9.2 Amendments 13
SECTION 9.3 Notices 13
SECTION 9.4 Benefit 14
SECTION 9.5 Governing Law 14
SECTION 9.6 Genders 14
SECTION 9.7 Counterparts 14
CROSS REFERENCE TABLE
of the provisions of the Trust Indenture Act with Series D, Preferred
Securities Guarantee Agreement dated as of July 9, 1997 between General Motors
Corporation and Wilmington Trust Company
Preferred Securities Guarantee
Act Section Section
310(a)(1) 4.1(a)(ii)
310(a)(2) 4.1(a)(ii)
310(a)(3) N/A
310(a)(4) N/A
310(a)(5) 4.1(a)(i)
310(b) 2.8, 4.1(c)
310(c) N/A
311(a) & (b) 2.2(b)
311(c) N/A
312(a) 2.2(a)
312(b) 2.2(b)
312(c) Omitted
313 2.3
314(a) 2.4
314(b) N/A
314(c)(1) & (2) 2.5
314(c)(3) N/A
314(d) N/A
314(e) 2.5
314(f) N/A
315(a)(1) 3.1(e)(1)(A)
315(a)(2) 3.1(e)(1)(B)
315(b) 2.7
315(c) 3.1(d)
315(d) 3.1(e)
315(e) Omitted
316(a)(1) 5.4(c)
316(a)(2) N/A
316(b) 2.6(b)
316(c) Omitted
317(a) 5.4(b), 3.1(b)
317(b) Omitted
318(a) 2.1(b)
THIS CROSS-REFERENCE TABLE IS NOT PART OF THE SERIES D PREFERRED SECURITIES
GUARANTEE AS EXECUTED.
------------------
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Xxxxxxx Xxxxx & Co.
SERIES D PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series D Preferred Securities Guarantee"),
dated as of July 9, 1997, is executed and delivered by General Motors
Corporation, a Delaware corporation (the "Guarantor"), and Wilmington Trust
Company, a Delaware banking corporation, as trustee (the "Series D Preferred
Guarantee Trustee"), for the benefit of the Preferred Holders (as defined
herein) of General Motors Capital Trust D, a Delaware statutory business trust
(the "Series D Trust").
WHEREAS, Guarantor and the Series D Trust have made an offer to exchange
(the "Series D Offer") 8.67% Trust Originated Preferred Securities SM ("TOPrS
"), Series D, representing preferred undivided beneficial ownership interests in
the assets of the Series D Trust (the "Series D Preferred Securities"), for up
to 5,462,917 of the Guarantor's depositary shares (the "Series D 7.92%
Depositary Shares"), each representing one-fourth of a share of Series D 7.92%
Preference Stock, $0.10 par value per share, of the Guarantor (the "Series D
7.92% Preference Stock") not owned by the Guarantor; and
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Series D Declaration"), dated as of July 9, 1997, among the trustees of the
Series D Trust, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial ownership interests in the assets of the Series D Trust,
the Series D Trust is issuing on the date hereof one Series D Preferred Security
in exchange for each Series D 7.92% Depositary Share validly tendered in the
Series D Offer; and
WHEREAS, concurrently with the issuance of the Series D Preferred
Securities in exchange for Series D 7.92% Depositary Shares validly tendered in
the Series D Offer, (a) the Series D Trust will issue and sell to the Guarantor
8.67% Trust Originated Common Securities, Series D (the "Series D Common
Securities"), in an aggregate liquidation amount equal to at least 3% of the
total capital of the Series D Trust and (b) the Guarantor will deposit into the
Series D Trust as trust assets its 8.67% Junior Subordinated Deferrable Interest
Debentures, Series D, due 2012 (the "Series D Debentures"), having an aggregate
principal amount equal to the aggregate stated liquidation amount of the Series
D Preferred Securities and the Series D Common Securities so issued; and
WHEREAS, as incentive for the holders of Series D 7.92% Depositary Shares
to exchange the Series D 7.92% Depositary Shares for Series D Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Series D Preferred Securities Guarantee, to pay to
the Preferred Holders the Series D Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Series D Common Securities Guarantee") in substantially
identical terms to this Series D Preferred Securities Guarantee for the benefit
of the holders of the Series D Common Securities (as defined herein), except
that if an event of default under the Indenture (as defined herein) with respect
to the Series D Debentures (an "Indenture Event of Default") has occurred and is
continuing, the rights of holders of the Series D Common Securities to receive
Series D Guarantee Payments under the Series D Common Securities Guarantee are
subordinated to the rights of Preferred Holders to receive Series D Guarantee
Payments under this Series D Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Preferred Holder,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Series D Preferred Securities Guarantee for
the benefit of the Preferred Holders.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Series D Preferred Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Series D Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Series D Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Series D Preferred Securities Guarantee" or
"this Series D Preferred Securities Guarantee" are to this Series D Preferred
Securities Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Series D Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Series D Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Series D Preferred Securities Guarantee, unless otherwise defined
in this Series D Preferred Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a day on which Federal or State
banking institutions in New York, New York or Wilmington, Delaware are
authorized or obligated by any law, executive order or regulation to close.
"Corporate Trust Office" means the office of the Series D Preferred
Guarantee Trustee at which the corporate trust business of the Series D
Preferred Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is located
at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
"Covered Person" means any Preferred Holder or beneficial owner of Series
D Preferred Securities.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Series D Preferred Securities Guarantee.
"Indemnified Person" means the Series D Preferred Guarantee Trustee, any
Affiliate of the Series D Preferred Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Series D Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of July 1, 1997, between the
Guarantor (the "Series D Debenture Issuer") and Wilmington Trust Company, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Series D Debenture Issuer are to be issued
to the Institutional Trustee of the Series D Trust, in each case as amended.
"Majority in liquidation amount of the Series D Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Preferred
Holder(s), voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Series D
Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series D Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Holder" means any holder, as registered on the books and
records of the Series D Trust, of any Series D Preferred Securities; provided,
however, that, in determining whether the holders of the requisite percentage of
Series D Preferred Securities have given any request, notice, consent or waiver
hereunder, "Preferred Holder" shall not include the Guarantor or any Affiliate
of the Guarantor, but only to the extent that the Series D Trust or the Series D
Preferred Guarantee Trustee has actual knowledge of such ownership.
"Resignation Request" has the meaning set forth in Section 4.2(c).
"Responsible Officer" means, with respect to the Series D Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the Series D
Preferred Guarantee Trustee, including any vice president, any assistant vice
president, any assistant secretary, the treasurer, any assistant treasurer or
other officer of the Corporate Trust Office of the Series D Preferred Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Series D Common Securities" means the securities representing common
undivided beneficial ownership interests in the assets of the Series D Trust.
"Series D Debentures" means the 8.67% Junior Subordinated Deferrable
Interest Debentures, Series D, due 2012, issued by the Guarantor to the
Institutional Trustee of the Series D Trust.
"Series D Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series D Preferred
Securities, to the extent not paid or made by the Series D Trust: (i) any
accrued and unpaid Distributions (as defined in the Series D Declaration) that
are required to be paid on such Series D Preferred Securities to the extent the
Series D Trust shall have funds available therefor, (ii) the redemption price,
including all accrued and unpaid Distributions to the date of redemption (the
"Series D Redemption Price") to the extent the Series D Trust has funds
available therefor, with respect to any Series D Preferred Securities called for
redemption by the Series D Trust, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Series D Trust (other than in
connection with the distribution of Series D Debentures to the Preferred Holders
or the redemption of all of the Series D Preferred Securities as provided in the
Series D Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accrued and unpaid Distributions on the Series D Preferred Securities to
the date of payment, to the extent the Series D Trust shall have funds available
therefor, and (b) the amount of assets of the Series D Trust remaining available
for distribution to Preferred Holders in liquidation of the Series D Trust (in
either case, the "Series D Liquidation Distribution"). If an Indenture Event of
Default has occurred and is continuing, the rights of holders of the Series D
Common Securities to receive payments under the Series D Common Securities
Guarantee Agreement are subordinated to the rights of Preferred Holders to
receive Series D Guarantee Payments.
"Series D Preferred Guarantee Trustee" means Wilmington Trust Company, a
Delaware banking corporation, until a Successor Series D Preferred Guarantee
Trustee (as defined below) has been appointed and has accepted such appointment
pursuant to the terms of this Series D Preferred Securities Guarantee and
thereafter means each such Successor Series D Preferred Guarantee Trustee.
"Series D Trust Securities" means the Series D Common Securities and the
Series D Preferred Securities.
"Successor Series D Preferred Guarantee Trustee" means a successor Series
D Preferred Guarantee Trustee possessing the qualifications to act as Series D
Preferred Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Series D Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Series D Preferred Securities Guarantee and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Series D Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
(c) The application of the Trust Indenture Act to this Series D Preferred
Securities Guarantee shall not affect the nature of the Preferred Securities as
equity securities representing undivided beneficial interest in the assets of
the Trust.
SECTION 2.2 Lists of Preferred Holders of Securities.
(a) The Guarantor shall provide the Series D Preferred Guarantee Trustee
with a list, in such form as the Series D Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Preferred Holders ("List
of Preferred Holders") as of such date, (i) within one Business Day after
January 1 and June 30 of each year, and (ii) at any other time within 30 days of
receipt by the Guarantor of a written request for a List of Preferred Holders.
Such list shall be as of a date no more than 14 days before such List of
Preferred Holders is given to the Series D Preferred Guarantee Trustee. The
Guarantor shall not be obligated to provide such List of Preferred Holders if at
any time the List of Preferred Holders does not differ from the most recent List
of Preferred Holders given to the Series D Preferred Guarantee Trustee by the
Guarantor. The Series D Preferred Guarantee Trustee may destroy any List of
Preferred Holders previously given to it on receipt of a new List of Preferred
Holders.
(b) The Series D Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Series D Preferred Guarantee Trustee.
Within 60 days after April 11 of each year, the Series D Preferred
Guarantee Trustee shall provide to the Preferred Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Series D
Preferred Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Series D Preferred Guarantee Trustee.
The Guarantor shall provide to the Series D Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Series D Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Series D Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Preferred Holders of a Majority in liquidation amount of Series D
Preferred Securities may, by vote, on behalf of all of the Preferred Holders
waive any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Series D
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
(b) Notwithstanding the provisions of subsection (a) of this Section 2.6,
the right of any Preferred Holder of Series D Preferred Securities to receive
payment of the Series D Guarantee Payments in accordance with this Series D
Preferred Securities Guarantee, or to institute suit for the enforcement of any
such payment, shall not be impaired without the consent of each such Preferred
Holder.
SECTION 2.7 Event of Default; Notice.
(a) The Series D Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Preferred Holders, notices of all Events of Default actually
known to a Responsible Officer of the Series D Preferred Guarantee Trustee,
unless such defaults have been cured before the giving of such notice, provided,
that, the Series D Preferred Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer in good faith determines
that the withholding of such notice is in the interests of the Preferred Holders
of the Series D Preferred Securities.
(b) The Series D Preferred Guarantee Trustee shall not be deemed to have
actual knowledge of any Event of Default unless the Series D Preferred Guarantee
Trustee shall have received written notice, or of which a Responsible Officer
charged with the administration of this Series D Preferred Securities Guarantee
shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests.
The Series D Declaration shall be deemed to be specifically described in
this Series D Preferred Securities Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF SERIES D PREFERRED
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Series D Preferred Guarantee Trustee.
(a) This Series D Preferred Securities Guarantee shall be held by the
Series D Preferred Guarantee Trustee in trust for the benefit of the Preferred
Holders, and the Series D Preferred Guarantee Trustee shall not transfer its
right, title and interest in this Series D Preferred Securities Guarantee to any
Person except a Preferred Holder exercising his or her rights pursuant to
Section 5.4(d) or to a Successor Series D Preferred Guarantee Trustee on
acceptance by such Successor Series D Preferred Guarantee Trustee of its
appointment to act as Successor Series D Preferred Guarantee Trustee. The right,
title and interest of the Series D Preferred Guarantee Trustee shall
automatically vest in any Successor Series D Preferred Guarantee Trustee, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Series D Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer has
occurred and is continuing, the Series D Preferred Guarantee Trustee shall
enforce this Series D Preferred Securities Guarantee for the benefit of the
Preferred Holders.
(c) This Series D Preferred Securities Guarantee and all moneys received by
the Series D Preferred Guarantee Trustee hereunder in respect of the Series D
Guarantee Payments will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of, or for the benefit of, the Series D
Preferred Guarantee Trustee or its agents or their creditors.
(d) The Series D Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Series D Preferred Securities Guarantee, and no implied covenants
shall be read into this Series D Preferred Securities Guarantee against the
Series D Preferred Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is actually
known to a Responsible Officer, the Series D Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Series D Preferred
Securities Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(e) No provision of this Series D Preferred Securities Guarantee shall be
construed to relieve the Series D Preferred Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Series D
Preferred Guarantee Trustee shall be determined solely
by the express provisions of this Series D Preferred
Securities Guarantee, and the Series D Preferred
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Series D Preferred
Securities Guarantee, and no implied covenants or
obligations shall be read into this Series D Preferred
Securities Guarantee against the Series D Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Series D Preferred Guarantee Trustee, the Series D
Preferred Guarantee Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Series D Preferred Guarantee
Trustee and conforming to the requirements of this
Series D Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Series D Preferred Guarantee Trustee,
the Series D Preferred Guarantee Trustee shall be under
a duty to examine the same to determine whether or not
they conform to the requirements of this Series D
Preferred Securities Guarantee;
(ii) the Series D Preferred Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Series D Preferred Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Series D Preferred Guarantee Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Preferred Holders of
not less than a Majority in liquidation amount of the Series D Preferred
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Series D Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the Series D
Preferred Guarantee Trustee under this Series D Preferred Securities
Guarantee; and
(iv) no provision of this Series D Preferred Securities
Guarantee shall require the Series D Preferred Guarantee Trustee to expend
or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers, if the Series D Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Series D
Preferred Securities Guarantee or indemnity, reasonably satisfactory to
the Series D Preferred Guarantee Trustee, against such risk or liability
is not reasonably assured to it.
SECTION 3.2 Certain Rights of Series D Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Series D Preferred Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or refraining
from acting upon, any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it in good faith to be genuine and to have been signed, sent
or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Series D Preferred Securities Guarantee shall be sufficiently
evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Series D
Preferred Securities Guarantee, the Series D Preferred Guarantee Trustee
shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Series D Preferred
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor.
(iv) The Series D Preferred Guarantee Trustee shall have no
duty to see to any recording, filing or registration of any instrument (or
any rerecording, refiling or registration thereof).
(v) The Series D Preferred Guarantee Trustee may consult
with counsel, and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Series D Preferred Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Series D Preferred Securities Guarantee from any
court of competent jurisdiction.
(vi) The Series D Preferred Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Series D Preferred Securities Guarantee at the request or direction of any
Preferred Holder, unless such Preferred Holder shall have provided to the
Series D Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Series D Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses and
the expenses of the Series D Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Series D Preferred Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall relieve
the Series D Preferred Guarantee Trustee, upon the occurrence of an Event
of Default which has not been cured or waived, of its obligation to
exercise the rights and powers vested in it by this Series D Preferred
Securities Guarantee and to use the same degree of care and skill in this
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(vii) The Series D Preferred Guarantee Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Series D Preferred
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Series D Preferred Guarantee Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Series D Preferred Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Series D Preferred Guarantee
Trustee or its agents hereunder shall bind the Preferred Holders, and the
signature of the Series D Preferred Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the Series D
Preferred Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Series D Preferred Securities Guarantee,
both of which shall be conclusively evidenced by the Series D Preferred
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series D
Preferred Securities Guarantee the Series D Preferred Guarantee Trustee
shall deem it desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the Series D
Preferred Guarantee Trustee (i) may request instructions from the
Preferred Holders of a Majority in liquidation amount of the Series D
Preferred Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in
accordance with such instructions.
(b) No provision of this Series D Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Series D Preferred Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Series D Preferred Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Series D Preferred Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series D
Preferred Securities Guarantee.
The recitals contained in this Series D Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Series D Preferred
Guarantee Trustee does not assume any responsibility for their correctness. The
Series D Preferred Guarantee Trustee makes no representation as to the validity
or sufficiency of this Series D Preferred Securities Guarantee.
ARTICLE 4
SERIES D PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Series D Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Series D Preferred Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to
act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Series D Preferred Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Series D Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Series D Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Series D Preferred Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Series D Preferred
Guarantee Trustee.
(a) Subject to Section 4.2(b), the Series D Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor.
(b) The Series D Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Series D Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Series D Preferred Guarantee Trustee and
delivered to the Guarantor and to the Series D Preferred Guarantee Trustee being
removed.
(c) The Series D Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Series D Preferred Guarantee Trustee shall have
been appointed or until its removal or resignation as set forth herein. The
Series D Preferred Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument (a "Resignation Request") in
writing executed by the Series D Preferred Guarantee Trustee and delivered to
the Guarantor which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that no such
resignation of the Series D Preferred Guarantee Trustee shall be effective until
a Successor Series D Preferred Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Series D Preferred Guarantee Trustee and delivered to the Guarantor and the
resigning Series D Preferred Guarantee Trustee.
(d) If no Successor Series D Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of a Resignation Request, the resigning
Series D Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Series D Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Series D Preferred Guarantee Trustee.
(e) No Series D Preferred Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Series D Preferred Guarantee Trustee.
(f) Upon termination of this Series D Preferred Securities Guarantee or
removal or resignation of the Series D Preferred Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Series D Preferred Guarantee
Trustee all amounts payable to such Series D Preferred Guarantee Trustee accrued
to the date of such termination, removal or resignation.
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Preferred Holders the Series D Guarantee Payments (without duplication of
amounts theretofore paid by the Series D Trust), as and when due, regardless of
any defense, right of set-off or counterclaim that the Series D Trust may have
or assert. The Guarantor's obligation to make a Series D Guarantee Payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Preferred Holders or by causing the Series D Trust to pay such amounts to the
Preferred Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Series D
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Series D Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Series D Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Series D Trust of any express or implied
agreement, covenant, term or condition relating to the Series D Preferred
Securities to be performed or observed by the Series D Trust;
(b) the extension of time for the payment by the Series D Trust of all
or any portion of the Distributions, Series D Redemption Price, Series D
Liquidation Distribution or any other sums payable under the terms of the Series
D Preferred Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Series D Preferred
Securities (other than an extension of time for payment of Distributions, Series
D Redemption Price, Series D Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the Series D
Debentures);
(c) any failure, omission, delay or lack of diligence on the part of the
Preferred Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Preferred Holders pursuant to the terms of the Series D
Preferred Securities, or any action on the part of the Series D Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Series D Trust or any of the assets
of the Series D Trust;
(e) any invalidity of, or defect or deficiency in, the Series D Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Preferred Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Enforcement of Guarantee; Rights of Preferred Holders.
The Guarantor and the Series D Preferred Guarantee Trustee expressly
acknowledge that:
(a) this Series D Preferred Securities Guarantee will be deposited with
the Series D Preferred Guarantee Trustee to be held for the benefit of the
Preferred Holders;
(b) the Series D Preferred Guarantee Trustee has the right to enforce
this Series D Preferred Securities Guarantee on behalf of the Preferred Holders;
(c) the Preferred Holders of a Majority in liquidation amount of the
Series D Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Series D
Preferred Guarantee Trustee in respect of this Series D Preferred Securities
Guarantee or exercising any trust or power conferred upon the Series D Preferred
Guarantee Trustee under this Series D Preferred Securities Guarantee; and
(d) any Preferred Holder may institute a legal proceeding directly
against the Guarantor to enforce the Series D Preferred Guarantee Trustee's
rights and the obligations of the Guarantor under this Series D Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Series D Trust, the Series D Preferred Guarantee Trustee or any other person or
entity, and the Guarantor waives any right or remedy to require that any action
be brought first against the Series D Trust or any other person or entity before
proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment.
This Series D Preferred Securities Guarantee creates a guarantee of
payment and not of collection. This Series D Preferred Securities Guarantee will
not be discharged except by payment of the Series D Guarantee Payments in full
(without duplication of amounts therefor paid by the Series D Trust).
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Preferred
Holders against the Series D Trust in respect of any amounts paid to such
Preferred Holders by the Guarantor under this Series D Preferred Securities
Guarantee; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
right that it may acquire by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under this Series D
Preferred Securities Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Series D Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Preferred Holders and
to pay over such amount to the Preferred Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Series D Trust with respect to the Series D Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Series D Guarantee Payments pursuant to the terms of this
Series D Preferred Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions.
So long as any Series D Preferred Securities remain outstanding, if (a)
there shall have occurred an Event of Default, (b) there shall have occurred an
Indenture Event of Default or (c) the Guarantor has exercised its option to
defer interest payments on the Series D Debentures by extending the interest
payment period and such period or extension thereof shall be continuing, then
the Guarantor shall not (i) declare or pay any dividend on, make any
distribution with respect to, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Guarantor's common stock (including,
without limitation, all classes of common stock now or hereafter issued) in
connection with the satisfaction by the Guarantor of its obligations under any
employee benefit plans or any other contractual obligation of the Guarantor
(other than a contractual obligation ranking pari passu with or junior to the
Series D Debentures), (B) the issuance of capital stock in connection with a
recapitalization or a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock, in each case by
merger or otherwise, or (C) the purchase of fractional interests in shares of
the Guarantor's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged), (ii) make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Guarantor that rank pari passu with
or junior to the Series D Debentures or (iii) make any guarantee payments with
respect to the foregoing (other than pursuant to this Series D Preferred
Securities Guarantee).
In addition, so long as any Series D Preferred Securities remain
outstanding, the Guarantor (i) will remain the sole direct or indirect owner of
all of the outstanding Series D Common Securities to be transferred; provided
that any permitted successor of the Guarantor under the Indenture may succeed to
the Guarantor's ownership of the Series D Common Securities and (ii) will not
take any action which would cause the Series D Trust to cease to be treated as a
grantor trust for United States federal income tax purposes except in connection
with a distribution of Series D Debentures as provided in the Series D
Declaration.
SECTION 6.2 Ranking.
This Series D Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, except those made pari passu
or subordinate by their terms (including, without limitation, the Series D
Preferred Securities Guarantee Agreement, dated as of the date hereof, by and
between General Motors Corporation and Wilmington Trust Company), (ii) pari
passu with the most senior preferred or preference stock now or hereafter issued
by the Guarantor and with any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's common stock (including,
without limitation, all classes of common stock now or hereafter issued).
ARTICLE 7
TERMINATION
SECTION 7.1 Termination.
This Series D Preferred Securities Guarantee shall terminate and be of no
further force and effect upon (i) full payment of the Series D Redemption Price
of all Series D Preferred Securities, (ii) upon the distribution of the Series D
Debentures to all of the Preferred Holders or (iii) upon full payment of the
amounts payable in accordance with the Series D Declaration upon liquidation of
the Series D Trust. Notwithstanding the foregoing, this Series D Preferred
Securities Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any Preferred Holder must restore payment of any
sums paid under the Series D Preferred Securities or under this Series D
Preferred Securities Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Series D
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Series D Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Preferred Holders might properly be paid.
SECTION 8.2 Fees; Indemnification.
The Guarantor shall pay the Series D Preferred Guarantee Trustee
compensation as agreed between the Guarantor and the Series D Preferred
Guarantee Trustee, and shall reimburse the Series D Preferred Guarantee Trustee
for all reasonable expenses (including, without limitation, fees and expenses of
counsel) incurred in connection with the performance or enforcement of this
Series D Preferred Guarantee Agreement. To the fullest extent permitted by
applicable law, the Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any loss, liability or
expense incurred by such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 8.2 shall survive the termination of
this Series D Preferred Securities Guarantee.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Series D Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Preferred
Holders of the Series D Preferred Securities then outstanding. Except in
connection with any merger or consolidation of the Guarantor with or into
another entity or any sale, transfer or lease of the Guarantor's assets to
another entity, each as permitted by the Indenture, the Guarantor may not assign
its rights or delegate its obligations under this Series D Preferred Securities
Guarantee without the prior approval of the Preferred Holders of at least a
Majority in liquidation amount of the Series D Preferred Securities then
outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not adversely affect the rights
of Preferred Holders (in which case no consent of Preferred Holders will be
required), this Series D Preferred Securities Guarantee may only be amended with
the prior approval of the Preferred Holders of at least a Majority in
liquidation amount of all the outstanding Series D Preferred Securities. The
provisions of Section 12.2 of the Series D Declaration with respect to meetings
of Preferred Holders apply to the giving of such approval.
SECTION 9.3 Notices.
All notices provided for in this Series D Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Series D Preferred Guarantee Trustee, at the
Series D Preferred Guarantee Trustee's mailing address set forth below (or such
other address as the Series D Preferred Guarantee Trustee may give notice of to
the Preferred Holders):
Wilmington Trust Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Preferred Holders):
General Motors Corporation
000 Xxxxxxxxxxx Xxxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
(c) If given to any Preferred Holder, at the address set forth on the
books and records of the Series D Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Series D Preferred Securities Guarantee is solely for the benefit of
the Preferred Holders and, subject to Section 3.1(a), is not separately
transferable from the Series D Preferred Securities.
SECTION 9.5 Governing Law.
THIS SERIES D PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 9.6 Genders.
The masculine, feminine and neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 9.7 Counterparts.
This Series D Preferred Securities Guarantee may be executed in
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
* * * * * *
THIS SERIES D PREFERRED 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
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Series D Preferred Guarantee Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
Name: Xxxxxx X. XxxXxxxxx
Title: Assistant Vice President
