GMNEWIND.WP1
FOOTER B HAS BEEN ENTERED (DRAFT)
FIRST SUPPLEMENTAL INDENTURE
between
GENERAL MOTORS CORPORATION
and
WILMINGTON TRUST COMPANY
Dated as of July 9, 1997
WITH RESPECT TO THE
SERIES D JUNIOR SUBORDINATED DEBENTURES
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS 2
SECTION 1.1 Definition of Terms. 2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES 3
SECTION 2.1 Designation and Principal Amount. 3
SECTION 2.2 Maturity. 3
SECTION 2.3 Form and Payment. 3
SECTION 2.4 Series D Global Debenture. 4
SECTION 2.5 Interest. 5
ARTICLE 3
REDEMPTION OF THE DEBENTURES 5
SECTION 3.1 Tax Event Redemption. 5
SECTION 3.2 Series D Optional Redemption by Corporation. 6
SECTION 3.3 No Sinking Fund. 6
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD 6
SECTION 4.1 Extension of Interest Payment Period. 6
SECTION 4.2 Notice of Extension. 7
SECTION 4.3 Limitation of Transactions. 7
ARTICLE 5
EXPENSES 8
SECTION 5.1 Payment of Expenses. 8
SECTION 5.2 Payment Upon Resignation or Removal. 8
ARTICLE 6
COVENANT TO LIST ON EXCHANGE 9
SECTION 6.1 Listing on an Exchange. 9
ARTICLE 7
FORM OF DEBENTURE 9
SECTION 7.1 Form of Series D Debenture. 9
ARTICLE 8
ORIGINAL ISSUE OF DEBENTURES 9
SECTION 8.1 Original Issue of Series D Debentures. 9
ARTICLE 9
MISCELLANEOUS 9
SECTION 9.1 Ratification of Indenture. 9
SECTION 9.2 Debt Trustee Not Responsible for Recitals. 9
SECTION 9.3 Governing Law. 10
SECTION 9.4 Separability. 10
SECTION 9.5 Counterparts. 10
Exhibit A Form of Debenture
FIRST SUPPLEMENTAL INDENTURE
WITH RESPECT TO THE
SERIES D JUNIOR SUBORDINATED DEBENTURES
FIRST SUPPLEMENTAL INDENTURE, dated as of July 9, 1997 (the "First
Supplemental Indenture"), between General Motors Corporation, a Delaware
corporation (the "Corporation"), and Wilmington Trust Company, as trustee (the
"Debt Trustee") under the Indenture dated as of July 1, 1997 between the
Corporation and the Debt Trustee (the "Indenture").
WHEREAS, the Corporation executed and delivered the Indenture to provide
for the future issuance of the Corporation's unsecured junior subordinated debt
securities to be issued from time to time in one or more series as may be
determined by the Corporation under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Corporation desires
to provide for the establishment of a new series of such securities to be known
as its 8.67% Junior Subordinated Deferrable Interest Debentures, Series D, due
2012 (the "Series D Debentures"), the form and substance of such Series D
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this First Supplemental Indenture;
WHEREAS, the Corporation and General Motors Capital Trust D, a Delaware
statutory business trust (the "Series D Trust"), have made an offer to exchange
(the "Series D Offer") the Series D Trust's 8.67% Trust Originated Preferred
Securities, Series D (the "Series D Preferred Securities"), representing
preferred undivided beneficial ownership interests in the assets of the Series D
Trust, for any and all of the Corporation's depositary shares (the "Series D
7.92% Depositary Shares"), each representing one-fourth of a share of Series D
7.92% Preference Stock, $0.10 par value per share, of the Corporation not owned
by the Corporation;
WHEREAS, concurrently with the issuance of the Series D Preferred
Securities in exchange for Series D 7.92% Depositary Shares validly tendered in
the Series D Offer, (a) the Series D Trust will issue and sell to the
Corporation 8.67% Trust Originated Common Securities, Series D (the "Series D
Common Securities"), in an aggregate stated liquidation amount equal to at least
3% of the total capital of the Series D Trust and (b) the Corporation will
deposit in the Series D Trust as trust assets the Series D Debentures having an
aggregate principal amount equal to the aggregate stated liquidation amount of
the Series D Preferred Securities and the Series D Common Securities so issued;
and
WHEREAS, the Corporation has requested that the Debt Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to make
this First Supplemental Indenture a valid instrument in accordance with its
terms, and to make the Series D Debentures, when executed by the Corporation and
authenticated and delivered by the Debt Trustee, the valid obligations of the
Corporation, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Series D Debentures by the Holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Series D
Debentures and the terms, provisions and conditions thereof, the Corporation
covenants and agrees with the Debt Trustee as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Series D Declaration: (i) Dealer Manager Agreement; (ii) Delaware Trustee;
(iii) Distributions; (iv) Institutional Trustee; (v) Series D Preferred
Securities Guarantee; (vi) Preferred Security Certificate and (vii) Regular
Trustee.
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(c).
"Compound Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Creditor" shall have the meaning set forth in Section 5.1
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means the dissolution of the Series D Trust and
distribution of the Series D Debentures held by the Institutional Trustee pro
rata to the holders of the Series D Trust Securities in accordance with the
Series D Declaration, such event to occur at the option of the Corporation at
any time.
"Holder" means any person in whose name at the time a Series D Debenture
is registered on the Security Register.
"Interest Payment Date" shall have the meaning set forth in
Section 2.5(a).
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a).
"Series D Redemption Price" shall mean either the Series D Tax Event
Prepayment Price or the Series D Optional Prepayment Price, as the context
requires.
"Series D Declaration" means the Amended and Restated Declaration of Trust
of General Motors Capital Trust D, a Delaware statutory business trust, dated as
of July 9, 1997, as amended from time to time.
"Series D Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Series D Global Debenture" shall have the meaning set forth in Section
2.4(a).
"Series D Optional Prepayment Price" shall have the meaning set forth in
Section 3.2.
"Series D Stated Maturity" means the date on which the Series D Debentures
mature and on which the principal shall be due and payable, together with all
accrued and unpaid interest thereon including Compound Interest and Additional
Interest, if any, which date shall be July 1, 2012, unless shortened to a date
not earlier than August 1, 1999, as more fully described in Section 2.2.
"Series D Tax Event Prepayment Price" shall have the meaning set forth in
Section 3.1.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws or any regulations thereunder of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
the original issuance of the Series D Debentures, there is more than an
insubstantial risk that (i) the Series D Trust is, or will be within 90 days of
the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Series D Debentures, (ii) interest
payable by the Corporation on the Series D Debentures is not, or within 90 days
of the date thereof will not be, deductible by the Corporation, in whole or in
part, for United States federal income tax purposes, or (iii) the Series D Trust
is, or will be within 90 days of the date of such opinion, subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "8.67%
Junior Subordinated Deferrable Interest Debentures, Series D, due 2012", limited
in aggregate principal amount to the aggregate stated liquidation amount of the
Series D Preferred Securities and Series D Common Securities to be issued by the
Series D Trust, which amount shall be as set forth in any written order of the
Corporation for the authentication and delivery of Series D Debentures pursuant
to Section 2.4 of the Indenture.
SECTION 2.2 Maturity.
(a) The Series D Debentures shall mature on July 1, 2012. The
Corporation has the right at any time to shorten the maturity of the Series D
Debentures to a date not earlier than August 1, 1999.
(b) In the event that the Corporation elects to shorten the maturity
date of the Series D Debentures, it shall give notice to the Debt Trustee, and
the Debt Trustee shall give notice of such shortening or extension to the
holders of the Series D Debentures no more than 90 and no less than 30 days
prior to the effectiveness thereof.
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Series D Debentures shall be issued
in fully registered certificated form without interest coupons. Principal and
interest on the Series D Debentures issued in certificated form will be payable,
the transfer of such Series D Debentures will be registrable and such Series D
Debentures will be exchangeable for Series D Debentures bearing identical terms
and provisions at the office or agency of the Debt Trustee in Wilmington,
Delaware or New York, New York, as applicable; provided, however, that payment
of interest may be made at the option of the Corporation by check mailed to the
Holder entitled thereto at such address as shall appear in the Security Register
or by wire transfer to an account appropriately designated by the Holder
entitled thereto. Notwithstanding the foregoing, so long as the Holder of any
Series D Debentures is the Institutional Trustee, the payment of the principal
of and interest (including Compound Interest and Additional Interest, if any) on
such Series D Debentures held by the Institutional Trustee will be made at such
place and to such account as may be designated by the Institutional Trustee.
SECTION 2.4 Series D Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Series D Debentures in certificated form may be presented to
the Debt Trustee by the Institutional Trustee in exchange for a global Series D
Debenture in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Series D Debentures (a "Global Series D Debenture"),
to be registered in the name of the Depository Institution, or its nominee, and
delivered by the Debt Trustee to the Depository Institution for crediting to the
accounts of its participants pursuant to the instructions of the Regular
Trustees. The Corporation upon any such presentation shall execute a Global
Series D Debenture in such aggregate principal amount and deliver the same to
the Debt Trustee for authentication and delivery in accordance with the
Indenture and this First Supplemental Indenture. Payments on the Series D
Debentures issued as a Global Series D Debenture will be made to the Depository
Institution; and
(ii) if any Series D Preferred Securities are held in non book-entry
certificated form, the Series D Debentures in certificated form may be presented
to the Debt Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Series D Preferred Securities other than Series D
Preferred Securities held by the Depository Institution or its nominee ("Non
Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Series D Debentures presented to the Debt Trustee by the
Institutional Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities until
such Preferred Security Certificates are presented to the Security registrar for
transfer or reissuance, at which time such Preferred Security Certificates will
be canceled and a Series D Debenture, registered in the name of the holder of
the Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred Security
Certificate canceled, will be executed by the Corporation and delivered to the
Debt Trustee for authentication and delivery in accordance with the Indenture
and this First Supplemental Indenture. On issue of such Series D Debentures,
Series D Debentures with an equivalent aggregate principal amount that were
presented by the Institutional Trustee to the Debt Trustee will be deemed to
have been canceled.
(b) A Global Series D Debenture may be transferred, in whole but not
in part, only to another nominee of the Depository Institution, or to a
successor Depository Institution selected or approved by the Corporation or to a
nominee of such successor Depository Institution.
(c) If (i) at any time the Depository Institution notifies the
Corporation that it is unwilling or unable to continue as Depository Institution
or if at any time the Depository Institution for such series shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, and a successor Depository
Institution for such series is not appointed by the Corporation within 90 days
after the Corporation receives such notice or becomes aware of such condition,
as the case may be, (ii) the Corporation at any time determines that the Series
D Debentures shall no longer be represented by a Global Series D Debenture or
(iii) there shall have occurred an Event of Default with respect to the Series D
Debentures, then the Corporation will execute, and, subject to Article 2 of the
Indenture, the Debt Trustee, upon written notice from the Corporation, will
authenticate and deliver the Series D Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Series D Debenture in
exchange for such Global Series D Debenture. In such event the Corporation will
execute, and subject to Section 2.7 of the Indenture, the Debt Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Corporation, will authenticate and deliver the Series D Debentures in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Series D
Debenture in exchange for such Global Series D Debenture. Upon the exchange of
the Global Series D Debenture for such Series D Debentures in definitive
registered form without coupons, in authorized denominations, the Global Series
D Debenture shall be canceled by the Debt Trustee. Such Series D Debentures in
definitive registered form issued in exchange for the Global Series D Debenture
shall be registered in such names and in such authorized denominations as the
Depository Institution, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Debt Trustee. The Debt Trustee
shall deliver such Securities to the Depository Institution for delivery to the
Persons in whose names such Securities are so registered.
SECTION 2.5 Interest.
(a) Each Series D Debenture will bear interest at the rate of 8.67%
per annum (the "Coupon Rate") from July 3, 1997, the first date following the
expiration date of the Series D Offer (the "Accrual Date"), until the principal
thereof becomes due and payable, and on any overdue principal and, to the extent
that payment of such interest is enforceable under applicable law, on any
overdue installment of interest at the Coupon Rate, compounded quarterly,
payable quarterly on February 1, May 1, August 1 and November 1 of each year
(each, an "Interest Payment Date"), commencing on August 1, 1997, to the Person
in whose name such Series D Debenture or any predecessor Series D Debenture is
registered, at the close of business on the 15th day of January, April, July and
October prior to the applicable Interest Payment Date, except as otherwise
provided herein. Payments of interest may be deferred by the Corporation
pursuant to the provisions of Article 4 hereof. The Series D Debentures will
also accrue interest at the rate of 7.92% per annum of the principal amount
thereof from April 1, 1997 through and including July 2, 1997, the expiration
date of the Series D Offer, payable on August 1, 1997 to the Person in whose
name such Series D Debentures is registered on the 15th day of July, 1997
("Pre-Issuance Interest"). No deferral of interest will be permitted with
respect to Pre-Issuance Interest.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest is computed, will be computed on
the basis of the actual number of days elapsed. In the event that any date on
which interest is payable on the Series D Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the holder of
any of the Series D Debentures, the Series D Trust or the Institutional Trustee
is required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States, or
any other taxing authority, then, in any such case, the Corporation will pay as
additional interest ("Additional Interest") on the Series D Debentures held by
the Institutional Trustee, such additional amounts as shall be required so that
the net amounts received and retained by the Series D Trust and the
Institutional Trustee after paying such taxes, duties, assessments or other
governmental charges will not be less than the amounts the Series D Trust and
the Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
ARTICLE 3
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Tax Event Redemption.
If, prior to August 1, 1999, a Tax Event has occurred and is continuing,
the Corporation shall have the right, upon not less than 30 days and no more
than 60 days notice to the Holders, at its option, to redeem the Series D
Debentures, in whole (but not in part), for cash within 90 days following the
occurrence of such Tax Event at a prepayment price (the "Series D Tax Event
Prepayment Price") equal to (i) 105% of the principal amount of the Series D
Debentures if prepaid during the period commencing on the Accrual Date through
and including July 31, 1997 and (ii) the percentage of the principal amount of
the Series D Debentures specified below, if prepaid during the 12-month period
beginning August 1 of the years indicated below, plus, in each case, any accrued
and unpaid interest thereon to the date of prepayment:
Year Percentage
1997 105 %
1998 102.5
1999 and thereafter 100
The Series D Tax Event Prepayment Price shall be paid prior to 12:00 noon,
Eastern time, on the date of such redemption or such earlier time as the
Corporation determines; provided that the Corporation shall deposit with the
Debt Trustee an amount sufficient to pay the Series D Tax Event Prepayment Price
by 10:00 a.m., Eastern time, on the date such Series D Tax Event Prepayment
Price is to be paid.
SECTION 3.2 Series D Optional Redemption by Corporation.
Subject to the provisions of Article 14 of the Indenture, except as
otherwise may be specified in this First Supplemental Indenture, the Corporation
shall have the right, upon not less than 30 days and no more than 60 days notice
to the Holders, to redeem the Series D Debentures, in whole or in part, from
time to time, on or after August 1, 1999, for cash at a prepayment price (the
"Series D Optional Prepayment Price") equal to 100% of the principal amount
thereof, plus any accrued and unpaid interest thereon to the redemption date.
Notwithstanding anything to the contrary contained herein, the Corporation may
not redeem fewer than all of the Series D Debentures unless all accrued and
unpaid interest on all of the Series D Debentures has been paid for all
quarterly periods terminating on or prior to the redemption date. If the Series
D Debentures are only partially redeemed pursuant to this Section 3.2, the
Series D Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Debt Trustee; provided, that if at the time of redemption the
Series D Debentures are registered as a Global Series D Debenture, the
Depository Institution shall determine, in accordance with its procedures, the
principal amount of such Series D Debentures held by each Holder to be redeemed.
The Series D Optional Prepayment Price shall be paid prior to 12:00 noon,
Eastern time, on the date of such redemption or at such earlier time as the
Corporation determines; provided that the Corporation shall deposit with the
Debt Trustee an amount sufficient to pay the Series D Optional Prepayment Price
by 10:00 a.m., Eastern time, on the date such Series D Optional Prepayment Price
is to be paid.
SECTION 3.3 No Sinking Fund.
The Series D Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
With the exception of Pre-Issuance Interest, so long as the Corporation
shall not be in default in the payment of interest on the Series D Debentures,
the Corporation shall have the right, at any time and from time to time during
the term of the Series D Debentures, to defer payments of interest by extending
the interest payment period of such Series D Debentures for a period not
exceeding 20 consecutive quarters (the "Series D Extended Interest Payment
Period"), during which Series D Extended Interest Payment Period no interest
shall be due and payable; provided that no Series D Extended Interest Payment
Period may extend beyond the Series D Stated Maturity. To the extent permitted
by applicable law, interest, the payment of which has been deferred because of
the extension of the interest payment period pursuant to this Section 4.1, will
bear interest thereon at the Coupon Rate compounded quarterly for each quarter
of the Series D Extended Interest Payment Period ("Compound Interest"). At the
end of the Series D Extended Interest Payment Period, the Corporation shall pay
all interest accrued and unpaid on the Series D Debentures, including any
Additional Interest and Compound Interest (together, "Deferred Interest") that
shall be payable to the Holders in whose names the Series D Debentures are
registered in the Security Register on the first record date after the end of
the Series D Extended Interest Payment Period. Before the termination of any
Series D Extended Interest Payment Period, the Corporation may further extend
such period, provided that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters, or extend beyond the Series D
Stated Maturity. Upon the termination of any Series D Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the Corporation
may commence a new Series D Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during a Series D
Extended Interest Payment Period, except at the end thereof, but the Corporation
may prepay at any time all or any portion of the interest accrued during a
Series D Extended Interest Payment Period.
SECTION 4.2 Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder at the
time the Corporation selects a Series D Extended Interest Payment Period, the
Corporation shall give written notice to the Regular Trustees, the Institutional
Trustee and the Debt Trustee of its selection of such Series D Extended Interest
Payment Period one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Series D Trust Securities issued by the
Series D Trust are payable, or (ii) the date the Series D Trust is required to
give notice of the record date, or the date such Distributions are payable, to
the New York Stock Exchange or other applicable self-regulatory organization or
to holders of the Series D Preferred Securities issued by the Series D Trust,
but in any event at least one Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder at the time
the Corporation selects a Series D Extended Interest Payment Period, the
Corporation shall give the Holders of the Series D Debentures and the Debt
Trustee written notice of its selection of such Series D Extended Interest
Payment Period at least ten Business Days before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Corporation is required
to give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
Holders of the Series D Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Series D Extended Interest Payment Period permitted
under Section 4.1.
SECTION 4.3 Limitation of Transactions.
If (i) the Corporation shall exercise its right to defer payment of
interest as provided in Section 4.1, or (ii) there shall have occurred any Event
of Default, as defined in the Indenture, with respect to the Series D
Debentures, or (iii) there shall have occurred any Event of Default, as defined
in the Series D Preferred Securities Guarantee, then the Corporation shall not
(a) declare or pay any dividend on, make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (1) purchases or acquisitions of shares of its
common stock (including, without limitation, all classes of common stock now or
hereafter issued) in connection with the satisfaction by the Corporation of its
obligations under any employee benefit plans or any other contractual obligation
of the Corporation (other than a contractual obligation ranking pari passu with
or junior to the Series D Debentures), (2) the issuance of capital stock in
connection with a recapitalization or reclassification of the Corporation's
capital stock or the exchange or conversion of one class or series of the
Corporation's capital stock for another class or series of the Corporation's
capital stock, in each case by merger or otherwise, or (3) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged), (b) make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Corporation that rank pari passu with or junior to the Series D Debentures
and (c) make any guarantee payments with respect to the foregoing (other than
pursuant to the Series D Preferred Securities Guarantee).
ARTICLE 5
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the Series D
Debentures to the Institutional Trustee and in connection with the sale of the
Series D Trust Securities by the Series D Trust, the Corporation, in its
capacity as borrower with respect to the Series D Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Series D Debentures, including fees to the dealer managers
payable pursuant to the Dealer Manager Agreement and compensation of the Debt
Trustee under the Indenture in accordance with the provisions of Section 6.6 of
the Indenture;
(b) be responsible for and shall pay all debts and obligations (other
than payments of principal, interest and premium, if any, with respect to the
Series D Trust Securities) and costs and expenses of the Series D Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Series D Trust, the offer, sale and issuance
of the Series D Trust Securities (including fees to the dealer managers in
connection therewith), the fees and expenses (including reasonable counsel fees
and expenses) of the Institutional Trustee, the Delaware Trustee and the Regular
Trustees (including any amounts payable under Article 10 of the Series D
Declaration), the costs and expenses relating to the operation of the Series D
Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Series D Trust assets and the
enforcement by the Institutional Trustee of the rights of the holders of the
Series D Preferred Securities);
(c) be primarily liable for any indemnification obligations
arising with respect to the Series D Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Series D Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Series D Trust.
The Corporation's obligations under this Section 5.1 shall be for the
benefit of, and shall be enforceable by, any person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Corporation's obligations under this Section 5.1 directly against the
Corporation and the Corporation irrevocably waives any right of remedy to
require that any such Creditor take any action against the Series D Trust or any
other Person before proceeding against the Corporation. The Corporation agrees
to execute such additional agreements as may be necessary or desirable in order
to give full effect to the provisions of this Section 5.1.
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the Indenture or
the removal or resignation of the Debt Trustee, unless otherwise stated, the
Corporation shall pay to the Debt Trustee all amounts accrued to the date of
such termination, removal or resignation. Upon termination of the Series D
Declaration or the removal or resignation of the Delaware Trustee or the
Institutional Trustee, as the case may be, pursuant to Section 5.6 of the Series
D Declaration, the Corporation shall pay to the Delaware Trustee or the
Institutional Trustee, as the case may be, all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE 6
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange.
If the Series D Debentures are distributed to the holders of the Series D
Preferred Securities issued by the Series D Trust, and the Series D Preferred
Securities are then so listed, the Corporation will use its best efforts to list
the Series D Debentures on the New York Stock Exchange, Inc. or on such other
exchange as the Series D Preferred Securities are then listed.
ARTICLE 7
FORM OF DEBENTURE
SECTION 7.1 Form of Series D Debenture.
The Series D Debentures and the Certificate of Authentication to be
endorsed thereon are to be substantially in the form attached hereto as Exhibit
A.
ARTICLE 8
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Series D Debentures.
Series D Debentures in the aggregate principal amount of the aggregate
stated liquidation amount of the Series D Preferred Securities and Series D
Common Securities to be issued by the Series D Trust, may, upon execution of
this First Supplemental Indenture or any written order of the Corporation
setting forth the amount therefor, be executed by the Corporation and delivered
to the Debt Trustee for authentication, and the Debt Trustee shall thereupon
authenticate and deliver said Series D Debentures to or upon the written order
of the Corporation, signed by its Chairman, its President, or any Vice President
and its Treasurer, its Secretary, any Assistant Treasurer, or any Assistant
Secretary, without any further action by the Corporation.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 9.2 Debt Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Corporation and not by the
Debt Trustee, and the Debt Trustee assumes no responsibility for the correctness
thereof. The Debt Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 9.3 Governing Law.
This First Supplemental Indenture and each Series D Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
SECTION 9.4 Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Series D Debentures shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Series D Debentures, but this First
Supplemental Indenture and the Series D Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein or
therein.
SECTION 9.5 Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
* * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
GENERAL MOTORS CORPORATION
By: /s/Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY
as Debt Trustee
By: /s/Xxxxxx X. XxxXxxxxx
Name: Xxxxxx X. XxxXxxxxx
Title: Assistant Vice President
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On the ____ day of __________, 1997 before me personally came Xxxx
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at _________________________________; that he is Vice President and
Treasurer of General Motors Corporation, one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Xxxxxxx Xxxxxxx
NOTARY PUBLIC
[seal] Commission expires: XXXXXXX XXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
My Commission Expires 8/31/97
STATE OF DELAWARE )
COUNTY OF NEW CASTLE ) ss.:
On the _____ day of ________________, 1997, before me personally came
Xxxxxx X. XxxXxxxxx, to me known, who, being by me duly sworn, did depose and
say that he resides at Wilmington, Delaware; that he is Assistant Vice President
of Wilmington Trust Company, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Xxxxxxxx X. Xxxxxxxx
NOTARY PUBLIC
[seal] Commission expires: XXXXXXXX X. XXXXXXXX
NOTARY PUBLIC
My Commission expires October 31, 1998
EXHIBIT A
No. ______________________________
GENERAL MOTORS CORPORATION
8.67% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE, SERIES D
DUE 2012
GENERAL MOTORS CORPORATION, a Delaware corporation (the "Corporation",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Wilmington Trust
Company, as Institutional Trustee of General Motors Capital Trust D under that
certain Amended and Restated Declaration of Trust dated as of July 9, 1997, or
registered assigns, the principal sum of ____________________ Dollars
($___________) on July 1, 2012 (such date, as it may be shortened as provided
below, the "Series D Stated Maturity"), and to pay interest on said principal
sum from July 3, 1997, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, payable quarterly on February 1, May 1, August 1 and November 1 of
each year, commencing August 1, 1997, at the rate of 8.67% per annum until the
principal hereof shall have become due and payable, and on any overdue principal
and premium, if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Series D Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Series D Debenture (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the 15th
day of the month immediately preceding the month during which the applicable
Interest Payment Date occurs. Payments of interest may be deferred by the
Corporation pursuant to the provisions of Article 4 of the First Supplemental
Indenture. The Series D Debentures will also accrue interest at the rate of
7.92% per annum of the principal amount thereof from April 1, 1997 through July
2, 1997, payable on August 1, 1997 to holders of the Series D Debentures on the
record date for such distribution. No deferral of interest will be permitted
with respect to interest accruing from April 1, 1997 through July 2, 1997. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such regular record
date and may be paid to the Person in whose name this Series D Debenture (or one
or more Predecessor Securities) is registered at the close of business on a
special record date to be fixed by the Debt Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered Holders of
this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series D
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Series D Debenture shall be payable at
the office or agency of the Debt Trustee maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Corporation by check mailed to the
registered Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of this Series D Debenture
is the Institutional Trustee, the payment of the principal of (and premium, if
any) and interest on this Series D Debenture will be made at such place and to
such account as may be designated by the Institutional Trustee.
The Corporation has the right at any time to shorten the maturity of the
Series D Debentures to a date not earlier than August 1, 1999.
The indebtedness evidenced by this Series D Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and Other Financial
Obligations, and this Series D Debenture is issued subject to the provisions of
the Indenture with respect thereto. Each Holder of this Series D Debenture, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Debt Trustee on his or her behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Debt Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness and Other Financial Obligations, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Series D Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Debt Trustee.
This Debenture is one of a duly authorized series of Debentures of the
Corporation (herein sometimes referred to as the "Series D Debentures"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of July 1, 1997, duly executed and
delivered between the Corporation and Wilmington Trust Company as Trustee (the
"Debt Trustee"), as supplemented by the First Supplemental Indenture dated as of
July 9, 1997, between the Corporation and the Debt Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Debt
Trustee, the Corporation and the Holders of the Series D Debentures. By the
terms of the Indenture, the securities provided for thereunder are issuable in
series that may vary as to amount, date of maturity, rate of interest and in
other respects as provided in the Indenture. This series of Debentures is
limited in aggregate principal amount as specified in said First Supplemental
Indenture.
If, prior to August 1, 1999, a Tax Event has occurred and is continuing,
the Corporation shall have the right, upon not less than 30 days and no more
than 60 days notice to the Holders, at its option, to redeem the Series D
Debentures, in whole (but not in part), for cash within 90 days following the
occurrence of such Tax Event at a prepayment price (the "Series D Tax Event
Prepayment Price") equal to (i) 105% of the principal amount of the Series D
Debentures if prepaid during the period commencing on July 3, 1997 through and
including July 31, 1997, and (ii) the percentage of the principal amount of the
Series D Debentures specified below, if prepaid during the 12-month period
beginning August 1 of the years indicated below, plus, in each case, any accrued
and unpaid interest thereon to the date of prepayment:
Year Percentage
1997 105 %
1998 102.5
1999 and thereafter 100
Subject to the provisions of Article 14 of the Indenture, except as
otherwise may be specified in the First Supplemental Indenture, the Corporation
shall have the right, upon not less than 30 days and no more than 60 days notice
to the Holder, to redeem the Series D Debentures, in whole or in part, from time
to time, on or after August 1, 1999 (a "Series D Optional Redemption"), for cash
at a prepayment price (the "Series D Optional Prepayment Price") equal to 100%
of the principal amount thereof, plus any accrued and unpaid interest thereon to
the date of prepayment. Notwithstanding anything to the contrary contained
herein, the Corporation may not redeem fewer than all of the Series D Debentures
unless all accrued and unpaid interest on all of the Series D Debentures has
been paid for all quarterly periods terminating on or prior to the redemption
date.
The Series D Redemption Price shall be paid prior to 12:00 noon, Eastern
time, on the date of such redemption or at such earlier time as the Corporation
determines; provided that the Corporation shall deposit with the Debt Trustee an
amount sufficient to pay the Series D Redemption Price by 10:00 a.m., Eastern
time, on the date such Series D Redemption Price is to be paid. If the Series D
Debentures are only partially redeemed by the Corporation pursuant to a Series D
Optional Redemption, the Series D Debentures will be redeemed pro rata or by lot
or by any other method utilized by the Debt Trustee; provided that if, at the
time of redemption, the Series D Debentures are registered as a Global Series D
Debenture, the Depository Institution shall determine the principal amount of
such Series D Debentures held by each Holder to be redeemed in accordance with
its procedures.
In the event of redemption of this Series D Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, with respect to
the Series D Debentures shall have occurred and be continuing, the principal of
all of the Series D Debentures may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the Debt
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Series D Debentures;
provided, however, that no such supplemental indenture shall, without the
consent of the holders of each Series D Debenture then outstanding and affected
thereby, (i) extend the fixed maturity of any Debentures of any series, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable
on redemption thereof or make the principal thereon or any interest or premium
thereon payable in any coin or currency other than that provided in this Series
D Debenture, or impair or affect the right of any Holder of a Series D Debenture
to institute suit for payment thereof or the right of repayment, if any, at the
option of the Holder, without the consent of the Holder of each Series D
Debenture so affected, or (ii) reduce the aforesaid percentage of Series D
Debentures, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Series D
Debenture then outstanding and affected thereby; provided, further, that if the
Series D Debentures are held by a General Motors Capital Trust or a trustee of
such trust, such supplemental indenture shall not be effective until the holders
of a majority in liquidation preference of the Series D Debentures shall have
consented to such supplemental indenture; provided further, that if the consent
of the holder of each outstanding Series D Debenture is required, such
supplemental indenture shall not be effective until each holder of the Series D
Debentures have consented to such supplemental indenture. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding affected thereby,
on behalf of all of the Holders of the Debentures of such series, to waive any
past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such series,
and its consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Debentures of such series. Any such
consent or waiver by the registered Holder of this Series D Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Series D Debenture and of
any Series D Debenture issued in exchange hereof or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Series D Debenture.
No reference herein to the Indenture and no provision of this Series D
Debenture or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Series D Debenture at the time and place
and at the rate and in the money herein prescribed.
The Corporation shall have the right at any time during the term of the
Series D Debentures and from time to time to extend the interest payment period
of such Series D Debentures for up to 20 consecutive quarters (a "Series D
Extended Interest Payment Period"), at the end of which period the Corporation
shall pay all interest then accrued and unpaid (together with interest thereon
at the rate specified for the Series D Debentures to the extent that payment of
such interest is enforceable under applicable law); provided that no Series D
Extended Interest Payment Period may last beyond the Series D Stated Maturity.
Before the termination of any such Series D Extended Interest Payment Period,
the Corporation may further extend such Series D Extended Interest Payment
Period, provided that such Series D Extended Interest Payment Period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters or last beyond the Series D Stated Maturity date. At the termination of
any such Series D Extended Interest Payment Period and upon the payment of all
accrued and unpaid interest and any additional amounts then due, the Corporation
may commence a new Series D Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein
set forth, this Series D Debenture is transferable by the registered Holder
hereof on the Security Register (as defined in the Indenture), upon surrender of
this Series D Debenture for registration of transfer at the office or agency of
the Debt Trustee in Wilmington, Delaware or New York, New York, as applicable,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Corporation or the Debt Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Series D Debentures of authorized denominations and
for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Series D
Debenture, the Corporation, the Debt Trustee, any paying agent and the Security
registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Series D Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Security registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon and
for all other purposes, and neither the Corporation nor the Debt Trustee nor any
paying agent nor any Security registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Series D Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Series D Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed.
Dated: __________ __, ____
GENERAL MOTORS CORPORATION
Attest:
By:____________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
Wilmington Trust Company, as Debt Trustee
By _______________________________________
Authorized Officer
