-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ga5pPQDdzEwNLLUoiaSUUZVbkjXep589c3Pl4WcvcJPMY5MYnVSafWyYXJO4hUZz 67VCeGGnWLXZksC0grhHEw== 0000040730-97-000027.txt : 19970729 0000040730-97-000027.hdr.sgml : 19970729 ACCESSION NUMBER: 0000040730-97-000027 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 19970701 ITEM INFORMATION: Other events FILED AS OF DATE: 19970728 SROS: CSE SROS: NYSE SROS: PHLX SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL MOTORS CORP CENTRAL INDEX KEY: 0000040730 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLES & PASSENGER CAR BODIES [3711] IRS NUMBER: 380572515 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-00143 FILM NUMBER: 97646424 BUSINESS ADDRESS: STREET 1: 100 RENAISSANCE CTR STREET 2: 3044 W GRAND BLVD CITY: DETROIT STATE: MI ZIP: 48202-3091 BUSINESS PHONE: 3135565000 8-K 1 L:\secfiles\8-k\1997\jul97.doc SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549-1004 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) July 1, 1997 ---------------- GENERAL MOTORS CORPORATION ----------------------------------------------------- (Exact name of registrant as specified in its charter) STATE OF DELAWARE 1-143 38-0572515 - ---------------------------- ----------------------- ------------------- (State or other jurisdiction (Commission File Number) (I.R.S. Employer of incorporation) Identification No.) 100 Renaissance Center, Detroit, Michigan 48243-7301 3044 West Grand Boulevard, Detroit, Michigan 48202-3091 - -------------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (313)-556-5000 -------------- - 1 - ITEM 5. OTHER EVENTS On July 3, 1997, General Motors (GM) announced that offers to exchange shares of its outstanding Series D and G Preference Stocks for newly created Trust Originated Preferred Securitiessm (TOPrSsm) expired as originally scheduled on Wednesday, July 2, 1997 at 12:00 midnight (Eastern Standard Time). Subsequently, on July 9, 1997, 3,055,255 shares of the outstanding depositary shares, each representing one-fourth of a share of GM Series D 7.92% Preference Stock, were exchanged for 8.67% TOPrS(sm) issued by General Motors Capital Trust D, and 5,064,489 shares of the outstanding depositary shares, each representing one-fourth of a share of GM Series G 9.12% Preference Stock, were exchanged for 9.87% TOPrS(sm) issued by General Motors Capital Trust G (hereinafter referred to as the "Trusts"). As a result, 3,014,654 depositary shares, each representing one-fourth of a share of GM Series D 7.92% Preference Stock, and 5,015,410 depositary shares, each representing one-fourth of a share of GM Series G 9.12% Preference Stock, remain outstanding, respectively. Certain final documents associated with the exchange transactions are identified in Item 7 below and included herein as Exhibits. TOPrS(sm) is a financial instrument representing the right to receive certain distributions from a Trust. The property of each of the Trusts consists solely of junior subordinated debentures issued by GM. * * * (sm)Trust Originated Preferred Securities(TOPrS(sm)) is a service mark of Merrill Lynch & Co. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS (c) Exhibits Exhibit 4(c)(i) Amended and Restated Declaration of Trust of General Motors Capital Trust D. Exhibit 4(c)(ii) Amended and Restated Declaration of Trust of General Motors Capital Trust G. Exhibit 4(d)(i) Indenture between General Motors Corporation and Wilmington Trust Company Exhibit 4(d)(ii) First Supplemental Indenture between General Motors Corporation and Wilmington Trust Company With Respect To The Series D Junior Subordinated Debentures Exhibit 4(d)(iii)Second Supplemental Indenture between General Motors Corporation and Wilmington Trust Company With Respect To The Series G Junior Subordinated Debentures Exhibit 4(g)(i) Series D Preferred Securities Guarantee Agreement, General Motors Capital Trust D. Exhibit 4(g)(ii) Series G Preferred Securities Guarantee Agreement, General Motors Capital Trust G. Exhibit 4(h)(i) Series D Common Securities Guarantee Agreement, General Motors Capital Trust D. Exhibit 4(h)(ii) Series G Common Securities Guarantee Agreement, General Motors Capital Trust G. * * * - 2 - SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. GENERAL MOTORS CORPORATION -------------------------- (Registrant) Date July 28, 1997 ----------------- By s/Peter R. Bible ------------------------------- (Peter R. Bible, Chief Accounting Officer) - 3 - EX-4 2 GMNEWTR.D2 FOOTER B HAS BEEN ENTERED (DRAFT) AMENDED AND RESTATED DECLARATION OF TRUST OF GENERAL MOTORS CAPITAL TRUST D Dated as of July 9, 1997 TABLE OF CONTENTS Page ARTICLE 1 INTERPRETATION AND DEFINITIONS SECTION 1.1 Definitions. 2 ARTICLE 2 TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act; Application. 7 SECTION 2.2 Lists of Holders of Series D Securities. 7 SECTION 2.3 Reports by the Institutional Trustee. 8 SECTION 2.4 Periodic Reports to the Institutional Trustee. 8 SECTION 2.5 Evidence of Compliance with Conditions Precedent. 8 SECTION 2.6 Events of Default; Waiver. 8 SECTION 2.7 Event of Default; Notice. 10 ARTICLE 3 ORGANIZATION SECTION 3.1 Name. 10 SECTION 3.2 Office. 11 SECTION 3.3 Purpose. 11 SECTION 3.4 Authority. 11 SECTION 3.5 Title to Property of the Series D Trust. 11 SECTION 3.6 Powers and Duties of the Regular Trustees. 11 SECTION 3.7 Prohibition of Actions by the Series D Trust and the Trustees. 14 SECTION 3.8 Powers and Duties of the Institutional Trustee. 15 SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee. 17 SECTION 3.10 Certain Rights of the Institutional Trustee. 18 SECTION 3.11 Delaware Trustee. 20 SECTION 3.12 Execution of Documents. 20 SECTION 3.13 Not Responsible for Recitals or Issuance of Series D Securities. 20 SECTION 3.14 Duration of Series D Trust. 21 SECTION 3.15 Mergers. 21 ARTICLE 4 SPONSOR SECTION 4.1 Sponsor's Purchase of Series D Common Securities. 22 SECTION 4.2 Responsibilities of the Sponsor. 22 SECTION 4.3 Right to Proceed. 23 SECTION 4.4 Expenses. 23 ARTICLE 5 TRUSTEES SECTION 5.1 Number of Trustees. 24 SECTION 5.2 Delaware Trustee. 24 SECTION 5.3 Institutional Trustee; Eligibility. 24 SECTION 5.4 Certain Qualifications of the Regular Trustees and Delaware Trustee Generally. 25 SECTION 5.5 Regular Trustees. 25 SECTION 5.6 Appointment, Removal and Resignation of Trustees. 26 SECTION 5.7 Vacancies among Trustees. 27 SECTION 5.8 Effect of Vacancies. 27 SECTION 5.9 Meetings. 27 SECTION 5.10 Delegation of Power. 28 SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business. 28 ARTICLE 6 DISTRIBUTIONS SECTION 6.1 Distributions. 28 ARTICLE 7 ISSUANCE OF SECURITIES SECTION 7.1 General Provisions Regarding Series D Securities. 28 ARTICLE 8 DISSOLUTION OF TRUST SECTION 8.1 Dissolution of Series D Trust. 30 ARTICLE 9 TRANSFER OF INTERESTS SECTION 9.1 Transfer of Series D Securities. 30 SECTION 9.2 Transfer of Certificates. 31 SECTION 9.3 Deemed Security Holders. 32 SECTION 9.4 Book-Entry Interests. 32 SECTION 9.5 Notices to Depository Institution. 33 SECTION 9.6 Appointment of Successor Depository Institution. 33 SECTION 9.7 Definitive Series D Preferred Security Certificates. 33 SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates. 34 ARTICLE 10 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS SECTION 10.1 Liability. 34 SECTION 10.2 Exculpation. 35 SECTION 10.3 Fiduciary Duty. 35 SECTION 10.4 Indemnification. 36 SECTION 10.5 Outside Businesses. 39 ARTICLE 11 ACCOUNTING SECTION 11.1 Fiscal Year. 39 SECTION 11.2 Certain Accounting Matters. 39 SECTION 11.3 Banking. 40 SECTION 11.4 Withholding. 40 ARTICLE 12 AMENDMENTS AND MEETINGS SECTION 12.1 Amendments. 40 SECTION 12.2 Meetings of the Holders; Action by Written Consent. 42 ARTICLE 13 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE SECTION 13.1 Representations and Warranties of Institutional Trustee. 43 SECTION 13.2 Representations and Warranties of Delaware Trustee. 44 ARTICLE 14 MISCELLANEOUS 44 SECTION 14.1 Notices. 44 SECTION 14.2 Governing Law. 45 SECTION 14.3 Intention of the Parties. 46 SECTION 14.4 Headings. 46 SECTION 14.5 Successors and Assigns 46 SECTION 14.6 Partial Enforceability. 46 SECTION 14.7 Counterparts. 46 ANNEXES AND EXHIBITS ANNEX 1 Terms of 8.67% Trust Originated Preferred Securities, Series, and 8.67% Trust Originated Common Securities, Series D EXHIBIT A-1 Form of Preferred Security Certificate EXHIBIT A-2 Form of Common Security Certificate CROSS-REFERENCE TABLE* Section of Trust Indenture Act Section of of 1939, as amended Declaration 310(a) 5.3(a) 310(b) 5.3(c) 310(c) Inapplicable 311(a) and (b) 5.3(c) 311(c) Inapplicable 312(a) 2.2(a) 312(b) 2.2(b) 313 2.3 314(a) 2.4 314(b) Inapplicable 314(c) 2.5 314(d) Inapplicable 314(e) 3.10(a) 314(f) Inapplicable 315(a) 3.9(b) 315(b) 2.7(a) 315(c) 3.9(a) 315(d) 3.9(a) 316(a) and (b) 2.6 and Annex I (Sections 5 and 6) 316(c) 3.6(e) 317(a) 3.8(c) 317(b) 3.8(h) * This Cross-Reference Table does not constitute part of the Declaration as executed and shall not affect the interpretation of any of its terms or provisions. AMENDED AND RESTATED DECLARATION OF TRUST OF GENERAL MOTORS CAPITAL TRUST D July 9, 1997 THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Series D Declaration") is dated and effective as of July 9, 1997, by the Trustees (as defined herein), the Sponsor (as defined herein) and by the holders, from time to time, of undivided beneficial ownership interests in the Series D Trust to be issued pursuant to this Series D Declaration. WHEREAS, the Trustees and the Sponsor established General Motors Capital Trust D (the "Series D Trust"), a statutory business trust under the Business Trust Act (as defined herein), pursuant to a Declaration of Trust dated April 11, 1997 (the "Original Declaration") and a Certificate of Trust filed with the Secretary of State of the State of Delaware on April 11, 1997 (the "Certificate of Trust"); and WHEREAS, the Sponsor and the Series D Trust have made an offer to exchange (the "Series D Offer") 8.67% Trust Originated Preferred Securities ("TOPrS "), Series D, representing undivided preferred beneficial ownership interests in the assets of the Series D Trust (the "Series D Preferred Securities"), for up to 5,462, 917 of the Sponsor's outstanding 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 Sponsor (the "Series D 7.92% Preference Stock") not owned by the Sponsor; 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 Sponsor Series D Trust Originated Common Securities representing undivided common beneficial ownership interests in the assets of the Series D Trust (the "Series D Common Securities" and, together with the "Series D Preferred Securities," the "Series D Securities") in an aggregate liquidation amount equal to at least 3% of the total capital of the Series D Trust and (b) the Sponsor 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 Securities so issued; and WHEREAS, the Series D Trust has been established for the principal purposes of issuing the Series D Securities and purchasing the Series D Debentures from the Series D Debenture Issuer (as defined herein); and WHEREAS, as of the date hereof, no Series D Securities have been issued; and WHEREAS, all of the Trustees and the Sponsor, by this Series D Declaration, hereby amend and restate each and every term and provision of the Original Declaration. NOW, THEREFORE, it being the intention of the parties hereto to continue the Series D Trust as a business trust under the Business Trust Act and that this Series D Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Series D Trust will be held in trust for the benefit of the Holders, subject to the provisions of this Series D Declaration. ARTICLE I. INTERPRETATION AND DEFINITIONS A. SECTION 1.1 Definitions. Unless the context otherwise requires: a. capitalized terms used in this Series D Declaration 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 Declaration has the same meaning throughout; c. all references to "the Series D Declaration" or "this Series D Declaration" are to this Series D Declaration as modified, supplemented or amended from time to time; d. all references in this Series D Declaration to Articles, Sections, Annexes and Exhibits are to Articles and Sections of, and Annexes and Exhibits to, this Series D Declaration; e. a term defined in the Trust Indenture Act has the same meaning when used in this Series D Declaration unless otherwise defined in this Series D Declaration or unless the context otherwise requires; and f. a reference to the singular includes the plural and vice versa. "Additional Interest" has the meaning set forth in Section 2(d) of Annex I. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule thereunder. "Agent" means any Paying Agent. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Book Entry Interest" means a beneficial ownership interest in a Global Certificate, ownership and transfers of which shall be maintained and made through book entries by a Depository Institution as described in Section 9.4. "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 law, executive order or regulation to close. "Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time, or any successor legislation. "Certificate" means a Series D Common Security Certificate or a Series D Preferred Security Certificate. "Closing Date" means the "Exchange Date" as defined in the Dealer Manager Agreement. "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation. "Commission" means the Securities and Exchange Commission. "Compound Interest" has the meaning set forth in Section 2(a) of Annex I. "Corporate Trust Office" means the office of the Institutional Trustee at which the corporate trust business of the Institutional Trustee shall, at any particular time, be principally administered, which office at the date of execution of this Agreement is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890. "Covered Person" means: (a) any officer, director, shareholder, partner, member, representative, employee or agent of (i) the Series D Trust or (ii) the Series D Trust's Affiliates; and (b) any Holder of Series D Securities. "Coupon Rate" has the meaning set forth in Section 2(a) of Annex I. "Creditor" has the meaning set forth in Section 4.4(d). "Dealer Manager Agreement" means the Dealer Manager Agreement between the Series D Debenture Issuer, the Series D Trust and the dealer managers and other parties named thereunder. "Debt Trustee" means Wilmington Trust Company, a Delaware banking corporation, as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee. "Definitive Series D Preferred Security Certificates" has the meaning set forth in Section 9.4. "Delaware Trustee" has the meaning set forth in Section 5.2. "Depository Institution" shall mean DTC, PDTC, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or other applicable statute or regulation, which, in each case, shall be designated by the Series D Debenture Issuer pursuant to either Section 2.03 or 2.11 of the Indenture. "Depository Institution Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Depository Institution effects book-entry transfers and pledges of securities deposited with the Depository Institution. "Direct Action" has the meaning set forth in Section 3.8(e). "Distribution" means a distribution payable to Holders in accordance with Section 6.1. "Distribution Payment Date" has the meaning set forth in Section 2(b) of Annex I. "DTC" means The Depository Trust Company, the initial Depository Institution. "Event of Default" in respect of the Series D Securities means an Event of Default under the Indenture which has occurred and is continuing in respect of the Series D Debentures. "Exchange" means the exchange of the Series D 7.92% Depositary Shares for the Series D Preferred Securities pursuant to the Series D Offer. "Exchange Act" means the Securities and Exchange Act of 1934, as amended from time to time, or any successor legislation. "Fiduciary Indemnified Person" has the meaning set forth in Section 10.4(b). "Global Certificate" has the meaning set forth in Section 9.4. "Holder" means a Person in whose name a Certificate representing a Security is registered, such Person being a beneficial owner within the meaning of the Business Trust Act. "Indemnified Person" means a Sponsor Indemnified Person or a Fiduciary Indemnified Person. "Indenture" means the Indenture dated as of July 1, 1997, between the Series D Debenture Issuer and the Debt Trustee, and any indenture supplemental thereto pursuant to which the Series D Debentures are to be issued, as amended. "Institutional Trustee" has the meaning set forth in Section 5.3. "Institutional Trustee Account" has the meaning set forth in Section 3.8(c). "Investment Company" means an investment company as defined in the Investment Company Act. "Investment Company Act" means the Investment Company Act of 1940, as amended from time to time, or any successor legislation. "Legal Action" has the meaning set forth in Section 3.6(g). "Liquidation" has the meaning set forth in Section 3 of Annex I. "Liquidation Distribution" has the meaning set forth in Section 3 of Annex I. "List of Holders" has the meaning set forth in Section 2.2(a). "Majority in liquidation amount of the Series D Securities" means, except as provided in the terms of the Series D Preferred Securities set forth in Annex I hereto or by the Trust Indenture Act, Holder(s) of outstanding Series D Securities voting together as a single class or, as the context may require, Holders of outstanding Series D Preferred Securities or Holders of outstanding Series D Common Securities voting separately as a class, who are the record owners of more than 50% of the aggregate 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 Securities of the relevant class. "NYSE" means the New York Stock Exchange, Inc. "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 Declaration shall include: (a) a statement that each officer signing the Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the 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. "Paying Agent" has the meaning set forth in Section 3.8(h). "Payment Amount" has the meaning set forth in Section 6.1. "PDTC" means The Philadelphia Depository Trust Company. "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. "Pre-Issuance Interest" has the meaning set forth in Section 2(a) of Annex I. "Pro Rata" has the meaning set forth in Section 8 of Annex I. "Quorum" means a majority of the Regular Trustees or, if there are only two Regular Trustees, both of them. "Redemption/Distribution Notice" has the meaning set forth in Section 4(g) of Annex I. "Regular Trustee" has the meaning set forth in Section 5.1. "Related Party" means, with respect to the Sponsor, any direct or indirect wholly owned subsidiary of the Sponsor or any other Person that owns, directly or indirectly, 100% of the outstanding voting securities of the Sponsor. "Resignation Request" has the meaning set forth in Section 5.6(c). "Responsible Officer" means, with respect to the Institutional Trustee, any officer within the Corporate Trust Office of the Institutional 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 Institutional 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. "Rule 3a-5" means Rule 3a-5 under the Investment Company Act. "Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor legislation. "Series D Common Securities" has the meaning set forth in Section 7.1(a). "Series D Common Securities Guarantee" means the guarantee agreement to be dated as of the date hereof of the Sponsor in respect of the Series D Common Securities, as amended. "Series D Common Security Certificate" means a definitive certificate in fully registered form representing a Series D Common Security substantially in the form of Exhibit A-2. "Series D Debenture Issuer" means General Motors Corporation, a Delaware corporation, in its capacity as issuer of the Series D Debentures under the Indenture. "Series D Extension Period" has the meaning set forth in Section 2(b) of Annex I. "Series D Preferred Guarantee Trustee" means Wilmington Trust Company, a national banking association, as trustee under the Series D Preferred Securities Guarantee until a successor is appointed thereunder, and thereafter means such successor trustee. "Series D Preferred Security Beneficial Owner" means, with respect to a Book Entry Interest, a Person who is the beneficial owner of such Book Entry Interest, as reflected on the books of the Depository Institution, or on the books of a Person maintaining an account with such Depository Institution (directly as a Depository Institution Participant or as an indirect participant, in each case in accordance with the rules of such Depository Institution). "Series D Preferred Security Certificate" means a certificate representing a Series D Preferred Security substantially in the form of Exhibit A-1. "Series D Preferred Securities Guarantee" means the guarantee agreement to be dated as of the date hereof, of the Sponsor in respect of the Series D Preferred Securities, as amended. "Series D Redemption Price" has the meaning set forth in Section 4(c) of Annex I. "Series D Securities" means the Series D Common Securities and the Series D Preferred Securities. "Series D Securities Guarantees" means the Series D Common Securities Guarantee and the Series D Preferred Securities Guarantee. "Series D Stated Maturity" has the meaning set forth in Section 4(a) of Annex I. "Sponsor" means General Motors Corporation, a Delaware corporation, or any successor entity in a merger, consolidation or amalgamation, in its capacity as sponsor of the Series D Trust. "Sponsor Indemnified Person" means (a) any Regular Trustee; (b) any Affiliate of any Regular Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Regular Trustee; or (d) any officer, employee or agent of the Series D Trust or its Affiliates. "Successor Delaware Trustee" has the meaning set forth in Section 5.6(b)(ii). "Successor Entity" has the meaning set forth in Section 3.15(b)(i). "Successor Institutional Trustee" has the meaning set forth in Section 5.6(b)(i). "Successor Series D Securities" has the meaning set forth in Section 3.15(b)(i). "Super Majority" has the meaning set forth in Section 2.6(a)(ii). "Tax Event" has the meaning set forth in Section 4(c) of Annex I. "10% in liquidation amount of the Series D Securities" means, except as provided in the terms of the Series D Preferred Securities set forth in Annex I hereto or by the Trust Indenture Act, Holder(s) of outstanding Series D Securities voting together as a single class or, as the context may require, Holders of outstanding Series D Preferred Securities or Holders of outstanding Series D Common Securities voting separately as a class, who are the record owners of 10% or more of the aggregate 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 Securities of the relevant class. "Transfer Agent" has the meaning set forth in Section 9.2(e). "Treasury Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation. "Trustee" or "Trustees" means each Person who has signed this Series D Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. ARTICLE 2 TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act; Application. (a) This Series D Declaration is subject to the provisions of the Trust Indenture Act that are required to be part of this Series D Declaration and shall, to the extent applicable, be governed by such provisions. (b) The Institutional Trustee shall be the only Trustee which is a trustee for the purposes of the Trust Indenture Act. (c)If, and to the extent that, any provision of this Series D Declaration limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, the duties imposed by the Trust Indenture Act shall control. (d)The application of the Trust Indenture Act to this Series D Declaration shall not affect the nature of the Series D Securities as equity securities representing undivided beneficial ownership interests in the assets of the Series D Trust. SECTION 2.2 Lists of Holders of Series D Securities. (a) Each of the Sponsor and the Regular Trustees on behalf of the Series D Trust shall provide the Institutional Trustee (i) within 14 days after each record date for payment of Distributions, a list, in such form as the Institutional Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders") as of such record date, provided that neither the Sponsor nor the Regular Trustees on behalf of the Series D Trust shall be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Institutional Trustee by the Sponsor and the Regular Trustees on behalf of the Series D Trust, and (ii) at any other time, within 30 days of receipt by the Series D Trust of a written request for a List of Holders as of a date no more than 14 days before such List of Holders is given to the Institutional Trustee. The Institutional Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in the Lists of Holders given to it or which it receives in its capacity as Paying Agent (if acting in such capacity) provided that the Institutional Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Institutional Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. SECTION 2.3 Reports by the Institutional Trustee. Within 60 days after May 15 of each year, the Institutional Trustee shall provide to the Holders of the Series D Preferred Securities 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 Institutional Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. SECTION 2.4 Periodic Reports to the Institutional Trustee. Each of the Sponsor and the Regular Trustees on behalf of the Series D Trust shall provide to the Institutional Trustee, the Holders and the Securities and Exchange Commission 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 (provided that any certificate to be provided pursuant to Section 314(a)(4) of the Trust Indenture Act shall be provided within 120 days of the end of each fiscal year). SECTION 2.5 Evidence of Compliance with Conditions Precedent. Each of the Sponsor and the Regular Trustees on behalf of the Series D Trust shall provide to the Institutional Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Series D Declaration 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) Subject to Section 2.6(c), the Holders of a Majority in liquidation amount of Series D Preferred Securities may, by vote, on behalf of the Holders of all of the Series D Preferred Securities, waive any past Event of Default in respect of the Series D Preferred Securities and its consequences, provided that, if the underlying Event of Default under the Indenture: (i) is not waivable under the Indenture, the Event of Default under the Series D Declaration shall also not be waivable; or (ii) requires the consent or vote of greater than a majority in principal amount of the holders of the Series D Debentures (a "Super Majority") to be waived under the Indenture, then the Event of Default under the Series D Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation amount of the Series D Preferred Securities that the relevant Super Majority represents of the aggregate principal amount of the Series D Debentures outstanding; or (iii) requires the consent or vote of each Holder of Series D Debentures to be waived under the Indenture, then the Event of Default under the Series D Declaration may only be waived by each Holder of Series D Preferred Securities. The foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Series D Declaration and the Series D Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such default shall cease to exist, and any Event of Default with respect to the Series D Preferred Securities arising therefrom shall be deemed to have been cured, for every purpose of this Series D Declaration, but no such waiver shall extend to any subsequent or other default or an Event of Default with respect to the Series D Preferred Securities or impair any right consequent thereon. Any waiver by the Holders of the Series D Preferred Securities of an Event of Default with respect to the Series D Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Series D Common Securities of any such Event of Default with respect to the Series D Common Securities for all purposes of this Series D Declaration without any further act, vote, or consent of the Holders of the Series D Common Securities. (b) Subject to Section 2.6(c), the Holders of a Majority in liquidation amount of the Series D Common Securities may, by vote, on behalf of the Holders of all of the Series D Common Securities, waive any past Event of Default with respect to the Series D Common Securities and its consequences, provided that, if the underlying Event of Default under the Indenture: (i) is not waivable under the Indenture, except where the Holders of the Series D Common Securities are deemed to have waived such Event of Default under the Series D Declaration as provided below in this Section 2.6(b), then the Event of Default under the Series D Declaration shall also not be waivable; or (ii) requires the consent or vote of (A) a Super Majority to be waived, then the Event of Default under the Series D Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation amount of the Series D Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Series D Debentures outstanding or (B) each holder of Series D Debentures to be waived, then the Event of Default under the Series D Declaration may only be waived by each Holder of Series D Common Securities, except where the Holders of the Series D Common Securities are deemed to have waived such Event of Default under the Series D Declaration as provided below in this Section 2.6(b); provided further, each Holder of Series D Common Securities will be deemed to have waived any such Event of Default and all Events of Default with respect to the Series D Common Securities and its consequences until all Events of Default with respect to the Series D Preferred Securities have been cured, waived or otherwise eliminated, and until such Events of Default have been so cured, waived or otherwise eliminated, the Institutional Trustee will be deemed to be acting solely on behalf of the Holders of the Series D Preferred Securities and only the Holders of the Series D Preferred Securities will have the right to direct the Institutional Trustee in accordance with the terms of the Series D Securities set forth in Annex I hereto. If any Event of Default with respect to the Series D Preferred Securities is waived by the Holders of Series D Preferred Securities as provided in this Series D Declaration, the Holders of Series D Common Securities agree that such waiver shall also constitute the waiver of such Event of Default with respect to the Series D Common Securities for all purposes under this Series D Declaration without any further act, vote or consent of the Holders of the Series D Common Securities. Subject to the foregoing provisions of this Section 2.6(b), upon such waiver, any such default shall cease to exist and any Event of Default with respect to the Series D Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Series D Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Series D Common Securities or impair any right consequent thereon. The foregoing provisions of this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Series D Declaration and the Series D Securities, as permitted by the Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon such waiver, any such default shall cease to exist and any Event of Default with respect to the Series D Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Series D Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Series D Common Securities or impair any right consequent thereon. (c)The right of any Holder to receive payment of Distributions in accordance with this Series D Declaration and the terms of the Series D Securities set forth in Annex I on or after the respective payment dates therefor, or to institute suit for the enforcement of any such payment on or after such payment dates, shall not be impaired without the consent of each such Holder. (d) A waiver of an Event of Default under the Indenture by the Institutional Trustee at the written direction of the Holders of the Series D Preferred Securities, constitutes a waiver of the corresponding Event of Default under this Series D Declaration. The foregoing provisions of this Section 2.6(d) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Series D Declaration and the Series D Securities, as permitted by the Trust Indenture Act. SECTION 2.7 Event of Default; Notice. (a) The Institutional Trustee shall, within 90 days after the occurrence of an Event of Default, transmit by mail, first class postage prepaid, to the Holders, notice of all defaults with respect to the Series D Securities actually known to a Responsible Officer, unless such defaults have been cured before the giving of such notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby defined to be an Event of Default as defined in the Indenture, not including any periods of grace provided for therein and irrespective of the giving of any notice provided therein); provided that, except for a default in the payment of principal of, premium, if any, or interest on any of the Series D Debentures or in the payment of any sinking fund installment established for the Series D Debentures, the Institutional 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 Holders; and provided further, that in the case of any default of the character specified in Section 5.01(c) of the Indenture, no such notice to Holders shall be given until at least 60 days after the occurrence thereof but shall be given within 90 days after such occurrence. (b)The Institutional Trustee shall not be deemed to have knowledge of any default except: (i) default under Sections 5.01(a), (b), and (f) of the Indenture; or (ii) any default as to which the Institutional Trustee shall have received written notice or of which a Responsible Officer charged with the administration of the Series D Declaration shall have actual knowledge. ARTICLE 3 ORGANIZATION SECTION 3.1 Name. The Series D Trust continued by this Series D Declaration is named "General Motors Capital Trust D," as such name may be modified from time to time by the Regular Trustees following written notice to the Holders. The Series D Trust's activities may be conducted under the name of the Series D Trust or any other name deemed advisable by the Regular Trustees. SECTION 3.2 Office. The address of the principal office of the Series D Trust is c/o General Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301. Upon ten (10) Business Days' written notice to the Holders of Series D Securities, the Regular Trustees may designate another principal office. SECTION 3.3 Purpose. The exclusive purposes and functions of the Series D Trust are (i) to issue (a) its Series D Preferred Securities in exchange for Series D 7.92% Depositary Shares validly tendered in the Series D Offer and deliver such Series D 7.92% Depositary Shares to the Series D Debenture Issuer in consideration of the deposit by the Series D Debenture Issuer in the Series D Trust as trust assets of Series D Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of the Series D 7.92% Depositary Shares so delivered and (b) its Series D Common Securities to the Sponsor in exchange for cash and invest the proceeds thereof in an equal aggregate principal amount of Series D Debentures, (ii) to enter into such agreements and arrangements as may be necessary in connection with the Series D Offer and to take all actions, and exercise such discretion, as may be necessary or desirable in connection with the Series D Offer and to file such registration statements or make such other filings under the Securities Act, the Exchange Act or state securities or "Blue Sky" laws as may be necessary or desirable in connection with the Series D Offer and the issuance of the Series D Preferred Securities, and (iii) except as otherwise limited herein, to engage in those other activities necessary or incidental thereto. As more specifically provided in Section 3.7, the Series D Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Series D Trust not to be classified for United States federal income tax purposes as a grantor trust. SECTION 3.4 Authority. Subject to the limitations provided in this Series D Declaration and to the specific duties of the Institutional Trustee, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Series D Trust. Any action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Series D Trust and any action taken by the Institutional Trustee on behalf of the Series D Trust in accordance with its powers shall constitute the act of and serve to bind the Series D Trust. In dealing with the Trustees acting on behalf of the Series D Trust, no person shall be required to inquire into the authority of the Trustees to bind the Series D Trust. Persons dealing with the Series D Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Series D Declaration. SECTION 3.5 Title to Property of the Series D Trust. Except as provided in Section 3.8 with respect to the Series D Debentures and the Institutional Trustee Account or as otherwise provided in this Series D Declaration, legal title to all assets of the Series D Trust shall be vested in the Series D Trust. The Holders shall not have legal title to any part of the assets of the Series D Trust, but shall have an undivided beneficial interest in the assets of the Series D Trust. SECTION 3.6 Powers and Duties of the Regular Trustees. The Regular Trustees shall have the exclusive power, duty and authority to cause the Series D Trust to engage in the following activities: (a) to issue the Series D Securities in accordance with this Series D Declaration in connection with the exchange of the Series D Preferred Securities and the sale of the Series D Common Securities; provided, however, that the Series D Trust may issue no more than one series of Series D Preferred Securities and no more than one series of Series D Common Securities; and, provided further, that there shall be no interests in the Series D Trust other than the Series D Securities, and the issuance of Series D Securities shall be limited to a one-time simultaneous issuance of both Series D Preferred Securities and Series D Common Securities on the Closing Date; (b) in connection with the issue and exchange of the Series D Preferred Securities, at the direction of the Sponsor, to: (i) execute and file with the Commission one or more registration statements on Form S-4 prepared by the Sponsor, including any and all amendments thereto, pertaining to the Series D Preferred Securities; (ii) execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary in order to qualify or register all or part of the Series D Preferred Securities in any State in which the Sponsor has determined to qualify or register such Series D Preferred Securities for exchange; (iii) execute and file an application, prepared by the Sponsor, to the NYSE, Inc. or any other national stock exchange or the NASDAQ Stock Market's National Market for listing or quotation upon notice of issuance of any Series D Preferred Securities; (iv) execute and file with the Commission a registration statement on Form 8-A, including any amendments thereto, prepared by the Sponsor, relating to the registration of the Series D Preferred Securities under Section 12(b) of the Exchange Act; (v) prepare, execute and file with the Commission an Issuer Tender Offer statement on Schedule 13E-3 or Schedule 13E-4, as necessary, or any other appropriate document or schedule, and any amendment thereto; (vi) execute and enter into the Dealer Manager Agreement providing for the exchange of the Series D Preferred Securities; (vii) execute and enter into one or more exchange agent agreements, information agent agreements or other agreements as may be required in connection with the Series D Offer; and (viii) execute and deliver letters, documents or instruments with DTC and PDTC. (c) to acquire the Series D Debentures in consideration of the transfer of the Series D 7.92% Depositary Shares received upon exchange of the Series D Preferred Securities and the sale of the Series D Common Securities; provided, however, that the Regular Trustees shall cause legal title to the Series D Debentures to be held of record in the name of the Institutional Trustee for the benefit of the Holders; (d) to give the Sponsor and the Institutional Trustee prompt written notice of the occurrence of a Tax Event; (e) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Series D Securities as to such actions and applicable record dates; (f) to take all actions and perform such duties as may be required of the Regular Trustees pursuant to the terms of the Series D Securities set forth in Annex I hereto; (g) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Series D Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Institutional Trustee has the exclusive power to bring such Legal Action; (h) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services; (i) to cause the Series D Trust to comply with the Series D Trust's obligations under the Trust Indenture Act; (j) to give the certificate required by Section 314(a)(4) of the Trust Indenture Act to the Institutional Trustee, which certificate may be executed by any Regular Trustee; (k) to incur expenses that are necessary or incidental to carry out any of the purposes of the Series D Trust; (l) to act as, or appoint another Person to act as, registrar, transfer agent and paying agent for the Series D Securities; (m) to give prompt written notice to the Holders of any notice received from the Series D Debenture Issuer of its election to defer payments of interest on the Series D Debentures by extending the interest payment period under the Indenture; (n) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Series D Trust in all matters necessary or incidental to the foregoing; (o)to take all action that may be necessary or appropriate for the preservation and the continuation of the Series D Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders or to enable the Series D Trust to effect the purposes for which the Series D Trust was created; (p) to take any action, not inconsistent with this Series D Declaration or with applicable law, that the Regular Trustees determine in their discretion to be necessary or desirable in carrying out the activities of the Series D Trust as set out in this Section 3.6, including, but not limited to: (i) causing the Series D Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act; (ii) causing the Series D Trust to be classified for United States federal income tax purposes as a grantor trust; and (iii) cooperating with the Series D Debenture Issuer to ensure that the Series D Debentures will be treated as indebtedness of the Series D Debenture Issuer for United States federal income tax purposes, provided that such actions do not adversely affect the interests of Holders; and (q) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Series D Trust to be duly prepared and filed by the Regular Trustees, on behalf of the Series D Trust. The Regular Trustees shall exercise the powers set forth in this Section 3.6 in a manner that is consistent with the purposes and functions of the Series D Trust set out in Section 3.3, and the Regular Trustees shall not take any action that is inconsistent with the purposes and functions of the Series D Trust set forth in Section 3.3. Subject to this Section 3.6, the Regular Trustees shall have none of the powers or the authority of the Institutional Trustee set forth in Section 3.8. Any expenses incurred by the Regular Trustees pursuant to this Section 3.6 shall be reimbursed by the Series D Debenture Issuer. SECTION 3.7 Prohibition of Actions by the Series D Trust and the Trustees. (a)The Series D Trust shall not, and the Trustees (including the Institutional Trustee) shall cause the Series D Trust not to, engage in any activity other than in connection with the purpose of the Series D Trust or other than as required or authorized by this Series D Declaration. In particular, the Series D Trust shall not, and the Trustees (including the Institutional Trustee) shall cause the Series D Trust not to: (i) invest any proceeds received by the Series D Trust from holding the Series D Debentures, but shall distribute all such proceeds to Holders pursuant to the terms of this Series D Declaration and of the Series D Securities; (ii) acquire any assets other than as expressly provided herein; (iii) possess Series D Trust property for other than a Series D Trust purpose; (iv) make any investments, other than investments represented by the Series D Debentures; (v) possess any power or otherwise act in such a way as to vary the Series D Trust assets or the terms of the Series D Securities in any way whatsoever; (vi) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Series D Trust other than the Series D Securities; (vii) incur any indebtedness for borrowed money; or (viii) other than as provided in this Series D Declaration or Annex I hereto, (A) direct the time, method and place of exercising any trust or power conferred upon the Debt Trustee with respect to the Series D Debentures, (B) waive any past default that is waivable under the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all the Series D Debentures held in the Series D Trust shall be due and payable, or (D) consent to any amendment, modification or termination of the Indenture or the Series D Debentures if such action would cause the Series D Trust to be classified for United States federal income tax purposes as other than a grantor trust or would cause the Series D Trust to be deemed an Investment Company required to be registered under the Investment Company Act. SECTION 3.8 Powers and Duties of the Institutional Trustee. (a) The legal title to the Series D Debentures shall be owned by and held of record in the name of the Institutional Trustee in trust for the benefit of the Holders. The right, title and interest of the Institutional Trustee to the Series D Debentures shall vest automatically in each Person who may hereafter be appointed as Institutional Trustee in accordance with Section 5.6. Such vesting and cessation of title shall be effective whether or not conveyancing documents with regard to the Series D Debentures have been executed and delivered. (b) The Institutional Trustee shall not transfer its right, title and interest in the Series D Debentures to the Regular Trustees or to the Delaware Trustee (if the Institutional Trustee does not also act as Delaware Trustee). (c) The Institutional Trustee shall: (i) establish and maintain a segregated non-interest bearing trust account (the "Institutional Trustee Account") in the name of and under the exclusive control of the Institutional Trustee on behalf of the Holders and, upon the receipt of payments of funds made in respect of the Series D Debentures held by the Institutional Trustee, deposit such funds into the Institutional Trustee Account and make payments to the Holders from the Institutional Trustee Account in accordance with Section 6.1. Funds in the Institutional Trustee Account shall be held uninvested until disbursed in accordance with this Series D Declaration; (ii) engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Series D Securities to the extent the Series D Debentures are redeemed or mature; and (iii) upon written notice of distribution issued by the Regular Trustees in accordance with the terms of the Series D Securities, engage in such ministerial activities as shall be necessary or appropriate to effect the distribution of the Series D Debentures to Holders in accordance with the provisions of the Indenture. (d) The Institutional Trustee shall take all actions and perform such duties as may be specifically required of the Institutional Trustee pursuant to the terms of the Series D Securities. (e)The Institutional Trustee shall take any Legal Action which arises out of or in connection with (i) an Event of Default of which a Responsible Officer has actual knowledge or (ii) the Institutional Trustee's duties and obligations under this Series D Declaration or the Trust Indenture Act. If the Institutional Trustee fails to enforce its rights under the Series D Debentures after a Holder of Series D Preferred Securities has made a written request, such Holder may institute a legal proceeding against the Series D Debenture Issuer to enforce the Institutional Trustee's rights under the Series D Debentures without first instituting any legal proceeding against the Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Series D Debenture Issuer to pay interest or principal on the Series D Debentures on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a Holder of Series D Preferred Securities may directly institute a proceeding for enforcement of payment to such Holder of the principal of, or interest on, the Series D Debentures having a principal amount equal to the aggregate liquidation amount of the Series D Preferred Securities of such Holder (a "Direct Action") on or after the respective due date specified in the Series D Debentures. Notwithstanding any payments made to such Holder of Series D Preferred Securities by the Series D Debenture Issuer in connection with a Direct Action, the Series D Debenture Issuer shall remain obligated to pay the principal of or interest on the Series D Debentures held by the Series D Trust or the Institutional Trustee of the Series D Trust, and the Series D Debenture Issuer shall be subrogated to the rights of the Holder of such Series D Preferred Securities with respect to payments on the Series D Preferred Securities. Except as provided in the preceding sentences and in the Series D Preferred Securities Guarantee, the Holders of Series D Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Series D Debentures. (f) The Institutional Trustee shall not resign as a Trustee unless either: (i) the Series D Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms of the Series D Securities; or (ii) a Successor Institutional Trustee has been appointed and has accepted that appointment in accordance with Section 5.6. (g) The Institutional Trustee shall have the legal power to exercise all of the rights, powers and privileges of a holder of Series D Debentures under the Indenture and, if an Event of Default actually known to a Responsible Officer occurs and is continuing, the Institutional Trustee shall, for the benefit of Holders, enforce its rights as holder of the Series D Debentures subject to the rights of the Holders pursuant to the terms of such Series D Securities. (h)The Institutional Trustee may authorize one or more Persons acceptable to the Series D Trust (each, a "Paying Agent") to pay Distributions, redemption payments or liquidation payments on behalf of the Series D Trust with respect to the Series D Securities and any such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed by the Institutional Trustee at any time and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Institutional Trustee, in each case without prior notice to the Holders. The Paying Agent may perform such functions whenever the Institutional Trustee may do so. Each reference in this Series D Declaration to payment to the Holders by the Institutional Trustee includes such payment by a Paying Agent. A Paying Agent has the same rights as the Institutional Trustee to deal with the Sponsor or an Affiliate, and itself may be the Series D Trust, an Affiliate of the Series D Trust or a Related Party of the Sponsor. The Institutional Trustee hereby appoints The First National Bank of Boston to initially act as Paying Agent for the Series D Securities. (i) The Institutional Trustee shall give prompt written notice to the Holders of the Series D Securities of any notice received by it from the Series D Debenture Issuer of the Series D Debenture Issuer's election to defer payments of interest on the Series D Debentures by extending the interest payment period with respect thereto. (j) The Institutional Trustee shall notify all Holders of the Series D Preferred Securities of any notice of default received from the Debt Trustee with respect to the Series D Debentures. Such notice shall state that such event of default under the Indenture with respect to the Series D Debentures also constitutes an Event of Default hereunder. (k)Subject to this Section 3.8, the Institutional Trustee shall have none of the duties, liabilities, powers or the authority of the Regular Trustees set forth in Section 3.6. The Institutional Trustee shall exercise the powers set forth in this Section 3.8 and in Sections 3.9 and 3.10 in a manner that is consistent with the purposes and functions of the Series D Trust set out in Section 3.3, and the Institutional Trustee shall not take any action that is inconsistent with the purposes and functions of the Series D Trust set out in Section 3.3. SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee. (a) The Institutional 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 Declaration and no implied covenants shall be read into this Series D Declaration against the Institutional Trustee. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6) of which a Responsible Officer has actual knowledge, the Institutional Trustee shall exercise such of the rights and powers vested in it by this Series D Declaration, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (b) No provision of this Series D Declaration shall be construed to relieve the Institutional 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 an 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 Institutional Trustee shall be determined solely by the express provisions of this Series D Declaration and the Institutional Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Series D Declaration, and no implied covenants or obligations shall be read into this Series D Declaration against the Institutional Trustee; and (B) in the absence of bad faith on the part of the Institutional Trustee, the Institutional 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 Institutional Trustee and conforming to the requirements of this Series D Declaration; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Institutional Trustee, the Institutional Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Series D Declaration; (ii) the Institutional 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 Institutional Trustee was negligent in ascertaining the pertinent facts; (iii) the Institutional 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 Holders of not less than a Majority in liquidation amount of the Series D Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Institutional Trustee, or exercising any trust or power conferred upon the Institutional Trustee under this Series D Declaration; (iv) no provision of this Series D Declaration shall require the Institutional 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 it 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 Declaration or adequate indemnity against such risk is not reasonably assured to it; (v) the Institutional Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the Series D Debentures and the Institutional Trustee Account shall be to deal with such property in a similar manner as the Institutional Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Institutional Trustee under this Series D Declaration and the Trust Indenture Act; (vi) the Institutional Trustee shall have no duty or liability for or with respect to the value, genuineness, existence or sufficiency of the Series D Debentures or the payment of any taxes or assessments levied thereon or in connection therewith; (vii) the Institutional Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Sponsor. Money held by the Institutional Trustee need not be segregated from other funds held by it except in relation to the Institutional Trustee Account maintained by the Institutional Trustee pursuant to Section 3.8(c)(i) and except to the extent otherwise required by law; (viii) the Institutional Trustee shall not be responsible for monitoring the compliance by the Regular Trustees or the Sponsor with their respective duties under this Series D Declaration, nor shall the Institutional Trustee be liable for any default or misconduct of the Regular Trustees or the Sponsor; and (ix) the Institutional Trustee shall not be liable for the acts or omissions of any paying agent, registrar, authenticating agent or transfer agent if other than the Institutional Trustee. SECTION 3.10 Certain Rights of the Institutional Trustee. (a) Subject to the provisions of Section 3.9: (i) the Institutional Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the Sponsor or the Regular Trustees contemplated by this Series D Declaration shall be sufficiently evidenced by an Officers' Certificate; (iii) whenever in the administration of this Series D Declaration, the Institutional Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Institutional 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 Sponsor or the Regular Trustees; (iv) the Institutional Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any rerecording, refiling or registration thereof; (v)the Institutional Trustee may consult with counsel or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise 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, which counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Institutional Trustee shall have the right at any time to seek instructions concerning the administration of this Series D Declaration from any court of competent jurisdiction; (vi) the Institutional Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Series D Declaration at the request, order or direction of any Holder, unless such Holder shall have provided to the Institutional Trustee reasonable security and indemnity against the costs, expenses (including attorneys' fees and expenses and the expenses of the Institutional 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 Institutional Trustee provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Institutional Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Series D Declaration; (vii) the Institutional Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, coupon or other paper or document, but the Institutional Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; (viii) the Institutional Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Institutional 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 Institutional Trustee or its agents hereunder shall bind the Series D Trust and the Holders, and the signature of the Institutional Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Institutional Trustee to so act or as to its compliance with any of the terms and provisions of this Series D Declaration, both of which shall be conclusively evidenced by the Institutional Trustee's or its agent's taking such action; (x) whenever in the administration of this Series D Declaration the Institutional Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Institutional Trustee (i) may request instructions from the Holders which instructions may only be given by the Holders of the same proportion in liquidation amount of the Series D Securities as would be entitled to direct the Institutional Trustee under the terms of the Series D Securities in respect of such remedy, right or action, (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 or accordance with such instructions; and (xi) except as otherwise expressly provided by this Series D Declaration, the Institutional Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Series D Declaration. (b) No provision of this Series D Declaration shall be deemed to impose any duty or obligation on the Institutional 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 Institutional 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 Institutional Trustee shall be construed to be a duty. SECTION 3.11 Delaware Trustee. Notwithstanding any other provision of this Series D Declaration other than Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Regular Trustees or the Institutional Trustee described in this Series D Declaration. Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Business Trust Act. Notwithstanding anything herein to the contrary, the Delaware Trustee shall not be liable for the acts or omissions to act of the Series D Trust or of the Regular Trustees except such acts as the Delaware Trustee is expressly obligated or authorized to undertake under this Series D Declaration or the Business Trust Act and except for the negligence or willful misconduct of the Delaware Trustee. SECTION 3.12 Execution of Documents. Unless otherwise determined by the Regular Trustees, and except as otherwise required by the Business Trust Act or applicable law, any one of the Regular Trustees is authorized to execute on behalf of the Series D Trust any documents which the Regular Trustees have the power and authority to execute pursuant to Section 3.6. SECTION 3.13 Not Responsible for Recitals or Issuance of Series D Securities. The recitals contained in this Series D Declaration and the Series D Securities shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Series D Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Series D Declaration or the Series D Securities. SECTION 3.14 Duration of Series D Trust. The Series D Trust, unless dissolved pursuant to the provisions of Article 8 hereof, shall have existence until April 11, 2052. SECTION 3.15 Mergers. (a) The Series D Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation or other body, except as described in Section 3.15(b) and (c). (b) The Series D Trust may, with the consent of the Regular Trustees or, if there are more than two, a majority of the Regular Trustees, and without the consent of the Holders, the Institutional Trustee or the Delaware Trustee, consolidate, amalgamate, merge with or into, or be replaced by a trust organized as such under the laws of any State of the United States; provided that: (i) if the Series D Trust is not the survivor, such successor entity (the "Successor Entity") either: (A) expressly assumes all of the obligations of the Series D Trust under the Series D Securities; or (B) substitutes for the Series D Preferred Securities other securities having substantially the same terms as the Series D Preferred Securities (the "Successor Series D Securities") so long as the Successor Series D Securities rank the same as the Series D Preferred Securities rank with respect to Distributions and payments upon liquidation, redemption and otherwise; (ii) the Series D Debenture Issuer expressly acknowledges a trustee of the Successor Entity that possesses the same powers and duties as the Institutional Trustee as the holder of the Series D Debentures; (iii) the Series D Preferred Securities or any Successor Series D Securities are listed, or any Successor Series D Securities will be listed upon notification of issuance, on any national securities exchange or with another organization on which the Series D Preferred Securities are then listed or quoted; (iv) such merger, consolidation, amalgamation or replacement does not cause the Series D Preferred Securities (including any Successor Series D Securities) to be downgraded by any nationally recognized statistical rating organization; (v) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the Holders (including any Successor Series D Securities) in any material respect (other than with respect to any dilution of such Holders' interests in the Successor Entity); (vi) such Successor Entity has a purpose identical to that of the Series D Trust; (vii) prior to such merger, consolidation, amalgamation or replacement, the Series D Debenture Issuer has received an opinion of a nationally recognized independent counsel to the Series D Trust experienced in such matters to the effect that: (A) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the Holders (including any Successor Series D Securities) in any material respect (other than with respect to any dilution of the Holders' interest in the Successor Entity); and (B) following such merger, consolidation, amalgamation or replacement, neither the Series D Trust nor the Successor Entity will be required to register as an Investment Company; and (C) following such merger, consolidation, amalgamation or replacement, the Series D Trust (or the Successor Entity) will be treated as a grantor trust for United States federal income tax purposes; and (viii) the Sponsor guarantees the obligations of such Successor Entity under the Successor Series D Securities at least to the extent provided by the Series D Preferred Securities Guarantee and the Series D Common Securities Guarantee. (c) Notwithstanding Section 3.15(b), the Series D Trust shall not, except with the consent of Holders of 100% in liquidation amount of the Series D Securities, consolidate, amalgamate, merge with or into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it, if such consolidation, amalgamation, merger or replacement would cause the Series D Trust or Successor Entity to be classified as other than a grantor trust for United States federal income tax purposes. ARTICLE 4 SPONSOR SECTION 4.1 Sponsor's Purchase of Series D Common Securities. On the Closing Date, the Sponsor will purchase all of the Series D Common Securities issued by the Series D Trust, in an amount at least equal to 3% of the total capital of the Series D Trust, at the same time as the Series D Preferred Securities are issued in exchange for Series D 7.92% Depositary Shares in the Series D Offer. SECTION 4.2 Responsibilities of the Sponsor. In connection with the issue and sale of the Series D Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities: (a) to prepare for filing by the Series D Trust with the Commission one or more registration statements on Form S-4 in relation to the Series D Preferred Securities, including any amendments thereto; (b)to determine the states in which to take appropriate action to qualify or register for sale all or part of the Series D Preferred Securities and to do any and all such acts, other than actions which must be taken by the Series D Trust, and advise the Series D Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Series D Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such states; (c) to prepare for filing by the Series D Trust an application to the NYSE, Inc. or any other national stock exchange or the NASDAQ National Market for listing or quotation upon notice of issuance of the Series D Preferred Securities; (d) to prepare for filing by the Series D Trust with the Commission a registration statement on Form 8-A relating to the registration of the Series D Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto; and (e) to negotiate the terms of the Dealer Manager Agreement. SECTION 4.3 Right to Proceed. The Sponsor acknowledges the rights of the Holders to institute a Direct Action as set forth in Section 3.8(e) hereto. SECTION 4.4 Expenses. In connection with the offering, sale and issuance of the Series D Debentures to the Institutional Trustee and in connection with the issuance of the Series D Securities by the Series D Trust, the Series D Debenture Issuer, 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 6.06 of the Indenture; (b) be responsible and shall pay all debts and obligations (other than with respect to the Series D Securities) and all 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 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 this 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 Holders of the Series D Preferred Securities); (c) be primarily liable for any indemnification obligations arising with respect to this 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 Series D Debenture Issuer's obligations under this Section 4.4 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 Series D Debenture Issuer's obligations under this Section 4.4 directly against the Series D Debenture Issuer and the Series D Debenture Issuer 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 Series D Debenture Issuer. The Series D Debenture Issuer agrees to execute such additional agreements as may be necessary or desirable in order to give full effect to the provisions of this Section 4.4. ARTICLE 5 TRUSTEES SECTION 5.1 Number of Trustees. (a) The number of Trustees initially shall be five.At any time before the issuance of any Series D Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees. After the issuance of any Series D Securities, the number of Trustees may be increased or decreased by vote of the Holders of a majority in liquidation amount of the Series D Common Securities voting as a class at a meeting of the Holders of the Series D Common Securities; provided, however, that, the number of Trustees shall in no event be less than two; and provided further that (i) if required under Section 5.2 below, one Trustee shall be the Delaware Trustee; (ii) there shall be at least one Trustee who is an employee or officer of, or is affiliated with the Sponsor (a "Regular Trustee"); and (iii) so long as required under Section 5.3, one Trustee shall be the Institutional Trustee. (b) Any action taken by Holders of Series D Common Securities pursuant to this Article 5 shall be taken at a meeting of Holders of Series D Common Securities convened for such purpose or by written consent of such Holders. (c) Except as otherwise provided herein, no amendment may be made to this Section 5.1 which would change any rights with respect to the number, existence or appointment and removal of Trustees, except with the consent of each Holder of Series D Common Securities. SECTION 5.2 Delaware Trustee. If required by the Business Trust Act, one Trustee (the "Delaware Trustee") shall be: (a) a natural person who is a resident of the State of Delaware; or (b) if not a natural person, an entity which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law, provided that, if the Institutional Trustee has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, then the Institutional Trustee may also be the Delaware Trustee and Section 3.11 shall have no application. The initial Delaware Trustee shall be Wilmington Trust Company until removed or replaced in accordance with Section 5.6. SECTION 5.3 Institutional Trustee; Eligibility. (a) For so long as this Series D Declaration is required to qualify as an indenture under the Trust Indenture Act, there shall at all times be one Trustee (the "Institutional Trustee") which shall: (i) not be an Affiliate of the Sponsor; 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 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 $50,000,000, 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 5.3(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 an Institutional Trustee is required the Institutional Trustee shall cease to be eligible to so act under Section 5.3(a), the Institutional Trustee shall immediately resign in the manner and with the effect set forth in Section 5.6(c). (c)If at any time an Institutional Trustee is required the Institutional Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act or becomes a creditor of the Sponsor during the time periods specified in Section 311 of the Trust Indenture Act, the Institutional Trustee and the Holder of the Series D Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of Section 310(b) and 311 of the Trust Indenture Act, as applicable. (d)The Series D Preferred Securities Guarantee shall be deemed to be specifically described in this Series D Declaration for purposes of clause (i) of the first provision contained in Section 310(b) of the Trust Indenture Act. (e) The initial Institutional Trustee shall be Wilmington Trust Company until removed or replaced in accordance with Section 5.6. SECTION 5.4 Certain Qualifications of the Regular Trustees and Delaware Trustee Generally. Each Regular Trustee and the Delaware Trustee (unless the Institutional Trustee also acts as Delaware Trustee) shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more Authorized Officers. SECTION 5.5 Regular Trustees. The initial Regular Trustees shall be John D. Finnegan, Walter G. Borst and Martin I. Darvick. (a)Except as expressly set forth in this Series D Declaration and except if a meeting of the Regular Trustees is called with respect to any matter over which the Regular Trustees have power to act, any power of the Regular Trustees may be exercised by, or with the consent of, any one of such Regular Trustees; (b) Unless otherwise determined by the Regular Trustees, and except as otherwise required by the Business Trust Act or applicable law, any one of the Regular Trustees is authorized to execute on behalf of the Series D Trust any documents which the Regular Trustees have the power and authority to execute pursuant to Section 3.6; and (c)a Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing any documents which the Regular Trustees have power and authority to cause the Series D Trust to execute pursuant to Section 3.6. SECTION 5.6 Appointment, Removal and Resignation of Trustees. (a) Subject to Section 5.6(b), Trustees may be appointed or removed without cause at any time: (i) until the issuance of any Series D Securities, by written instrument executed by the Sponsor; and (ii) after the issuance of any Series D Securities, by vote of the Holders of a Majority in liquidation amount of the Series D Common Securities voting as a class at a meeting of the Holders of the Series D Common Securities. (b) (i) So long as an Institutional Trustee is required under Section 5.3, the Trustee that acts as Institutional Trustee shall not be removed in accordance with Section 5.6(a) until a successor institutional Trustee possessing the qualifications to act as Institutional Trustee under Section 5.3(a) (a "Successor Institutional Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Institutional Trustee and delivered to the Regular Trustees, the Sponsor and the Institutional Trustee being removed; and (ii) so long as a Delaware Trustee is required under Section 5.2, the Trustee that acts as Delaware Trustee shall not be removed in accordance with this Section 5.6(a) until a successor Trustee possessing the qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Delaware Trustee and delivered to the Regular Trustees, the Sponsor and the Delaware Trustee being removed. (c) A Trustee appointed to office shall hold office until his successor shall have been appointed or until his death, removal or resignation as described herein. Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument (a "Resignation Request") in writing signed by the Trustee and delivered to the Sponsor and the Series D Trust, which resignation shall take effect upon such delivery or upon such later date as is specified therein; provided, however, that: i) no such resignation of the Trustee that acts as the Institutional Trustee shall be effective: (A) until a Successor Institutional Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Institutional Trustee and delivered to the Series D Trust, the Sponsor and the resigning Institutional Trustee; or (B) until the assets of the Series D Trust have been completely liquidated and the proceeds thereof distributed to the Holders of the Series D Securities; and (ii) no such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Delaware Trustee and delivered to the Series D Trust, the Sponsor and the resigning Delaware Trustee. (d) The Holders of the Series D Common Securities shall use their best efforts to promptly appoint a Successor Institutional Trustee or Successor Delaware Trustee as the case may be if the Institutional Trustee or the Delaware Trustee delivers a Resignation Request in accordance with this Section 5.6. (e)If no Successor Institutional Trustee or Successor Delaware Trustee shall have been appointed and accepted appointment as provided in this Section 5.6 within 60 days after delivery to the Sponsor and the Series D Trust of a Resignation Request, the resigning Institutional Trustee or Delaware Trustee, as applicable, may petition any court of competent jurisdiction for appointment of a Successor Institutional Trustee or Successor Delaware Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper and prescribe, appoint a Successor Institutional Trustee or Successor Delaware Trustee, as the case may be. (f) No Institutional Trustee or Delaware Trustee shall be liable for the acts or omissions to act of any Successor Institutional Trustee or Successor Delaware Trustee, as the case may be. SECTION 5.7 Vacancies among Trustees. If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A resolution certifying the existence of such vacancy by the Regular Trustees or, if there are more than two, a majority of the Regular Trustees, shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 5.6. SECTION 5.8 Effect of Vacancies. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee shall not operate to annul the Series D Trust. Whenever a vacancy in the number of Regular Trustees shall occur, until such vacancy is filled by the appointment of a Regular Trustee in accordance with Section 5.6, the Regular Trustees in office, regardless of their number, shall have all the powers granted to the Regular Trustees and shall discharge all the duties imposed upon the Regular Trustees by this Series D Declaration. SECTION 5.9 Meetings. If there is more than one Regular Trustee, meetings of the Regular Trustees shall be held from time to time upon the call of any Regular Trustee. Regular meetings of the Regular Trustees may be held at a time and place fixed by resolution of the Regular Trustees. Notice of any in-person meetings of the Regular Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 48 hours before such meeting. Notice of any telephonic meetings of the Regular Trustees or any committee thereof shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice of such meeting except where a Regular Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the meeting has not been lawfully called or convened. Unless provided otherwise in this Series D Declaration, any action of the Regular Trustees may be taken at a meeting by vote of a majority of the Regular Trustees present (whether in person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is present, or without a meeting by the unanimous written consent of the Regular Trustees. In the event there is only one Regular Trustee, any and all action of such Regular Trustee shall be evidenced by a written consent of such Regular Trustee. SECTION 5.10 Delegation of Power. The Regular Trustees shall have power to delegate from time to time to such of their number or to officers of the Series D Trust the doing of such things and the execution of such instruments either in the name of the Series D Trust or the names of the Regular Trustees or otherwise as the Regular Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Series D Trust, as set forth herein. SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Institutional Trustee or the Delaware Trustee, as the case may be, may be merged or converted or with which either may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Institutional Trustee or the Delaware Trustee, as the case may be, shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Institutional Trustee or the Delaware Trustee, as the case may be, shall be the successor of the Institutional Trustee or the Delaware Trustee, as the case may be, hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. ARTICLE 6 DISTRIBUTIONS SECTION 6.1 Distributions. Holders shall receive Distributions (as defined herein) in accordance with the applicable terms of the relevant Holder's Series D Securities as set forth in Annex I. If and to the extent that the Series D Debenture Issuer makes a payment of interest (including Compound Interest and Additional Interest), premium and/or principal on the Series D Debentures held by the Institutional Trustee (the amount of any such payment being a "Payment Amount"), the Institutional Trustee shall and is directed, to the extent funds are available for that purpose, to make a distribution (a "Distribution") of the Payment Amount to Holders. ARTICLE 7 ISSUANCE OF SECURITIES SECTION 7.1 General Provisions Regarding Series D Securities. (a) The Regular Trustees shall on behalf of the Series D Trust issue the Series D Preferred Securities, which shall be one class of preferred securities representing undivided preferred beneficial ownership interests in the assets of the Series D Trust having such terms as are set forth in Annex I (which terms are incorporated by reference in, and made a part of, this Series D Declaration as if specifically set forth herein) and the Series D Common Securities, which shall be one class of common securities representing undivided common beneficial ownership interests in the assets of the Series D Trust having such terms as are set forth in Annex I (which terms are incorporated by reference in, and made a part of, this Series D Declaration as if specifically set forth herein). The Series D Trust shall issue no securities or other interests in the assets of the Series D Trust other than the Series D Preferred Securities and the Series D Common Securities. Each Security shall be dated the date of its authentication. (b)The Certificates shall be signed on behalf of the Series D Trust by a Regular Trustee. Such signature shall be the manual or facsimile signature of any present or any future Regular Trustee. Typographical and other minor errors or defects in any such reproduction of any such signature shall not affect the validity of any Security. In case any Regular Trustee of the Series D Trust who shall have signed any of the Series D Securities shall cease to be such Regular Trustee before the Certificates so signed shall be delivered by the Series D Trust, such Certificates nevertheless may be delivered as though the person who signed such Certificates had not ceased to be such Regular Trustee; and any Certificate may be signed on behalf of the Series D Trust by such persons who, at the actual date of execution of such Security, shall be the Regular Trustees of the Series D Trust, although at the date of the execution and delivery of the Series D Declaration any such person was not such a Regular Trustee. Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation of any stock exchange on which Series D Securities may be listed, or to conform to usage. Pending the preparation of definitive Certificates, the Regular Trustees on behalf of the Series D Trust may execute and the Institutional Trustee shall authenticate, temporary Certificates (printed, lithographed or typewritten), substantially in the form of the definitive Certificates in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Certificates all as may be determined by the Regular Trustees on behalf of the Series D Trust upon the same conditions and in substantially the same manner, and with like effect, as definitive Certificates. Without unnecessary delay, the Regular Trustees on behalf of the Series D Trust will execute and furnish and the Institutional Trustee shall authenticate, definitive Certificates and thereupon any or all temporary Certificates may be surrendered to the transfer agent and registrar in exchange therefor (without charge to the Holders). (c) A Security shall not be valid until authenticated by the manual or facsimile signature of an authorized signatory of the Institutional Trustee. The signature shall be conclusive evidence that the Security has been authenticated under this Series D Declaration. The Institutional Trustee may appoint an authenticating agent acceptable to the Series D Trust to authenticate Series D Securities. An authenticating agent may authenticate Series D Securities whenever the Institutional Trustee may do so. Each reference in this Series D Declaration to authentication by the Institutional Trustee includes authentication by such agent. An authenticating agent has the same rights as the Institutional Trustee to deal with the Sponsor or an Affiliate, and may itself be an Affiliate of the Series D Trust or a Related Party of the Sponsor. The Institutional Trustee hereby appoints The First National Bank of Boston initially to act as authenticating agent for the Series D Securities. (d) The consideration received by the Series D Trust for the issuance of the Series D Securities shall constitute a contribution to the capital of the Series D Trust and shall not constitute a loan to the Series D Trust. (e) Upon issuance of the Series D Securities as provided in this Series D Declaration, the Series D Securities so issued shall be deemed to be validly issued, fully paid and non-assessable. (f) Every Person, by virtue of having become a Holder or a Series D Preferred Security Beneficial Owner in accordance with the terms of this Series D Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Series D Declaration. ARTICLE 8 DISSOLUTION OF TRUST SECTION 8.1 Dissolution of Series D Trust. (a) Notwithstanding anything to the contrary contained herein, the Sponsor shall have the right at any time to dissolve the Series D Trust and cause the distribution of all of the Series D Debentures to the Holders in exchange for all of the Series D Securities in accordance with the terms of the Series D Securities. In addition, the Series D Trust shall dissolve: (i) on April 11, 2052, the expiration of the term of the Series D Trust; (ii) upon the bankruptcy of the Sponsor or the Series D Trust; (iii) upon the filing of a certificate of dissolution or its equivalent with respect to the Sponsor, the filing of a certificate of cancellation with respect to the Series D Trust after having obtained the consent of the Holders of at least a Majority in liquidation amount of the Series D Securities voting together as a single class to file such certificate of cancellation, or the revocation of the Sponsor's charter and the expiration of 90 days after the date of revocation without a reinstatement thereof; (iv) upon the entry of a decree of judicial dissolution of the Holder of the Series D Common Securities, the Sponsor or the Series D Trust; (v) when all of the Series D Securities shall have been called for redemption and the amounts necessary for redemption thereof, including any Additional Interest or Compound Interest, shall have been paid to the Holders in accordance with the terms of the Series D Securities; (vi) upon the distribution of all of the Series D Debentures to the Holders in exchange for all of the Series D Securities in accordance with the terms of the Series D Securities; or (vii) before the issuance of any Series D Securities, with the consent of all of the Regular Trustees and the Sponsor. (b) As soon as is practicable after the occurrence of an event referred to in Section 8.1(a), the Trustees shall file a certificate of cancellation with the Secretary of State of the State of Delaware. (c) The provisions of Article 10 shall survive the dissolution of the Series D Trust. ARTICLE 9 TRANSFER OF INTERESTS SECTION 9.1 Transfer of Series D Securities. (a) Series D Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Series D Declaration and in the terms of the Series D Securities. Any transfer or purported transfer of any Security not made in accordance with this Series D Declaration shall be null and void. (b) Subject to this Article 9, the Series D Preferred Securities shall be freely transferable. (c) The Sponsor may not transfer the Series D Common Securities. SECTION 9.2 Transfer of Certificates. (a) The Regular Trustees shall provide for the registration of Certificates and of transfers of Certificates, which will be effected without charge but only upon payment (with such indemnity as the Regular Trustees may require) in respect of any tax or other government charges that may be imposed in relation to it. Upon surrender for registration of transfer of any Certificate, the Regular Trustees shall cause one or more new Certificates to be issued and authenticated by the Institutional Trustee in the name of the designated transferee or transferees. Every Certificate surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form satisfactory to the Regular Trustees duly executed by the Holder or such Holder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer shall be canceled by the Regular Trustees. A transferee of a Certificate shall be entitled to the rights and subject to the obligations of a Holder hereunder upon the receipt by such transferee of a Certificate. By acceptance of a Certificate, each transferee shall be deemed to have agreed to be bound by this Series D Declaration. (b) Upon receipt by the Institutional Trustee of a Definitive Series D Preferred Security Certificate, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Institutional Trustee, requesting transfer of such Definitive Series D Preferred Security Certificate for a beneficial interest in a Global Certificate, the Institutional Trustee shall cancel such Definitive Series D Preferred Security Certificate and cause, or direct the Depository Institution to cause, the aggregate number of Series D Preferred Securities represented by the appropriate Global Certificate to be increased accordingly. If no Global Certificates are then outstanding, the Series D Trust shall issue and the Institutional Trustee shall authenticate, upon written order of any Regular Trustee, an appropriate number of Series D Preferred Securities in global form. (c) Upon receipt by the Institutional Trustee from the Depository Institution or its nominee on behalf of any Person having a beneficial interest in a Global Certificate of written instructions or such other form of instructions as is customary for the Depository Institution or the person designated by the Depository Institution, requesting transfer of a beneficial interest in a Global Certificate for a Definitive Series D Preferred Security Certificate, then the Institutional Trustee or the securities custodian, at the direction of the Institutional Trustee, will cause, in accordance with the standing instructions and procedures existing between the Depository Institution and the securities custodian, the aggregate principal amount of the Global Certificate to be reduced on its books and records and, following such reduction, the Series D Trust will execute and the Institutional Trustee will authenticate and deliver to the transferee a Definitive Series D Preferred Security Certificate. Definitive Series D Preferred Security Certificates issued in exchange for a beneficial interest in a Global Certificate shall be registered in such names and in such authorized denominations as the Depository Institution, pursuant to instructions from its Depository Institution Participants or indirect participants or otherwise, shall instruct the Institutional Trustee. The Institutional Trustee shall deliver such Series D Preferred Securities to the persons in whose names such Series D Preferred Securities are so registered in accordance with the instructions of the Depository Institution. 1. Notwithstanding any other provisions of this Series D Declaration, a Global Certificate may not be transferred as a whole except by the Depository Institution to a nominee of the Depository Institution or another nominee of the Depository Institution or by the Depository Institution or any such nominee to a successor Depository Institution or a nominee of such successor Depository Institution. d) The Institutional Trustee may appoint a transfer agent and registrar ("Transfer Agent") acceptable to the Series D Trust to perform the functions set forth in this Section 9.2. The Transfer Agent may perform such functions whenever the Institutional Trustee may do so. Each reference in this Series D Declaration to registration and transfer of Series D Preferred Securities by the Institutional Trustee includes such activities by the Transfer Agent. The Transfer Agent has the same rights as the Institutional Trustee to deal with the Sponsor or an Affiliate, and itself may be the Series D Trust, an Affiliate of the Series D Trust or a Related Party of the Sponsor. The Institutional Trustee hereby appoints The First National Bank of Boston initially to act as Transfer Agent for the Series D Preferred Securities. SECTION 9.3 Deemed Security Holders. The Trustees may treat the Person in whose name any Certificate shall be registered on the books and records of the Series D Trust as the sole holder of such Certificate and of the Series D Securities represented by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Certificate or in the Series D Securities represented by such Certificate on the part of any Person, whether or not the Series D Trust shall have actual or other notice thereof. SECTION 9.4 Book-Entry Interests. The Series D Preferred Securities Certificates, on original issuance, will be executed and issued by the Series D Trust and authenticated by the Institutional Trustee either (i) in the form of one or more, fully-registered, global Series D Preferred Security Certificates (each a "Global Certificate"), to be delivered to DTC or PDTC, the initial Depository Institutions, by, or on behalf of, the Series D Trust to those tendering holders of Series D 7.92% Depositary Shares held in global form or (ii) in certificated form (the "Definitive Series D Preferred Security Certificates") to be held directly by the Holder to those tendering holders of Series D 7.92% Depositary Shares held directly in certificated form. Investors may elect to hold their Series D Preferred Securities directly or hold their interest through a Global Certificate. Global Certificates shall initially be registered on the books and records of the Series D Trust in the name of DTC or PDTC, as applicable, or their respective nominees. With respect to Series D Preferred Security Beneficial Owners holding their interest in Series D Preferred Securities pursuant to a Global Certificate: (a) the Series D Trust and the Trustees shall be entitled to deal with the Depository Institution, with respect to such Series D Preferred Security Beneficial Owners, for all purposes of this Series D Declaration (including the payment of Distributions on the Global Certificates and receiving approvals, votes or consents hereunder) as the Holder of such Series D Preferred Securities and the sole holder of the Global Certificates and shall have no obligation to such Series D Preferred Security Beneficial Owners; (b) to the extent that the provisions of this Section 9.4 conflict with any other provisions of this Series D Declaration, the provisions of this Section 9.4 shall control; and (c) the rights of such Series D Preferred Security Beneficial Owners shall be exercised only through the Depository Institution and shall be limited to those established by law and agreements between such Series D Preferred Security Beneficial Owners and the Depository Institution and/or the Depository Institution Participants. The Depository Institution will make book-entry transfers among the Depository Institution Participants and receive and transmit payments of Distributions on the Global Certificates to such Depository Institution Participants. Depository Institution Participants shall have no rights under this Series D Declaration with respect to any Global Certificate held on their behalf by the Depository Institution or by the Institutional Trustee as the custodian of the Depository Institution or under such Global Certificate, and the Depository Institution may be treated by the Series D Trust, the Institutional Trustee and any agent of the Series D Trust or the Institutional Trustee as the absolute owner of such Global Certificate for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Series D Trust, the Institutional Trustee or any agent of the Series D Trust or the Institutional Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository Institution or impair, as between the Depository Institution and its Depository Institution Participants, the operation of customary practices of such Depository Institution governing the exercise of the rights of a holder of a beneficial interest in any Global Certificate. At such time as all beneficial interests in a Global Certificate have either been exchanged for Definitive Series D Preferred Security Certificates to the extent permitted by this Series D Declaration or redeemed, repurchased or canceled in accordance with the terms of this Series D Declaration, such Global Certificate shall be returned to the Depository Institution for cancellation or retained and canceled by the Institutional Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Certificate is exchanged for Definitive Series D Preferred Security Certificates, or if Definitive Series D Preferred Security Certificates are exchanged for a beneficial interest in a Global Certificate, Series D Preferred Securities represented by such Global Certificate shall be reduced or increased and an adjustment shall be made on the books and records of the Institutional Trustee (if it is then the securities custodian for such Global Certificate) with respect to such Global Certificate, by the Institutional Trustee or the securities custodian, to reflect such reduction or increase. SECTION 9.5 Notices to Depository Institution. Whenever a notice or other communication to the Series D Preferred Security Holders is required under this Series D Declaration, unless and until Definitive Series D Preferred Security Certificates shall have been issued to the Series D Preferred Security Beneficial Owners pursuant to Sections 9.2, 9.4 or 9.7, the Regular Trustees shall give all such notices and communications specified herein to be given to the Series D Preferred Security Holders to the applicable Depository Institution, and shall have no notice obligations to the Series D Preferred Security Beneficial Owners. SECTION 9.6 Appointment of Successor Depository Institution. If any Depository Institution elects to discontinue its services as securities depositary with respect to the Series D Preferred Securities, the Regular Trustees may, in their sole discretion, appoint a successor Depository Institution with respect to such Series D Preferred Securities. SECTION 9.7 Definitive Series D Preferred Security Certificates. If: (a) a Depository Institution elects to discontinue its services as securities depositary with respect to the Series D Preferred Securities and a successor Depository Institution is not appointed within 90 days after such discontinuance pursuant to Section 9.6; or (b) the Regular Trustees elect after consultation with the Sponsor to terminate the book-entry system through the Depository Institutions with respect to the Series D Preferred Securities; or (c) there shall have occurred a Series D Declaration Event of Default, then: (a) Definitive Series D Preferred Security Certificates shall be prepared by the Regular Trustees on behalf of the Series D Trust with respect to such Series D Preferred Securities; and (b)upon surrender of the Global Certificates by the applicable Depository Institution, accompanied by registration instructions, the Regular Trustees shall cause Definitive Series D Preferred Security Certificates to be delivered to Series D Preferred Security Beneficial Owners in accordance with the instructions of such Depository Institution. Neither the Trustees nor the Series D Trust shall be liable for any delay in delivery of such instructions and each of them may conclusively rely on and shall be protected in relying on, said instructions of the Depository Institution. The Definitive Series D Preferred Security Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which Series D Preferred Securities may be listed, or to conform to usage. SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates. If: (a) any mutilated Certificates should be surrendered to the Regular Trustees, or if the Regular Trustees shall receive evidence to their satisfaction of the destruction, loss or theft of any Certificate; and (b) there shall be delivered to the Regular Trustees, the Institutional Trustee or any authenticating agent such security or indemnity as may be required by them to keep each of them harmless, then, in the absence of notice that such Certificate shall have been acquired by a bona fide purchaser, any Regular Trustee on behalf of the Series D Trust shall execute and deliver and the Institutional Trustee shall authenticate, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like denomination. In connection with the issuance of any new Certificate under this Section 9.8, the Regular Trustees may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in the relevant Series D Securities, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time. ARTICLE 10 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS SECTION 10.1 Liability. (a) Except as expressly set forth in this Series D Declaration, the Series D Securities Guarantees and the terms of the Series D Securities, the Sponsor shall not be: (i)) personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders which shall be made solely from assets of the Series D Trust; and (ii) be required to pay to the Series D Trust or to any Holder any deficit upon dissolution of the Series D Trust or otherwise. (b) The Series D Debenture Issuer shall be liable for all of the debts and obligations of the Series D Trust (other than payments of distributions, if any, with respect to the Series D Securities) to the extent not satisfied out of the Trust's assets. (c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. SECTION 10.2 Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Series D Trust 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 on behalf of the Series D Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Series D Declaration 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 Series D Trust and upon such information, opinions, reports or statements presented to the Series D Trust 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 Series D Trust, 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 Holders might properly be paid. SECTION 10.3 Fiduciary Duty. (a)To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Series D Trust or to any other Covered Person, an Indemnified Person acting under this Series D Declaration shall not be liable to the Series D Trust or to any other Covered Person for its good faith reliance on the provisions of this Series D Declaration. The provisions of this Series D Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the Institutional Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person. (b) Unless otherwise expressly provided herein: (i) whenever a conflict of interest exists or arises between an Indemnified Person and any Covered Persons; or (ii) whenever this Series D Declaration or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Series D Trust or any Holder, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Series D Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise. (c) Whenever in this Series D Declaration an Indemnified Person is permitted or required to make a decision: (i) in its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Series D Trust or any other Person; or (ii) in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Series D Declaration or by applicable law. SECTION 10.4 Indemnification. (a) (i) The Series D Debenture Issuer shall indemnify, to the full extent permitted by law, any Sponsor Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Series D Trust) by reason of the fact that he is or was a Sponsor Indemnified Person against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Series D Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Sponsor Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Series D Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (ii) The Series D Debenture Issuer shall indemnify, to the full extent permitted by law, any Sponsor Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Series D Trust to procure a judgment in its favor by reason of the fact that he is or was a Sponsor Indemnified Person against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Series D Trust and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such Sponsor Indemnified Person shall have been adjudged to be liable to the Series D Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper. (iii) To the extent that a Sponsor Indemnified Person shall be successful on the merits or otherwise (including dismissal of an action without prejudice or the settlement of an action without admission of liability) in defense of any action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any claim, issue or matter therein, he shall be indemnified, to the full extent permitted by law, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (iv) Any indemnification under paragraphs (i) and (ii) of this Section 10.4(a) (unless ordered by a court) shall be made by the Series D Debenture Issuer only as authorized in the specific case upon a determination that indemnification of the Sponsor Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (i) and (ii). Such determination shall be made (1) by the Regular Trustees by a majority vote of a quorum consisting of such Regular Trustees who were not parties to such action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion, or (3) by the Series D Common Security Holder of the Series D Trust. (v) Expenses (including attorneys' fees) incurred by a Sponsor Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be paid by the Series D Debenture Issuer in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Sponsor Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Series D Debenture Issuer as authorized in this Section 10.4(a). Notwithstanding the foregoing, no advance shall be made by the Series D Debenture Issuer if a determination is reasonably and promptly made (i) by the Regular Trustees by a majority vote of a quorum of disinterested Regular Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion or (iii) by the Series D Debenture Issuer, that, based upon the facts known to the Regular Trustees, counsel or the Series D Debenture Issuer, as the case may be, at the time such determination is made, such Sponsor Indemnified Person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Series D Trust, or, with respect to any criminal proceeding, that such Sponsor Indemnified Person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Regular Trustees, independent legal counsel or Series D Debenture Issuer reasonably determine that such person deliberately breached his duty to the Series D Trust or its Holders. (vi) The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 10.4(a) shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the Series D Debenture Issuer or Series D Preferred Security Holders of the Series D Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification under this Section 10.4(a) shall be deemed to be provided by a contract between the Series D Debenture Issuer and each Sponsor Indemnified Person who serves in such capacity at any time while this Section 10.4(a) is in effect. Any repeal or modification of this Section 10.4(a) shall not affect any rights or obligations then existing. (vii) The Series D Debenture Issuer or the Series D Trust may purchase and maintain insurance on behalf of any person who is or was a Sponsor Indemnified Person against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Series D Debenture Issuer would have the power to indemnify him against such liability under the provisions of this Section 10.4(a). (viii) For purposes of this Section 10.4(a), references to "the Series D Trust" shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 10.4(a) with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued. (ix) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 10.4(a) shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Sponsor Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person. (b) The Series D Debenture Issuer agrees to indemnify the (i) Institutional Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Institutional Trustee and the Delaware Trustee, and (iv) any officers, directors, shareholders, members, partners, employees, representatives, custodians, nominees or agents of the Institutional Trustee and the Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified Person harmless against, any loss, liability or expense incurred 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 10.4(b) shall survive the satisfaction and discharge of this Series D Declaration. SECTION 10.5 Outside Businesses. Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Series D Trust, and the Series D Trust and the Holders shall have no rights by virtue of this Series D Declaration in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Series D Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Institutional Trustee shall be obligated to present any particular investment or other opportunity to the Series D Trust even if such opportunity is of a character that, if presented to the Series D Trust, could be taken by the Series D Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person, the Delaware Trustee and the Institutional Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. ARTICLE II ACCOUNTING SECTION 11.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Series D Trust shall be the calendar year, or such other year as is required by the Code. SECTION 11.2 Certain Accounting Matters. (a). At all times during the existence of the Series D Trust, the Regular Trustees shall keep, or cause to be kept, full books of account, records and supporting documents, which shall reflect in reasonable detail, each transaction of the Series D Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting principles, consistently applied. The Series D Trust shall use the accrual method of accounting for United States federal income tax purposes. The Regular Trustees of the Series D Trust shall at all times cause the Series D Trust to comply fully with all applicable accounting requirements (including, without limitation, requirements with respect to audits, reports and disclosure and dissemination of financial statements) of any exchange on which any of the Series D Securities may at such time be listed or which are required under applicable law. The books and records of the Series D Trust, together with a copy of the Series D Declaration and a certified copy of the Certificate of Trust, and any amendment thereto shall at all times be maintained at the principal office of the Series D Trust and shall be open for inspection for any examination by any Holder or its duly authorized representative for any purpose reasonably related to its interest in the Series D Trust during normal business hours. (b) The Regular Trustees shall cause to be duly prepared and delivered to each of the Holders, any annual United States federal income tax information statement, required by the Code, containing such information with regard to the Series D Securities held by each Holder as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code to deliver any such statement at a later date, the Regular Trustees shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Series D Trust. (c) The Regular Trustees shall cause to be duly prepared and filed with the appropriate taxing authority, an annual United States federal income tax return, on a Form 1041 or such other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Regular Trustees on behalf of the Series D Trust with any state or local taxing authority. SECTION 11.3 Banking. The Series D Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Series D Trust; provided, however, that all payments of funds in respect of the Series D Debentures held by the Institutional Trustee shall be made directly to the Institutional Trustee Account and no other funds of the Series D Trust shall be deposited in the Institutional Trustee Account. The sole signatories for such accounts shall be designated by the Regular Trustees; provided, however, that the Institutional Trustee shall designate the signatories for the Institutional Trustee Account. SECTION 11.4 Withholding. The Series D Trust and the Regular Trustees shall comply with all withholding requirements under United States federal, state and local law. The Series D Trust shall request, and the Holders shall provide to the Series D Trust, such forms or certificates as are necessary to establish an exemption from withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Series D Trust to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Regular Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Series D Trust is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Holder, the amount withheld shall be deemed to be a distribution in the amount of the withholding to the Holder. In the event of any claimed over withholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual Distributions made, the Series D Trust may reduce subsequent Distributions by the amount of such withholding. ARTICLE 12 AMENDMENTS AND MEETINGS SECTION 12.1 Amendments. (a) Except as otherwise provided in this Series D Declaration or by any applicable terms of the Series D Securities, this Series D Declaration may only be amended by a written instrument approved and executed by: (i) the Regular Trustees (or, if there are more than two Regular Trustees, a majority of the Regular Trustees); (ii) if the amendment affects the rights, powers, duties, obligations or immunities of the Institutional Trustee, the Institutional Trustee; and (iii) if the amendment affects the rights, powers, duties, obligations or immunities of the Delaware Trustee, the Delaware Trustee; (b) No amendment shall be made, and any such purported amendment shall be void and ineffective: (i) unless, in the case of any proposed amendment, the Institutional Trustee shall have first received an Officers' Certificate from each of the Series D Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Series D Declaration (including the terms of the Series D Securities); (ii) unless, in the case of any proposed amendment which affects the rights, powers, duties, obligations or immunities of the Institutional Trustee, the Institutional Trustee shall have first received: (A) an Officers' Certificate from each of the Series D Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Series D Declaration (including the terms of the Series D Securities); and (B) an opinion of counsel (who may be counsel to the Sponsor or the Series D Trust) that such amendment is permitted by, and conforms to, the terms of this Series D Declaration (including the terms of the Series D Securities); and (iii) to the extent the result of such amendment would be to: (A) cause the trust to fail to continue to be classified for purposes of United States federal income taxation as a grantor trust; (B) reduce or otherwise adversely affect the powers of the Institutional Trustee in contravention of the Trust Indenture Act; or (C) cause the Series D Trust to be deemed to be an Investment Company required to be registered under the Investment Company Act; (c) At such time after the Series D Trust has issued any Series D Securities that remain outstanding, any amendment that would adversely affect the rights, privileges or preferences of any Holder may be effected only with such additional requirements as may be set forth in the terms of such Series D Securities; (d) Sections 4.4, 9.1(c) and this Section 12.1 shall not be amended without the consent of all of the Holders of the Series D Securities; (e) Article 4 shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Series D Common Securities; (f) The rights of the holders of the Series D Common Securities under Article 5 to increase or decrease the number of, and appoint and remove Trustees shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Series D Common Securities; and (g) Notwithstanding Section 12.1(c), this Series D Declaration may be amended without the consent of the Holders to: (i) cure any ambiguity; (ii) correct or supplement any provision in this Series D Declaration that may be defective or inconsistent with any other provision of this Series D Declaration; (iii) add to the covenants, restrictions or obligations of the Sponsor; (iv) conform to any change in Rule 3a-5 or written change in interpretation or application of Rule 3a-5 by any legislative body, court, government agency or regulatory authority which amendment does not have a material adverse effect on the right, preferences or privileges of the Holders; (v) preserve the status of the Series D Trust as a grantor trust for federal income tax purposes; and (vi) make any other change that does not adversely affect the rights of the Holders. It shall not be necessary for any consent of the Holders under this Section 12.1 to approve the particular form of any proposed amendment or modification to this Series D Declaration, but it shall be sufficient if such consent shall approve the substance thereof. SECTION 12.2 Meetings of the Holders; Action by Written Consent. (a) Meetings of the Holders of any class of Series D Securities may be called at any time by the Regular Trustees (or as provided in the terms of the Series D Securities) to consider and act on any matter on which Holders of such class of Series D Securities are entitled to act under the terms of this Series D Declaration, the terms of the Series D Securities or the rules of any stock exchange on which the Series D Preferred Securities are listed or admitted for trading. The Regular Trustees shall call a meeting of the Holders of such class if directed to do so by the Holders of at least 10% in liquidation amount of such class of Series D Securities. Such direction shall be given by delivering to the Regular Trustees one or more calls in a writing stating that the signing Holders wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders calling a meeting shall specify in writing the Certificates held by the Holders exercising the right to call a meeting and only those Series D Securities specified shall be counted for purposes of determining whether the required percentage set forth in the second sentence of this paragraph has been met. (b) Except to the extent otherwise provided in the terms of the Series D Securities, the following provisions shall apply to meetings of Holders: (i) notice of any such meeting shall be given to all the Holders having a right to vote thereat at least 7 days and not more than 60 days before the date of such meeting. Whenever a vote, consent or approval of the Holders is permitted or required under this Series D Declaration or the rules of any stock exchange on which the Series D Preferred Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders. Any action that may be taken at a meeting of the Holders may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders owning not less than the minimum amount of Series D Securities in liquidation amount that would be necessary to authorize or take such action at a meeting at which all Holders having a right to vote thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders entitled to vote who have not consented in writing. The Regular Trustees may specify that any written ballot submitted to the Holders for the purpose of taking any action without a meeting shall be returned to the Series D Trust within the time specified by the Regular Trustees; (ii)each Holder may authorize any Person to act for it by proxy on all matters in which a Holder is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Holder executing it. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Series D Trust were a Delaware corporation and the Holders were stockholders of a Delaware corporation; (iii) each meeting of the Holders shall be conducted by the Regular Trustees or by such other Person that the Regular Trustees may designate; and (iv) unless the Business Trust Act, this Series D Declaration, the terms of the Series D Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Series D Preferred Securities are then listed or trading, otherwise provides, the Regular Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. ARTICLE 13 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE SECTION 13.1 Representations and Warranties of Institutional Trustee. The Trustee that acts as initial Institutional Trustee represents and warrants to the Series D Trust and to the Sponsor at the date of this Series D Declaration, and each Successor Institutional Trustee represents and warrants to the Series D Trust and the Sponsor at the time of the Successor Institutional Trustee's acceptance of its appointment as Institutional Trustee that: (a) the Institutional Trustee is a Delaware banking corporation with trust powers, duly organized, validly existing and in good standing under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Series D Declaration; (b) the execution, delivery and performance by the Institutional Trustee of this Series D Declaration has been duly authorized by all necessary corporate action on the part of the Institutional Trustee. This Series D Declaration has been duly executed and delivered by the Institutional Trustee, and constitutes the legal, valid and binding obligation of the Institutional Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); (c) the execution, delivery and performance of this Series D Declaration by the Institutional Trustee does not conflict with or constitute a breach of the Articles of Incorporation or By-laws of the Institutional Trustee; (d) no consent, approval or authorization of, or registration with or notice to, any State or Federal banking authority is required for the execution, delivery or performance by the Institutional Trustee, of this Series D Declaration; (e) on the closing date of the Series D Offer, the Institutional Trustee will be the record holder of the Series D Debentures and the Institutional Trustee has not knowingly created any liens or encumbrances on such Series D Debentures; and (f) the Institutional Trustee satisfies the qualifications set forth in Section 5.3. SECTION 13.2 Representations and Warranties of Delaware Trustee. The Trustee that acts as initial Delaware Trustee represents and warrants to the Series D Trust and to the Sponsor at the date of this Series D Declaration, and each Successor Delaware Trustee represents and warrants to the Series D Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee that: (a) the Delaware Trustee is a Delaware banking corporation with trust powers, duly organized, validly existing and in good standing under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Series D Declaration; (b) the Delaware Trustee has been authorized to perform its obligations under the Certificate of Trust and this Series D Declaration. The Series D Declaration under Delaware law constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); (c) no consent, approval or authorization of, or registration with or notice to, any State or Federal banking authority is required for the execution, delivery or performance by the Delaware Trustee, of this Series D Declaration; and (d) the Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in the State of Delaware. ARTICLE 14 MISCELLANEOUS SECTION 14.1 Notices. All notices provided for in this Series D Declaration 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 Trust, in care of the Regular Trustees at the Trust's mailing address set forth below (or such other address as the Series D Trust may give notice of to the Holders): General Motors Capital Trust D c/o General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 Attention: General Counsel (b) if given to the Delaware Trustee, at the mailing address set forth below (or such other address as the Delaware Trustee may give notice of to the Holders): Wilmington Trust Company 1100 North Market Street Wilmington, Delaware 19890-0001 Attention: Corporate Trust Administration (c) if given to the Institutional Trustee, at the Institutional Trustee's mailing address set forth below (or such other address as the Institutional Trustee may give notice of to the Holders): Wilmington Trust Company 1100 North Market Street Wilmington, Delaware 19890-0001 Attention: Corporate Trust Administration (d) if given to the Holder of the Series D Common Securities, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Series D Common Securities may give notice to the Series D Trust): General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 Attention: General Counsel (e) if given to any other 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 14.2 Governing Law. THIS SERIES D DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. SECTION 14.3 Intention of the Parties. It is the intention of the parties hereto that the Series D Trust be classified for United States federal income tax purposes as a grantor trust. The provisions of this Series D Declaration shall be interpreted to further this intention of the parties. SECTION 14.4 Headings. Headings contained in this Series D Declaration are inserted for convenience of reference only and do not affect the interpretation of this Series D Declaration or any provision hereof. SECTION 14.5 Successors and Assigns Whenever in this Series D Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Series D Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed. SECTION 14.6 Partial Enforceability. If any provision of this Series D Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Series D Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. SECTION 14.7 Counterparts. This Series D Declaration may contain more than one counterpart of the signature page and this Series D Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. * * * * * IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. /s/ John D. Finnegan John D. Finnegan, as Regular Trustee /s/ Walter G. Borst Walter G. Borst, as Regular Trustee /s/ Martin I. Darvick Martin I. Darvick, as Regular Trustee WILMINGTON TRUST COMPANY, as Institutional Trustee and as Delaware Trustee By: /s/ Donald G. MacKelcan Name: Donald G. MacKelcan Title: Assistant Vice President GENERAL MOTORS CORPORATION, as Sponsor By: /s/ John D. Finnegan Name: John D. Finnegan Title: Assistant Vice President and Treasurer - -------------------- SM"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. ANNEX I TERMS OF 8.67% TRUST ORIGINATED PREFERRED SECURITIES, SERIES D 8.67% TRUST ORIGINATED COMMON SECURITIES, SERIES D Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of July 9, 1997 (as amended from time to time, the "Series D Declaration"), the designation, rights, privileges, restrictions, preferences and other terms and provisions of the Series D Securities are set out below (each capitalized term used but not defined herein has the meaning set forth in the Series D Declaration or, if not defined in the Series D Declaration, as defined in the Prospectus referred to below): 1. Designation and Number. (a) Series D Preferred Securities. 3,055,255 Series D Preferred Securities of the Series D Trust with an aggregate stated liquidation amount with respect to the assets of the Series D Trust of Seventy-Six Million Three Hundred and Eighty-One Thousand Three Hundred and Seventy-Five Dollars ($76,381,375) and a stated liquidation amount with respect to the assets of the Series D Trust of $25 per preferred security, are hereby designated for the purposes of identification only as "8.67% Trust Originated Preferred SecuritiesSM ("TOPrSSM"), Series D" (the "Series D Preferred Securities"). The Series D Preferred Security Certificates evidencing the Series D Preferred Securities shall be substantially in the form of Exhibit A-1 to the Series D Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the Series D Preferred Securities are listed. The Series D Preferred Securities shall be issued to former holders of Series D 7.92% Depositary Shares ("Series D 7.92% Depositary Shares"), each representing one-fourth of a share of Series D 7.92% Preference Stock (the "Series D 7.92% Preference Stock"), of General Motors Corporation (the "Sponsor") in exchange for such Series D 7.92% Depositary Shares pursuant to the Series D Offer. (b) Series D Common Securities. 94,493 Series D Common Securities of the Series D Trust with an aggregate stated liquidation amount with respect to the assets of the Series D Trust of Two Million Three Hundred and Sixty-Two Thousand Three Hundred and Twenty-Five Dollars ($2,362,325) and a stated liquidation amount with respect to the assets of the Series D Trust of $25 per common security, are hereby designated for the purposes of identification only as "8.67% Trust Originated Common Securities, Series D" (the "Series D Common Securities"). The Series D Common Security Certificates evidencing the Series D Common Securities shall be substantially in the form of Exhibit A-2 to the Series D Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice. The Series D Common Securities are to be issued and sold to the Sponsor in consideration of $2,362,325 in cash. Series D Common Securities may be issued in fractional share amounts. (c) The Series D Preferred Securities and the Series D Common Securities represent undivided beneficial ownership interests in the assets of the Series D Trust. (d) In connection with the Series D Offer and the purchase by the Sponsor of the Series D Common Securities, the Sponsor will deposit in the Series D Trust, and the Series D Trust will purchase, respectively, as trust assets, Series D Debentures of the Sponsor having an aggregate principal amount equal to Seventy-Eight Million Seven Hundred and Forty-Three Thousand Seven Hundred Dollars ($78,743,700), and bearing interest at an annual rate equal to the annual Distribution rate on the Series D Preferred Securities and Series D Common Securities and having payment and redemption provisions which correspond to the payment and redemption provisions of the Series D Preferred Securities and Series D Common Securities. 2. Distributions. (a) Distributions payable on each Security will be fixed at a rate per annum of 8.67% (the "Coupon Rate") of the stated liquidation amount of $25 per Security, such rate being the rate of interest payable on the Series D Debentures to be held by the Institutional Trustee. Distributions in arrears for more than one quarter will bear interest thereon compounded quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by applicable law). The term "Distributions" as used herein includes such cash distributions and any such interest (including Additional Interest and Compound Interest) payable unless otherwise stated. A Distribution will be made by the Institutional Trustee only to the extent that payments are made in respect of the Series D Debentures held by the Institutional Trustee and to the extent the Series D Trust has funds available in the Institutional Trustee Account. The amount of Distributions payable for any period will be computed for any full quarterly Distribution period on the basis of a 360-day year of twelve 30-day months, and for any period shorter than a full quarterly Distribution period for which Distributions are computed, Distributions will be computed on the basis of the actual number of days elapsed. In addition, Holders of Series D Preferred Securities will be entitled to an additional cash distribution at the rate of 7.92% per annum of the liquidation amount thereof from April 1, 1997 through July 2, 1997 (the expiration date of the Series D Offer, the "Expiration Date"), in lieu of dividends accumulating and unpaid from April 1, 1997 on Series D 7.92% Depositary Shares accepted for exchange in the Series D Offer, such additional distributions to be made on August 1, 1997 to Holders of the Series D Preferred Securities on the record date for such distribution ("Pre-Issuance Interest"). Payment of Pre-Issuance Interest may not be deferred as provided in subsection (b) below. (b) Distributions on the Series D Securities will be cumulative, will accrue from July 3, 1997, the first date following the Expiration Date (the "Series D Accrual Date"), and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1, 1997, when, as and if available for payment (a "Distribution Payment Date"). With the exception of Pre-Issuance Interest, so long as the Series D Debenture Issuer shall not be in default in the payment of interest on the Series D Debentures, the Series D Debenture Issuer has the right under the Indenture to defer payments of interest on the Series D Debentures by extending the interest payment period from time to time on the Series D Debentures for a period not exceeding 20 consecutive quarters (each a "Series D Extension Period"), during which Series D Extension Period no interest shall be due and payable on the Series D Debentures, provided that no Series D Extension Period shall last beyond the Series D Stated Maturity. As a consequence of such deferral, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon Rate compounded quarterly to the extent permitted by law during any such Series D Extension Period. Prior to the termination of any such Series D Extension Period, the Series D Debenture Issuer may further extend such Series D Extension Period; provided that such Series D Extension Period, together with all such previous and further extensions thereof, may not exceed 20 consecutive quarters or extend beyond the Series D Stated Maturity. Any interest accrued on the Series D Debentures during a Series D Extension Period shall be paid Pro Rata to holders of Series D Debentures on the first payment date following the Series D Extension Period and the Payment Amount shall be paid Pro Rata to the Holders on the first Distribution Payment Date following the Series D Extension Period. Upon the termination of any Series D Extension Period and the payment of all amounts then due, the Series D Debenture Issuer may commence a new Series D Extension Period, subject to the above requirements. In the event that the Series D Debenture Issuer exercises this right, then the Series D Debenture Issuer shall not (i) declare or pay any dividend on, make a distribution with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock (other than (a) 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 Series D Debenture Issuer of its obligations under any employee benefit plans or any other contractual obligation of the Series D Debenture Issuer (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 reclassification of the Series D Debenture Issuer's capital stock or the exchange or conversion of one class or series of the Series D Debenture Issuer's capital stock for another class or series of the Series D Debenture Issuer's capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of the Series D Debenture Issuer'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 Series D Debenture Issuer that rank pari passu with or junior to such Series D Debentures (including any other series of debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the Series D Series D Preferred Securities Guarantee). (c) Distributions on the Series D Securities will be payable promptly by the Institutional Trustee upon receipt of immediately available funds to the Holders thereof as they appear on the books and records of the Series D Trust on the relevant record dates, which will be the 15th day of the month immediately preceding the month which includes the relevant distribution date. The record dates and distribution dates shall be the same as the record dates and payment dates on the Series D Debentures. Distributions payable on any Series D Securities that are not punctually paid on any Distribution Payment Date, as a result of the Series D Debenture Issuer having failed to make the corresponding interest payment on the Series D Debentures, will forthwith cease to be payable to the Person in whose name such Series D Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Series D Securities are registered on the special record date established by the Regular Trustees, which record date shall correspond to the special record date or other specified date determined in accordance with the Indenture; provided, however, that Distributions shall not be considered payable on any Distribution Payment Date falling within a Series D Extension Period unless the Series D Debenture Issuer has elected to make a full or partial payment of interest accrued on the Series D Debentures on such Distribution Payment Date. Distributions on the Series D Securities will be paid by the Series D Trust. All Distributions paid with respect to the Series D Securities shall be paid on a Pro Rata basis to Holders thereof entitled thereto. If any date on which Distributions are payable on the Series D Securities is not a Business Day, then payment of the Distribution 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. (d) If at any time while the Institutional Trustee is the Holder of any Series D Securities, 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 Series D Debenture Issuer will pay as additional interest ("Additional Interest") on the Series D Securities held by the Institutional Trustee, such amounts as shall be required so that the net amounts received and retained by the Series D Trust and the Institutional Trustee after paying any such taxes, duties, assessments or other governmental charges will be equal to 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. (e) In the event that there is any money or other property held by or for the Series D Trust that is not accounted for hereunder, such property shall be distributed Pro Rata among the Holders. 3. Liquidation Distribution Upon Dissolution. In the event of any voluntary or involuntary liquidation, dissolution, winding-up or termination of the Series D Trust (each a "Liquidation"), the Holders on the date of the Liquidation will be entitled to receive Pro Rata out of the assets of the Series D Trust available for distribution to Holders after satisfaction of liabilities of creditors distributions in an amount equal to the aggregate of the stated liquidation amount of $25 per Security plus accrued and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"), unless, in connection with such Liquidation, Series D Debentures in an aggregate stated principal amount equal to the aggregate stated liquidation amount of such Series D Securities, with an interest rate equal to the Coupon Rate of, and bearing accrued and unpaid interest in an amount equal to the accrued and unpaid Distributions on, such Series D Securities, shall be distributed on a Pro Rata basis to the Holders in exchange for such Series D Securities. 4. Redemption and Distribution. (a) Redemption of the Series D Securities will occur simultaneously with any repayment of the Series D Debentures. The Series D Debentures will mature on July 1, 2012 (which date may be shortened to a date no earlier than August 1, 1999, subject to certain conditions) (such date, including as so shortened, the "Series D Stated Maturity"). Upon the repayment of the Series D Debentures at maturity, the proceeds from such repayment shall be simultaneously applied to redeem Series D Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Debentures so repaid at a redemption price of $25 per Security, plus an amount equal to accrued and unpaid Distributions thereon at the date of the redemption, payable in cash (the "Maturity Redemption Price"). Holders will be given not less than 30 nor more than 60 days notice of such redemption. Such notice can be given either before or after repayment of the Series D Debentures. (b) If, at any time prior to August 1, 1999, a Tax Event shall occur and be continuing, the Series D Debenture Issuer shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series D Debentures, 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 such Series D Debentures are prepaid during the period commencing on the Series D Accrual Date through and including July 31, 1997 and (ii) the percentage of the principal amount of the Series D Debentures specified below, if such Series D Debentures are 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 Upon such redemption, all Series D Securities shall be redeemed by the Series D Trust at a redemption price equal to the Series D Tax Event Prepayment Price (the "Series D Tax Event Redemption Price"). (c) The Series D Debentures are redeemable in whole or in part, from time to time, on or after August 1, 1999 upon not less than 30 nor more than 60 days notice, 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. Upon such prepayment, the proceeds from such prepayment shall simultaneously be applied to redeem Series D Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Debentures so prepaid at a redemption price equal to the Series D Optional Prepayment Price (the "Series D Optional Redemption Price"). Notwithstanding anything to the contrary contained herein, the Series D Debenture Issuer 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 date of prepayment. "Series D Redemption Price" means the Maturity Redemption Price, the Series D Optional Redemption Price or the Series D Tax Event Redemption Price, as the context requires. "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 Securities, 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 on the Series D Debentures is not, or within 90 days of the date thereof will not be, deductible by the Company, 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 thereof, subject to more than a de minimis amount of other taxes, duties or other governmental charges. (d) If fewer than all the outstanding Series D Securities are to be so redeemed, the Series D Common Securities and the Series D Preferred Securities will be redeemed Pro Rata (as such term is defined in Section 8 hereof) as described in Section 4(g)(ii) below. (e) The Series D Trust may not redeem fewer than all the outstanding Series D Securities unless all accrued and unpaid Distributions have been paid on all Series D Securities for all quarterly Distribution periods terminating on or before the date of redemption. (f) The Series D Debenture Issuer will have the right at any time to liquidate the Series D Trust and cause the Series D Debentures to be distributed to the Holders. If the Series D Debentures are distributed to the Holders and the Series D Preferred Securities are then listed on an exchange, the Series D Debenture Issuer will use its best efforts to cause the Series D Debentures to be listed on the NYSE or on such other exchange as the Series D Preferred Securities are then listed. On the date fixed for any distribution of Series D Debentures upon dissolution of the Series D Trust, (i) the Series D Preferred Securities will no longer be deemed to be outstanding, (ii) the Depository Institution or its nominee, as the record holder of the Series D Preferred Securities, will receive a registered global certificate or certificates representing the Series D Debentures to be delivered upon such distribution, and (iii) any certificates representing Series D Preferred Securities not held by the Depository Institution or its nominee will be deemed to represent Series D Debentures having an aggregate principal amount equal to the aggregate stated liquidation amount of, with an interest rate identical to the distribution rate of, and accrued and unpaid interest equal to accrued and unpaid distributions on, such Series D Preferred Securities until such certificates are presented to the Series D Debenture Issuer or its agent for transfer or reissuance. (g) Redemption or Distribution Procedures. (i) Notice of any redemption of the Series D Debentures, or notice of distribution of Series D Debentures in exchange for the Series D Securities (a "Series D Redemption/Distribution Notice") will be given by the Series D Trust by mail to each Holder of Series D Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date fixed for redemption or exchange thereof which, in the case of a redemption, will be the date fixed for redemption of the Series D Debentures. For purposes of the calculation of the date of redemption or exchange and the dates on which notices are given pursuant to this Section 4(f)(i), a Series D Redemption/Distribution Notice shall be deemed to be given on the day such notice is first mailed by first-class mail, postage prepaid, to Holders. Each Series D Redemption/Distribution Notice shall be addressed to the Holders at the address of each such Holder appearing in the books and records of the Series D Trust. No defect in the Series D Redemption/Distribution Notice or in the mailing of either thereof with respect to any Holder shall affect the validity of the redemption or exchange proceedings with respect to any other Holder. (ii) In the event that fewer than all the outstanding Series D Securities are to be redeemed, the Series D Securities to be redeemed shall be redeemed Pro Rata from each Holder, it being understood that, in respect of Series D Preferred Securities registered in the name of and held of record by the Depository Institution or its nominee, the distribution of the proceeds of such redemption will be made to each Depository Institution Participant (or Person on whose behalf such nominee holds such securities) in accordance with the procedures applied by such agency or nominee. (iii) If Series D Securities are to be redeemed and the Series D Trust gives a Series D Redemption/Distribution Notice, which notice may only be issued if the Series D Debentures are redeemed as set out in this Section 4 (which notice will be irrevocable), then by 12:00 noon, Eastern time, on the redemption date, the Series D Debenture Issuer will deposit with one or more paying agents an amount of money sufficient to redeem on the redemption date all the Series D Securities so called for redemption at the Series D Redemption Price. If a Series D Redemption/Distribution Notice shall have been given and funds deposited as required, if applicable, then immediately prior to the close of business on the date of such deposit, or on the redemption date, as applicable, distributions will cease to accrue on the Series D Securities so called for redemption and all rights of Holders of such Series D Securities so called for redemption will cease, except the right of the Holders of such Series D Securities to receive the Series D Redemption Price, but without interest on such Series D Redemption Price. On presentation and surrender of such Series D Securities at a place of payment specified in said notice, the said Series D Securities or the specified portions thereof shall be paid and redeemed by the Series D Trust at the applicable Series D Redemption Price. Neither the Regular Trustees nor the Series D Trust shall be required to register or cause to be registered the transfer of any Series D Securities that have been so called for redemption. If any date fixed for redemption of Series D Securities is not a Business Day, then payment of the Series D Redemption Price 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 falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. If payment of the Series D Redemption Price in respect of any Series D Securities is improperly withheld or refused and not paid either by the Institutional Trustee or by the Sponsor as guarantor pursuant to the relevant Series D Securities Guarantee, Distributions on such Series D Securities will continue to accrue from the original redemption date to the actual date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the Series D Redemption Price. (iv) The Series D Trust shall not be required to (i) issue, or register the transfer or exchange of, any Series D Securities during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of Series D Securities and ending at the close of business on the day of the mailing of the relevant notice of redemption and (ii) register the transfer or exchange of any Series D Securities so selected for redemption, in whole or in part, except the unredeemed portion of any Series D Securities being redeemed in part. (v) Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws and regulations of the Federal Reserve Board), the Sponsor or any of its subsidiaries may at any time and from time to time purchase outstanding Series D Preferred Securities by tender, in the open market or by private agreement. 5. Voting Rights -- Series D Preferred Securities. (a) Except as provided under Sections 5(b) and 7 and as otherwise required by law and the Series D Declaration, the Holders of the Series D Preferred Securities will have no voting rights. (b) Subject to the requirements set forth in the immediately following paragraph, the Holders of a majority in aggregate liquidation amount of the Series D Preferred Securities, voting separately as a class, have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Institutional Trustee, or to direct the exercise of any trust or power conferred upon the Institutional Trustee under the Series D Declaration, including the right to direct the Institutional Trustee, as holder of the Series D Debentures, to (i) exercise the remedies available to it under the Indenture as holder of the Series D Debentures, (ii) waive any past Event of Default and its consequences that is waivable under Section 5.07 of the Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Series D Debentures shall be due and payable, or (iv) consent to any amendment, modification or termination of the Indenture or the Series D Debentures where such consent shall be required; provided, however, that, where a consent or action under the Indenture would require the consent or act of a Super Majority, only the Holders of at least such Super Majority in aggregate liquidation amount of the Series D Preferred Securities may direct the Institutional Trustee to give such consent or take such action; and provided further, that where a consent or action under the Indenture is only effective against each holder of Series D Debentures who has consented thereto, such consent or action will only be effective against a holder of Series D Preferred Securities who directs the Institutional Trustee to give such consent or take such action. A waiver of an Indenture Event of Default will constitute a waiver of the corresponding Declaration Event of Default. The Institutional Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Series D Preferred Securities. If the Institutional Trustee fails to enforce its rights under the Series D Debentures after a holder of record of Series D Preferred Securities has made a written request, such holder of record of Series D Preferred Securities may institute a legal proceeding directly against the Series D Debenture Issuer to enforce the Institutional Trustee's rights under the Series D Debentures without first instituting any legal proceeding against the Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Series D Debenture Issuer to pay interest or principal on the Series D Debentures on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a Holder of Series D Preferred Securities may institute a Direct Action for enforcement of payment to such Holder of the principal of or interest on the Series D Debentures having a principal amount equal to the aggregate liquidation amount of the Series D Preferred Securities of such holder on or after the respective due date specified in the Series D Debentures. Notwithstanding any payments made to such Holder of Series D Preferred Securities by the Series D Debenture Issuer in connection with a Direct Action, the Series D Debenture Issuer shall remain obligated to pay the principal of or interest on the Series D Debentures held by the Series D Trust or the Institutional Trustee of the Series D Trust, and the Series D Debenture Issuer shall be subrogated to the rights of the Holder of such Series D Preferred Securities with respect to payments on the Series D Preferred Securities to the extent of any payments made by the Series D Debenture Issuer to such Holder in any Direct Action. Except as provided in the preceding sentences, the Holders of Series D Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Series D Debentures. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the Institutional Trustee shall not take any of the actions described in clauses (i), (ii) or (iii) above unless the Institutional Trustee has obtained an opinion of a nationally-recognized tax counsel experienced in such matters to the effect that, as a result of such action, the Series D Trust will not fail to be classified as a grantor trust for United States federal income tax purposes. Any approval or direction of Holders of Series D Preferred Securities may be given at a separate meeting of Holders of Series D Preferred Securities convened for such purpose, at a meeting of all of the Holders of Series D Securities in the Series D Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Series D Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Series D Preferred Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought and (iii) instructions for the delivery of proxies or consents. No vote or consent of the Holders of the Series D Preferred Securities will be required for the Series D Trust to redeem and cancel Series D Preferred Securities or to distribute the Series D Debentures in accordance with the Series D Declaration and the terms of the Series D Securities. Notwithstanding that Holders of Series D Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Series D Preferred Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if they were not outstanding. Holders of the Series D Preferred Securities will have no rights to appoint or remove the Trustees, who may be appointed, removed or replaced solely by the Sponsor, as Holder of all of the Series D Common Securities. 6. Voting Rights -- Series D Common Securities. (a) Except as provided under Sections 6(b), (c) and 7 and as otherwise required by law and the Series D Declaration, the Holders of the Series D Common Securities will have no voting rights. (b) The Holders of the Series D Common Securities are entitled, in accordance with Article 5 of the Series D Declaration, to vote to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees. (c) Subject to Section 2.6 of the Series D Declaration and only after the Event of Default with respect to the Series D Preferred Securities has been cured, waived, or otherwise eliminated and subject to the requirements of the second to last sentence of this paragraph, the Holders of a Majority in liquidation amount of the Series D Common Securities, voting separately as a class, may direct the time, method, and place of conducting any proceeding for any remedy available to the Institutional Trustee, or exercising any trust or power conferred upon the Institutional Trustee under the Series D Declaration, including (i) directing the time, method, place of conducting any proceeding for any remedy available to the Debt Trustee, or exercising any trust or power conferred on the Debt Trustee with respect to the Series D Debentures, (ii) waive any past default and its consequences that is waivable under Section 5.07 of the Indenture, or (iii) exercise any right to rescind or annul a declaration that the principal of all the Series D Debentures shall be due and payable; provided that, where a consent or action under the Indenture would require the consent or act of a Super Majority of holders of Series D Debentures affected thereby the Institutional Trustee may only give such consent or take such action at the written direction of the holders of at least the proportion in liquidation amount of the Series D Common Securities which the relevant Super Majority represents of the aggregate principal amount of the Series D Debentures outstanding; and provided further, that where a consent or action under the Indenture would require the consent or action of each holder of Series D Debentures, each Holder of Series D Preferred Securities must direct the Institutional Trustee to give such consent or take such action. Pursuant to this Section 6(c), the Institutional Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Series D Preferred Securities. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the Institutional Trustee shall not take any action in accordance with the directions of the Holders of the Series D Common Securities under this paragraph unless the Institutional Trustee has obtained an opinion of a nationally-recognized tax counsel experienced in such matters to the effect that, as a result of such action, the Series D Trust will not fail to be classified as a grantor trust for United States federal income tax purposes. If the Institutional Trustee fails to enforce its rights under the Series D Declaration, any Holder of Series D Common Securities may institute a legal proceeding directly against any Person to enforce the Institutional Trustee's rights under the Series D Declaration, without first instituting a legal proceeding against the Institutional Trustee or any other Person. Any approval or direction of Holders of Series D Common Securities may be given at a separate meeting of Holders of Series D Common Securities convened for such purpose, at a meeting of all of the Holders of Series D Securities in the Series D Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Series D Common Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Series D Common Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought and (iii) instructions for the delivery of proxies or consents. No vote or consent of the Holders of the Series D Common Securities will be required for the Series D Trust to redeem and cancel Series D Common Securities or to distribute the Series D Debentures in accordance with the Series D Declaration and the terms of the Series D Securities. 7. Amendments to Series D Declaration and Indenture. (a) In addition to any requirements under Section 12.1 of the Series D Declaration, if any proposed amendment to the Series D Declaration provides for, or the Regular Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Series D Securities, whether by way of amendment to the Series D Declaration or otherwise, or (ii) the dissolution, winding-up or termination of the Series D Trust, other than as described in Section 8.1 of the Series D Declaration, then the Holders of outstanding Series D Securities voting together as a single class will be entitled to vote on such amendment or proposal (but not on any other amendment or proposal) and such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in liquidation amount of the Series D Securities affected thereby, provided, that, if any amendment or proposal referred to in clause (i) above would adversely affect only the Series D Preferred Securities or only the Series D Common Securities, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a Majority in liquidation amount of such class of Series D Securities. (b) In the event the consent of the Institutional Trustee, as the holder of the Series D Debentures, is required under the Indenture with respect to any amendment, modification or termination on the Indenture, the Institutional Trustee shall request the written direction of the Holders of the Series D Securities with respect to such amendment, modification or termination and shall vote with respect to such amendment, modification or termination as directed by a Majority in liquidation amount of the Series D Securities voting together as a single class; provided, however, that where a consent under the Indenture would require the consent of a Super Majority, the Institutional Trustee may only give such consent at the direction of the Holders of at least the proportion in liquidation amount of the Series D Securities which the relevant Super Majority represents of the aggregate principal amount of the Series D Debentures outstanding; provided, that where a consent or action under the Indenture is only effective against each holder of Series D Debentures who has consented thereto, such consent or action will only be effective against a holder of Series D Preferred Securities who directs the Institutional Trustee to give such consent or take such action; and provided further, that the Institutional Trustee shall not take any action in accordance with the directions of the Holders of the Series D Securities under this Section 7(b) unless the Institutional Trustee has obtained an opinion of a nationally recognized tax counsel experienced in such matters to the effect that for the purposes of United States federal income tax the Series D Trust will not be classified as other than a grantor trust on account of such action. (c) Notwithstanding the foregoing, no amendment or modification may be made to the Series D Declaration if such amendment or modification would (i) cause the Series D Trust to be classified for purposes of United States federal income taxation as other than a grantor trust, (ii) reduce or otherwise adversely affect the powers of the Institutional Trustee or (iii) cause the Series D Trust to be deemed an "investment company" which is required to be registered under the Investment Company Act. 8. Pro Rata. A reference in these terms of the Series D Securities to any payment, distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder according to the aggregate stated liquidation amount of the Series D Securities held by the relevant Holder in relation to the aggregate stated liquidation amount of all Series D Securities outstanding unless, in relation to a payment, an Event of Default under the Series D Declaration has occurred and is continuing, in which case any funds available to make such payment shall be paid first to each Holder of the Series D Preferred Securities pro rata according to the aggregate stated liquidation amount of Series D Preferred Securities held by the relevant Holder relative to the aggregate stated liquidation amount of all Series D Preferred Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Series D Preferred Securities, to each Holder of Series D Common Securities pro rata according to the aggregate stated liquidation amount of Series D Common Securities held by the relevant Holder relative to the aggregate stated liquidation amount of all Series D Common Securities outstanding. 9. Ranking. The Series D Preferred Securities rank pari passu, and payment thereon shall be made Pro Rata, with the Series D Common Securities except that, where an Event of Default occurs and is continuing, the rights of Holders of the Series D Common Securities to receive payment of periodic Distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the Holders of the Series D Preferred Securities. 10. Listing. The Regular Trustees shall use their best efforts to cause the Series D Preferred Securities to be listed for quotation on the NYSE. 11. Acceptance of Series D Securities Guarantee and Indenture. Each Holder of Series D Preferred Securities and Series D Common Securities, by the acceptance thereof, agrees to the provisions of the Series D Series D Preferred Securities Guarantee and the Series D Common Securities Guarantee, respectively, including the subordination provisions therein, and to the provisions of the Indenture. 12. No Preemptive Rights. The Holders shall have no preemptive rights to subscribe for any additional securities. 13. Miscellaneous. These terms constitute a part of the Series D Declaration. The Sponsor will provide a copy of the Series D Declaration, the Series D Series D Preferred Securities Guarantee or the Series D Common Securities Guarantee (as may be appropriate), and the Indenture to a Holder without charge on written request to the Sponsor at its principal place of business. EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE Certificate Number _____ Number of Preferred Securities _____ CUSIP NO. 370439200 Certificate Evidencing Preferred Securities of GENERAL MOTORS CAPITAL TRUST D 8.67% Trust Originated Preferred Securities1M, Series D ("TOPrSSM") (liquidation amount $25 per Preferred Security) GENERAL MOTORS CAPITAL TRUST D, a statutory business trust formed under the laws of the State of Delaware (the "Series D Trust"), hereby certifies that ______________ (the "Holder") is the registered owner of preferred securities of the Series D Trust representing undivided beneficial ownership interests in the assets of the Series D Trust, designated the 8.67% Trust Originated Preferred SecuritiesSM, Series D (liquidation amount $25 per Preferred Security) (the "Series D Preferred Securities"). The Series D Preferred Securities are transferable on the books and records of the Series D Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Series D Preferred Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Series D Trust dated as of July 9 , 1997, as the same may be amended from time to time (the "Series D Declaration"), including the designation of the terms of the Series D Preferred Securities as set forth in Annex I to the Series D Declaration. Capitalized terms used herein but not defined shall have the meanings given them in the Series D Declaration. The Holder is entitled to the benefits of the Series D Preferred Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the Series D Declaration, the Series D Preferred Securities Guarantee and the Indenture to a Holder without charge upon written request to the Series D Trust at its principal place of business. Upon receipt of this certificate, the Holder is bound by the Series D Declaration and is entitled to the benefits thereunder. In addition, the Holder is deemed to have (i) agreed to the terms of the Indenture and the Series D Debentures, including that the Series D Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations (as defined in the Indenture) as and to the extent provided in the Indenture and (ii) agreed to the terms of the Series D Preferred Securities Guarantee, including that the Series D Preferred Securities Guarantee is subordinate and junior in right of payment to all other liabilities of the Sponsor, including the Series D Debentures, except those made pari passu or subordinate by their terms, and pari passu with the most senior preferred or preference stock now or hereafter issued by the Sponsor and with any guarantee now or hereafter entered into by the Sponsor in respect of any preferred or preference stock of any Affiliate of the Sponsor. By accepting this certificate, the Holder agrees to treat, for United States federal income tax purposes, the Series D Debentures as indebtedness and the Series D Preferred Securities as evidence of indirect beneficial ownership in the Series D Debentures. Unless the Authenticating Agent's Certificate of Authentication hereon has been properly executed, these Series D Preferred Securities shall not be entitled to any benefit under the Series D Declaration or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Series D Trust has caused this certificate to be signed by its duly authorized Regular Trustees. GENERAL MOTORS CAPITAL TRUST D By: Name: Title: Regular Trustee By: Name: Title: Regular Trustee By: Name: Title: Regular Trustee CERTIFICATE OF AUTHENTICATION This is one of the Series D Preferred Securities referred to in the within-mentioned Series D Declaration. Dated _____________, ________ -----------------------, as Authenticating Agent By: Authorized Signatory [FORM OF REVERSE OF SECURITY] Distributions payable on each Series D Preferred Security will be fixed at a rate per annum of 8.67% (the "Coupon Rate") of the stated liquidation amount of $25 per Preferred Security, such rate being the rate of interest payable on the Series D Debentures to be held by the Institutional Trustee. Distributions in arrears for more than one quarter will bear interest thereon compounded quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by applicable law). The term "Distributions" as used herein includes such cash distributions and any such interest (including Additional Interest and Compound Interest) payable unless otherwise stated. A Distribution will be made by the Institutional Trustee only to the extent that payments are made in respect of the Series D Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds available in the Institutional Trustee Account. The amount of Distributions payable for any period will be computed for any full quarterly Distribution period on the basis of a 360-day year of twelve 30-day months, and for any period shorter than a full quarterly Distribution period for which Distributions are computed, Distributions will be computed on the basis of the actual number of days elapsed. In addition, Holders will be entitled to an additional cash distribution at the rate of 7.92% per annum of the stated liquidation amount from April 1, 1997 through July 2, 1997 (the expiration date of the Series D Offer, the "Expiration Date") in lieu of dividends accumulating and unpaid from April 1, 1997 on Series D 7.92% Depositary Shares accepted for exchange in the Series D Offer, such additional distributions to be made on August 1, 1997 to Holders of record on the record date for such distribution ("Pre-Issuance Interest"). Payment of such additional cash distribution may not be deferred as provided in the succeeding paragraph. Except as otherwise described below, Distributions on the Series D Preferred Securities will be cumulative, will accrue from July 3, 1997, the first date following the Expiration Date, and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1, 1997, to Holders of record on the relevant record dates, which in each case will be the 15th day of the month immediately preceding the month which includes the relevant distribution date. The record dates and distribution dates shall be the same as the record dates and payment dates on the Series D Debentures. With the exception of Pre-Issuance Interest, so long as the Series D Debenture Issuer shall not be in default in the payment of interest on the Series D Debentures, the Series D Debenture Issuer has the right under the Indenture to defer payments of interest by extending the interest payment period from time to time on the Series D Debentures for a period not exceeding 20 consecutive quarters (each an "Series D Extension Period"), provided that no Series D Extension Period shall last beyond Series D Stated Maturity. As a consequence of such deferral, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon Rate compounded quarterly during any such Series D Extension Period. Prior to the termination of any such Series D Extension Period, the Series D Debenture Issuer may further extend such Series D Extension Period; provided that such Series D Extension Period together with all such previous and further extensions thereof may not exceed 20 consecutive quarters or extend beyond the Series D Stated Maturity. Payments of accrued Distributions will be payable to Holders as they appear on the books and records of the Series D Trust on the first record date after the end of the Series D Extension Period. Upon the termination of any Series D Extension Period and the payment of all amounts then due, the Series D Debenture Issuer may commence a new Series D Extension Period, subject to the above requirements. The Series D Preferred Securities shall be redeemable as provided in the Series D Declaration. ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Series D Preferred Security Certificate to: (Insert assignee's social security or tax identification number) (Insert address and zip code of assignee) and irrevocably appoints - ------------------------------------------------------------------- to transfer this Series D Preferred Security Certificate on the books of the Series D Trust. The agent may substitute another to act for him or her. Date: Signature: (Sign exactly as your name appears on the other side of this Series D Preferred Security Certificate) (Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Trustee, which requirements include membership or participation in STAMP or such other "signature guaranty program" as may be determined by the Trustee in addition to or in substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.) EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE Certificate Number __________ Number of Common Securities __________ Certificate Evidencing Common Securities of GENERAL MOTORS CAPITAL TRUST D 8.67% Trust Originated Common Securities, Series D (liquidation amount $25 per Common Security) GENERAL MOTORS CAPITAL TRUST D, a statutory business trust formed under the laws of the State of Delaware (the "Series D Trust"), hereby certifies that ______________ (the "Holder") is the registered owner of common securities of the Series D Trust representing undivided beneficial ownership interests in the assets of the Series D Trust, designated the 8.67% Trust Originated Common Securities (liquidation amount $25 per Common Security) (the "Series D Common Securities"). The Series D Common Securities are transferable on the books and records of the Series D Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Series D Common Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Series D Trust dated as of July 9, 1997, as the same may be amended from time to time (the "Series D Declaration"), including the designation of the terms of the Series D Common Securities as set forth in Annex I to the Series D Declaration. Capitalized terms used herein but not defined shall have the meaning given them in the Series D Declaration. The Holder is entitled to the benefits of the Series D Common Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the Series D Declaration, the Series D Common Securities Guarantee and the Indenture to a Holder without charge upon written request to the Sponsor at its principal place of business. Upon receipt of this certificate, the Sponsor is bound by the Series D Declaration and is entitled to the benefits thereunder. In addition, the Holder is deemed to have (i) agreed to the terms of the Indenture and the Series D Debentures, including that the Series D Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations (as defined in the Indenture) as and to the extent provided in the Indenture and (ii) agreed to the terms of the Series D Preferred Securities Guarantee, including that the Series D Preferred Securities Guarantee is subordinate and junior in right of payment to all other liabilities of the Sponsor, including the Series D Debentures, except those made pari passu or subordinate by their terms, and pari passu with the most senior preferred or preference stock now or hereafter issued by the Sponsor and with any guarantee now or hereafter entered into by the Sponsor in respect of any preferred or preference stock of any Affiliate of the Sponsor. By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Series D Debentures as indebtedness and the Series D Common Securities as evidence of indirect beneficial ownership in the Series D Debentures. Unless the Authenticating Agent's Certificate of Authentication hereon has been properly executed, these Series D Common Securities shall not be entitled to any benefit under the Series D Declaration or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Series D Trust has caused this certificate to be signed by its duly authorized Regular Trustees. GENERAL MOTORS CAPITAL TRUST D By: Name: Title: Regular Trustee By: Name: Title: Regular Trustee By: Name: Title: Regular Trustee CERTIFICATE OF AUTHENTICATION This is one of the Series D Common Securities referred to in the within-mentioned Series D Declaration. Dated _____________, ________ -----------------------------, as Authenticating Agent By: Authorized Signatory [FORM OF REVERSE OF SECURITY] Distributions payable on each Series D Common Security will be fixed at a rate per annum of 8.67% (the "Coupon Rate") of the stated liquidation amount of $25 per Common Security, such rate being the rate of interest payable on the Series D Debentures to be held by the Institutional Trustee. Distributions in arrears for more than one quarter will bear interest thereon compounded quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by applicable law). The term "Distributions" as used herein includes such cash distributions and any such interest (including Additional Interest and Compound Interest) payable unless otherwise stated. A Distribution will be made by the Institutional Trustee only to the extent that payments are made in respect of the Series D Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds available in the Institutional Trustee Account. The amount of Distributions payable for any period will be computed for any full quarterly Distribution period on the basis of a 360-day year of twelve 30-day months, and for any period shorter than a full quarterly Distribution period for which Distributions are computed, Distributions will be computed on the basis of the actual number of days elapsed. Except as otherwise described below, distributions on the Series D Common Securities will be cumulative, will accrue from July 3, 1997, the first date following the expiration date of the Series D Offer, and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1,1997, to Holders of record on relevant record dates, which in each case will be the 15th day of the month immediately preceding the month which includes the relevant distribution date. The record dates and distribution dates shall be the same as the record and payment dates on the Series D Debentures. So long as the Series D Debenture Issuer shall not be in default in the payment of interest on the Series D Debentures, the Series D Debenture Issuer has the right under the Indenture to defer payments of interest by extending the interest payment period from time to time on the Series D Debentures for a period not exceeding 20 consecutive quarters (each an "Series D Extension Period"), provided that no Series D Extension Period shall last beyond the Series D Stated Maturity. As a consequence of such deferral, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon Rate compounded quarterly during any such Series D Extension Period. Prior to the termination of any such Series D Extension Period, the Series D Debenture Issuer may further extend such Series D Extension Period; provided that such Series D Extension Period together with all such previous and further extensions thereof may not exceed 20 consecutive quarters or extend beyond the Series D Stated Maturity. Payments of accrued Distributions will be payable to Holders as they appear on the books and records of the Series D Trust on the first record date after the end of the Series D Extension Period. Upon the termination of any Series D Extension Period and the payment of all amounts then due, the Series D Debenture Issuer may commence a new Series D Extension Period, subject to the above requirements. The Series D Common Securities shall be redeemable as provided in the Series D Declaration. ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Series D Common Security Certificate to: (Insert assignee's social security or tax identification number) (Insert address and zip code of assignee) and irrevocably appoints ________________________________________________________ this Series D Common Security Certificate on the books of the Series D Trust. The agent may substitute another to act for him or her. Date: Signature: (Sign exactly as your name appears on the other side of this Series D Common Security Certificate) (Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Trustee, which requirements include membership or participation in STAMP or such other "signature guaranty program" as may be determined by the Trustee in addition to or in substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.) - -------- 1SM"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. EX-4 3 GMNEWTR.G2 FOOTER B HAS BEEN ENTERED (DRAFT) AMENDED AND RESTATED DECLARATION OF TRUST OF GENERAL MOTORS CAPITAL TRUST G Dated as of July 9, 1997 TABLE OF CONTENTS Page ARTICLE 1 INTERPRETATION AND DEFINITIONS SECTION 1.1 Definitions. 2 ARTICLE 2 TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act; Application. 7 SECTION 2.2 Lists of Holders of Series G Securities. 7 SECTION 2.3 Reports by the Institutional Trustee. 8 SECTION 2.4 Periodic Reports to the Institutional Trustee. 8 SECTION 2.5 Evidence of Compliance with Conditions Precedent. 8 SECTION 2.6 Events of Default; Waiver. 8 SECTION 2.7 Event of Default; Notice. 10 ARTICLE 3 ORGANIZATION SECTION 3.1 Name. 10 SECTION 3.2 Office. 11 SECTION 3.3 Purpose. 11 SECTION 3.4 Authority. 11 SECTION 3.5 Title to Property of the Series G Trust. 11 SECTION 3.6 Powers and Duties of the Regular Trustees. 11 SECTION 3.7 Prohibition of Actions by the Series G Trust and the Trustees. 14 SECTION 3.8 Powers and Duties of the Institutional Trustee. 15 SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee. 17 SECTION 3.10 Certain Rights of the Institutional Trustee. 18 SECTION 3.11 Delaware Trustee. 20 SECTION 3.12 Execution of Documents. 20 SECTION 3.13 Not Responsible for Recitals or Issuance of Series G Securities. 20 SECTION 3.14 Duration of Series G Trust. 21 SECTION 3.15 Mergers. 21 ARTICLE 4 SPONSOR SECTION 4.1 Sponsor's Purchase of Series G Common Securities. 22 SECTION 4.2 Responsibilities of the Sponsor. 22 SECTION 4.3 Right to Proceed. 23 SECTION 4.4 Expenses. 23 ARTICLE 5 TRUSTEES SECTION 5.1 Number of Trustees. 24 SECTION 5.2 Delaware Trustee. 24 SECTION 5.3 Institutional Trustee; Eligibility. 24 SECTION 5.4 Certain Qualifications of the Regular Trustees and Delaware Trustee Generally. 25 SECTION 5.5 Regular Trustees. 25 SECTION 5.6 Appointment, Removal and Resignation of Trustees. 26 SECTION 5.7 Vacancies among Trustees. 27 SECTION 5.8 Effect of Vacancies. 27 SECTION 5.9 Meetings. 27 SECTION 5.10 Delegation of Power. 28 SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business. 28 ARTICLE 6 DISTRIBUTIONS SECTION 6.1 Distributions. 28 ARTICLE 7 ISSUANCE OF SECURITIES SECTION 7.1 General Provisions Regarding Series G Securities. 28 ARTICLE 8 DISSOLUTION OF TRUST SECTION 8.1 Dissolution of Series G Trust. 30 ARTICLE 9 TRANSFER OF INTERESTS SECTION 9.1 Transfer of Series G Securities. 30 SECTION 9.2 Transfer of Certificates. 31 SECTION 9.3 Deemed Security Holders. 32 SECTION 9.4 Book-Entry Interests. 32 SECTION 9.5 Notices to Depository Institution. 33 SECTION 9.6 Appointment of Successor Depository Institution. 33 SECTION 9.7 Definitive Series G Preferred Security Certificates. 33 SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates. 34 ARTICLE 10 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR THERS SECTION 10.1 Liability. 34 SECTION 10.2 Exculpation. 35 SECTION 10.3 Fiduciary Duty. 35 SECTION 10.4 Indemnification. 36 SECTION 10.5 Outside Businesses. 39 ARTICLE 11 ACCOUNTING SECTION 11.1 Fiscal Year. 39 SECTION 11.2 Certain Accounting Matters. 39 SECTION 11.3 Banking. 40 SECTION 11.4 Withholding. 40 ARTICLE 12 AMENDMENTS AND MEETINGS SECTION 12.1 Amendments. 40 SECTION 12.2 Meetings of the Holders; Action by Written Consent. 42 ARTICLE 13 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE SECTION 13.1 Representations and Warranties of Institutional Trustee. 43 SECTION 13.2 Representations and Warranties of Delaware Trustee. 44 ARTICLE 14 MISCELLANEOUS 44 SECTION 14.1 Notices. 44 SECTION 14.2 Governing Law. 45 SECTION 14.3 Intention of the Parties. 46 SECTION 14.4 Headings. 46 SECTION 14.5 Successors and Assigns 46 SECTION 14.6 Partial Enforceability. 46 SECTION 14.7 Counterparts. 46 ANNEXES AND EXHIBITS ANNEX 1 Terms of 9.87% Trust Originated Preferred Securities, Series G, and 9.87% Trust Originated Common Securities, Series G EXHIBIT A-1 Form of Preferred Security Certificate EXHIBIT A-2 Form of Common Security Certificate CROSS-REFERENCE TABLE* Section of Trust Indenture Act Section of of 1939, as amended Declaration 310(a) 5.3(a) 310(b) 5.3(c) 310(c) Inapplicable 311(a) and (b) 5.3(c) 311(c) Inapplicable 312(a) 2.2(a) 312(b) 2.2(b) 313 2.3 314(a) 2.4 314(b) Inapplicable 314(c) 2.5 314(d) Inapplicable 314(e) 3.10(a) 314(f) Inapplicable 315(a) 3.9(b) 315(b) 2.7(a) 315(c) 3.9(a) 315(d) 3.9(a) 316(a) and (b) 2.6 and Annex I (Sections 5 and 6) 316(c) 3.6(e) 317(a) 3.8(c) 317(b) 3.8(h) * This Cross-Reference Table does not constitute part of the Declaration as executed and shall not affect the interpretation of any of its terms or provisions. AMENDED AND RESTATED DECLARATION OF TRUST OF GENERAL MOTORS CAPITAL TRUST G July 9, 1997 THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Series G Declaration") is dated and effective as of July 9, 1997, by the Trustees (as defined herein), the Sponsor (as defined herein) and by the holders, from time to time, of undivided beneficial ownership interests in the Series G Trust to be issued pursuant to this Series G Declaration. WHEREAS, the Trustees and the Sponsor established General Motors Capital Trust G (the "Series G Trust"), a statutory business trust under the Business Trust Act (as defined herein), pursuant to a Declaration of Trust dated April 11, 1997 (the "Original Declaration") and a Certificate of Trust filed with the Secretary of State of the State of Delaware on April 11, 1997 (the "Certificate of Trust"); and WHEREAS, the Sponsor and the Series G Trust have made an offer to exchange (the "Series G Offer") 9.87% Trust Originated Preferred Securities ("TOPrS "), Series G, representing undivided preferred beneficial ownership interests in the assets of the Series G Trust (the "Series G Preferred Securities"), for up to 9,071,910 of the Sponsor's outstanding depositary shares (the "Series G 9.12% Depositary Shares"), each representing one-fourth of a share of Series G 9.12% Preference Stock, $0.10 par value per share, of the Sponsor (the "Series G 9.12% Preference Stock") not owned by the Sponsor; and WHEREAS, concurrently with the issuance of the Series G Preferred Securities in exchange for Series G 9.12% Depositary Shares validly tendered in the Series G Offer, (a) the Series G Trust will issue and sell to the Sponsor Series G Trust Originated Common Securities representing undivided common beneficial ownership interests in the assets of the Series G Trust (the "Series G Common Securities" and, together with the "Series G Preferred Securities," the "Series G Securities") in an aggregate liquidation amount equal to at least 3% of the total capital of the Series G Trust and (b) the Sponsor will deposit into the Series G Trust as trust assets its 9.87% Junior Subordinated Deferrable Interest Debentures, Series G, due 2012 (the "Series G Debentures"), having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series G Securities so issued; and WHEREAS, the Series G Trust has been established for the principal purposes of issuing the Series G Securities and purchasing the Series G Debentures from the Series G Debenture Issuer (as defined herein); and WHEREAS, as of the date hereof, no Series G Securities have been issued; and WHEREAS, all of the Trustees and the Sponsor, by this Series G Declaration, hereby amend and restate each and every term and provision of the Original Declaration. NOW, THEREFORE, it being the intention of the parties hereto to continue the Series G Trust as a business trust under the Business Trust Act and that this Series G Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Series G Trust will be held in trust for the benefit of the Holders, subject to the provisions of this Series G Declaration. ARTICLE 1 INTERPRETATION AND DEFINITIONS SECTION 1.1 Definitions. Unless the context otherwise requires: (a) capitalized terms used in this Series G Declaration 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 G Declaration has the same meaning throughout; (c) all references to "the Series G Declaration" or "this Series G Declaration" are to this Series G Declaration as modified, supplemented or amended from time to time; (d) all references in this Series G Declaration to Articles, Sections, Annexes and Exhibits are to Articles and Sections of, and Annexes and Exhibits to, this Series G Declaration; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Series G Declaration unless otherwise defined in this Series G Declaration or unless the context otherwise requires; and (f) a reference to the singular includes the plural and vice versa. "Additional Interest" has the meaning set forth in Section 2(d) of Annex I. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule thereunder. "Agent" means any Paying Agent. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Book Entry Interest" means a beneficial ownership interest in a Global Certificate, ownership and transfers of which shall be maintained and made through book entries by a Depository Institution as described in Section 9.4. "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 law, executive order or regulation to close. "Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time, or any successor legislation. "Certificate" means a Series G Common Security Certificate or a Series G Preferred Security Certificate. "Closing Date" means the "Exchange Date" as defined in the Dealer Manager Agreement. "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation. "Commission" means the Securities and Exchange Commission. "Compound Interest" has the meaning set forth in Section 2(a) of Annex I. "Corporate Trust Office" means the office of the Institutional Trustee at which the corporate trust business of the Institutional Trustee shall, at any particular time, be principally administered, which office at the date of execution of this Agreement is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890. "Covered Person" means: (a) any officer, director, shareholder, partner, member, representative, employee or agent of (i) the Series G Trust or (ii) the Series G Trust's Affiliates; and (b) any Holder of Series G Securities. "Coupon Rate" has the meaning set forth in Section 2(a) of Annex I. "Creditor" has the meaning set forth in Section 4.4(d). "Dealer Manager Agreement" means the Dealer Manager Agreement between the Series G Debenture Issuer, the Series G Trust and the dealer managers and other parties named thereunder. "Debt Trustee" means Wilmington Trust Company, a Delaware banking corporation, as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee. "Definitive Series G Preferred Security Certificates" has the meaning set forth in Section 9.4. "Delaware Trustee" has the meaning set forth in Section 5.2. "Depository Institution" shall mean DTC, PDTC, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or other applicable statute or regulation, which, in each case, shall be designated by the Series G Debenture Issuer pursuant to either Section 2.03 or 2.11 of the Indenture. "Depository Institution Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Depository Institution effects book-entry transfers and pledges of securities deposited with the Depository Institution. "Direct Action" has the meaning set forth in Section 3.8(e). "Distribution" means a distribution payable to Holders in accordance with Section 6.1. "Distribution Payment Date" has the meaning set forth in Section 2(b) of Annex I. "DTC" means The Depository Trust Company, the initial Depository Institution. "Event of Default" in respect of the Series G Securities means an Event of Default under the Indenture which has occurred and is continuing in respect of the Series G Debentures. "Exchange" means the exchange of the Series G 9.12% Depositary Shares for the Series G Preferred Securities pursuant to the Series G Offer. "Exchange Act" means the Securities and Exchange Act of 1934, as amended from time to time, or any successor legislation. "Fiduciary Indemnified Person" has the meaning set forth in Section 10.4(b). "Global Certificate" has the meaning set forth in Section 9.4. "Holder" means a Person in whose name a Certificate representing a Security is registered, such Person being a beneficial owner within the meaning of the Business Trust Act. "Indemnified Person" means a Sponsor Indemnified Person or a Fiduciary Indemnified Person. "Indenture" means the Indenture dated as of July 1, 1997 between the Series G Debenture Issuer and the Debt Trustee, and any indenture supplemental thereto pursuant to which the Series G Debentures are to be issued, as amended. "Institutional Trustee" has the meaning set forth in Section 5.3. "Institutional Trustee Account" has the meaning set forth in Section 3.8(c). "Investment Company" means an investment company as defined in the Investment Company Act. "Investment Company Act" means the Investment Company Act of 1940, as amended from time to time, or any successor legislation. "Legal Action" has the meaning set forth in Section 3.6(g). "Liquidation" has the meaning set forth in Section 3 of Annex I. "Liquidation Distribution" has the meaning set forth in Section 3 of Annex I. "List of Holders" has the meaning set forth in Section 2.2(a). "Majority in liquidation amount of the Series G Securities" means, except as provided in the terms of the Series G Preferred Securities set forth in Annex I hereto or by the Trust Indenture Act, Holder(s) of outstanding Series G Securities voting together as a single class or, as the context may require, Holders of outstanding Series G Preferred Securities or Holders of outstanding Series G Common Securities voting separately as a class, who are the record owners of more than 50% of the aggregate 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 G Securities of the relevant class. "NYSE" means the New York Stock Exchange, Inc. "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 G Declaration shall include: (a) a statement that each officer signing the Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the 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. "Paying Agent" has the meaning set forth in Section 3.8(h). "Payment Amount" has the meaning set forth in Section 6.1. "PDTC" means The Philadelphia Depository Trust Company. "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. "Pre-Issuance Interest" has the meaning set forth in Section 2(a) of Annex I. "Pro Rata" has the meaning set forth in Section 8 of Annex I. "Quorum" means a majority of the Regular Trustees or, if there are only two Regular Trustees, both of them. "Redemption/Distribution Notice" has the meaning set forth in Section 4(g) of Annex I. "Regular Trustee" has the meaning set forth in Section 5.1. "Related Party" means, with respect to the Sponsor, any direct or indirect wholly owned subsidiary of the Sponsor or any other Person that owns, directly or indirectly, 100% of the outstanding voting securities of the Sponsor. "Resignation Request" has the meaning set forth in Section 5.6(c). "Responsible Officer" means, with respect to the Institutional Trustee, any officer within the Corporate Trust Office of the Institutional 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 Institutional 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. "Rule 3a-5" means Rule 3a-5 under the Investment Company Act. "Securities Act" means the Securities Act of 1933, as amended from time to time, or any successor legislation. "Series G Common Securities" has the meaning set forth in Section 7.1(a). "Series G Common Securities Guarantee" means the guarantee agreement to be dated as of the date hereof of the Sponsor in respect of the Series G Common Securities, as amended. "Series G Common Security Certificate" means a definitive certificate in fully registered form representing a Series G Common Security substantially in the form of Exhibit A-2. "Series G Debenture Issuer" means General Motors Corporation, a Delaware corporation, in its capacity as issuer of the Series G Debentures under the Indenture. "Series G Extension Period" has the meaning set forth in Section 2(b) of Annex I. "Series G Preferred Guarantee Trustee" means Wilmington Trust Company, a national banking association, as trustee under the Series G Preferred Securities Guarantee until a successor is appointed thereunder, and thereafter means such successor trustee. "Series G Preferred Security Beneficial Owner" means, with respect to a Book Entry Interest, a Person who is the beneficial owner of such Book Entry Interest, as reflected on the books of the Depository Institution, or on the books of a Person maintaining an account with such Depository Institution (directly as a Depository Institution Participant or as an indirect participant, in each case in accordance with the rules of such Depository Institution). "Series G Preferred Security Certificate" means a certificate representing a Series G Preferred Security substantially in the form of Exhibit A-1. "Series G Preferred Securities Guarantee" means the guarantee agreement to be dated as of the date hereof, of the Sponsor in respect of the Series G Preferred Securities, as amended. "Series G Redemption Price" has the meaning set forth in Section 4(c) of Annex I. "Series G Securities" means the Series G Common Securities and the Series G Preferred Securities. "Series G Securities Guarantees" means the Series G Common Securities Guarantee and the Series G Preferred Securities Guarantee. "Series G Stated Maturity" has the meaning set forth in Section 4(a) of Annex I. "Sponsor" means General Motors Corporation, a Delaware corporation, or any successor entity in a merger, consolidation or amalgamation, in its capacity as sponsor of the Series G Trust. "Sponsor Indemnified Person" means (a) any Regular Trustee; (b) any Affiliate of any Regular Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Regular Trustee; or (d) any officer, employee or agent of the Series G Trust or its Affiliates. "Successor Delaware Trustee" has the meaning set forth in Section 5.6(b)(ii). "Successor Entity" has the meaning set forth in Section 3.15(b)(i). "Successor Institutional Trustee" has the meaning set forth in Section 5.6(b)(i). "Successor Series G Securities" has the meaning set forth in Section 3.15(b)(i). "Super Majority" has the meaning set forth in Section 2.6(a)(ii). "Tax Event" has the meaning set forth in Section 4(c) of Annex I. "10% in liquidation amount of the Series G Securities" means, except as provided in the terms of the Series G Preferred Securities set forth in Annex I hereto or by the Trust Indenture Act, Holder(s) of outstanding Series G Securities voting together as a single class or, as the context may require, Holders of outstanding Series G Preferred Securities or Holders of outstanding Series G Common Securities voting separately as a class, who are the record owners of 10% or more of the aggregate 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 G Securities of the relevant class. "Transfer Agent" has the meaning set forth in Section 9.2(e). "Treasury Regulations" means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation. "Trustee" or "Trustees" means each Person who has signed this Series G Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder. ARTICLE 2 TRUST INDENTURE ACT SECTION 2.1 Trust Indenture Act; Application. (a) This Series G Declaration is subject to the provisions of the Trust Indenture Act that are required to be part of this Series G Declaration and shall, to the extent applicable, be governed by such provisions. (b) The Institutional Trustee shall be the only Trustee which is a trustee for the purposes of the Trust Indenture Act. (c) If,and to the extent that, any provision of this Series G Declaration limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, the duties imposed by the Trust Indenture Act shall control. (d)The application of the Trust Indenture Act to this Series G Declaration shall not affect the nature of the Series G Securities as equity securities representing undivided beneficial ownership interests in the assets of the Series G Trust. SECTION 2.2 Lists of Holders of Series G Securities. (a) Each of the Sponsor and the Regular Trustees on behalf of the Series G Trust shall provide the Institutional Trustee (i) within 14 days after each record date for payment of Distributions, a list, in such form as the Institutional Trustee may reasonably require, of the names and addresses of the Holders ("List of Holders") as of such record date, provided that neither the Sponsor nor the Regular Trustees on behalf of the Series G Trust shall be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Institutional Trustee by the Sponsor and the Regular Trustees on behalf of the Series G Trust, and (ii) at any other time, within 30 days of receipt by the Series G Trust of a written request for a List of Holders as of a date no more than 14 days before such List of Holders is given to the Institutional Trustee. The Institutional Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in the Lists of Holders given to it or which it receives in its capacity as Paying Agent (if acting in such capacity) provided that the Institutional Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. (b) The Institutional Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. SECTION 2.3 Reports by the Institutional Trustee. Within 60 days after May 15 of each year, the Institutional Trustee shall provide to the Holders of the Series G Preferred Securities 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 Institutional Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act. SECTION 2.4 Periodic Reports to the Institutional Trustee. Each of the Sponsor and the Regular Trustees on behalf of the Series G Trust shall provide to the Institutional Trustee, the Holders and the Securities and Exchange Commission 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 (provided that any certificate to be provided pursuant to Section 314(a)(4) of the Trust Indenture Act shall be provided within 120 days of the end of each fiscal year). SECTION 2.5 Evidence of Compliance with Conditions Precedent. Each of the Sponsor and the Regular Trustees on behalf of the Series G Trust shall provide to the Institutional Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Series G Declaration 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) Subject to Section 2.6(c), the Holders of a Majority in liquidation amount of Series G Preferred Securities may, by vote, on behalf of the Holders of all of the Series G Preferred Securities, waive any past Event of Default in respect of the Series G Preferred Securities and its consequences, provided that, if the underlying Event of Default under the Indenture: (i) is not waivable under the Indenture, the Event of Default under the Series G Declaration shall also not be waivable; or (ii) requires the consent or vote of greater than a majority in principal amount of the holders of the Series G Debentures (a "Super Majority") to be waived under the Indenture, then the Event of Default under the Series G Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation amount of the Series G Preferred Securities that the relevant Super Majority represents of the aggregate principal amount of the Series G Debentures outstanding; or (iii) requires the consent or vote of each Holder of Series G Debentures to be waived under the Indenture, then the Event of Default under the Series G Declaration may only be waived by each Holder of Series G Preferred Securities. The foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Series G Declaration and the Series G Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such default shall cease to exist, and any Event of Default with respect to the Series G Preferred Securities arising therefrom shall be deemed to have been cured, for every purpose of this Series G Declaration, but no such waiver shall extend to any subsequent or other default or an Event of Default with respect to the Series G Preferred Securities or impair any right consequent thereon. Any waiver by the Holders of the Series G Preferred Securities of an Event of Default with respect to the Series G Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Series G Common Securities of any such Event of Default with respect to the Series G Common Securities for all purposes of this Series G Declaration without any further act, vote, or consent of the Holders of the Series G Common Securities. (b)Subject to Section 2.6(c), the Holders of a Majority in liquidation amount of the Series G Common Securities may, by vote, on behalf of the Holders of all of the Series G Common Securities, waive any past Event of Default with respect to the Series G Common Securities and its consequences, provided that, if the underlying Event of Default under the Indenture: (i) is not waivable under the Indenture, except where the Holders of the Series G Common Securities are deemed to have waived such Event of Default under the Series G Declaration as provided below in this Section 2.6(b), then the Event of Default under the Series G Declaration shall also not be waivable; or (ii) requires the consent or vote of (A) a Super Majority to be waived, then the Event of Default under the Series G Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation amount of the Series G Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Series G Debentures outstanding or (B) each holder of Series G Debentures to be waived, then the Event of Default under the Series G Declaration may only be waived by each Holder of Series G Common Securities, except where the Holders of the Series G Common Securities are deemed to have waived such Event of Default under the Series G Declaration as provided below in this Section 2.6(b); provided further, each Holder of Series G Common Securities will be deemed to have waived any such Event of Default and all Events of Default with respect to the Series G Common Securities and its consequences until all Events of Default with respect to the Series G Preferred Securities have been cured, waived or otherwise eliminated, and until such Events of Default have been so cured, waived or otherwise eliminated, the Institutional Trustee will be deemed to be acting solely on behalf of the Holders of the Series G Preferred Securities and only the Holders of the Series G Preferred Securities will have the right to direct the Institutional Trustee in accordance with the terms of the Series G Securities set forth in Annex I hereto. If any Event of Default with respect to the Series G Preferred Securities is waived by the Holders of Series G Preferred Securities as provided in this Series G Declaration, the Holders of Series G Common Securities agree that such waiver shall also constitute the waiver of such Event of Default with respect to the Series G Common Securities for all purposes under this Series G Declaration without any further act, vote or consent of the Holders of the Series G Common Securities. Subject to the foregoing provisions of this Section 2.6(b), upon such waiver, any such default shall cease to exist and any Event of Default with respect to the Series G Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Series G Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Series G Common Securities or impair any right consequent thereon. The foregoing provisions of this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Series G Declaration and the Series G Securities, as permitted by the Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon such waiver, any such default shall cease to exist and any Event of Default with respect to the Series G Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Series G Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Series G Common Securities or impair any right consequent thereon. (c)The right of any Holder to receive payment of Distributions in accordance with this Series G Declaration and the terms of the Series G Securities set forth in Annex I on or after the respective payment dates therefor, or to institute suit for the enforcement of any such payment on or after such payment dates, shall not be impaired without the consent of each such Holder. (d)A waiver of an Event of Default under the Indenture by the Institutional Trustee at the written direction of the Holders of the Series G Preferred Securities, constitutes a waiver of the corresponding Event of Default under this Series G Declaration. The foregoing provisions of this Section 2.6(d) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Series G Declaration and the Series G Securities, as permitted by the Trust Indenture Act. SECTION 2.7 Event of Default; Notice. (a) The Institutional Trustee shall, within 90 days after the occurrence of an Event of Default, transmit by mail, first class postage prepaid, to the Holders, notice of all defaults with respect to the Series G Securities actually known to a Responsible Officer, unless such defaults have been cured before the giving of such notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby defined to be an Event of Default as defined in the Indenture, not including any periods of grace provided for therein and irrespective of the giving of any notice provided therein); provided that, except for a default in the payment of principal of, premium, if any, or interest on any of the Series G Debentures or in the payment of any sinking fund installment established for the Series G Debentures, the Institutional 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 Holders; and provided further, that in the case of any default of the character specified in Section 5.01(c) of the Indenture, no such notice to Holders shall be given until at least 60 days after the occurrence thereof but shall be given within 90 days after such occurrence. (b) The Institutional Trustee shall not be deemed to have knowledge of any default except: (i) default under Sections 5.01(a), (b), and (f) of the Indenture; or (ii) any default as to which the Institutional Trustee shall have received written notice or of which a Responsible Officer charged with the administration of the Series G Declaration shall have actual knowledge. ARTICLE 3 ORGANIZATION SECTION 3.1 Name. The Series G Trust continued by this Series G Declaration is named "General Motors Capital Trust G," as such name may be modified from time to time by the Regular Trustees following written notice to the Holders. The Series G Trust's activities may be conducted under the name of the Series G Trust or any other name deemed advisable by the Regular Trustees. SECTION 3.2 Office. The address of the principal office of the Series G Trust is c/o General Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301. Upon ten (10) Business Days' written notice to the Holders of Series G Securities, the Regular Trustees may designate another principal office. SECTION 3.3 Purpose. The exclusive purposes and functions of the Series G Trust are (i) to issue (a) its Series G Preferred Securities in exchange for Series G 9.12% Depositary Shares validly tendered in the Series G Offer and deliver such Series G 9.12% Depositary Shares to the Series G Debenture Issuer in consideration of the deposit by the Series G Debenture Issuer in the Series G Trust as trust assets of Series G Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of the Series G 9.12% Depositary Shares so delivered and (b) its Series G Common Securities to the Sponsor in exchange for cash and invest the proceeds thereof in an equal aggregate principal amount of Series G Debentures, (ii) to enter into such agreements and arrangements as may be necessary in connection with the Series G Offer and to take all actions, and exercise such discretion, as may be necessary or desirable in connection with the Series G Offer and to file such registration statements or make such other filings under the Securities Act, the Exchange Act or state securities or "Blue Sky" laws as may be necessary or desirable in connection with the Series G Offer and the issuance of the Series G Preferred Securities, and (iii) except as otherwise limited herein, to engage in those other activities necessary or incidental thereto. As more specifically provided in Section 3.7, the Series G Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Series G Trust not to be classified for United States federal income tax purposes as a grantor trust. SECTION 3.4 Authority. Subject to the limitations provided in this Series G Declaration and to the specific duties of the Institutional Trustee, the Regular Trustees shall have exclusive and complete authority to carry out the purposes of the Series G Trust. Any action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Series G Trust and any action taken by the Institutional Trustee on behalf of the Series G Trust in accordance with its powers shall constitute the act of and serve to bind the Series G Trust. In dealing with the Trustees acting on behalf of the Series G Trust, no person shall be required to inquire into the authority of the Trustees to bind the Series G Trust. Persons dealing with the Series G Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Series G Declaration. SECTION 3.5 Title to Property of the Series G Trust. Except as provided in Section 3.8 with respect to the Series G Debentures and the Institutional Trustee Account or as otherwise provided in this Series G Declaration, legal title to all assets of the Series G Trust shall be vested in the Series G Trust. The Holders shall not have legal title to any part of the assets of the Series G Trust, but shall have an undivided beneficial interest in the assets of the Series G Trust. SECTION 3.6 Powers and Duties of the Regular Trustees. The Regular Trustees shall have the exclusive power, duty and authority to cause the Series G Trust to engage in the following activities: (a) to issue the Series G Securities in accordance with this Series G Declaration in connection with the exchange of the Series G Preferred Securities and the sale of the Series G Common Securities; provided, however, that the Series G Trust may issue no more than one series of Series G Preferred Securities and no more than one series of Series G Common Securities; and, provided further, that there shall be no interests in the Series G Trust other than the Series G Securities, and the issuance of Series G Securities shall be limited to a one-time simultaneous issuance of both Series G Preferred Securities and Series G Common Securities on the Closing Date; (b)in connection with the issue and exchange of the Series G Preferred Securities, at the direction of the Sponsor, to: (i) execute and file with the Commission one or more registration statements on Form S-4 prepared by the Sponsor, including any and all amendments thereto, pertaining to the Series G Preferred Securities; (ii) execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary in order to qualify or register all or part of the Series G Preferred Securities in any State in which the Sponsor has determined to qualify or register such Series G Preferred Securities for exchange; (iii) execute and file an application, prepared by the Sponsor, to the NYSE, Inc. or any other national stock exchange or the NASDAQ Stock Market's National Market for listing or quotation upon notice of issuance of any Series G Preferred Securities; (iv) execute and file with the Commission a registration statement on Form 8-A, including any amendments thereto, prepared by the Sponsor, relating to the registration of the Series G Preferred Securities under Section 12(b) of the Exchange Act; (v) prepare, execute and file with the Commission an Issuer Tender Offer statement on Schedule 13E-3 or Schedule 13E-4, as necessary, or any other appropriate document or schedule, and any amendment thereto; (vi) execute and enter into the Dealer Manager Agreement providing for the exchange of the Series G Preferred Securities; (vii) execute and enter into one or more exchange agent agreements, information agent agreements or other agreements as may be required in connection with the Series G Offer; and (viii) execute and deliver letters, documents or instruments with DTC and PDTC. (c)to acquire the Series G Debentures in consideration of the transfer of the Series G 9.12% Depositary Shares received upon exchange of the Series G Preferred Securities and the sale of the Series G Common Securities; provided, however, that the Regular Trustees shall cause legal title to the Series G Debentures to be held of record in the name of the Institutional Trustee for the benefit of the Holders; (d) to give the Sponsor and the Institutional Trustee prompt written notice of the occurrence of a Tax Event; (e) to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Series G Securities as to such actions and applicable record dates; (f) to take all actions and perform such duties as may be required of the Regular Trustees pursuant to the terms of the Series G Securities set forth in Annex I hereto; (g)to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Series G Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Institutional Trustee has the exclusive power to bring such Legal Action; (h) to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for such services; (i) to cause the Series G Trust to comply with the Series G Trust's obligations under the Trust Indenture Act; (j) to give the certificate required by Section 314(a)(4) of the Trust Indenture Act to the Institutional Trustee, which certificate may be executed by any Regular Trustee; (k) to incur expenses that are necessary or incidental to carry out any of the purposes of the Series G Trust; (l) to act as, or appoint another Person to act as, registrar, transfer agent and paying agent for the Series G Securities; (m) to give prompt written notice to the Holders of any notice received from the Series G Debenture Issuer of its election to defer payments of interest on the Series G Debentures by extending the interest payment period under the Indenture; (n) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Series G Trust in all matters necessary or incidental to the foregoing; (o)to take all action that may be necessary or appropriate for the preservation and the continuation of the Series G Trust's valid existence, rights, franchises and privileges as a statutory business trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders or to enable the Series G Trust to effect the purposes for which the Series G Trust was created; (p) to take any action, not inconsistent with this Series G Declaration or with applicable law, that the Regular Trustees determine in their discretion to be necessary or desirable in carrying out the activities of the Series G Trust as set out in this Section 3.6, including, but not limited to: (i) causing the Series G Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act; (ii) causing the Series G Trust to be classified for United States federal income tax purposes as a grantor trust; and (iii) cooperating with the Series G Debenture Issuer to ensure that the Series G Debentures will be treated as indebtedness of the Series G Debenture Issuer for United States federal income tax purposes, provided that such actions do not adversely affect the interests of Holders; and (q) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Series G Trust to be duly prepared and filed by the Regular Trustees, on behalf of the Series G Trust. The Regular Trustees shall exercise the powers set forth in this Section 3.6 in a manner that is consistent with the purposes and functions of the Series G Trust set out in Section 3.3, and the Regular Trustees shall not take any action that is inconsistent with the purposes and functions of the Series G Trust set forth in Section 3.3. Subject to this Section 3.6, the Regular Trustees shall have none of the powers or the authority of the Institutional Trustee set forth in Section 3.8. Any expenses incurred by the Regular Trustees pursuant to this Section 3.6 shall be reimbursed by the Series G Debenture Issuer. SECTION 3.7 Prohibition of Actions by the Series G Trust and the Trustees. (a)The Series G Trust shall not, and the Trustees (including the Institutional Trustee) shall cause the Series G Trust not to, engage in any activity other than in connection with the purpose of the Series G Trust or other than as required or authorized by this Series G Declaration. In particular, the Series G Trust shall not, and the Trustees (including the Institutional Trustee) shall cause the Series G Trust not to: (i) invest any proceeds received by the Series G Trust from holding the Series G Debentures, but shall distribute all such proceeds to Holders pursuant to the terms of this Series G Declaration and of the Series G Securities; (ii) acquire any assets other than as expressly provided herein; (iii) possess Series G Trust property for other than a Series G Trust purpose; (iv) make any investments, other than investments represented by the Series G Debentures; (v) possess any power or otherwise act in such a way as to vary the Series G Trust assets or the terms of the Series G Securities in any way whatsoever; (vi) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Series G Trust other than the Series G Securities; (vii) incur any indebtedness for borrowed money; or (viii) other than as provided in this Series G Declaration or Annex I hereto, (A) direct the time, method and place of exercising any trust or power conferred upon the Debt Trustee with respect to the Series G Debentures, (B) waive any past default that is waivable under the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all the Series G Debentures held in the Series G Trust shall be due and payable, or (D) consent to any amendment, modification or termination of the Indenture or the Series G Debentures if such action would cause the Series G Trust to be classified for United States federal income tax purposes as other than a grantor trust or would cause the Series G Trust to be deemed an Investment Company required to be registered under the Investment Company Act. SECTION 3.8 Powers and Duties of the Institutional Trustee. (a) The legal title to the Series G Debentures shall be owned by and held of record in the name of the Institutional Trustee in trust for the benefit of the Holders. The right, title and interest of the Institutional Trustee to the Series G Debentures shall vest automatically in each Person who may hereafter be appointed as Institutional Trustee in accordance with Section 5.6. Such vesting and cessation of title shall be effective whether or not conveyancing documents with regard to the Series G Debentures have been executed and delivered. (b) The Institutional Trustee shall not transfer its right, title and interest in the Series G Debentures to the Regular Trustees or to the Delaware Trustee (if the Institutional Trustee does not also act as Delaware Trustee). (c) The Institutional Trustee shall: (i) establish and maintain a segregated non-interest bearing trust account (the "Institutional Trustee Account") in the name of and under the exclusive control of the Institutional Trustee on behalf of the Holders and, upon the receipt of payments of funds made in respect of the Series G Debentures held by the Institutional Trustee, deposit such funds into the Institutional Trustee Account and make payments to the Holders from the Institutional Trustee Account in accordance with Section 6.1. Funds in the Institutional Trustee Account shall be held uninvested until disbursed in accordance with this Series G Declaration; (ii) engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Series G Securities to the extent the Series G Debentures are redeemed or mature; and (iii) upon written notice of distribution issued by the Regular Trustees in accordance with the terms of the Series G Securities, engage in such ministerial activities as shall be necessary or appropriate to effect the distribution of the Series G Debentures to Holders in accordance with the provisions of the Indenture. (d) The Institutional Trustee shall take all actions and perform such duties as may be specifically required of the Institutional Trustee pursuant to the terms of the Series G Securities. (e)The Institutional Trustee shall take any Legal Action which arises out of or in connection with (i) an Event of Default of which a Responsible Officer has actual knowledge or (ii) the Institutional Trustee's duties and obligations under this Series G Declaration or the Trust Indenture Act. If the Institutional Trustee fails to enforce its rights under the Series G Debentures after a Holder of Series G Preferred Securities has made a written request, such Holder may institute a legal proceeding against the Series G Debenture Issuer to enforce the Institutional Trustee's rights under the Series G Debentures without first instituting any legal proceeding against the Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Series G Debenture Issuer to pay interest or principal on the Series G Debentures on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a Holder of Series G Preferred Securities may directly institute a proceeding for enforcement of payment to such Holder of the principal of, or interest on, the Series G Debentures having a principal amount equal to the aggregate liquidation amount of the Series G Preferred Securities of such Holder (a "Direct Action") on or after the respective due date specified in the Series G Debentures. Notwithstanding any payments made to such Holder of Series G Preferred Securities by the Series G Debenture Issuer in connection with a Direct Action, the Series G Debenture Issuer shall remain obligated to pay the principal of or interest on the Series G Debentures held by the Series G Trust or the Institutional Trustee of the Series G Trust, and the Series G Debenture Issuer shall be subrogated to the rights of the Holder of such Series G Preferred Securities with respect to payments on the Series G Preferred Securities. Except as provided in the preceding sentences and in the Series G Preferred Securities Guarantee, the Holders of Series G Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Series G Debentures. (f) The Institutional Trustee shall not resign as a Trustee unless either: (i) the Series G Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms of the Series G Securities; or (ii) a Successor Institutional Trustee has been appointed and has accepted that appointment in accordance with Section 5.6. (g) The Institutional Trustee shall have the legal power to exercise all of the rights, powers and privileges of a holder of Series G Debentures under the Indenture and, if an Event of Default actually known to a Responsible Officer occurs and is continuing, the Institutional Trustee shall, for the benefit of Holders, enforce its rights as holder of the Series G Debentures subject to the rights of the Holders pursuant to the terms of such Series G Securities. (h)The Institutional Trustee may authorize one or more Persons acceptable to the Series G Trust (each, a "Paying Agent") to pay Distributions, redemption payments or liquidation payments on behalf of the Series G Trust with respect to the Series G Securities and any such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed by the Institutional Trustee at any time and a successor Paying Agent or additional Paying Agents may be appointed at any time by the Institutional Trustee, in each case without prior notice to the Holders. The Paying Agent may perform such functions whenever the Institutional Trustee may do so. Each reference in this Series G Declaration to payment to the Holders by the Institutional Trustee includes such payment by a Paying Agent. A Paying Agent has the same rights as the Institutional Trustee to deal with the Sponsor or an Affiliate, and itself may be the Series G Trust, an Affiliate of the Series G Trust or a Related Party of the Sponsor. The Institutional Trustee hereby appoints The First National Bank of Boston to initially act as Paying Agent for the Series G Securities. (i)The Institutional Trustee shall give prompt written notice to the Holders of the Series G Securities of any notice received by it from the Series G Debenture Issuer of the Series G Debenture Issuer's election to defer payments of interest on the Series G Debentures by extending the interest payment period with respect thereto. (j) The Institutional Trustee shall notify all Holders of the Series G Preferred Securities of any notice of default received from the Debt Trustee with respect to the Series G Debentures. Such notice shall state that such event of default under the Indenture with respect to the Series G Debentures also constitutes an Event of Default hereunder. (k) Subject to this Section 3.8, the Institutional Trustee shall have none of the duties, liabilities, powers or the authority of the Regular Trustees set forth in Section 3.6. The Institutional Trustee shall exercise the powers set forth in this Section 3.8 and in Sections 3.9 and 3.10 in a manner that is consistent with the purposes and functions of the Series G Trust set out in Section 3.3, and the Institutional Trustee shall not take any action that is inconsistent with the purposes and functions of the Series G Trust set out in Section 3.3. SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee. (a) The Institutional 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 G Declaration and no implied covenants shall be read into this Series G Declaration against the Institutional Trustee. In case an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6) of which a Responsible Officer has actual knowledge, the Institutional Trustee shall exercise such of the rights and powers vested in it by this Series G Declaration, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (b) No provision of this Series G Declaration shall be construed to relieve the Institutional 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 an 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 Institutional Trustee shall be determined solely by the express provisions of this Series G Declaration and the Institutional Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Series G Declaration, and no implied covenants or obligations shall be read into this Series G Declaration against the Institutional Trustee; and (B) in the absence of bad faith on the part of the Institutional Trustee, the Institutional 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 Institutional Trustee and conforming to the requirements of this Series G Declaration; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Institutional Trustee, the Institutional Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Series G Declaration; (ii) the Institutional 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 Institutional Trustee was negligent in ascertaining the pertinent facts; (iii) the Institutional 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 Holders of not less than a Majority in liquidation amount of the Series G Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Institutional Trustee, or exercising any trust or power conferred upon the Institutional Trustee under this Series G Declaration; (iv) no provision of this Series G Declaration shall require the Institutional 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 it 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 G Declaration or adequate indemnity against such risk is not reasonably assured to it; (v)the Institutional Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the Series G Debentures and the Institutional Trustee Account shall be to deal with such property in a similar manner as the Institutional Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Institutional Trustee under this Series G Declaration and the Trust Indenture Act; (vi) the Institutional Trustee shall have no duty or liability for or with respect to the value, genuineness, existence or sufficiency of the Series G Debentures or the payment of any taxes or assessments levied thereon or in connection therewith; (vii) the Institutional Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Sponsor. Money held by the Institutional Trustee need not be segregated from other funds held by it except in relation to the Institutional Trustee Account maintained by the Institutional Trustee pursuant to Section 3.8(c)(i) and except to the extent otherwise required by law; (viii)the Institutional Trustee shall not be responsible for monitoring the compliance by the Regular Trustees or the Sponsor with their respective duties under this Series G Declaration, nor shall the Institutional Trustee be liable for any default or misconduct of the Regular Trustees or the Sponsor; and (ix) the Institutional Trustee shall not be liable for the acts or omissions of any paying agent, registrar, authenticating agent or transfer agent if other than the Institutional Trustee. SECTION 3.10 Certain Rights of the Institutional Trustee. (a) Subject to the provisions of Section 3.9: (i) the Institutional Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties; (ii) any direction or act of the Sponsor or the Regular Trustees contemplated by this Series G Declaration shall be sufficiently evidenced by an Officers' Certificate; (iii) whenever in the administration of this Series G Declaration, the Institutional Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Institutional 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 Sponsor or the Regular Trustees; (iv) the Institutional Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any rerecording, refiling or registration thereof; (v)the Institutional Trustee may consult with counsel or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise 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, which counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Institutional Trustee shall have the right at any time to seek instructions concerning the administration of this Series G Declaration from any court of competent jurisdiction; (vi) the Institutional Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Series G Declaration at the request, order or direction of any Holder, unless such Holder shall have provided to the Institutional Trustee reasonable security and indemnity against the costs, expenses (including attorneys' fees and expenses and the expenses of the Institutional 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 Institutional Trustee provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Institutional Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Series G Declaration; (vii) the Institutional Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, coupon or other paper or document, but the Institutional Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit; (viii) the Institutional Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Institutional 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 Institutional Trustee or its agents hereunder shall bind the Series G Trust and the Holders, and the signature of the Institutional Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Institutional Trustee to so act or as to its compliance with any of the terms and provisions of this Series G Declaration, both of which shall be conclusively evidenced by the Institutional Trustee's or its agent's taking such action; (x) whenever in the administration of this Series G Declaration the Institutional Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Institutional Trustee (i) may request instructions from the Holders which instructions may only be given by the Holders of the same proportion in liquidation amount of the Series G Securities as would be entitled to direct the Institutional Trustee under the terms of the Series G Securities in respect of such remedy, right or action, (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 or accordance with such instructions; and (xi) except as otherwise expressly provided by this Series G Declaration, the Institutional Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Series G Declaration. (b) No provision of this Series G Declaration shall be deemed to impose any duty or obligation on the Institutional 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 Institutional 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 Institutional Trustee shall be construed to be a duty. SECTION 3.11 Delaware Trustee. Notwithstanding any other provision of this Series G Declaration other than Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Regular Trustees or the Institutional Trustee described in this Series G Declaration. Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Business Trust Act. Notwithstanding anything herein to the contrary, the Delaware Trustee shall not be liable for the acts or omissions to act of the Series G Trust or of the Regular Trustees except such acts as the Delaware Trustee is expressly obligated or authorized to undertake under this Series G Declaration or the Business Trust Act and except for the negligence or willful misconduct of the Delaware Trustee. SECTION 3.12 Execution of Documents. Unless otherwise determined by the Regular Trustees, and except as otherwise required by the Business Trust Act or applicable law, any one of the Regular Trustees is authorized to execute on behalf of the Series G Trust any documents which the Regular Trustees have the power and authority to execute pursuant to Section 3.6. SECTION 3.13 Not Responsible for Recitals or Issuance of Series G Securities. The recitals contained in this Series G Declaration and the Series G Securities shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness. The Trustees make no representations as to the value or condition of the property of the Series G Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Series G Declaration or the Series G Securities. SECTION 3.14 Duration of Series G Trust. The Series G Trust, unless dissolved pursuant to the provisions of Article 8 hereof, shall have existence until April 11, 2052. SECTION 3.15 Mergers. (a) The Series G Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation or other body, except as described in Section 3.15(b) and (c). (b) The Series G Trust may, with the consent of the Regular Trustees or, if there are more than two, a majority of the Regular Trustees, and without the consent of the Holders, the Institutional Trustee or the Delaware Trustee, consolidate, amalgamate, merge with or into, or be replaced by a trust organized as such under the laws of any State of the United States; provided that: (i) if the Series G Trust is not the survivor, such successor entity (the "Successor Entity") either: (A) expressly assumes all of the obligations of the Series G Trust under the Series G Securities; or (B) substitutes for the Series G Preferred Securities other securities having substantially the same terms as the Series G Preferred Securities (the "Successor Series G Securities") so long as the Successor Series G Securities rank the same as the Series G Preferred Securities rank with respect to Distributions and payments upon liquidation, redemption and otherwise; (ii) the Series G Debenture Issuer expressly acknowledges a trustee of the Successor Entity that possesses the same powers and duties as the Institutional Trustee as the holder of the Series G Debentures; (iii) the Series G Preferred Securities or any Successor Series G Securities are listed, or any Successor Series G Securities will be listed upon notification of issuance, on any national securities exchange or with another organization on which the Series G Preferred Securities are then listed or quoted; (iv) such merger, consolidation, amalgamation or replacement does not cause the Series G Preferred Securities (including any Successor Series G Securities) to be downgraded by any nationally recognized statistical rating organization; (v) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the Holders (including any Successor Series G Securities) in any material respect (other than with respect to any dilution of such Holders' interests in the Successor Entity); (vi) such Successor Entity has a purpose identical to that of the Series G Trust; (vii) prior to such merger, consolidation, amalgamation or replacement, the Series G Debenture Issuer has received an opinion of a nationally recognized independent counsel to the Series G Trust experienced in such matters to the effect that: (A) such merger, consolidation, amalgamation or replacement does not adversely affect the rights, preferences and privileges of the Holders (including any Successor Series G Securities) in any material respect (other than with respect to any dilution of the Holders' interest in the Successor Entity); and (B) following such merger, consolidation, amalgamation or replacement, neither the Series G Trust nor the Successor Entity will be required to register as an Investment Company; and (C) following such merger, consolidation, amalgamation or replacement, the Series G Trust (or the Successor Entity) will be treated as a grantor trust for United States federal income tax purposes; and (viii) the Sponsor guarantees the obligations of such Successor Entity under the Successor Series G Securities at least to the extent provided by the Series G Preferred Securities Guarantee and the Series G Common Securities Guarantee. (c) Notwithstanding Section 3.15(b), the Series G Trust shall not, except with the consent of Holders of 100% in liquidation amount of the Series G Securities, consolidate, amalgamate, merge with or into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it, if such consolidation, amalgamation, merger or replacement would cause the Series G Trust or Successor Entity to be classified as other than a grantor trust for United States federal income tax purposes. ARTICLE 4 SPONSOR SECTION 4.1 Sponsor's Purchase of Series G Common Securities. On the Closing Date, the Sponsor will purchase all of the Series G Common Securities issued by the Series G Trust, in an amount at least equal to 3% of the total capital of the Series G Trust, at the same time as the Series G Preferred Securities are issued in exchange for Series G 9.12% Depositary Shares in the Series G Offer. SECTION 4.2 Responsibilities of the Sponsor. In connection with the issue and sale of the Series G Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities: (a) to prepare for filing by the Series G Trust with the Commission one or more registration statements on Form S-4 in relation to the Series G Preferred Securities, including any amendments thereto; (b)to determine the states in which to take appropriate action to qualify or register for sale all or part of the Series G Preferred Securities and to do any and all such acts, other than actions which must be taken by the Series G Trust, and advise the Series G Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Series G Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such states; (c) to prepare for filing by the Series G Trust an application to the NYSE, Inc. or any other national stock exchange or the NASDAQ National Market for listing or quotation upon notice of issuance of the Series G Preferred Securities; (d) to prepare for filing by the Series G Trust with the Commission a registration statement on Form 8-A relating to the registration of the Series G Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto; and (e) to negotiate the terms of the Dealer Manager Agreement. SECTION 4.3 Right to Proceed. The Sponsor acknowledges the rights of the Holders to institute a Direct Action as set forth in Section 3.8(e) hereto. SECTION 4.4 Expenses. In connection with the offering, sale and issuance of the Series G Debentures to the Institutional Trustee and in connection with the issuance of the Series G Securities by the Series G Trust, the Series G Debenture Issuer, in its capacity as borrower with respect to the Series G Debentures, shall: (a) pay all costs and expenses relating to the offering, sale and issuance of the Series G 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 6.06 of the Indenture; (b) be responsible and shall pay all debts and obligations (other than with respect to the Series G Securities) and all costs and expenses of the Series G Trust (including, but not limited to, costs and expenses relating to the organization, maintenance and dissolution of the Series G Trust, the offer, sale and issuance of the Series G 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 this Series G Declaration), the costs and expenses relating to the operation of the Series G 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 G Trust assets and the enforcement by the Institutional Trustee of the rights of Holders of the Series G Preferred Securities); (c) be primarily liable for any indemnification obligations arising with respect to this Series G Declaration; and (d)pay any and all taxes(other than United States withholding taxes attributable to the Series G Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the Series G Trust. The Series G Debenture Issuer's obligations under this Section 4.4 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 Series G Debenture Issuer's obligations under this Section 4.4 directly against the Series G Debenture Issuer and the Series G Debenture Issuer irrevocably waives any right of remedy to require that any such Creditor take any action against the Series G Trust or any other Person before proceeding against the Series G Debenture Issuer. The Series G Debenture Issuer agrees to execute such additional agreements as may be necessary or desirable in order to give full effect to the provisions of this Section 4.4. ARTICLE 5 TRUSTEES SECTION 5.1 Number of Trustees. (a)The number of Trustees initially shall be five.At any time before the issuance of any Series G Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees. After the issuance of any Series G Securities, the number of Trustees may be increased or decreased by vote of the Holders of a majority in liquidation amount of the Series G Common Securities voting as a class at a meeting of the Holders of the Series G Common Securities; provided, however, that, the number of Trustees shall in no event be less than two; and provided further that (i) if required under Section 5.2 below, one Trustee shall be the Delaware Trustee; (ii) there shall be at least one Trustee who is an employee or officer of, or is affiliated with the Sponsor (a "Regular Trustee"); and (iii) so long as required under Section 5.3, one Trustee shall be the Institutional Trustee. (b) Any action taken by Holders of Series G Common Securities pursuant to this Article 5 shall be taken at a meeting of Holders of Series G Common Securities convened for such purpose or by written consent of such Holders. (c) Except as otherwise provided herein, no amendment may be made to this Section 5.1 which would change any rights with respect to the number, existence or appointment and removal of Trustees, except with the consent of each Holder of Series G Common Securities. SECTION 5.2 Delaware Trustee. If required by the Business Trust Act, one Trustee (the "Delaware Trustee") shall be: (a) a natural person who is a resident of the State of Delaware; or (b) if not a natural person, an entity which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law, provided that, if the Institutional Trustee has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, then the Institutional Trustee may also be the Delaware Trustee and Section 3.11 shall have no application. The initial Delaware Trustee shall be Wilmington Trust Company until removed or replaced in accordance with Section 5.6. SECTION 5.3 Institutional Trustee; Eligibility. (a) For so long as this Series G Declaration is required to qualify as an indenture under the Trust Indenture Act, there shall at all times be one Trustee (the "Institutional Trustee") which shall: (i) not be an Affiliate of the Sponsor; 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 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 $50,000,000, 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 5.3(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 an Institutional Trustee is required the Institutional Trustee shall cease to be eligible to so act under Section 5.3(a), the Institutional Trustee shall immediately resign in the manner and with the effect set forth in Section 5.6(c). (c) If at any time an Institutional Trustee is required the Institutional Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act or becomes a creditor of the Sponsor during the time periods specified in Section 311 of the Trust Indenture Act, the Institutional Trustee and the Holder of the Series G Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of Section 310(b) and 311 of the Trust Indenture Act, as applicable. (d)The Series G Preferred Securities Guarantee shall be deemed to be specifically described in this Series G Declaration for purposes of clause (i) of the first provision contained in Section 310(b) of the Trust Indenture Act. (e) The initial Institutional Trustee shall be Wilmington Trust Company until removed or replaced in accordance with Section 5.6. SECTION 5.4 Certain Qualifications of the Regular Trustees and Delaware Trustee Generally. Each Regular Trustee and the Delaware Trustee (unless the Institutional Trustee also acts as Delaware Trustee) shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more Authorized Officers. SECTION 5.5 Regular Trustees. The initial Regular Trustees shall be John D. Finnegan, Walter G. Borst and Martin I. Darvick. (a) Except as expressly set forth in this Series G Declaration and except if a meeting of the Regular Trustees is called with respect to any matter over which the Regular Trustees have power to act, any power of the Regular Trustees may be exercised by, or with the consent of, any one of such Regular Trustees; (b) Unless otherwise determined by the Regular Trustees, and except as otherwise required by the Business Trust Act or applicable law, any one of the Regular Trustees is authorized to execute on behalf of the Series G Trust any documents which the Regular Trustees have the power and authority to execute pursuant to Section 3.6; and (c)a Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing any documents which the Regular Trustees have power and authority to cause the Series G Trust to execute pursuant to Section 3.6. SECTION 5.6 Appointment, Removal and Resignation of Trustees. (a) Subject to Section 5.6(b), Trustees may be appointed or removed without cause at any time: (i) until the issuance of any Series G Securities, by written instrument executed by the Sponsor; and (ii) after the issuance of any Series G Securities, by vote of the Holders of a Majority in liquidation amount of the Series G Common Securities voting as a class at a meeting of the Holders of the Series G Common Securities. (b) (i) So long as an Institutional Trustee is required under Section 5.3, the Trustee that acts as Institutional Trustee shall not be removed in accordance with Section 5.6(a) until a successor institutional Trustee possessing the qualifications to act as Institutional Trustee under Section 5.3(a) (a "Successor Institutional Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Institutional Trustee and delivered to the Regular Trustees, the Sponsor and the Institutional Trustee being removed; and (ii) so long as a Delaware Trustee is required under Section 5.2, the Trustee that acts as Delaware Trustee shall not be removed in accordance with this Section 5.6(a) until a successor Trustee possessing the qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Delaware Trustee and delivered to the Regular Trustees, the Sponsor and the Delaware Trustee being removed. (c) A Trustee appointed to office shall hold office until his successor shall have been appointed or until his death, removal or resignation as described herein. Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument (a "Resignation Request") in writing signed by the Trustee and delivered to the Sponsor and the Series G Trust, which resignation shall take effect upon such delivery or upon such later date as is specified therein; provided, however, that: (i) no such resignation of the Trustee that acts as the Institutional Trustee shall be effective: (A) until a Successor Institutional Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Institutional Trustee and delivered to the Series G Trust, the Sponsor and the resigning Institutional Trustee; or (B) until the assets of the Series G Trust have been completely liquidated and the proceeds thereof distributed to the Holders of the Series G Securities; and (ii) no such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Delaware Trustee and delivered to the Series G Trust, the Sponsor and the resigning Delaware Trustee. (d) The Holders of the Series G Common Securities shall use their best efforts to promptly appoint a Successor Institutional Trustee or Successor Delaware Trustee as the case may be if the Institutional Trustee or the Delaware Trustee delivers a Resignation Request in accordance with this Section 5.6. (e)If no Successor Institutional Trustee or Successor Delaware Trustee shall have been appointed and accepted appointment as provided in this Section 5.6 within 60 days after delivery to the Sponsor and the Series G Trust of a Resignation Request, the resigning Institutional Trustee or Delaware Trustee, as applicable, may petition any court of competent jurisdiction for appointment of a Successor Institutional Trustee or Successor Delaware Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper and prescribe, appoint a Successor Institutional Trustee or Successor Delaware Trustee, as the case may be. (f) No Institutional Trustee or Delaware Trustee shall be liable for the acts or omissions to act of any Successor Institutional Trustee or Successor Delaware Trustee, as the case may be. SECTION 5.7 Vacancies among Trustees. If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A resolution certifying the existence of such vacancy by the Regular Trustees or, if there are more than two, a majority of the Regular Trustees, shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 5.6. SECTION 5.8 Effect of Vacancies. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee shall not operate to annul the Series G Trust. Whenever a vacancy in the number of Regular Trustees shall occur, until such vacancy is filled by the appointment of a Regular Trustee in accordance with Section 5.6, the Regular Trustees in office, regardless of their number, shall have all the powers granted to the Regular Trustees and shall discharge all the duties imposed upon the Regular Trustees by this Series G Declaration. SECTION 5.9 Meetings. If there is more than one Regular Trustee, meetings of the Regular Trustees shall be held from time to time upon the call of any Regular Trustee. Regular meetings of the Regular Trustees may be held at a time and place fixed by resolution of the Regular Trustees. Notice of any in-person meetings of the Regular Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 48 hours before such meeting. Notice of any telephonic meetings of the Regular Trustees or any committee thereof shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice of such meeting except where a Regular Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the meeting has not been lawfully called or convened. Unless provided otherwise in this Series G Declaration, any action of the Regular Trustees may be taken at a meeting by vote of a majority of the Regular Trustees present (whether in person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is present, or without a meeting by the unanimous written consent of the Regular Trustees. In the event there is only one Regular Trustee, any and all action of such Regular Trustee shall be evidenced by a written consent of such Regular Trustee. SECTION 5.10 Delegation of Power. The Regular Trustees shall have power to delegate from time to time to such of their number or to officers of the Series G Trust the doing of such things and the execution of such instruments either in the name of the Series G Trust or the names of the Regular Trustees or otherwise as the Regular Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Series G Trust, as set forth herein. SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Institutional Trustee or the Delaware Trustee, as the case may be, may be merged or converted or with which either may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Institutional Trustee or the Delaware Trustee, as the case may be, shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Institutional Trustee or the Delaware Trustee, as the case may be, shall be the successor of the Institutional Trustee or the Delaware Trustee, as the case may be, hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. ARTICLE 6 DISTRIBUTIONS SECTION 6.1 Distributions. Holders shall receive Distributions (as defined herein) in accordance with the applicable terms of the relevant Holder's Series G Securities as set forth in Annex I. If and to the extent that the Series G Debenture Issuer makes a payment of interest (including Compound Interest and Additional Interest), premium and/or principal on the Series G Debentures held by the Institutional Trustee (the amount of any such payment being a "Payment Amount"), the Institutional Trustee shall and is directed, to the extent funds are available for that purpose, to make a distribution (a "Distribution") of the Payment Amount to Holders. ARTICLE 7 ISSUANCE OF SECURITIES SECTION 7.1 General Provisions Regarding Series G Securities. (a) The Regular Trustees shall on behalf of the Series G Trust issue the Series G Preferred Securities, which shall be one class of preferred securities representing undivided preferred beneficial ownership interests in the assets of the Series G Trust having such terms as are set forth in Annex I (which terms are incorporated by reference in, and made a part of, this Series G Declaration as if specifically set forth herein) and the Series G Common Securities, which shall be one class of common securities representing undivided common beneficial ownership interests in the assets of the Series G Trust having such terms as are set forth in Annex I (which terms are incorporated by reference in, and made a part of, this Series G Declaration as if specifically set forth herein). The Series G Trust shall issue no securities or other interests in the assets of the Series G Trust other than the Series G Preferred Securities and the Series G Common Securities. Each Security shall be dated the date of its authentication. (b) The Certificates shall be signed on behalf of the Series G Trust by a Regular Trustee. Such signature shall be the manual or facsimile signature of any present or any future Regular Trustee. Typographical and other minor errors or defects in any such reproduction of any such signature shall not affect the validity of any Security. In case any Regular Trustee of the Series G Trust who shall have signed any of the Series G Securities shall cease to be such Regular Trustee before the Certificates so signed shall be delivered by the Series G Trust, such Certificates nevertheless may be delivered as though the person who signed such Certificates had not ceased to be such Regular Trustee; and any Certificate may be signed on behalf of the Series G Trust by such persons who, at the actual date of execution of such Security, shall be the Regular Trustees of the Series G Trust, although at the date of the execution and delivery of the Series G Declaration any such person was not such a Regular Trustee. Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation of any stock exchange on which Series G Securities may be listed, or to conform to usage. Pending the preparation of definitive Certificates, the Regular Trustees on behalf of the Series G Trust may execute and the Institutional Trustee shall authenticate, temporary Certificates (printed, lithographed or typewritten), substantially in the form of the definitive Certificates in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Certificates all as may be determined by the Regular Trustees on behalf of the Series G Trust upon the same conditions and in substantially the same manner, and with like effect, as definitive Certificates. Without unnecessary delay, the Regular Trustees on behalf of the Series G Trust will execute and furnish and the Institutional Trustee shall authenticate, definitive Certificates and thereupon any or all temporary Certificates may be surrendered to the transfer agent and registrar in exchange therefor (without charge to the Holders). (c) A Security shall not be valid until authenticated by the manual or facsimile signature of an authorized signatory of the Institutional Trustee. The signature shall be conclusive evidence that the Security has been authenticated under this Series G Declaration. The Institutional Trustee may appoint an authenticating agent acceptable to the Series G Trust to authenticate Series G Securities. An authenticating agent may authenticate Series G Securities whenever the Institutional Trustee may do so. Each reference in this Series G Declaration to authentication by the Institutional Trustee includes authentication by such agent. An authenticating agent has the same rights as the Institutional Trustee to deal with the Sponsor or an Affiliate, and may itself be an Affiliate of the Series G Trust or a Related Party of the Sponsor. The Institutional Trustee hereby appoints The First National Bank of Boston initially to act as authenticating agent for the Series G Securities. (d) The consideration received by the Series G Trust for the issuance of the Series G Securities shall constitute a contribution to the capital of the Series G Trust and shall not constitute a loan to the Series G Trust. (e) Upon issuance of the Series G Securities as provided in this Series G Declaration, the Series G Securities so issued shall be deemed to be validly issued, fully paid and non-assessable. (f) Every Person, by virtue of having become a Holder or a Series G Preferred Security Beneficial Owner in accordance with the terms of this Series G Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Series G Declaration. ARTICLE 8 DISSOLUTION OF TRUST SECTION 8.1 Dissolution of Series G Trust. (a) Notwithstanding anything to the contrary contained herein, the Sponsor shall have the right at any time to dissolve the Series G Trust and cause the distribution of all of the Series G Debentures to the Holders in exchange for all of the Series G Securities in accordance with the terms of the Series G Securities. In addition, the Series G Trust shall dissolve: (i) on April 11, 2052, the expiration of the term of the Series G Trust; (ii) upon the bankruptcy of the Sponsor or the Series G Trust; (iii) upon the filing of a certificate of dissolution or its equivalent with respect to the Sponsor, the filing of a certificate of cancellation with respect to the Series G Trust after having obtained the consent of the Holders of at least a Majority in liquidation amount of the Series G Securities voting together as a single class to file such certificate of cancellation, or the revocation of the Sponsor's charter and the expiration of 90 days after the date of revocation without a reinstatement thereof; (iv) upon the entry of a decree of judicial dissolution of the Holder of the Series G Common Securities, the Sponsor or the Series G Trust; (v) when all of the Series G Securities shall have been called for redemption and the amounts necessary for redemption thereof, including any Additional Interest or Compound Interest, shall have been paid to the Holders in accordance with the terms of the Series G Securities; (vi) upon the distribution of all of the Series G Debentures to the Holders in exchange for all of the Series G Securities in accordance with the terms of the Series G Securities; or (vii) before the issuance of any Series G Securities, with the consent of all of the Regular Trustees and the Sponsor. (b) As soon as is practicable after the occurrence of an event referred to in Section 8.1(a), the Trustees shall file a certificate of cancellation with the Secretary of State of the State of Delaware. (c) The provisions of Article 10 shall survive the dissolution of the Series G Trust. ARTICLE 9 TRANSFER OF INTERESTS SECTION 9.1 Transfer of Series G Securities. (a)Series G Securities may only be transferred,in whole or in part, in accordance with the terms and conditions set forth in this Series G Declaration and in the terms of the Series G Securities. Any transfer or purported transfer of any Security not made in accordance with this Series G Declaration shall be null and void. (b) Subject to this Article 9, the Series G Preferred Securities shall be freely transferable. (c) The Sponsor may not transfer the Series G Common Securities. SECTION 9.2 Transfer of Certificates. (a) The Regular Trustees shall provide for the registration of Certificates and of transfers of Certificates, which will be effected without charge but only upon payment (with such indemnity as the Regular Trustees may require) in respect of any tax or other government charges that may be imposed in relation to it. Upon surrender for registration of transfer of any Certificate, the Regular Trustees shall cause one or more new Certificates to be issued and authenticated by the Institutional Trustee in the name of the designated transferee or transferees. Every Certificate surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form satisfactory to the Regular Trustees duly executed by the Holder or such Holder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer shall be canceled by the Regular Trustees. A transferee of a Certificate shall be entitled to the rights and subject to the obligations of a Holder hereunder upon the receipt by such transferee of a Certificate. By acceptance of a Certificate, each transferee shall be deemed to have agreed to be bound by this Series G Declaration. (b) Upon receipt by the Institutional Trustee of a Definitive Series G Preferred Security Certificate, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Institutional Trustee, requesting transfer of such Definitive Series G Preferred Security Certificate for a beneficial interest in a Global Certificate, the Institutional Trustee shall cancel such Definitive Series G Preferred Security Certificate and cause, or direct the Depository Institution to cause, the aggregate number of Series G Preferred Securities represented by the appropriate Global Certificate to be increased accordingly. If no Global Certificates are then outstanding, the Series G Trust shall issue and the Institutional Trustee shall authenticate, upon written order of any Regular Trustee, an appropriate number of Series G Preferred Securities in global form. (c) Upon receipt by the Institutional Trustee from the Depository Institution or its nominee on behalf of any Person having a beneficial interest in a Global Certificate of written instructions or such other form of instructions as is customary for the Depository Institution or the person designated by the Depository Institution, requesting transfer of a beneficial interest in a Global Certificate for a Definitive Series G Preferred Security Certificate, then the Institutional Trustee or the securities custodian, at the direction of the Institutional Trustee, will cause, in accordance with the standing instructions and procedures existing between the Depository Institution and the securities custodian, the aggregate principal amount of the Global Certificate to be reduced on its books and records and, following such reduction, the Series G Trust will execute and the Institutional Trustee will authenticate and deliver to the transferee a Definitive Series G Preferred Security Certificate. Definitive Series G Preferred Security Certificates issued in exchange for a beneficial interest in a Global Certificate shall be registered in such names and in such authorized denominations as the Depository Institution, pursuant to instructions from its Depository Institution Participants or indirect participants or otherwise, shall instruct the Institutional Trustee. The Institutional Trustee shall deliver such Series G Preferred Securities to the persons in whose names such Series G Preferred Securities are so registered in accordance with the instructions of the Depository Institution. 1. Notwithstanding any other provisions of this Series G Declaration, a Global Certificate may not be transferred as a whole except by the Depository Institution to a nominee of the Depository Institution or another nominee of the Depository Institution or by the Depository Institution or any such nominee to a successor Depository Institution or a nominee of such successor Depository Institution. (d) The Institutional Trustee may appoint a transfer agent and registrar ("Transfer Agent") acceptable to the Series G Trust to perform the functions set forth in this Section 9.2. The Transfer Agent may perform such functions whenever the Institutional Trustee may do so. Each reference in this Series G Declaration to registration and transfer of Series G Preferred Securities by the Institutional Trustee includes such activities by the Transfer Agent. The Transfer Agent has the same rights as the Institutional Trustee to deal with the Sponsor or an Affiliate, and itself may be the Series G Trust, an Affiliate of the Series G Trust or a Related Party of the Sponsor. The Institutional Trustee hereby appoints The First National Bank of Boston initially to act as Transfer Agent for the Series G Preferred Securities. SECTION 9.3 Deemed Security Holders. The Trustees may treat the Person in whose name any Certificate shall be registered on the books and records of the Series G Trust as the sole holder of such Certificate and of the Series G Securities represented by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Certificate or in the Series G Securities represented by such Certificate on the part of any Person, whether or not the Series G Trust shall have actual or other notice thereof. SECTION 9.4 Book-Entry Interests. The Series G Preferred Securities Certificates, on original issuance, will be executed and issued by the Series G Trust and authenticated by the Institutional Trustee either (i) in the form of one or more, fully-registered, global Series G Preferred Security Certificates (each a "Global Certificate"), to be delivered to DTC or PDTC, the initial Depository Institutions, by, or on behalf of, the Series G Trust to those tendering holders of Series G 9.12% Depositary Shares held in global form or (ii) in certificated form (the "Definitive Series G Preferred Security Certificates") to be held directly by the Holder to those tendering holders of Series G 9.12% Depositary Shares held directly in certificated form. Investors may elect to hold their Series G Preferred Securities directly or hold their interest through a Global Certificate. Global Certificates shall initially be registered on the books and records of the Series G Trust in the name of DTC or PDTC, as applicable, or their respective nominees. With respect to Series G Preferred Security Beneficial Owners holding their interest in Series G Preferred Securities pursuant to a Global Certificate: (a) the Series G Trust and the Trustees shall be entitled to deal with the Depository Institution, with respect to such Series G Preferred Security Beneficial Owners, for all purposes of this Series G Declaration (including the payment of Distributions on the Global Certificates and receiving approvals, votes or consents hereunder) as the Holder of such Series G Preferred Securities and the sole holder of the Global Certificates and shall have no obligation to such Series G Preferred Security Beneficial Owners; (b) to the extent that the provisions of this Section 9.4 conflict with any other provisions of this Series G Declaration, the provisions of this Section 9.4 shall control; and (c) the rights of such Series G Preferred Security Beneficial Owners shall be exercised only through the Depository Institution and shall be limited to those established by law and agreements between such Series G Preferred Security Beneficial Owners and the Depository Institution and/or the Depository Institution Participants. The Depository Institution will make book-entry transfers among the Depository Institution Participants and receive and transmit payments of Distributions on the Global Certificates to such Depository Institution Participants. Depository Institution Participants shall have no rights under this Series G Declaration with respect to any Global Certificate held on their behalf by the Depository Institution or by the Institutional Trustee as the custodian of the Depository Institution or under such Global Certificate, and the Depository Institution may be treated by the Series G Trust, the Institutional Trustee and any agent of the Series G Trust or the Institutional Trustee as the absolute owner of such Global Certificate for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Series G Trust, the Institutional Trustee or any agent of the Series G Trust or the Institutional Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository Institution or impair, as between the Depository Institution and its Depository Institution Participants, the operation of customary practices of such Depository Institution governing the exercise of the rights of a holder of a beneficial interest in any Global Certificate. At such time as all beneficial interests in a Global Certificate have either been exchanged for Definitive Series G Preferred Security Certificates to the extent permitted by this Series G Declaration or redeemed, repurchased or canceled in accordance with the terms of this Series G Declaration, such Global Certificate shall be returned to the Depository Institution for cancellation or retained and canceled by the Institutional Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Certificate is exchanged for Definitive Series G Preferred Security Certificates, or if Definitive Series G Preferred Security Certificates are exchanged for a beneficial interest in a Global Certificate, Series G Preferred Securities represented by such Global Certificate shall be reduced or increased and an adjustment shall be made on the books and records of the Institutional Trustee (if it is then the securities custodian for such Global Certificate) with respect to such Global Certificate, by the Institutional Trustee or the securities custodian, to reflect such reduction or increase. SECTION 9.5 Notices to Depository Institution. Whenever a notice or other communication to the Series G Preferred Security Holders is required under this Series G Declaration, unless and until Definitive Series G Preferred Security Certificates shall have been issued to the Series G Preferred Security Beneficial Owners pursuant to Sections 9.2, 9.4 or 9.7, the Regular Trustees shall give all such notices and communications specified herein to be given to the Series G Preferred Security Holders to the applicable Depository Institution, and shall have no notice obligations to the Series G Preferred Security Beneficial Owners. SECTION 9.6 Appointment of Successor Depository Institution. If any Depository Institution elects to discontinue its services as securities depositary with respect to the Series G Preferred Securities, the Regular Trustees may, in their sole discretion, appoint a successor Depository Institution with respect to such Series G Preferred Securities. SECTION 9.7 Definitive Series G Preferred Security Certificates. If: (a) a Depository Institution elects to discontinue its services as securities depositary with respect to the Series G Preferred Securities and a successor Depository Institution is not appointed within 90 days after such discontinuance pursuant to Section 9.6; or (b) the Regular Trustees elect after consultation with the Sponsor to terminate the book-entry system through the Depository Institutions with respect to the Series G Preferred Securities; or (c) there shall have occurred a Series G Declaration Event of Default, then: (a) Definitive Series G Preferred Security Certificates shall be prepared by the Regular Trustees on behalf of the Series G Trust with respect to such Series G Preferred Securities; and (b)upon surrender of the Global Certificates by the applicable Depository Institution, accompanied by registration instructions, the Regular Trustees shall cause Definitive Series G Preferred Security Certificates to be delivered to Series G Preferred Security Beneficial Owners in accordance with the instructions of such Depository Institution. Neither the Trustees nor the Series G Trust shall be liable for any delay in delivery of such instructions and each of them may conclusively rely on and shall be protected in relying on, said instructions of the Depository Institution. The Definitive Series G Preferred Security Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Regular Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which Series G Preferred Securities may be listed, or to conform to usage. SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates. If: (a) any mutilated Certificates should be surrendered to the Regular Trustees, or if the Regular Trustees shall receive evidence to their satisfaction of the destruction, loss or theft of any Certificate; and (b) there shall be delivered to the Regular Trustees, the Institutional Trustee or any authenticating agent such security or indemnity as may be required by them to keep each of them harmless, then, in the absence of notice that such Certificate shall have been acquired by a bona fide purchaser, any Regular Trustee on behalf of the Series G Trust shall execute and deliver and the Institutional Trustee shall authenticate, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like denomination. In connection with the issuance of any new Certificate under this Section 9.8, the Regular Trustees may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in the relevant Series G Securities, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time. ARTICLE 10 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS SECTION 10.1 Liability. (a)Except as expressly set forth in this Series G Declaration, the Series G Securities Guarantees and the terms of the Series G Securities, the Sponsor shall not be: (i) personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders which shall be made solely from assets of the Series G Trust; and (ii) be required to pay to the Series G Trust or to any Holder any deficit upon dissolution of the Series G Trust or otherwise. (b) The Series G Debenture Issuer shall be liable for all of the debts and obligations of the Series G Trust (other than payments of distributions, if any, with respect to the Series G Securities) to the extent not satisfied out of the Trust's assets. (c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. SECTION 10.2 Exculpation. (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Series G Trust 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 on behalf of the Series G Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Series G Declaration 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 Series G Trust and upon such information, opinions, reports or statements presented to the Series G Trust 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 Series G Trust, 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 Holders might properly be paid. SECTION 10.3 Fiduciary Duty. (a) To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Series G Trust or to any other Covered Person, an Indemnified Person acting under this Series G Declaration shall not be liable to the Series G Trust or to any other Covered Person for its good faith reliance on the provisions of this Series G Declaration. The provisions of this Series G Declaration, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the Institutional Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person. (b) Unless otherwise expressly provided herein: (i) whenever a conflict of interest exists or arises between an Indemnified Person and any Covered Persons; or (ii) whenever this Series G Declaration or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Series G Trust or any Holder, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Series G Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise. (c) Whenever in this Series G Declaration an Indemnified Person is permitted or required to make a decision: (i) in its "discretion" or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Series G Trust or any other Person; or (ii) in its "good faith" or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Series G Declaration or by applicable law. SECTION 10.4 Indemnification. (a) (i) The Series G Debenture Issuer shall indemnify, to the full extent permitted by law, any Sponsor Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Series G Trust) by reason of the fact that he is or was a Sponsor Indemnified Person against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Series G Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Sponsor Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Series G Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (ii) The Series G Debenture Issuer shall indemnify, to the full extent permitted by law, any Sponsor Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Series G Trust to procure a judgment in its favor by reason of the fact that he is or was a Sponsor Indemnified Person against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Series G Trust and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such Sponsor Indemnified Person shall have been adjudged to be liable to the Series G Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper. (iii) To the extent that a Sponsor Indemnified Person shall be successful on the merits or otherwise (including dismissal of an action without prejudice or the settlement of an action without admission of liability) in defense of any action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any claim, issue or matter therein, he shall be indemnified, to the full extent permitted by law, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (iv) Any indemnification under paragraphs (i) and (ii) of this Section 10.4(a) (unless ordered by a court) shall be made by the Series G Debenture Issuer only as authorized in the specific case upon a determination that indemnification of the Sponsor Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (i) and (ii). Such determination shall be made (1) by the Regular Trustees by a majority vote of a quorum consisting of such Regular Trustees who were not parties to such action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion, or (3) by the Series G Common Security Holder of the Series G Trust. (v) Expenses (including attorneys' fees) incurred by a Sponsor Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be paid by the Series G Debenture Issuer in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Sponsor Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Series G Debenture Issuer as authorized in this Section 10.4(a). Notwithstanding the foregoing, no advance shall be made by the Series G Debenture Issuer if a determination is reasonably and promptly made (i) by the Regular Trustees by a majority vote of a quorum of disinterested Regular Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Regular Trustees so directs, by independent legal counsel in a written opinion or (iii) by the Series G Debenture Issuer, that, based upon the facts known to the Regular Trustees, counsel or the Series G Debenture Issuer, as the case may be, at the time such determination is made, such Sponsor Indemnified Person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Series G Trust, or, with respect to any criminal proceeding, that such Sponsor Indemnified Person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Regular Trustees, independent legal counsel or Series G Debenture Issuer reasonably determine that such person deliberately breached his duty to the Series G Trust or its Holders. (vi) The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 10.4(a) shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the Series G Debenture Issuer or Series G Preferred Security Holders of the Series G Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification under this Section 10.4(a) shall be deemed to be provided by a contract between the Series G Debenture Issuer and each Sponsor Indemnified Person who serves in such capacity at any time while this Section 10.4(a) is in effect. Any repeal or modification of this Section 10.4(a) shall not affect any rights or obligations then existing. (vii) The Series G Debenture Issuer or the Series G Trust may purchase and maintain insurance on behalf of any person who is or was a Sponsor Indemnified Person against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Series G Debenture Issuer would have the power to indemnify him against such liability under the provisions of this Section 10.4(a). (viii) For purposes of this Section 10.4(a), references to "the Series G Trust" shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 10.4(a) with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued. (ix) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 10.4(a) shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Sponsor Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person. (b) The Series G Debenture Issuer agrees to indemnify the (i) Institutional Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Institutional Trustee and the Delaware Trustee, and (iv) any officers, directors, shareholders, members, partners, employees, representatives, custodians, nominees or agents of the Institutional Trustee and the Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified Person harmless against, any loss, liability or expense incurred 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 10.4(b) shall survive the satisfaction and discharge of this Series G Declaration. SECTION 10.5 Outside Businesses. Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Series G Trust, and the Series G Trust and the Holders shall have no rights by virtue of this Series G Declaration in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Series G Trust, shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Institutional Trustee shall be obligated to present any particular investment or other opportunity to the Series G Trust even if such opportunity is of a character that, if presented to the Series G Trust, could be taken by the Series G Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person, the Delaware Trustee and the Institutional Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. ARTICLE 11 ACCOUNTING SECTION 11.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Series G Trust shall be the calendar year, or such other year as is required by the Code. SECTION 11.2 Certain Accounting Matters. (a) At all times during the existence of the Series G Trust, the Regular Trustees shall keep, or cause to be kept, full books of account, records and supporting documents, which shall reflect in reasonable detail, each transaction of the Series G Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting principles, consistently applied. The Series G Trust shall use the accrual method of accounting for United States federal income tax purposes. The Regular Trustees of the Series G Trust shall at all times cause the Series G Trust to comply fully with all applicable accounting requirements (including, without limitation, requirements with respect to audits, reports and disclosure and dissemination of financial statements) of any exchange on which any of the Series G Securities may at such time be listed or which are required under applicable law. The books and records of the Series G Trust, together with a copy of the Series G Declaration and a certified copy of the Certificate of Trust, and any amendment thereto shall at all times be maintained at the principal office of the Series G Trust and shall be open for inspection for any examination by any Holder or its duly authorized representative for any purpose reasonably related to its interest in the Series G Trust during normal business hours. (b) The Regular Trustees shall cause to be duly prepared and delivered to each of the Holders, any annual United States federal income tax information statement, required by the Code, containing such information with regard to the Series G Securities held by each Holder as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code to deliver any such statement at a later date, the Regular Trustees shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Series G Trust. (c) The Regular Trustees shall cause to be duly prepared and filed with the appropriate taxing authority, an annual United States federal income tax return, on a Form 1041 or such other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Regular Trustees on behalf of the Series G Trust with any state or local taxing authority. SECTION 11.3 Banking. The Series G Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Series G Trust; provided, however, that all payments of funds in respect of the Series G Debentures held by the Institutional Trustee shall be made directly to the Institutional Trustee Account and no other funds of the Series G Trust shall be deposited in the Institutional Trustee Account. The sole signatories for such accounts shall be designated by the Regular Trustees; provided, however, that the Institutional Trustee shall designate the signatories for the Institutional Trustee Account. SECTION 11.4 Withholding. The Series G Trust and the Regular Trustees shall comply with all withholding requirements under United States federal, state and local law. The Series G Trust shall request, and the Holders shall provide to the Series G Trust, such forms or certificates as are necessary to establish an exemption from withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Series G Trust to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Regular Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Series G Trust is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Holder, the amount withheld shall be deemed to be a distribution in the amount of the withholding to the Holder. In the event of any claimed over withholding, Holders shall be limited to an action against the applicable jurisdiction. If the amount required to be withheld was not withheld from actual Distributions made, the Series G Trust may reduce subsequent Distributions by the amount of such withholding. ARTICLE 12 AMENDMENTS AND MEETINGS SECTION 12.1 Amendments. (a) Except as otherwise provided in this Series G Declaration or by any applicable terms of the Series G Securities, this Series G Declaration may only be amended by a written instrument approved and executed by: (i) the Regular Trustees (or, if there are more than two Regular Trustees, a majority of the Regular Trustees); (ii) if the amendment affects the rights, powers, duties, obligations or immunities of the Institutional Trustee, the Institutional Trustee; and (iii) if the amendment affects the rights, powers, duties, obligations or immunities of the Delaware Trustee, the Delaware Trustee; (b) No amendment shall be made, and any such purported amendment shall be void and ineffective: (i) unless, in the case of any proposed amendment, the Institutional Trustee shall have first received an Officers' Certificate from each of the Series G Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Series G Declaration (including the terms of the Series G Securities); (ii) unless, in the case of any proposed amendment which affects the rights, powers, duties, obligations or immunities of the Institutional Trustee, the Institutional Trustee shall have first received: (A) an Officers' Certificate from each of the Series G Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Series G Declaration (including the terms of the Series G Securities); and (B) an opinion of counsel (who may be counsel to the Sponsor or the Series G Trust) that such amendment is permitted by, and conforms to, the terms of this Series G Declaration (including the terms of the Series G Securities); and (iii) to the extent the result of such amendment would be to: (A) cause the trust to fail to continue to be classified for purposes of United States federal income taxation as a grantor trust; (B) reduce or otherwise adversely affect the powers of the Institutional Trustee in contravention of the Trust Indenture Act; or (C) cause the Series G Trust to be deemed to be an Investment Company required to be registered under the Investment Company Act; (c)At such time after the Series G Trust has issued any Series G Securities that remain outstanding, any amendment that would adversely affect the rights, privileges or preferences of any Holder may be effected only with such additional requirements as may be set forth in the terms of such Series G Securities; (d) Sections 4.4, 9.1(c) and this Section 12.1 shall not be amended without the consent of all of the Holders of the Series G Securities; (e) Article 4 shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Series G Common Securities; (f)The rights of the holders of the Series G Common Securities under Article 5 to increase or decrease the number of, and appoint and remove Trustees shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Series G Common Securities; and (g) Notwithstanding Section 12.1(c), this Series G Declaration may be amended without the consent of the Holders to: (i) cure any ambiguity; (ii) correct or supplement any provision in this Series G Declaration that may be defective or inconsistent with any other provision of this Series G Declaration; (iii) add to the covenants, restrictions or obligations of the Sponsor; (iv)conform to any change in Rule 3a-5 or written change in interpretation or application of Rule 3a-5 by any legislative body, court, government agency or regulatory authority which amendment does not have a material adverse effect on the right, preferences or privileges of the Holders; (v) preserve the status of the Series G Trust as a grantor trust for federal income tax purposes; and (vi) make any other change that does not adversely affect the rights of the Holders. It shall not be necessary for any consent of the Holders under this Section 12.1 to approve the particular form of any proposed amendment or modification to this Series G Declaration, but it shall be sufficient if such consent shall approve the substance thereof. SECTION 12.2 Meetings of the Holders; Action by Written Consent. (a)Meetings of the Holders of any class of Series G Securities may be called at any time by the Regular Trustees (or as provided in the terms of the Series G Securities) to consider and act on any matter on which Holders of such class of Series G Securities are entitled to act under the terms of this Series G Declaration, the terms of the Series G Securities or the rules of any stock exchange on which the Series G Preferred Securities are listed or admitted for trading. The Regular Trustees shall call a meeting of the Holders of such class if directed to do so by the Holders of at least 10% in liquidation amount of such class of Series G Securities. Such direction shall be given by delivering to the Regular Trustees one or more calls in a writing stating that the signing Holders wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders calling a meeting shall specify in writing the Certificates held by the Holders exercising the right to call a meeting and only those Series G Securities specified shall be counted for purposes of determining whether the required percentage set forth in the second sentence of this paragraph has been met. (b) Except to the extent otherwise provided in the terms of the Series G Securities, the following provisions shall apply to meetings of Holders: (i) notice of any such meeting shall be given to all the Holders having a right to vote thereat at least 7 days and not more than 60 days before the date of such meeting. Whenever a vote, consent or approval of the Holders is permitted or required under this Series G Declaration or the rules of any stock exchange on which the Series G Preferred Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders. Any action that may be taken at a meeting of the Holders may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders owning not less than the minimum amount of Series G Securities in liquidation amount that would be necessary to authorize or take such action at a meeting at which all Holders having a right to vote thereon were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders entitled to vote who have not consented in writing. The Regular Trustees may specify that any written ballot submitted to the Holders for the purpose of taking any action without a meeting shall be returned to the Series G Trust within the time specified by the Regular Trustees; (ii) each Holder may authorize any Person to act for it by proxy on all matters in which a Holder is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Holder executing it. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Series G Trust were a Delaware corporation and the Holders were stockholders of a Delaware corporation; (iii) each meeting of the Holders shall be conducted by the Regular Trustees or by such other Person that the Regular Trustees may designate; and (iv) unless the Business Trust Act, this Series G Declaration, the terms of the Series G Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Series G Preferred Securities are then listed or trading, otherwise provides, the Regular Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. ARTICLE 13 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE SECTION 13.1 Representations and Warranties of Institutional Trustee. The Trustee that acts as initial Institutional Trustee represents and warrants to the Series G Trust and to the Sponsor at the date of this Series G Declaration, and each Successor Institutional Trustee represents and warrants to the Series G Trust and the Sponsor at the time of the Successor Institutional Trustee's acceptance of its appointment as Institutional Trustee that: (a)the Institutional Trustee is a Delaware banking corporation with trust powers, duly organized, validly existing and in good standing under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Series G Declaration; (b) the execution, delivery and performance by the Institutional Trustee of this Series G Declaration has been duly authorized by all necessary corporate action on the part of the Institutional Trustee. This Series G Declaration has been duly executed and delivered by the Institutional Trustee, and constitutes the legal, valid and binding obligation of the Institutional Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); (c) the execution, delivery and performance of this Series G Declaration by the Institutional Trustee does not conflict with or constitute a breach of the Articles of Incorporation or By-laws of the Institutional Trustee; (d) no consent, approval or authorization of, or registration with or notice to, any State or Federal banking authority is required for the execution, delivery or performance by the Institutional Trustee, of this Series G Declaration; (e) on the closing date of the Series G Offer, the Institutional Trustee will be the record holder of the Series G Debentures and the Institutional Trustee has not knowingly created any liens or encumbrances on such Series G Debentures; and (f) the Institutional Trustee satisfies the qualifications set forth in Section 5.3. SECTION 13.2 Representations and Warranties of Delaware Trustee. The Trustee that acts as initial Delaware Trustee represents and warrants to the Series G Trust and to the Sponsor at the date of this Series G Declaration, and each Successor Delaware Trustee represents and warrants to the Series G Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee that: (a)the Delaware Trustee is a Delaware banking corporation with trust powers, duly organized, validly existing and in good standing under the laws of the State of Delaware, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Series G Declaration; (b) the Delaware Trustee has been authorized to perform its obligations under the Certificate of Trust and this Series G Declaration. The Series G Declaration under Delaware law constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); (c) no consent, approval or authorization of, or registration with or notice to, any State or Federal banking authority is required for the execution, delivery or performance by the Delaware Trustee, of this Series G Declaration; and (d) the Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in the State of Delaware. ARTICLE 14 MISCELLANEOUS SECTION 14.1 Notices. All notices provided for in this Series G Declaration 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 G Trust, in care of the Regular Trustees at the Trust's mailing address set forth below (or such other address as the Series G Trust may give notice of to the Holders): General Motors Capital Trust G c/o General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 Attention: General Counsel (b) if given to the Delaware Trustee, at the mailing address set forth below (or such other address as the Delaware Trustee may give notice of to the Holders): Wilmington Trust Company 1100 North Market Street Wilmington, Delaware 19890-0001 Attention: Corporate Trust Administration (c) if given to the Institutional Trustee, at the Institutional Trustee's mailing address set forth below (or such other address as the Institutional Trustee may give notice of to the Holders): Wilmington Trust Company 1100 North Market Street Wilmington, Delaware 19890-0001 Attention: Corporate Trust Administration (d) if given to the Holder of the Series G Common Securities, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Series G Common Securities may give notice to the Series G Trust): General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 Attention: General Counsel (e) if given to any other Holder, at the address set forth on the books and records of the Series G 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 14.2 Governing Law. THIS SERIES G DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. SECTION 14.3 Intention of the Parties. It is the intention of the parties hereto that the Series G Trust be classified for United States federal income tax purposes as a grantor trust. The provisions of this Series G Declaration shall be interpreted to further this intention of the parties. SECTION 14.4 Headings. Headings contained in this Series G Declaration are inserted for convenience of reference only and do not affect the interpretation of this Series G Declaration or any provision hereof. SECTION 14.5 Successors and Assigns Whenever in this Series G Declaration any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Series G Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed. SECTION 14.6 Partial Enforceability. If any provision of this Series G Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Series G Declaration, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. SECTION 14.7 Counterparts. This Series G Declaration may contain more than one counterpart of the signature page and this Series G Declaration may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. * * * * * IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. /s/ John D. Finnegan John D. Finnegan, as Regular Trustee /s/ Walter G. Borst Walter G. Borst, as Regular Trustee /s/ Martin I. Darvick Martin I. Darvick, as Regular Trustee WILMINGTON TRUST COMPANY, as Institutional Trustee and as Delaware Trustee By: /s/ Donald G. MacKelcan Name: Donald G. MacKelcan Title: Assistant Vice President GENERAL MOTORS CORPORATION, as Sponsor By: /s/ John D. Finnegan Name: John D. Finnegan Title: Assistant Vice President and Treasurer - -------------------- SM"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. ANNEX I TERMS OF 9.87% TRUST ORIGINATED PREFERRED SECURITIES, SERIES G 9.87% TRUST ORIGINATED COMMON SECURITIES, SERIES G Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of July 9, 1997 (as amended from time to time, the "Series G Declaration"), the designation, rights, privileges, restrictions, preferences and other terms and provisions of the Series G Securities are set out below (each capitalized term used but not defined herein has the meaning set forth in the Series G Declaration or, if not defined in the Series G Declaration, as defined in the Prospectus referred to below): 1. Designation and Number. (a) Series G Preferred Securities. 5,064,489 Series G Preferred Securities of the Series G Trust with an aggregate stated liquidation amount with respect to the assets of the Series G Trust of One Hundred and Twenty-Six Million Six Hundred and Twelve Thousand Two Hundred and Twenty-Five Dollars ($126,612,225) and a stated liquidation amount with respect to the assets of the Series G Trust of $25 per preferred security, are hereby designated for the purposes of identification only as "9.87% Trust Originated Preferred SecuritiesSM ("TOPrSSM"), Series G" (the "Series G Preferred Securities"). The Series G Preferred Security Certificates evidencing the Series G Preferred Securities shall be substantially in the form of Exhibit A-1 to the Series G Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the Series G Preferred Securities are listed. The Series G Preferred Securities shall be issued to former holders of Series G 9.12% Depositary Shares ("Series G 9.12% Depositary Shares"), each representing one-fourth of a share of Series G 9.12% Preference Stock (the "Series G 9.12% Preference Stock"), of General Motors Corporation (the "Sponsor") in exchange for such Series G 9.12% Depositary Shares pursuant to the Series G Offer. (b) Series G Common Securities. 156,634 Series G Common Securities of the Series G Trust with an aggregate stated liquidation amount with respect to the assets of the Series G Trust of Three Million Nine Hundred and Fifteen Thousand Eight Hundred and Fifty Dollars ($3,915,850) and a stated liquidation amount with respect to the assets of the Series G Trust of $25 per common security, are hereby designated for the purposes of identification only as "9.87% Trust Originated Common Securities, Series G" (the "Series G Common Securities"). The Series G Common Security Certificates evidencing the Series G Common Securities shall be substantially in the form of Exhibit A-2 to the Series G Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice. The Series G Common Securities are to be issued and sold to the Sponsor in consideration of $3,914,798.20 in cash. Series G Common Securities may be issued in fractional share amounts. (c) The Series G Preferred Securities and the Series G Common Securities represent undivided beneficial ownership interests in the assets of the Series G Trust. (d) In connection with the Series G Offer and the purchase by the Sponsor of the Series G Common Securities, the Sponsor will deposit in the Series G Trust, and the Series G Trust will purchase, respectively, as trust assets, Series G Debentures of the Sponsor having an aggregate principal amount equal to One Hundred and Thirty Million Five Hundred and Twenty-Eight Thousand Seventy-Five Dollars ($130,528,075), and bearing interest at an annual rate equal to the annual Distribution rate on the Series G Preferred Securities and Series G Common Securities and having payment and redemption provisions which correspond to the payment and redemption provisions of the Series G Preferred Securities and Series G Common Securities. 2. Distributions. (a) Distributions payable on each Security will be fixed at a rate per annum of 9.87% (the "Coupon Rate") of the stated liquidation amount of $25 per Security, such rate being the rate of interest payable on the Series G Debentures to be held by the Institutional Trustee. Distributions in arrears for more than one quarter will bear interest thereon compounded quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by applicable law). The term "Distributions" as used herein includes such cash distributions and any such interest (including Additional Interest and Compound Interest) payable unless otherwise stated. A Distribution will be made by the Institutional Trustee only to the extent that payments are made in respect of the Series G Debentures held by the Institutional Trustee and to the extent the Series G Trust has funds available in the Institutional Trustee Account. The amount of Distributions payable for any period will be computed for any full quarterly Distribution period on the basis of a 360-day year of twelve 30-day months, and for any period shorter than a full quarterly Distribution period for which Distributions are computed, Distributions will be computed on the basis of the actual number of days elapsed. In addition, Holders of Series G Preferred Securities will be entitled to an additional cash distribution at the rate of 9.12% per annum of the liquidation amount thereof from April 1, 1997 through July 2, 1997 (the expiration date of the Series G Offer, the "Expiration Date"), in lieu of dividends accumulating and unpaid from April 1, 1997 on Series G 9.12% Depositary Shares accepted for exchange in the Series G Offer, such additional distributions to be made on August 1, 1997 to Holders of the Series G Preferred Securities on the record date for such distribution ("Pre-Issuance Interest"). Payment of Pre-Issuance Interest may not be deferred as provided in subsection (b) below. (b) Distributions on the Series G Securities will be cumulative, will accrue from July 3, 1997, the first date following the Expiration Date (the "Series G Accrual Date"), and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1, 1997, when, as and if available for payment (a "Distribution Payment Date"). With the exception of Pre-Issuance Interest, so long as the Series G Debenture Issuer shall not be in default in the payment of interest on the Series G Debentures, the Series G Debenture Issuer has the right under the Indenture to defer payments of interest on the Series G Debentures by extending the interest payment period from time to time on the Series G Debentures for a period not exceeding 20 consecutive quarters (each a "Series G Extension Period"), during which Series G Extension Period no interest shall be due and payable on the Series G Debentures, provided that no Series G Extension Period shall last beyond the Series G Stated Maturity. As a consequence of such deferral, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon Rate compounded quarterly to the extent permitted by law during any such Series G Extension Period. Prior to the termination of any such Series G Extension Period, the Series G Debenture Issuer may further extend such Series G Extension Period; provided that such Series G Extension Period, together with all such previous and further extensions thereof, may not exceed 20 consecutive quarters or extend beyond the Series G Stated Maturity. Any interest accrued on the Series G Debentures during a Series G Extension Period shall be paid Pro Rata to holders of Series G Debentures on the first payment date following the Series G Extension Period and the Payment Amount shall be paid Pro Rata to the Holders on the first Distribution Payment Date following the Series G Extension Period. Upon the termination of any Series G Extension Period and the payment of all amounts then due, the Series G Debenture Issuer may commence a new Series G Extension Period, subject to the above requirements. In the event that the Series G Debenture Issuer exercises this right, then the Series G Debenture Issuer shall not (i) declare or pay any dividend on, make a distribution with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, any of its capital stock (other than (a) 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 Series G Debenture Issuer of its obligations under any employee benefit plans or any other contractual obligation of the Series G Debenture Issuer (other than a contractual obligation ranking pari passu with or junior to the Series G Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of the Series G Debenture Issuer's capital stock or the exchange or conversion of one class or series of the Series G Debenture Issuer's capital stock for another class or series of the Series G Debenture Issuer's capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of the Series G Debenture Issuer'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 Series G Debenture Issuer that rank pari passu with or junior to such Series G Debentures (including any other series of debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the Series G Series G Preferred Securities Guarantee). (c) Distributions on the Series G Securities will be payable promptly by the Institutional Trustee upon receipt of immediately available funds to the Holders thereof as they appear on the books and records of the Series G Trust on the relevant record dates, which will be the 15th day of the month immediately preceding the month which includes the relevant distribution dates. The record dates and distribution dates shall be the same as the record dates and payment dates on the Series G Debentures. Distributions payable on any Series G Securities that are not punctually paid on any Distribution Payment Date, as a result of the Series G Debenture Issuer having failed to make the corresponding interest payment on the Series G Debentures, will forthwith cease to be payable to the Person in whose name such Series G Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Series G Securities are registered on the special record date established by the Regular Trustees, which record date shall correspond to the special record date or other specified date determined in accordance with the Indenture; provided, however, that Distributions shall not be considered payable on any Distribution Payment Date falling within a Series G Extension Period unless the Series G Debenture Issuer has elected to make a full or partial payment of interest accrued on the Series G Debentures on such Distribution Payment Date. Distributions on the Series G Securities will be paid by the Series G Trust. All Distributions paid with respect to the Series G Securities shall be paid on a Pro Rata basis to Holders thereof entitled thereto. If any date on which Distributions are payable on the Series G Securities is not a Business Day, then payment of the Distribution 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. (d) If at any time while the Institutional Trustee is the Holder of any Series G Securities, the Series G 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 Series G Debenture Issuer will pay as additional interest ("Additional Interest") on the Series G Securities held by the Institutional Trustee, such amounts as shall be required so that the net amounts received and retained by the Series G Trust and the Institutional Trustee after paying any such taxes, duties, assessments or other governmental charges will be equal to the amounts the Series G Trust and the Institutional Trustee would have received had no such taxes, duties, assessments or other governmental charges been imposed. (e) In the event that there is any money or other property held by or for the Series G Trust that is not accounted for hereunder, such property shall be distributed Pro Rata among the Holders. 3. Liquidation Distribution Upon Dissolution. In the event of any voluntary or involuntary liquidation, dissolution, winding-up or termination of the Series G Trust (each a "Liquidation"), the Holders on the date of the Liquidation will be entitled to receive Pro Rata out of the assets of the Series G Trust available for distribution to Holders after satisfaction of liabilities of creditors distributions in an amount equal to the aggregate of the stated liquidation amount of $25 per Security plus accrued and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"), unless, in connection with such Liquidation, Series G Debentures in an aggregate stated principal amount equal to the aggregate stated liquidation amount of such Series G Securities, with an interest rate equal to the Coupon Rate of, and bearing accrued and unpaid interest in an amount equal to the accrued and unpaid Distributions on, such Series G Securities, shall be distributed on a Pro Rata basis to the Holders in exchange for such Series G Securities. 4. Redemption and Distribution. (a) Redemption of the Series G Securities will occur simultaneously with any repayment of the Series G Debentures. The Series G Debentures will mature on July 1, 2012 (which date may be shortened to a date no earlier than January 1, 2001, subject to certain conditions) (such date, including as so shortened, the "Series G Stated Maturity"). Upon the repayment of the Series G Debentures at maturity, the proceeds from such repayment shall be simultaneously applied to redeem Series G Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Debentures so repaid at a redemption price of $25 per Security, plus an amount equal to accrued and unpaid Distributions thereon at the date of the redemption, payable in cash (the "Maturity Redemption Price"). Holders will be given not less than 30 nor more than 60 days notice of such redemption. Such notice can be given either before or after repayment of the Series G Debentures. (b) If, at any time prior to January 1, 2001, a Tax Event shall occur and be continuing, the Series G Debenture Issuer shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series G Debentures, at its option, to redeem the Series G 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 G Tax Event Prepayment Price") equal to (i) 114% of the principal amount of the Series G Debentures if such Series G Debentures are prepaid during the period commencing on the Series G Accrual Date through and including December 31, 1997 and (ii) the percentage of the principal amount of the Series G Debentures specified below, if such Series G Debentures are prepaid during the 12-month period beginning January 1 of the years indicated below, plus, in each case, any accrued and unpaid interest thereon to the date of prepayment: Year Percentage 1998 110.5% 1999 107 2000 103.5 2001 and thereafter 100 Upon such redemption, all Series G Securities shall be redeemed by the Series G Trust at a redemption price equal to the Series G Tax Event Prepayment Price (the "Series G Tax Event Redemption Price"). (c) The Series G Debentures are redeemable in whole or in part, from time to time, on or after January 1, 2001 upon not less than 30 nor more than 60 days notice, at a prepayment price (the "Series G Optional Prepayment Price") equal to 100% of the principal amount thereof, plus any accrued and unpaid interest thereon to the date of prepayment. Upon such prepayment, the proceeds from such prepayment shall simultaneously be applied to redeem Series G Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Debentures so prepaid at a redemption price equal to the Series G Optional Prepayment Price (the "Series G Optional Redemption Price"). Notwithstanding anything to the contrary contained herein, the Series G Debenture Issuer may not redeem fewer than all of the Series G Debentures unless all accrued and unpaid interest on all of the Series G Debentures has been paid for all quarterly periods terminating on or prior to the date of prepayment. "Series G Redemption Price" means the Maturity Redemption Price, the Series G Optional Redemption Price or the Series G Tax Event Redemption Price, as the context requires. "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 G Securities, there is more than an insubstantial risk that (i) the Series G 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 G Debentures, (ii) interest payable on the Series G Debentures is not, or within 90 days of the date thereof will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes, or (iii) the Series G Trust is, or will be within 90 days of the date thereof, subject to more than a de minimis amount of other taxes, duties or other governmental charges. (d) If fewer than all the outstanding Series G Securities are to be so redeemed, the Series G Common Securities and the Series G Preferred Securities will be redeemed Pro Rata (as such term is defined in Section 8 hereof) as described in Section 4(g)(ii) below. (e) The Series G Trust may not redeem fewer than all the outstanding Series G Securities unless all accrued and unpaid Distributions have been paid on all Series G Securities for all quarterly Distribution periods terminating on or before the date of redemption. (f) The Series G Debenture Issuer will have the right at any time to liquidate the Series G Trust and cause the Series G Debentures to be distributed to the Holders. If the Series G Debentures are distributed to the Holders and the Series G Preferred Securities are then listed on an exchange, the Series G Debenture Issuer will use its best efforts to cause the Series G Debentures to be listed on the NYSE or on such other exchange as the Series G Preferred Securities are then listed. On the date fixed for any distribution of Series G Debentures upon dissolution of the Series G Trust, (i) the Series G Preferred Securities will no longer be deemed to be outstanding, (ii) the Depository Institution or its nominee, as the record holder of the Series G Preferred Securities, will receive a registered global certificate or certificates representing the Series G Debentures to be delivered upon such distribution, and (iii) any certificates representing Series G Preferred Securities not held by the Depository Institution or its nominee will be deemed to represent Series G Debentures having an aggregate principal amount equal to the aggregate stated liquidation amount of, with an interest rate identical to the distribution rate of, and accrued and unpaid interest equal to accrued and unpaid distributions on, such Series G Preferred Securities until such certificates are presented to the Series G Debenture Issuer or its agent for transfer or reissuance. (g) Redemption or Distribution Procedures. (i) Notice of any redemption of the Series G Debentures, or notice of distribution of Series G Debentures in exchange for the Series G Securities (a "Series G Redemption/Distribution Notice") will be given by the Series G Trust by mail to each Holder of Series G Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date fixed for redemption or exchange thereof which, in the case of a redemption, will be the date fixed for redemption of the Series G Debentures. For purposes of the calculation of the date of redemption or exchange and the dates on which notices are given pursuant to this Section 4(f)(i), a Series G Redemption/Distribution Notice shall be deemed to be given on the day such notice is first mailed by first-class mail, postage prepaid, to Holders. Each Series G Redemption/Distribution Notice shall be addressed to the Holders at the address of each such Holder appearing in the books and records of the Series G Trust. No defect in the Series G Redemption/Distribution Notice or in the mailing of either thereof with respect to any Holder shall affect the validity of the redemption or exchange proceedings with respect to any other Holder. (ii) In the event that fewer than all the outstanding Series G Securities are to be redeemed, the Series G Securities to be redeemed shall be redeemed Pro Rata from each Holder, it being understood that, in respect of Series G Preferred Securities registered in the name of and held of record by the Depository Institution or its nominee, the distribution of the proceeds of such redemption will be made to each Depository Institution Participant (or Person on whose behalf such nominee holds such securities) in accordance with the procedures applied by such agency or nominee. (iii) If Series G Securities are to be redeemed and the Series G Trust gives a Series G Redemption/Distribution Notice, which notice may only be issued if the Series G Debentures are redeemed as set out in this Section 4 (which notice will be irrevocable), then by 12:00 noon, Eastern time, on the redemption date, the Series G Debenture Issuer will deposit with one or more paying agents an amount of money sufficient to redeem on the redemption date all the Series G Securities so called for redemption at the Series G Redemption Price. If a Series G Redemption/Distribution Notice shall have been given and funds deposited as required, if applicable, then immediately prior to the close of business on the date of such deposit, or on the redemption date, as applicable, distributions will cease to accrue on the Series G Securities so called for redemption and all rights of Holders of such Series G Securities so called for redemption will cease, except the right of the Holders of such Series G Securities to receive the Series G Redemption Price, but without interest on such Series G Redemption Price. On presentation and surrender of such Series G Securities at a place of payment specified in said notice, the said Series G Securities or the specified portions thereof shall be paid and redeemed by the Series G Trust at the applicable Series G Redemption Price. Neither the Regular Trustees nor the Series G Trust shall be required to register or cause to be registered the transfer of any Series G Securities that have been so called for redemption. If any date fixed for redemption of Series G Securities is not a Business Day, then payment of the Series G Redemption Price 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 falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. If payment of the Series G Redemption Price in respect of any Series G Securities is improperly withheld or refused and not paid either by the Institutional Trustee or by the Sponsor as guarantor pursuant to the relevant Series G Securities Guarantee, Distributions on such Series G Securities will continue to accrue from the original redemption date to the actual date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the Series G Redemption Price. (iv) The Series G Trust shall not be required to (i) issue, or register the transfer or exchange of, any Series G Securities during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of Series G Securities and ending at the close of business on the day of the mailing of the relevant notice of redemption and (ii) register the transfer or exchange of any Series G Securities so selected for redemption, in whole or in part, except the unredeemed portion of any Series G Securities being redeemed in part. (v) Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws and regulations of the Federal Reserve Board), the Sponsor or any of its subsidiaries may at any time and from time to time purchase outstanding Series G Preferred Securities by tender, in the open market or by private agreement. 5. Voting Rights -- Series G Preferred Securities. (a) Except as provided under Sections 5(b) and 7 and as otherwise required by law and the Series G Declaration, the Holders of the Series G Preferred Securities will have no voting rights. (b) Subject to the requirements set forth in the immediately following paragraph, the Holders of a majority in aggregate liquidation amount of the Series G Preferred Securities, voting separately as a class, have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Institutional Trustee, or to direct the exercise of any trust or power conferred upon the Institutional Trustee under the Series G Declaration, including the right to direct the Institutional Trustee, as holder of the Series G Debentures, to (i) exercise the remedies available to it under the Indenture as holder of the Series G Debentures, (ii) waive any past Event of Default and its consequences that is waivable under Section 5.07 of the Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Series G Debentures shall be due and payable, or (iv) consent to any amendment, modification or termination of the Indenture or the Series G Debentures where such consent shall be required; provided, however, that, where a consent or action under the Indenture would require the consent or act of a Super Majority, only the Holders of at least such Super Majority in aggregate liquidation amount of the Series G Preferred Securities may direct the Institutional Trustee to give such consent or take such action; and provided further, that where a consent or action under the Indenture is only effective against each holder of Series G Debentures who has consented thereto, such consent or action will only be effective against a holder of Series G Preferred Securities who directs the Institutional Trustee to give such consent or take such action. A waiver of an Indenture Event of Default will constitute a waiver of the corresponding Declaration Event of Default. The Institutional Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Series G Preferred Securities. If the Institutional Trustee fails to enforce its rights under the Series G Debentures after a holder of record of Series G Preferred Securities has made a written request, such holder of record of Series G Preferred Securities may institute a legal proceeding directly against the Series G Debenture Issuer to enforce the Institutional Trustee's rights under the Series G Debentures without first instituting any legal proceeding against the Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Series G Debenture Issuer to pay interest or principal on the Series G Debentures on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a Holder of Series G Preferred Securities may institute a Direct Action for enforcement of payment to such Holder of the principal of or interest on the Series G Debentures having a principal amount equal to the aggregate liquidation amount of the Series G Preferred Securities of such holder on or after the respective due date specified in the Series G Debentures. Notwithstanding any payments made to such Holder of Series G Preferred Securities by the Series G Debenture Issuer in connection with a Direct Action, the Series G Debenture Issuer shall remain obligated to pay the principal of or interest on the Series G Debentures held by the Series G Trust or the Institutional Trustee of the Series G Trust, and the Series G Debenture Issuer shall be subrogated to the rights of the Holder of such Series G Preferred Securities with respect to payments on the Series G Preferred Securities to the extent of any payments made by the Series G Debenture Issuer to such Holder in any Direct Action. Except as provided in the preceding sentences, the Holders of Series G Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Series G Debentures. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the Institutional Trustee shall not take any of the actions described in clauses (i), (ii) or (iii) above unless the Institutional Trustee has obtained an opinion of a nationally-recognized tax counsel experienced in such matters to the effect that, as a result of such action, the Series G Trust will not fail to be classified as a grantor trust for United States federal income tax purposes. Any approval or direction of Holders of Series G Preferred Securities may be given at a separate meeting of Holders of Series G Preferred Securities convened for such purpose, at a meeting of all of the Holders of Series G Securities in the Series G Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Series G Preferred Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Series G Preferred Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought and (iii) instructions for the delivery of proxies or consents. No vote or consent of the Holders of the Series G Preferred Securities will be required for the Series G Trust to redeem and cancel Series G Preferred Securities or to distribute the Series G Debentures in accordance with the Series G Declaration and the terms of the Series G Securities. Notwithstanding that Holders of Series G Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Series G Preferred Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if they were not outstanding. Holders of the Series G Preferred Securities will have no rights to appoint or remove the Trustees, who may be appointed, removed or replaced solely by the Sponsor, as Holder of all of the Series G Common Securities. 6. Voting Rights -- Series G Common Securities. (a) Except as provided under Sections 6(b), (c) and 7 and as otherwise required by law and the Series G Declaration, the Holders of the Series G Common Securities will have no voting rights. (b) The Holders of the Series G Common Securities are entitled, in accordance with Article 5 of the Series G Declaration, to vote to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees. (c) Subject to Section 2.6 of the Series G Declaration and only after the Event of Default with respect to the Series G Preferred Securities has been cured, waived, or otherwise eliminated and subject to the requirements of the second to last sentence of this paragraph, the Holders of a Majority in liquidation amount of the Series G Common Securities, voting separately as a class, may direct the time, method, and place of conducting any proceeding for any remedy available to the Institutional Trustee, or exercising any trust or power conferred upon the Institutional Trustee under the Series G Declaration, including (i) directing the time, method, place of conducting any proceeding for any remedy available to the Debt Trustee, or exercising any trust or power conferred on the Debt Trustee with respect to the Series G Debentures, (ii) waive any past default and its consequences that is waivable under Section 5.07 of the Indenture, or (iii) exercise any right to rescind or annul a declaration that the principal of all the Series G Debentures shall be due and payable; provided that, where a consent or action under the Indenture would require the consent or act of a Super Majority of holders of Series G Debentures affected thereby the Institutional Trustee may only give such consent or take such action at the written direction of the holders of at least the proportion in liquidation amount of the Series G Common Securities which the relevant Super Majority represents of the aggregate principal amount of the Series G Debentures outstanding; and provided further, that where a consent or action under the Indenture would require the consent or action of each holder of Series G Debentures, each Holder of Series G Preferred Securities must direct the Institutional Trustee to give such consent or take such action. Pursuant to this Section 6(c), the Institutional Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Series G Preferred Securities. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the Institutional Trustee shall not take any action in accordance with the directions of the Holders of the Series G Common Securities under this paragraph unless the Institutional Trustee has obtained an opinion of a nationally-recognized tax counsel experienced in such matters to the effect that, as a result of such action, the Series G Trust will not fail to be classified as a grantor trust for United States federal income tax purposes. If the Institutional Trustee fails to enforce its rights under the Series G Declaration, any Holder of Series G Common Securities may institute a legal proceeding directly against any Person to enforce the Institutional Trustee's rights under the Series G Declaration, without first instituting a legal proceeding against the Institutional Trustee or any other Person. Any approval or direction of Holders of Series G Common Securities may be given at a separate meeting of Holders of Series G Common Securities convened for such purpose, at a meeting of all of the Holders of Series G Securities in the Series G Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Series G Common Securities are entitled to vote, or of any matter upon which action by written consent of such Holders is to be taken, to be mailed to each Holder of record of Series G Common Securities. Each such notice will include a statement setting forth (i) the date of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such matter upon which written consent is sought and (iii) instructions for the delivery of proxies or consents. No vote or consent of the Holders of the Series G Common Securities will be required for the Series G Trust to redeem and cancel Series G Common Securities or to distribute the Series G Debentures in accordance with the Series G Declaration and the terms of the Series G Securities. 7. Amendments to Series G Declaration and Indenture. (a) In addition to any requirements under Section 12.1 of the Series G Declaration, if any proposed amendment to the Series G Declaration provides for, or the Regular Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Series G Securities, whether by way of amendment to the Series G Declaration or otherwise, or (ii) the dissolution, winding-up or termination of the Series G Trust, other than as described in Section 8.1 of the Series G Declaration, then the Holders of outstanding Series G Securities voting together as a single class will be entitled to vote on such amendment or proposal (but not on any other amendment or proposal) and such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in liquidation amount of the Series G Securities affected thereby, provided, that, if any amendment or proposal referred to in clause (i) above would adversely affect only the Series G Preferred Securities or only the Series G Common Securities, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of a Majority in liquidation amount of such class of Series G Securities. (b) In the event the consent of the Institutional Trustee, as the holder of the Series G Debentures, is required under the Indenture with respect to any amendment, modification or termination on the Indenture, the Institutional Trustee shall request the written direction of the Holders of the Series G Securities with respect to such amendment, modification or termination and shall vote with respect to such amendment, modification or termination as directed by a Majority in liquidation amount of the Series G Securities voting together as a single class; provided, however, that where a consent under the Indenture would require the consent of a Super Majority, the Institutional Trustee may only give such consent at the direction of the Holders of at least the proportion in liquidation amount of the Series G Securities which the relevant Super Majority represents of the aggregate principal amount of the Series G Debentures outstanding; provided, that where a consent or action under the Indenture is only effective against each holder of Series G Debentures who has consented thereto, such consent or action will only be effective against a holder of Series G Preferred Securities who directs the Institutional Trustee to give such consent or take such action; and provided further, that the Institutional Trustee shall not take any action in accordance with the directions of the Holders of the Series G Securities under this Section 7(b) unless the Institutional Trustee has obtained an opinion of a nationally recognized tax counsel experienced in such matters to the effect that for the purposes of United States federal income tax the Series G Trust will not be classified as other than a grantor trust on account of such action. (c) Notwithstanding the foregoing, no amendment or modification may be made to the Series G Declaration if such amendment or modification would (i) cause the Series G Trust to be classified for purposes of United States federal income taxation as other than a grantor trust, (ii) reduce or otherwise adversely affect the powers of the Institutional Trustee or (iii) cause the Series G Trust to be deemed an "investment company" which is required to be registered under the Investment Company Act. 8. Pro Rata. A reference in these terms of the Series G Securities to any payment, distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder according to the aggregate stated liquidation amount of the Series G Securities held by the relevant Holder in relation to the aggregate stated liquidation amount of all Series G Securities outstanding unless, in relation to a payment, an Event of Default under the Series G Declaration has occurred and is continuing, in which case any funds available to make such payment shall be paid first to each Holder of the Series G Preferred Securities pro rata according to the aggregate stated liquidation amount of Series G Preferred Securities held by the relevant Holder relative to the aggregate stated liquidation amount of all Series G Preferred Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Series G Preferred Securities, to each Holder of Series G Common Securities pro rata according to the aggregate stated liquidation amount of Series G Common Securities held by the relevant Holder relative to the aggregate stated liquidation amount of all Series G Common Securities outstanding. 9. Ranking. The Series G Preferred Securities rank pari passu, and payment thereon shall be made Pro Rata, with the Series G Common Securities except that, where an Event of Default occurs and is continuing, the rights of Holders of the Series G Common Securities to receive payment of periodic Distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the Holders of the Series G Preferred Securities. 10. Listing. The Regular Trustees shall use their best efforts to cause the Series G Preferred Securities to be listed for quotation on the NYSE. 11. Acceptance of Series G Securities Guarantee and Indenture. Each Holder of Series G Preferred Securities and Series G Common Securities, by the acceptance thereof, agrees to the provisions of the Series G Series G Preferred Securities Guarantee and the Series G Common Securities Guarantee, respectively, including the subordination provisions therein, and to the provisions of the Indenture. 12. No Preemptive Rights. The Holders shall have no preemptive rights to subscribe for any additional securities. 13. Miscellaneous. These terms constitute a part of the Series G Declaration. The Sponsor will provide a copy of the Series G Declaration, the Series G Series G Preferred Securities Guarantee or the Series G Common Securities Guarantee (as may be appropriate), and the Indenture to a Holder without charge on written request to the Sponsor at its principal place of business. EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE Certificate Number _____ Number of Preferred Securities _____ CUSIP NO. 370440208 Certificate Evidencing Preferred Securities of GENERAL MOTORS CAPITAL TRUST G 9.87% Trust Originated Preferred Securities1M, Series G ("TOPrSSM") (liquidation amount $25 per Preferred Security) GENERAL MOTORS CAPITAL TRUST G, a statutory business trust formed under the laws of the State of Delaware (the "Series G Trust"), hereby certifies that ______________ (the "Holder") is the registered owner of preferred securities of the Series G Trust representing undivided beneficial ownership interests in the assets of the Series G Trust, designated the 9.87% Trust Originated Preferred SecuritiesSM, Series G (liquidation amount $25 per Preferred Security) (the "Series G Preferred Securities"). The Series G Preferred Securities are transferable on the books and records of the Series G Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Series G Preferred Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Series G Trust dated as of July 9, 1997, as the same may be amended from time to time (the "Series G Declaration"), including the designation of the terms of the Series G Preferred Securities as set forth in Annex I to the Series G Declaration. Capitalized terms used herein but not defined shall have the meanings given them in the Series G Declaration. The Holder is entitled to the benefits of the Series G Preferred Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the Series G Declaration, the Series G Preferred Securities Guarantee and the Indenture to a Holder without charge upon written request to the Series G Trust at its principal place of business. Upon receipt of this certificate, the Holder is bound by the Series G Declaration and is entitled to the benefits thereunder. In addition, the Holder is deemed to have (i) agreed to the terms of the Indenture and the Series G Debentures, including that the Series G Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations (as defined in the Indenture) as and to the extent provided in the Indenture and (ii) agreed to the terms of the Series G Preferred Securities Guarantee, including that the Series G Preferred Securities Guarantee is subordinate and junior in right of payment to all other liabilities of the Sponsor, including the Series G Debentures, except those made pari passu or subordinate by their terms, and pari passu with the most senior preferred or preference stock now or hereafter issued by the Sponsor and with any guarantee now or hereafter entered into by the Sponsor in respect of any preferred or preference stock of any Affiliate of the Sponsor. By accepting this certificate, the Holder agrees to treat, for United States federal income tax purposes, the Series G Debentures as indebtedness and the Series G Preferred Securities as evidence of indirect beneficial ownership in the Series G Debentures. Unless the Authenticating Agent's Certificate of Authentication hereon has been properly executed, these Series G Preferred Securities shall not be entitled to any benefit under the Series G Declaration or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Series G Trust has caused this certificate to be signed by its duly authorized Regular Trustees. GENERAL MOTORS CAPITAL TRUST G By: Name: Title: Regular Trustee By: Name: Title: Regular Trustee By: Name: Title: Regular Trustee CERTIFICATE OF AUTHENTICATION This is one of the Series G Preferred Securities referred to in the within-mentioned Series G Declaration. Dated _____________, ________ -----------------------, as Authenticating Agent By: Authorized Signatory [FORM OF REVERSE OF SECURITY] Distributions payable on each Series G Preferred Security will be fixed at a rate per annum of 9.87% (the "Coupon Rate") of the stated liquidation amount of $25 per Preferred Security, such rate being the rate of interest payable on the Series G Debentures to be held by the Institutional Trustee. Distributions in arrears for more than one quarter will bear interest thereon compounded quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by applicable law). The term "Distributions" as used herein includes such cash distributions and any such interest (including Additional Interest and Compound Interest) payable unless otherwise stated. A Distribution will be made by the Institutional Trustee only to the extent that payments are made in respect of the Series G Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds available in the Institutional Trustee Account. The amount of Distributions payable for any period will be computed for any full quarterly Distribution period on the basis of a 360-day year of twelve 30-day months, and for any period shorter than a full quarterly Distribution period for which Distributions are computed, Distributions will be computed on the basis of the actual number of days elapsed. In addition, Holders will be entitled to an additional cash distribution at the rate of 9.12% per annum of the stated liquidation amount from April 1, 1997 through July 2, 1997 (the expiration date of the Series G Offer, the "Expiration Date") in lieu of dividends accumulating and unpaid from April 1, 1997 on Series G 9.12% Depositary Shares accepted for exchange in the Series G Offer, such additional distributions to be made on August 1, 1997 to Holders of record on the record date for such distribution ("Pre-Issuance Interest"). Payment of such additional cash distribution may not be deferred as provided in the succeeding paragraph. Except as otherwise described below, Distributions on the Series G Preferred Securities will be cumulative, will accrue from July 3, 1997, the first date following the Expiration Date, and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1, 1997, to Holders of record on the relevant record dates, which in each case will be the 15th day of the month immediately preceding the month which includes the relevant distribution date. The record dates and distribution dates shall be the same as the record dates and payment dates on the Series G Debentures. With the exception of Pre-Issuance Interest, so long as the Series G Debenture Issuer shall not be in default in the payment of interest on the Series G Debentures, the Series G Debenture Issuer has the right under the Indenture to defer payments of interest by extending the interest payment period from time to time on the Series G Debentures for a period not exceeding 20 consecutive quarters (each an "Series G Extension Period"), provided that no Series G Extension Period shall last beyond Series G Stated Maturity. As a consequence of such deferral, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon Rate compounded quarterly during any such Series G Extension Period. Prior to the termination of any such Series G Extension Period, the Series G Debenture Issuer may further extend such Series G Extension Period; provided that such Series G Extension Period together with all such previous and further extensions thereof may not exceed 20 consecutive quarters or extend beyond the Series G Stated Maturity. Payments of accrued Distributions will be payable to Holders as they appear on the books and records of the Series G Trust on the first record date after the end of the Series G Extension Period. Upon the termination of any Series G Extension Period and the payment of all amounts then due, the Series G Debenture Issuer may commence a new Series G Extension Period, subject to the above requirements. The Series G Preferred Securities shall be redeemable as provided in the Series G Declaration. ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Series G Preferred Security Certificate to: (Insert assignee's social security or tax identification number) (Insert address and zip code of assignee) and irrevocably appoints ------------------------------------ to transfer this Series G Preferred Security Certificate on the books of the Series G Trust. The agent may substitute another to act for him or her. Date: Signature: (Sign exactly as your name appears on the other side of this Series G Preferred Security Certificate) (Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Trustee, which requirements include membership or participation in STAMP or such other "signature guaranty program" as may be determined by the Trustee in addition to or in substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.) EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE Certificate Number __________ Number of Common Securities __________ Certificate Evidencing Common Securities of GENERAL MOTORS CAPITAL TRUST G 9.87% Trust Originated Common Securities, Series G (liquidation amount $25 per Common Security) GENERAL MOTORS CAPITAL TRUST G, a statutory business trust formed under the laws of the State of Delaware (the "Series G Trust"), hereby certifies that ______________ (the "Holder") is the registered owner of common securities of the Series G Trust representing undivided beneficial ownership interests in the assets of the Series G Trust, designated the 9.87% Trust Originated Common Securities (liquidation amount $25 per Common Security) (the "Series G Common Securities"). The Series G Common Securities are transferable on the books and records of the Series G Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Series G Common Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Declaration of Trust of the Series G Trust dated as of July 9, 1997, as the same may be amended from time to time (the "Series G Declaration"), including the designation of the terms of the Series G Common Securities as set forth in Annex I to the Series G Declaration. Capitalized terms used herein but not defined shall have the meaning given them in the Series G Declaration. The Holder is entitled to the benefits of the Series G Common Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the Series G Declaration, the Series G Common Securities Guarantee and the Indenture to a Holder without charge upon written request to the Sponsor at its principal place of business. Upon receipt of this certificate, the Sponsor is bound by the Series G Declaration and is entitled to the benefits thereunder. In addition, the Holder is deemed to have (i) agreed to the terms of the Indenture and the Series G Debentures, including that the Series G Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations (as defined in the Indenture) as and to the extent provided in the Indenture and (ii) agreed to the terms of the Series G Preferred Securities Guarantee, including that the Series G Preferred Securities Guarantee is subordinate and junior in right of payment to all other liabilities of the Sponsor, including the Series G Debentures, except those made pari passu or subordinate by their terms, and pari passu with the most senior preferred or preference stock now or hereafter issued by the Sponsor and with any guarantee now or hereafter entered into by the Sponsor in respect of any preferred or preference stock of any Affiliate of the Sponsor. By acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Series G Debentures as indebtedness and the Series G Common Securities as evidence of indirect beneficial ownership in the Series G Debentures. Unless the Authenticating Agent's Certificate of Authentication hereon has been properly executed, these Series G Common Securities shall not be entitled to any benefit under the Series G Declaration or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Series G Trust has caused this certificate to be signed by its duly authorized Regular Trustees. GENERAL MOTORS CAPITAL TRUST G By: Name: Title: Regular Trustee By: Name: Title: Regular Trustee By: Name: Title: Regular Trustee CERTIFICATE OF AUTHENTICATION This is one of the Series G Common Securities referred to in the within-mentioned Series G Declaration. Dated _____________, ________ -----------------------------, as Authenticating Agent By: Authorized Signatory [FORM OF REVERSE OF SECURITY] Distributions payable on each Series G Common Security will be fixed at a rate per annum of 9.87% (the "Coupon Rate") of the stated liquidation amount of $25 per Common Security, such rate being the rate of interest payable on the Series G Debentures to be held by the Institutional Trustee. Distributions in arrears for more than one quarter will bear interest thereon compounded quarterly at the Coupon Rate ("Compound Interest") (to the extent permitted by applicable law). The term "Distributions" as used herein includes such cash distributions and any such interest (including Additional Interest and Compound Interest) payable unless otherwise stated. A Distribution will be made by the Institutional Trustee only to the extent that payments are made in respect of the Series G Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds available in the Institutional Trustee Account. The amount of Distributions payable for any period will be computed for any full quarterly Distribution period on the basis of a 360-day year of twelve 30-day months, and for any period shorter than a full quarterly Distribution period for which Distributions are computed, Distributions will be computed on the basis of the actual number of days elapsed. Except as otherwise described below, distributions on the Series G Common Securities will be cumulative, will accrue from July 3, 1997, the first date following the expiration date of the Series G Offer, and, except as otherwise described below, will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1,1997, to Holders of record on relevant record dates, which in each case will be the 15th day of the month immediately preceding the month which includes the relevant distribution date. The record dates and distribution dates shall be the same as the record and payment dates on the Series G Debentures. So long as the Series G Debenture Issuer shall not be in default in the payment of interest on the Series G Debentures, the Series G Debenture Issuer has the right under the Indenture to defer payments of interest by extending the interest payment period from time to time on the Series G Debentures for a period not exceeding 20 consecutive quarters (each an "Series G Extension Period"), provided that no Series G Extension Period shall last beyond the Series G Stated Maturity. As a consequence of such deferral, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon Rate compounded quarterly during any such Series G Extension Period. Prior to the termination of any such Series G Extension Period, the Series G Debenture Issuer may further extend such Series G Extension Period; provided that such Series G Extension Period together with all such previous and further extensions thereof may not exceed 20 consecutive quarters or extend beyond the Series G Stated Maturity. Payments of accrued Distributions will be payable to Holders as they appear on the books and records of the Series G Trust on the first record date after the end of the Series G Extension Period. Upon the termination of any Series G Extension Period and the payment of all amounts then due, the Series G Debenture Issuer may commence a new Series G Extension Period, subject to the above requirements. The Series G Common Securities shall be redeemable as provided in the Series G Declaration. ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Series G Common Security Certificate to: (Insert assignee's social security or tax identification number) (Insert address and zip code of assignee) and irrevocably appoints _________________________________________ this Series G Common Security Certificate on the books of the Series G Trust. The agent may substitute another to act for him or her. Date: Signature: (Sign exactly as your name appears on the other side of this Series G Common Security Certificate) (Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Trustee, which requirements include membership or participation in STAMP or such other "signature guaranty program" as may be determined by the Trustee in addition to or in substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.) - -------- 1SM"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. EX-4 4 GMNEWIN.PB7 FOOTER B HAS BEEN ENTERED (DRAFT) INDENTURE between GENERAL MOTORS CORPORATION and WILMINGTON TRUST COMPANY Dated as of July 1, 1997 JUNIOR SUBORDINATED DEBENTURES TABLE OF CONTENTS* Page ARTICLE 1 DEFINITIONS 1 SECTION 1.1 Definitions. 1 ARTICLE 2 SECURITIES 6 SECTION 2.1 Forms Generally 6 SECTION 2.2 Form of Debt Trustee's Certificate of Authentication. 6 SECTION 2.3 Amount Unlimited; Issuable in Series. 6 SECTION 2.4 Authentication and Dating. 8 SECTION 2.5 Date and Denomination of Securities 9 SECTION 2.6 Execution of Securities 10 SECTION 2.7 Exchange and Registration of Transfer of Securities 10 SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Securities 11 SECTION 2.9 Temporary Securities 12 SECTION 2.10 Cancellation of Securities Paid, etc. 12 SECTION 2.11 Global Securities 12 ARTICLE 3 PARTICULAR COVENANTS OF THE CORPORATION 13 SECTION 3.1 Payment of Principal, Premium and Interest 13 SECTION 3.2 Offices for Notices and Payments, etc. 13 SECTION 3.3 Appointments to Fill Vacancies in Debt Trustee's Office 14 SECTION 3.4 Provision as to Paying Agent 14 SECTION 3.5 Certificate to Debt Trustee 14 SECTION 3.6 Compliance with Consolidation Provisions 14 SECTION 3.7 Limitation on Dividends; Transactions with Affiliates 15 SECTION 3.8 Covenants as to General Motors Capital Trusts 15 SECTION 3.9 Notice of Default 15 ARTICLE 4 SECURITYHOLDERS' LISTS AND REPORTS BY THE CORPORATION AND THE TRUSTEE. 15 SECTION 4.1 Securityholders' Lists 15 SECTION 4.2 Preservation and Disclosure of Lists. 16 SECTION 4.3 Reports by Corporation 17 SECTION 4.4 Reports by the Debt Trustee 17 ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT 18 SECTION 5.1 Events of Default 18 SECTION 5.2 Payment of Securities on Default; Suit Therefor 19 SECTION 5.3 Application of Moneys Collected by Debt Trustee 21 SECTION 5.4 Proceedings by Securityholders 21 SECTION 5.5 Proceedings by Debt Trustee 22 SECTION 5.6 Remedies Cumulative and Continuing 22 SECTION 5.7 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders 22 SECTION 5.8 Notice of Defaults 23 SECTION 5.9 Undertaking to Pay Costs 23 ARTICLE 6 CONCERNING THE TRUSTEE 23 SECTION 6.1 Duties and Responsibilities of Debt Trustee 23 SECTION 6.2 Reliance on Documents, Opinions, etc. 24 SECTION 6.3 No Responsibility for Recitals, etc. 25 SECTION 6.4 Debt Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Securities 25 SECTION 6.5 Moneys to be Held in Trust 25 SECTION 6.6 Compensation and Expenses of Debt Trustee 26 SECTION 6.7 Officers' Certificate as Evidence 26 SECTION 6.8 Conflicting Interest of Debt Trustee 26 SECTION 6.9 Eligibility of Debt Trustee 26 SECTION 6.10 Resignation or Removal of Debt Trustee 27 SECTION 6.11 Acceptance by Successor Debt Trustee 28 SECTION 6.12 Succession by Merger, etc 28 SECTION 6.13 Limitation on Rights of Debt Trustee as a Creditor 29 SECTION 6.14 Authenticating Agents 29 ARTICLE 7 CONCERNING THE SECURITYHOLDERS 30 SECTION 7.1 Action by Securityholders 30 SECTION 7.2 Proof of Execution by Securityholders 30 SECTION 7.3 Who Are Deemed Absolute Owners 30 SECTION 7.4 Securities Owned by Corporation Deemed Not Outstanding 31 SECTION 7.5 Revocation of Consents; Future Holders Bound 31 ARTICLE 8 SECURITYHOLDERS' MEETINGS 31 SECTION 8.1 Purposes of Meetings 31 SECTION 8.2 Call of Meetings by Debt Trustee 32 SECTION 8.3 Call of Meetings by Corporation or Securityholders 32 SECTION 8.4 Qualifications for Voting 32 SECTION 8.5 Regulations 32 SECTION 8.6 Voting 33 ARTICLE 9 SUPPLEMENTAL INDENTURES 33 SECTION 9.1 Supplemental Indentures without Consent of Securityholders 33 SECTION 9.2 Supplemental Indentures with Consent of Securityholders 34 SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Indentures 35 SECTION 9.4 Notation on Securities 35 SECTION 9.5 Evidence of Compliance of Supplemental Indenture to be Furnished Debt Trustee 35 ARTICLE 10 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE 36 SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms 36 SECTION 10.2 Successor Corporation to be Substituted for Corporation 36 SECTION 10.3 Opinion of Counsel to be Given Debt Trustee 36 ARTICLE 11 SATISFACTION AND DISCHARGE OF INDENTURE 37 SECTION 11.1 Discharge of Indenture 37 SECTION 11.2 Deposited Moneys and U.S. Government Obligations to be Held in Trust by Debt Trustee 37 SECTION 11.3 Paying Agent to Repay Moneys Held 37 SECTION 11.4 Return of Unclaimed Moneys 37 SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S. Government Obligations 38 ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS 39 SECTION 12.1 Indenture and Securities Solely Corporate Obligations 39 ARTICLE 13 MISCELLANEOUS PROVISIONS 39 SECTION 13.1 Successors 39 SECTION 13.2 Official Acts by Successor Corporation 39 SECTION 13.3 Surrender of Corporation Powers 39 SECTION 13.4 Addresses for Notices, etc. 40 SECTION 13.5 Governing Law 40 SECTION 13.6 Evidence of Compliance with Conditions Precedent 40 SECTION 13.7 Legal Holidays 40 SECTION 13.8 Trust Indenture Act to Control 40 SECTION 13.9 Table of Contents, Headings, etc. 41 SECTION 13.10 Execution in Counterparts 41 SECTION 13.11 Separability 41 SECTION 13.12 Assignment 41 SECTION 13.13 Acknowledgment of Rights 41 ARTICLE 14 REDEMPTION OF SECURITIES--MANDATORY ANDOPTIONAL SINKING FUND 41 SECTION 14.1 Applicability of Article 41 SECTION 14.2 Notice of Redemption; Selection of Securities 42 SECTION 14.3 Payment of Securities Called for Redemption 42 SECTION 14.4 Mandatory and Optional Sinking Fund 43 ARTICLE 15 SUBORDINATION OF SECURITIES 44 SECTION 15.1 Agreement to Subordinate 44 SECTION 15.2 Default on Senior Indebtedness 44 SECTION 15.3 Liquidation; Dissolution; Bankruptcy 45 SECTION 15.4 Subrogation 46 SECTION 15.5 Debt Trustee to Effectuate Subordination 46 SECTION 15.6 Notice by the Corporation 47 SECTION 15.7 Rights of the Debt Trustee; Holders of Senior Indebtedness and Other Financial Obligations 47 SECTION 15.8 Subordination May Not Be Impaired 47 CROSS-REFERENCE TABLE of provisions of the Trust Indenture Act to the provisions of the Indenture dated as of July 1, 1997 between General Motors Corporation and Wilmington Trust Company, as Debt Trustee: ACT SECTION INDENTURE SECTION 310(a)(1).................................................. 6.9 310(a)(2).................................................. 6.9 310(a)(3).................................................. N/A 310(a)(4).................................................. N/A 310(b)..................................................... 6.8; 6.10(a), (b) and (d) 310(c)..................................................... N/A 311(a) and (b)............................................. 6.13 311(c)..................................................... N/A 312(a)..................................................... 4.1; 4.2(a) 312(b) and (c)............................................. 4.2(b) and (c) 313(a)..................................................... 4.4(a) 313(b)(1).................................................. N/A 313(b)(2).................................................. 4.4(b) 313(c)..................................................... 4.4(c) 313(d)..................................................... 4.4(d) 314(a)..................................................... 4.3 314(b)..................................................... N/A 314(c)(1) and (2).......................................... 13.6 314(c)(3).................................................. N/A 314(d)..................................................... N/A 314(e)..................................................... 13.0 314(f)..................................................... N/A 315(a), (c) and (d)........................................ 6.1 315(b)..................................................... 5.8 315(e)..................................................... 5.9 316(a)(1).................................................. 5.1; 5.7 316(a)(2).................................................. Omitted 316(a) last sentence....................................... 7.4 316(b)..................................................... 5.4 317(a)..................................................... 5.2 317(b)..................................................... 3.4(a) 318(a)..................................................... 13.8 THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE AS EXECUTED. THIS INDENTURE, dated as of July 1, 1997, between General Motors Corporation, a Delaware corporation (hereinafter sometimes called the "Corporation"), and Wilmington Trust Company, a Delaware banking corporation, as trustee (hereinafter sometimes called the "Debt Trustee"), W I T N E S S E T H : WHEREAS, for its lawful corporate purposes, the Corporation has duly authorized the issuance from time to time of its junior subordinated unsecured debentures, notes or other evidence of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and, to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Corporation has duly authorized the execution of this Indenture; and WHEREAS, all acts and things necessary to make this Indenture a valid agreement according to its terms, have been done and performed; NOW, THEREFORE, this Indenture Witnesseth: In consideration of the premises, and the purchase of the Securities by the holders thereof, the Corporation covenants and agrees with the Debt Trustee for the equal and proportionate benefit of the respective holders from time to time of the Securities or of a series thereof, as follows: ARTICLE 1 DEFINITIONS SECTION 1.1 Definitions. The terms defined in this Section 1.1 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.1. All other terms used in this Indenture which are defined in the Trust Indenture Act, as amended (the "Trust Indenture Act"), or which are by reference therein defined in the Securities Act of 1933, as amended (the "Securities Act"), shall (except as herein otherwise expressly provided or unless the context otherwise requires) have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture as originally executed. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles and the term "generally accepted accounting principles" means such accounting principles as are generally accepted at the time of any computation. The words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. "Additional Provisions" shall have the meaning given to such term in Section 15.1. "Affiliate" means, with respect to a specified Person, (a) any Person directly or indirectly owning, controlling or holding with power to vote, 10% or more of the outstanding voting securities or other ownership interests of the specified Person, (b) any Person 10% or more of whose outstanding voting securities or other ownership interests are directly or indirectly owned, controlled or held with power to vote by the specified Person, (c) any Person directly or indirectly controlling, controlled by, or under common control with the specified Person, (d) a partnership in which the specified Person is a general partner, (e) any officer or director of the specified Person, and (f) if the specified Person is an individual, any entity of which the specified Person is an officer, director or general partner. "Authenticating Agent" shall mean any agent or agents of the Debt Trustee which at the time shall be appointed and acting pursuant to Section 6.14. "Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal or state law for the relief of debtors. "Board of Directors" shall mean the Board of Directors or the Executive Committee or any other duly authorized committee thereof of the Corporation. "Board Resolution" shall mean a copy of a resolution certified by the Secretary or an Assistant Secretary of the Corporation to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification. "Business Day" shall mean, with respect to any series of Securities, any day other than a day on which Federal or State banking institutions in New York, New York or Wilmington, Delaware are authorized or obligated by law, executive order or regulation to close. "Certificate" shall mean a certificate signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Corporation. "Certificate of Authentication" shall mean the certificate issued by the Debt Trustee or the Authenticating Agent as to the form of Security issued under the Indenture. "Commission" shall mean the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Securities" shall mean undivided beneficial ownership interests in the assets of a General Motors Capital Trust which rank pari passu with Preferred Securities issued by such General Motors Capital Trust; provided, however, that upon the occurrence of an Event of Default, the rights of holders of Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights of holders of Preferred Securities. "Common Securities Guarantee" shall mean, with respect to a General Motors Capital Trust, any guarantee that the Corporation may enter into with any Person or Persons that operate directly or indirectly for the benefit of holders of Common Securities of such General Motors Capital Trust. "Corporation" shall mean General Motors Corporation, a Delaware corporation, and, subject to the provisions of Article Ten, shall include its successors and assigns. "Custodian" shall mean any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law. "Debt Trustee" shall mean the Person identified as "Debt Trustee" in the first paragraph hereof, and, subject to the provisions of Article Six hereof, shall also include its successors and assigns as Debt Trustee hereunder. The term "Debt Trustee" as used with respect to a particular series of the Securities shall mean the trustee with respect to that series. "Declaration", with respect to a General Motors Capital Trust, shall mean the Declaration of Trust, as amended, of such General Motors Capital Trust. "Default" means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default. "Defaulted Interest" shall have the meaning given to such term in Section 2.5. "Defeasance Agent" shall have the meaning given to such term in Section 11.5(c). "Depository Institution" shall mean, with respect to Securities of any series, for which the Corporation shall determine that such Securities will be issued as a Global Security, The Depository Trust Company, New York, New York, The Philadelphia Depository Trust Company, Philadelphia, Pennsylvania, another clearing agency, or any successor registered as a clearing agency under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable statute or regulation, which, in each case, shall be designated by the Corporation pursuant to either Section 2.3 or 2.11. "Discharged" shall have the meaning given to such term in Section 11.5(b). "Event of Default" shall mean, with respect to any series of Securities, any event specified in Section 5.1, continued for the period of time, if any, and after the giving of the notice, if any, therein designated. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "General Motors Capital Trust" shall mean each of General Motors Capital Trust D and General Motors Capital Trust G, each a Delaware business trust, or any other similar trust created for the purpose of issuing securities in connection with the issuance of Securities under this Indenture. "General Motors Common Stock" shall mean the common stock of the Corporation (including, without limitation, the Class H Common Stock, par value $0.10 per share, of the Corporation, the Common Stock, par value $1 per share, of the Corporation and all other classes of common stock of the Corporation now or hereafter issued) or any other class of stock resulting from changes or reclassifications of such Common Stock consisting solely of changes in par value, or from par value to no par value, or from no par value to par value. "Global Security" means, with respect to any series of Securities, a Security executed by the Corporation and delivered by the Debt Trustee to the Depository Institution or pursuant to the Depository Institution's instruction, all in accordance with the Indenture, which shall be registered in the name of the applicable Depository Institution or its nominee. "Indenture" shall mean this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented, or both, and shall include the form and terms of particular series of Securities established as contemplated hereunder. "Institutional Trustee", with respect to a General Motors Capital Trust, has the meaning set forth in the Declaration of such General Motors Capital Trust. "Interest" shall mean, when used with respect to non-interest bearing Securities, interest payable at maturity. "Interest Payment Date", when used with respect to any installment of interest on a Security of a particular series, shall mean the date specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect to Securities of that series is due and payable. "Mortgage" shall mean and include any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar encumbrance. "Officers' Certificate" shall mean a certificate signed by the Chairman of the Board, the President or any Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Corporation and delivered to the Debt Trustee. Each such certificate shall include the statements provided for in Section 13.6 if and to the extent provided by the provisions of such Section. "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel experienced in the matters as to which such opinion is being delivered, who may be an employee of or counsel to the Corporation, or may be other counsel satisfactory to the Debt Trustee. Each such opinion shall include the statements provided for in Section 13.6 if and to the extent required by the provisions of such Section. "Other Financial Obligations" means all obligations of the Corporation to make payment pursuant to the terms of financial instruments, such as (i) securities contracts and foreign currency exchange contracts, (ii) derivative instruments, such as swap agreements (including interest rate and foreign exchange rate swap agreements), cap agreements, floor agreements, collar agreements, interest rate agreements, foreign exchange rate agreements, options, commodity futures contracts, commodity option contracts and (iii) in the case of both (i) and (ii) above, similar financial instruments, other than (A) obligations on account of Senior Indebtedness and (B) obligations on account of indebtedness for money borrowed ranking pari passu with or subordinate to the Securities. The term "outstanding" (except as otherwise provided in Section 7.1), when used with reference to Securities, shall, subject to the provisions of Section 7.4, mean, as of any particular time, all Securities authenticated and delivered by the Debt Trustee or the Authenticating Agent under this Indenture, except (a) Securities theretofore canceled by the Debt Trustee or the Authenticating Agent or delivered to the Debt Trustee for cancellation; (b) Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Debt Trustee or with any paying agent (other than the Corporation) or shall have been set aside and segregated in trust by the Corporation (if the Corporation shall act as its own paying agent); provided that, if such Securities, or portions thereof, are to be redeemed prior to maturity thereof, notice of such redemption shall have been given as in Article Fourteen provided or provision satisfactory to the Debt Trustee shall have been made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.8 unless proof satisfactory to the Corporation and the trustee is presented that any such Securities are held by bona fide holders in due course. "Person" shall mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt and as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.8 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security. "Preferred Securities" shall mean undivided beneficial ownership interests in the assets of a General Motors Capital Trust which rank pari passu with Common Securities issued by such General Motors Capital Trust; provided, however, that upon the occurrence of an Event of Default, the rights of holders of Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights of holders of Preferred Securities. "Preferred Securities Guarantee" shall mean, with respect to a General Motors Capital Trust, any guarantee that the Corporation may enter into with Wilmington Trust Company or other Persons that operate directly or indirectly for the benefit of holders of Preferred Securities of such General Motors Capital Trust. "Principal Office of the Debt Trustee", or other similar term, shall mean the principal office of the Debt Trustee, at which at any particular time its corporate trust business shall be administered. "Responsible Officer" means, with respect to the Debt Trustee, any officer within the corporate trust office of the Debt Trustee, including any vice-president, any assistant vice-president, any assistant secretary, the treasurer, any assistant treasurer or other officer of the corporate trust office of the Debt Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject. "Security" or "Securities" shall have the meaning stated in the first recital of this Indenture and more particularly means any security or securities, as the case may be, authenticated and delivered under this Indenture. "Security Register" shall have the meaning given to such term in Section 2.7. "Securityholder", "holder of Securities", or other similar terms, shall mean any person in whose name at the time a particular Security is registered on the register kept by the Corporation or the Debt Trustee for that purpose in accordance with the terms hereof. "Senior Indebtedness" means, with respect to the Corporation, (i) the principal, premium, if any, and interest in respect of (A) indebtedness of the Corporation for money borrowed and (B) indebtedness evidenced by securities, debentures, bonds or other similar instruments issued by the Corporation, (ii) all capital lease obligations of the Corporation, (iii) all obligations of the Corporation issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Corporation and all obligations of the Corporation under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business), (iv) all obligations of the Corporation for the reimbursement of any letter of credit, banker's acceptance, security purchase facility or similar credit transaction, (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which the Corporation is responsible or liable as obligor, guarantor or otherwise and (vi) all obligations of the type referred to in clauses (i) through (v) above of other persons secured by any lien on any property or asset of the Corporation (whether or not such obligation is assumed by the Corporation), except that Senior Indebtedness shall not include (i) the Securities and any such indebtedness that is by its terms subordinated to or ranks pari passu with the Securities and (ii) any indebtedness between and among the Corporation or its affiliates, including all other debt securities and guarantees in respect to those debt securities, issued to any other trust, or a trustee of such trust, partnership or other entity affiliated with the Corporation that is a financing vehicle of the Corporation (a "financing entity") in connection with the issuance by such financing entity of Preferred Securities or other securities that rank pari passu with, or junior to, the Preferred Securities. "Subsidiary" shall mean with respect to any Person, (i) any corporation at least a majority of whose outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner. For the purposes of this definition, "voting stock" means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency. "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as in force at the date of execution of this Indenture, except as provided in Section 9.3. "Trust Securities" shall mean, with respect to a General Motors Capital Trust, Common Securities and Preferred Securities of such General Motors Capital Trust. "U.S. Government Obligations" shall mean securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under clauses (i) or (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt. ARTICLE 2 SECURITIES SECTION 2.1 Forms Generally. The Securities of each series shall be in substantially the form as shall be established by or pursuant to a Board Resolution and as set forth in an Officers' Certificate of the Corporation or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange or all as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. SECTION 2.2 Form of Debt Trustee's Certificate of Authentication. The Debt Trustee's Certificate of Authentication on all Securities shall be in substantially the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. [ ] as Debt Trustee By _______________________________________ Authorized Officer SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate principal amount of securities of that series from time to time authorized by or pursuant to a Board Resolution of the Corporation or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall be established in or pursuant to a Board Resolution of the Corporation and set forth in an Officers' Certificate of the Corporation or established in one or more indentures supplemental: (a) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities); (b). any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 2.7, 2.8, 2.9, 9.4 or 14.3); (c) the date or dates on which the principal of and premium, if any, on the Securities of the series is payable; (d) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such interest may be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable or the manner of determination of such Interest Payment Dates and the record dates for the determination of holders to whom interest is payable on any such Interest Payment Dates; (e) the place or places where the principal of, and premium, if any, and any interest on Securities of the series shall be payable; (f) the right, if any, to extend the interest payment periods and the duration of such extension; (g) the price or prices at which, the period or periods within which, the event or events giving rise to, and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Corporation, pursuant to any sinking fund or otherwise; (h) the obligation, if any, of the Corporation to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Securityholder thereof and the price or prices at which, and the period or periods within which, and the terms and conditions upon which, Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation; (i) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable; (j) any Events of Default with respect to the Securities of a particular series, if not set forth herein; (k) the form of the Securities of the series including the form of the Certificate of Authentication of such series; (l) any trustee, authenticating or paying agents, warrant agents, transfer agents or registrars with respect to the Securities of such series; (m) whether the Securities of the series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the Depository Institution for such Global Security or Securities, and whether beneficial owners of interests in any such Global Securities may exchange such interests for other Securities of such series in the manner provided in Section 2.7, and the manner and the circumstances under which and the place or places where any such exchanges may occur if other than in the manner provided in Section 2.7, and any other terms of the series relating to the global nature of the Global Securities of such series and the exchange, registration or transfer thereof and the payment of any principal thereof, or interest or premium, if any, thereon; and (n) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors or in any such indenture supplemental hereto. If any of the terms of the series are established by action taken pursuant to a Board Resolution of the Corporation, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Corporation and delivered to the Debt Trustee at or prior to the delivery of the Officers' Certificate of the Corporation setting forth the terms of the series. SECTION 2.4 Authentication and Dating. At any time and from time to time after the execution and delivery of this Indenture, the Corporation may deliver Securities of any series executed by the Corporation to the Debt Trustee for authentication, and the Debt Trustee shall thereupon authenticate and deliver said Securities to or upon the written order of the Corporation, signed by its Chairman of the Board of Directors, President or one of its Vice Presidents and by its Treasurer, any Assistant Treasurer, Secretary or any Assistant Secretary, without any further action by the Corporation hereunder. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Debt Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in relying upon: (a) a copy of any Board Resolution or Resolutions relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, in each case certified by the Secretary or an Assistant Secretary of the Corporation; (b) an executed supplemental indenture, if any; (c) an Officers' Certificate setting forth the form and terms of the Securities as required pursuant to Sections 2.1 and 2.3, respectively; and (d) an Opinion of Counsel prepared in accordance with Section 13.6 which shall also state: (i) that the form of such Securities has been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.1 in conformity with the provisions of this Indenture; (ii) that the terms of such Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.3 in conformity with the provisions of this Indenture; (iii) that such Securities, when authenticated and delivered by the Debt Trustee and issued by the Corporation in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Corporation; (iv) that all laws and requirements in respect of the execution and delivery by the Corporation of the Securities have been complied with and that authentication and delivery of the Securities by the Debt Trustee will not violate the terms of the Indenture; and (V) such other matters as the Debt Trustee may reasonably request. The Debt Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Debt Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Debt Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees and/or vice presidents shall determine that such action would expose the Debt Trustee to personal liability to existing holders. SECTION 2.5 Date and Denomination of Securities. The Securities shall be issuable as registered Securities without coupons and in such denominations as shall be specified as contemplated by Section 2.3. In the absence of any such specification with respect to the Securities of any series, the Securities of such Series shall be issuable in the denominations of $1,000 and any multiple thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the officers of the Corporation executing the same may determine with the approval of the Debt Trustee as evidenced by the execution and authentication thereof. Every Security shall be dated the date of its authentication, shall bear interest, if any, from such date and shall be payable on such dates, in each case, as contemplated by Section 2.3. The interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.1. Any interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for any Security of the same series (herein called "Defaulted Interest") shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such holder, and such Defaulted Interest shall be paid by the Corporation, at its election, as provided in clause (1) or clause (2) below: (a) The Corporation may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the Corporation shall notify the Debt Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Corporation shall deposit with the Debt Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Debt Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Debt Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Debt Trustee of the notice of the proposed payment. The Debt Trustee shall promptly notify the Corporation of such special record date and, in the name and at the expense of the Corporation, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special record date and shall be no longer payable pursuant to the following clause (b). (b) The Corporation may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Corporation to the Debt Trustees of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Debt Trustee. Unless otherwise set forth in a Board Resolution of the Corporation or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.1 hereof, the term "regular record date" as used in this Section with respect to a series of Securities with respect to any Interest Payment Date for such series shall mean either the fifteenth day of the month in which an Interest Payment Date established for such series pursuant to Section 2.1 hereof shall occur, if such Interest Payment Date is the last day of a month, or the last day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant to Section 2.1 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day. Subject to the foregoing provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security. SECTION 2.6 Execution of Securities. The Securities shall be signed in the name and on behalf of the Corporation by the facsimile signature of its Chairman of the Board of Directors, President or one of its Vice Presidents and by the facsimile signature of its Treasurer, one of its Assistant Treasurers, Secretary or one of its Assistant Secretaries, under its corporate seal which may be affixed thereto or printed, engraved or otherwise reproduced thereon, by facsimile or otherwise, and which need not be attested. Only such Securities as shall bear thereon a Certificate of Authentication substantially in the form hereinbefore recited, executed by the Debt Trustee or the Authenticating Agent, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Debt Trustee or the Authenticating Agent upon any Security executed by the Corporation shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture. In case any officer of the Corporation who shall have signed any of the Securities shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by the Debt Trustee or the Authenticating Agent, or disposed of by the Corporation, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such officer of the Corporation; and any Security may be signed on behalf of the Corporation by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Corporation, although at the date of the execution of this Indenture any such person was not such an officer. SECTION 2.7 Exchange and Registration of Transfer of Securities. Subject to Section 2.3(i), Securities of any series may be exchanged for a like aggregate principal amount of Securities of the same series of other authorized denominations. Securities to be exchanged may be surrendered at the Principal Office of the Debt Trustee or at any office or agency to be maintained by the Corporation for such purpose as provided in Section 3.2, and the Corporation or the Debt Trustee shall execute and register and the Debt Trustee or the Authenticating Agent shall authenticate and deliver in exchange therefor the Security or Securities which the Securityholder making the exchange shall be entitled to receive. Upon due presentment for registration of transfer of any Security of any series at the Principal Office of the Debt Trustee or at any office or agency of the Corporation maintained for such purpose as provided in Section 3.2, the Corporation or the Debt Trustee shall execute and register and the Debt Trustee or the Authenticating Agent shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the same series for a like aggregate principal amount. Registration or registration of transfer of any Security by the Debt Trustee or by any agent of the Corporation appointed pursuant to Section 3.2, and delivery of such Security, shall be deemed to complete the registration or registration of transfer of such Security. The Corporation or the Debt Trustee shall keep, at the Principal Office of the Debt Trustee, a register for each series of Securities issued hereunder (the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Corporation or the Debt Trustee shall register all Securities and shall register the transfer of all Securities as in this Article Two provided. Such register shall be in written form or in any other form capable of being converted into written form within a reasonable time. All Securities presented for registration of transfer or for exchange or payment shall (if so required by the Corporation or the Debt Trustee or the Authenticating Agent) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Corporation and the Debt Trustee or the Authenticating Agent duly executed by, the holder or his attorney duly authorized in writing. No service charge shall be made for any exchange or registration of transfer of Securities, but the Corporation or the Debt Trustee may require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed in connection therewith. The Corporation or the Debt Trustee shall not be required to exchange or register a transfer of (a) any Security for a period of 15 days next preceding the date of selection of Securities of such series for redemption, or (b) any Securities of any series selected, called or being called for redemption in whole or in part, except in the case of any Securities of any series to be redeemed in part, the portion thereof not so to be redeemed. SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Corporation shall execute, and upon its request the Debt Trustee shall authenticate and deliver, a new Security of the same series bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Corporation and the Debt Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Corporation and the Debt Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof. The Debt Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Corporation. Upon the issuance of any substituted Security, the Corporation may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Security which has matured or is about to mature or has been called for redemption in full shall become mutilated or be destroyed, lost or stolen, the Corporation may, instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the Corporation and the Debt Trustee such security or indemnity as may be required by them to save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Corporation and to the Debt Trustee of the destruction, loss or theft of such Security and of the ownership thereof. Every substituted Security of any series issued pursuant to the provisions of this Section 2.8 by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Corporation, whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by applicable law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. SECTION 2.9 Temporary Securities. Pending the preparation of definitive Securities of any series, the Corporation may execute and the Debt Trustee shall authenticate and deliver temporary Securities (printed or lithographed). Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the definitive Securities but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Corporation. Every such temporary Security shall be executed by the Corporation and be authenticated by the Debt Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Securities. Without unreasonable delay the Corporation will execute and deliver to the Debt Trustee or the Authenticating Agent definitive Securities and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor, at the Principal Office of the Debt Trustee or at any office or agency maintained by the Corporation for such purpose as provided in Section 3.2, and the Debt Trustee or the Authenticating Agent shall authenticate and deliver in exchange for such temporary Securities a like aggregate principal amount of such definitive Securities. Such exchange shall be made by the Corporation at its own expense and without any charge therefor except that in case of any such exchange involving a registration of transfer the Corporation may require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed in relation thereto. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series authenticated and delivered hereunder. SECTION 2.10 Cancellation of Securities Paid, etc. All Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer, shall, if surrendered to the Corporation or any paying agent, be surrendered to the Debt Trustee and promptly canceled by it, or, if surrendered to the Debt Trustee or any Authenticating Agent, shall be promptly canceled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. All Securities canceled by any Authenticating Agent shall be delivered to the Debt Trustee. The Debt Trustee shall destroy canceled Securities and shall deliver a certificate of such destruction to the Corporation. If the Corporation shall acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Debt Trustee for cancellation. SECTION 2.11 Global Securities. (a) If the Corporation shall establish pursuant to Section 2.3 that the Securities of a particular series are to be issued as a Global Security, then the Corporation shall execute and the Debt Trustee shall, in accordance with Section 2.4, authenticate and deliver, a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the outstanding Securities of such series, (ii) shall be registered in the name of the Depository Institution or its nominee, (iii) shall be delivered by the Debt Trustee to the Depository Institution or pursuant to the Depository Institution's instruction and (iv) shall bear a legend substantially to the following effect: "Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depository Institution or to a successor Depository Institution or to a nominee of such successor Depository Institution." (b) Notwithstanding the provisions of Section 2.7, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.7, only to another nominee of the Depository Institution for such series or to a successor Depository Institution for such series selected or approved by the Corporation or to a nominee of such successor Depository Institution. (c) If at any time the Depository Institution for a series of the Securities notifies the Corporation that it is unwilling or unable to continue as Depository Institution for such series or if at any time the Depository Institution for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, and a successor Depository Institution for such series is not appointed by the Corporation within 90 days after the Corporation receives such notice or becomes aware of such condition, as the case may be, this Section 2.11 shall no longer be applicable to the Securities of such series and the Corporation will execute, and subject to Section 2.7, the Debt Trustee will authenticate and deliver, the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the Corporation may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Corporation will execute and, subject to Section 2.7, the Debt Trustee, upon receipt of an Officers' Certificate evidencing such determination by the Corporation, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Debt Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depository Institution, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Debt Trustee. The Debt Trustee shall deliver such Securities to the Depository Institution for delivery to the Persons in whose names such Securities are so registered. ARTICLE 3 PARTICULAR COVENANTS OF THE CORPORATION. SECTION 3.1 Payment of Principal, Premium and Interest. The Corporation covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and premium, if any, and interest on, each of the Securities of that series at the place, at the respective times and in the manner provided in such Securities. Each installment of interest on the Securities of any series may be paid at the option of the Corporation by mailing checks payable to the order of the holders of Securities entitled thereto as they appear on the Security Register. SECTION 3.2 Offices for Notices and Payments, etc. So long as any of the Securities remains outstanding, the Corporation will designate and maintain in Wilmington, Delaware or New York, New York an office or agency where the Securities of each series may be presented for payment, an office or agency where the Securities of that series may be presented for registration of transfer and for exchange as in this Indenture provided, an office or agency where notices and demands to or upon the Corporation in respect of the Securities of that series or of this Indenture may be served and an office or agency where the Securities of such series may be presented for payment. The Corporation will give to the Debt Trustee notice of the location of any such office or agency and of any change of location thereof. Until otherwise designated from time to time by the Corporation in a notice to the Debt Trustee, or specified as contemplated by Section 2.3, any such office or agency for all of the above purposes shall be the office or agency of the Debt Trustee in Wilmington, Delaware. In case the Corporation shall fail to maintain any such office or agency in Wilmington, Delaware or New York, New York or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Principal Office of the Debt Trustee, and the Corporation hereby appoints the Debt Trustee as its agent to receive all such presentations, demands and notices. In addition to any such office or agency, the Corporation may from time to time designate one or more offices or agencies outside Wilmington, Delaware or New York, New York, where the Securities may be presented for registration of transfer and for exchange in the manner provided in this Indenture, and the Corporation may from time to time rescind such designation, as the Corporation may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Corporation of its obligation to maintain any such office or agency in Wilmington, Delaware or New York, New York, for the purposes above mentioned. The Corporation will give to the Debt Trustee prompt written notice of any such designation or rescission thereof. SECTION 3.3 Appointments to Fill Vacancies in Debt Trustee's Office. The Corporation, whenever necessary to avoid or fill a vacancy in the office of Debt Trustee, will appoint, in the manner provided in Section 6.10, a Debt Trustee, so that there shall at all times be a Debt Trustee hereunder. SECTION 3.4 Provision as to Paying Agent. (a) If the Corporation shall appoint a paying agent other than the Debt Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Debt Trustee an instrument in which such agent shall agree with the Debt Trustee, subject to the provision of this Section 3.4: (1) that it will hold all sums held by it as such agent for the payment of the principal of, and premium, if any, or interest, if any, on, the Securities of such series (whether such sums have been paid to it by the Corporation or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series; (2) that it will give the Debt Trustee notice of any failure by the Corporation (or by any other obligor on the Securities of such series) to make any payment of the principal of, and premium, if any, or interest, if any, on, the Securities of such series when the same shall be due and payable; and (3) at any time during the continuance of any such default, upon written request of the Debt Trustee, forthwith pay to the Debt Trustee all sums so held by such paying agent. (b) If the Corporation shall act as its own paying agent, it will, on or before each due date of the principal of and premium, if any, interest, if any, on the Securities of any series, set aside, segregate and hold in trust for the benefit of the holders of the Securities of such series a sum sufficient to pay such principal, premium or interest so becoming due and will notify the Debt Trustee of any failure to take such action. (c) Anything in this Section 3.4 to the contrary notwithstanding, the Corporation may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Debt Trustee all sums held in trust for any such series by the Debt Trustee or any paying agent hereunder, as required by this Section 3.4, such sums to be held by the Debt Trustee upon the trusts herein contained. (d) Anything in this Section 3.4 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.4 is subject to Sections 11.3 and 11.4. SECTION 3.5 Certificate to Debt Trustee. The Corporation will deliver to the Debt Trustee, within 120 days after the end of each fiscal year, commencing with the first calendar year following the issuance of Securities of any series under this Indenture, so long as Securities of any series are outstanding hereunder, an Officers' Certificate stating that in the course of the performance by the signers of their duties as officers of the Corporation they would normally have knowledge of any default by the Corporation in the performance of any covenants contained herein, stating whether or not they have knowledge of any such default and, if so, specifying each such default of which the signers have knowledge and the nature thereof. SECTION 3.6 Compliance with Consolidation Provisions. The Corporation will not, while any of the Securities remain outstanding, consolidate with, or merge into, or merge into itself, or sell or convey all or substantially all of its property to any other company unless the provisions of Article Ten hereof are complied with. SECTION 3.7 Limitation on Dividends; Transactions with Affiliates. If Securities are issued to a General Motors Capital Trust or a trustee of such trust in connection with the issuance of Trust Securities by such General Motors Capital Trust and (i) there shall have occurred an Event of Default with respect to such Securities, or (ii) the Corporation shall be in default with respect to its payment of any obligations under a Preferred Securities Guarantee or Common Securities Guarantee relating to such General Motors Capital Trust, then the Corporation shall not (a) declare or pay any dividend on, make any distribution with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock (other than (i) purchases or acquisitions of shares of General Motors Common Stock in connection with the satisfaction by the Corporation of its obligations under any employee benefit plans or any other contractual obligation of the Corporation (other than a contractual obligation ranking pari passu with or junior to the Securities), (ii) issuance of capital stock in connection with a recapitalization or reclassification of the Corporation's capital stock or the exchange or conversion of one class or series of the Corporation's capital stock for another class or series of the Corporation's capital stock , in each case by merger or otherwise, or (iii) the purchase of fractional interests in shares of the Corporation's capital stock pursuant to the conversion or exchange provisions of such Corporation capital stock or the security being converted or exchanged), (b) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by the Corporation that rank pari passu with or junior to such Securities (including any other series of Securities issued to a General Motors Capital Trust) and (c) make any guarantee payments with respect to the foregoing (other than pursuant to a Preferred Securities Guarantee relating to such General Motors Capital Trust). SECTION 3.8 Covenants as to General Motors Capital Trusts. In the event Securities are issued to a General Motors Capital Trust or a trustee of such trust in connection with the issuance of Trust Securities by such General Motors Capital Trust, for so long as such Trust Securities remain outstanding, the Corporation will (i) maintain 100% direct or indirect ownership of the Common Securities of such General Motors Capital Trust; provided, however, that any permitted successor of the Corporation under the Indenture may succeed to the Corporation's ownership of the Common Securities, (ii) use its reasonable efforts to cause such General Motors Capital Trust (a) to remain a statutory business trust, except in connection with a distribution of Securities, the redemption of all of the Trust Securities of such General Motors Capital Trust or certain mergers, consolidations or amalgamations, each as permitted by the Declaration relating to such General Motors Capital Trust, and (b) to otherwise continue not to be treated as an association taxable as a corporation or partnership for United States federal income tax purposes and (iii) use its reasonable efforts to cause each holder of Trust Securities to be treated as owning an undivided beneficial interest in the Securities. SECTION 3.9 Notice of Default. The Corporation shall file with the Debt Trustee written notice of the occurrence of any Event of Default within 30 business days of its becoming aware of any such Event of Default. ARTICLE 4 SECURITYHOLDERS' LISTS AND REPORTS BY THE CORPORATION AND THE TRUSTEE. SECTION 4.1 Securityholders' Lists. The Corporation covenants and agrees that it will furnish or cause to be furnished to the Debt Trustee: (a) on a semi-annual basis on each regular record date for each series of Securities, a list, in such form as the Debt Trustee may reasonably require, of the names and addresses of the Securityholders of such series of Securities as of such record date (and on dates to be determined pursuant to Section 2.3 for non-interest bearing securities in each year); and (b) at such other times as the Debt Trustee may request in writing, within 30 days after the receipt by the Corporation, of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, except that no such lists need be furnished so long as the Debt Trustee is in possession thereof by reason of its acting as Security registrar for such series. SECTION 4.2 Preservation and Disclosure of Lists. (a) The Debt Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders of each series of Securities (1) contained in the most recent list furnished to it as provided in Section 4.1 or (2) received by it in the capacity of Securities registrar (if so acting) hereunder. The Debt Trustee may destroy any list furnished to it as provided in Section 4.1 upon receipt of a new list so furnished. (b) In case three or more holders of Securities of any series (hereinafter referred to as "applicants") apply in writing to the Debt Trustee and furnish to the Debt Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least 6 months preceding the date of such application, and such application states that the applicants desire to communicate with other holders of Securities of such series or with holders of all Securities with respect to their rights under this Indenture or under such Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Debt Trustee shall within 5 Business Days after the receipt of such application, at its election, either: (1) afford such applicants access to the information preserved at the time by the Debt Trustee in accordance with the provisions of subsection (a) of this Section 4.2; or (2) inform such applicants as to the approximate number of holders of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Debt Trustee in accordance with the provisions of subsection (a) of this Section 4.2, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application. If the Debt Trustee shall elect not to afford such applicants access to such information, the Debt Trustee shall, upon the written request of such applicants, mail to each Securityholder of such series or all Securities, as the case may be, whose name and address appear in the information preserved at the time by the Debt Trustee in accordance with the provisions of subsection (a) of this Section 4.2 a copy of the form of proxy or other communication which is specified in such request with reasonable promptness after a tender to the Debt Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within 5 days after such tender, the Debt Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Debt Trustee, such mailing would be contrary to the best interests of the holders of Securities of such series or all Securities, as the case may be, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Debt Trustee shall mail copies of such material to all such Securityholders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Debt Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (c) Each and every holder of Securities, by receiving and holding the same, agrees with the Corporation and the Debt Trustee that neither the Corporation nor the Debt Trustee nor any paying agent shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the holders of Securities in accordance with the provisions of subsection (b) of this Section 4.2, regardless of the source from which such information was derived, and that the Debt Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b). SECTION 4.3 Reports by Corporation. (a) The Corporation covenants and agrees to file with the Debt Trustee, within 15 days after the Corporation is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Corporation may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Corporation is not required to file information, documents or reports pursuant to either of such sections, then to file with the Debt Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. (b) The Corporation covenants and agrees to file with the Debt Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Corporation with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. (c) The Corporation covenants and agrees to transmit by mail to all holders of Securities, as the names and addresses of such holders appear upon the Security Register, within 30 days after the filing thereof with the Debt Trustee, such summaries of any information, documents and reports required to be filed by the Corporation pursuant to subsections (a) and (b) of this Section 4.3 as may be required by rules and regulations prescribed from time to time by the Commission. (d) The Corporation covenants and agrees to furnish to the Debt Trustee within 120 days of the end of each fiscal year, the compliance certificate required by Section 314(a)(4) of the Trust Indenture Act. SECTION 4.4 Reports by the Debt Trustee. (a) The term "reporting date", as used in this Section, shall be May 15 of each year, commencing with the first May 15 after the first issuance of Securities of a series for which the Debt Trustee is acting as Debt Trustee pursuant to this Indenture. Within 60 days after the reporting date in each year, the Debt Trustee shall transmit by mail to all holders of Securities as provided in Section 313(c) of the Trust Indenture Act, as their names and addresses appear in the Security Register, a brief report dated as of such reporting date, if required by Section 313(a) of the Trust Indenture Act. (b) The Debt Trustee shall transmit to the Securityholders for each series, as hereinafter provided, a brief report with respect to the character and amount of any advances (and if the Debt Trustee elects so to state, the circumstances surrounding the making thereof) made by the Debt Trustee (as such), since the date of the last report transmitted pursuant to the provisions of subsection (a) of this Section 4.4 (or, if no such report has yet been so transmitted, since the date of execution of this Indenture), for the reimbursement of which it claims or may claim a lien or charge prior to that of the Securities of such series on property or funds held or collected by it as Debt Trustee, and which it has not previously reported pursuant to this subsection, if such advances remaining unpaid at any time aggregate more than 10% of the principal amount of Securities for such series outstanding at such time, such report to be transmitted within 90 days after such time. (c) Reports pursuant to this Section 4.4 shall be transmitted by mail, first class postage prepaid to all holders of Securities as required by Section 313(c) of the Trust Indenture Act. (d) A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Debt Trustee with each stock exchange upon which the Securities of any applicable series are listed and also with the Commission. The Corporation will notify the Debt Trustee when and as the Securities of any series become listed on any stock exchange. (e) The Debt Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act. ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT. SECTION 5.1 Events of Default. In case one or more of the following Events of Default with respect to Securities of any series or such other events as may be established with respect to the Securities of that series as contemplated by Section 2.3 hereof shall have occurred and be continuing: (a) default in the payment of any installment of interest upon any Securities of that series when it becomes due and payable, and continuance of such default for a period of 30 days; provided, however, that a valid extension of an interest payment period by the Corporation in accordance with the terms of any particular series of Securities established as contemplated in this Indenture, shall not constitute a default in the payment of interest for purposes of this Indenture; or (b) default in the payment of all or any part of the principal of, or premium, if any, on, any Securities of that series as and when the same shall become due and payable either at maturity, upon redemption (including redemption for a sinking fund, if any), by declaration or otherwise; or (c) default in the performance, or breach, of any covenant or warranty of the Corporation in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with and other than those set forth exclusively in terms of any particular series of Securities established as contemplated in this Indenture), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Corporation by the Debt Trustee or to the Corporation and the Debt Trustee by the holders of at least 25% in principal amount of the outstanding Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (d) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Corporation in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Corporation or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or (e) the Corporation shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Corporation or of any substantial part of its property, or shall make any general assignment for the benefit of creditors; or (f)in the event Securities of such series are issued to a General Motors Capital Trust or a trustee of such trust in connection with the issuance of Trust Securities by such General Motors Capital Trust, such General Motors Capital Trust shall have voluntarily or involuntarily dissolved, wound-up its business or otherwise terminated its existence except in connection with (i) the distribution of Securities to holders of Trust Securities in liquidation of their interests in such General Motors Capital Trust, (ii) the redemption of all of the outstanding Trust Securities of such General Motors Capital Trust or (iii) certain mergers, consolidations or amalgamations, each as permitted by the Declaration of such General Motors Capital Trust. If an Event of Default with respect to a series of Securities occurs and is continuing, then, and in each and every such case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Debt Trustee or the holders of not less than 25% in aggregate principal amount of the Securities of that series then outstanding hereunder, by notice in writing to the Corporation (and to the Debt Trustee if given by Securityholders), may declare the entire principal of all Securities of that series and the interest accrued thereon and unpaid, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. The foregoing provisions, however, are subject to the condition that if, at any time after the principal of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Corporation shall pay or shall deposit with the Debt Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of such series (or of all the Securities, as the case may be) and the principal of and premium, if any, on any and all Securities of such series (or of all the Securities, as the case may be) which shall have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified in the Securities of such series (or at the respective rates of interest of all the Securities, as the case may be), to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Debt Trustee and each predecessor Debt Trustee, their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Debt Trustee and each predecessor Debt Trustee except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of or premium, if any, on Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided in this Indenture, then and in every such case the holders of a majority in aggregate principal amount of the Securities of such series (or of all the Securities, as the case may be) then outstanding, by written notice to the Corporation and to the Debt Trustee, may waive all defaults with respect to that series (or with respect to all Securities, as the case may be, in such case, treated as a single class) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. In case the Debt Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Debt Trustee, then and in every such case the Corporation, the Debt Trustee and the holders of the applicable Securities, as the case may be, shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Corporation, the Debt Trustee and the holders of such Securities shall continue as though no such proceedings had been taken. SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Corporation covenants that (a) in case an Event of Default with respect to a series of Securities under Section 5.1(a), (b), (c) or (f) shall have occurred and be continuing, then, upon demand of the Debt Trustee, the Corporation will pay to the Debt Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have become due and payable on all such Securities of that series for principal and premium, if any, or interest, or both, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under applicable law and, if the Securities are held by a General Motors Capital Trust or a trustee of such trust, without duplication of any other amounts paid by General Motors Capital Trust or trustee in respect thereof) upon the overdue installments of interest at the rate borne by the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including a reasonable compensation to the Debt Trustee, its agents, attorneys and counsel, and any other amounts owing to the Debt Trustee hereunder other than through its negligence or bad faith. In case the Corporation shall fail forthwith to pay such amounts upon such demand, the Debt Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Corporation or any other obligor on such Securities and collect in the manner provided by law out of the property of the Corporation or any other obligor on such Securities wherever situated the moneys adjudged or decreed to be payable. In case an Event of Default with respect to a series of Securities under Section 5.1(d) or (e) shall have occurred, the Debt Trustee, irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Debt Trustee shall have made any demand pursuant to the provisions of this Section 5.2, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Securities of such series and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Debt Trustee (including any claim for reasonable compensation to the Debt Trustee and each predecessor Debt Trustee, and their respective agents, attorneys and counsel, and for any other amounts owing to the Debt Trustee and each predecessor Debt Trustee, except as a result of negligence or bad faith) and of the Securityholders allowed in such judicial proceedings relative to the Corporation or any other obligor on the Securities of any series, or to the creditors or property of the Corporation or such other obligor, unless prohibited by applicable law and regulations, to vote on behalf of the holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Securityholders to make such payments to the Debt Trustee, and, in the event that the Debt Trustee shall consent to the making of such payments directly to the Securityholders, to pay to the Debt Trustee such amounts as shall be sufficient to cover reasonable compensation to the Debt Trustee, each predecessor Debt Trustee and their respective agents, attorneys and counsel, and all other amounts owing to the Debt Trustee and each predecessor Debt Trustee except as a result of negligence or bad faith. Nothing herein contained shall be construed to authorize the Debt Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any holder thereof or to authorize the Debt Trustee to vote in respect of the claim of any Securityholder in any such proceeding. All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Debt Trustee without the possession of any of the Securities, or the production thereof on any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Debt Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the holders of the Securities. In any proceedings brought by the Debt Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Debt Trustee shall be a party) the Debt Trustee shall be held to represent all the holders of the Securities, and it shall not be necessary to make any holders of the Securities parties to any such proceedings. SECTION 5.3 Application of Moneys Collected by Debt Trustee. Any moneys collected by the Debt Trustee shall be applied in the order following, at the date or dates fixed by the Debt Trustee for the distribution of such moneys, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid: First: To the payment of costs and expenses of collection applicable to such series and reasonable compensation to the Debt Trustee, its agents, attorneys and counsel, and of all other amounts owing to the Debt Trustee except as a result of its negligence or bad faith; Second: To the payment of all Senior Indebtedness and Other Financial Obligations of the Corporation if and to the extent required by Article Fifteen; Third: In case the principal of the outstanding Securities in respect of which moneys have been collected shall not have become due and be unpaid, to the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any), and interest on the Securities of such series, in respect of which or for the benefit of which money has been collected, ratably, without preference of priority of any kind, according to the amounts due on such Securities for principal (and premium, if any) and interest, respectively. SECTION 5.4 Proceedings by Securityholders. No holder of any Security of any series shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such holder previously shall have given to the Debt Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided, and unless also the holders of not less than 25% in aggregate principal amount of the Securities of that series then outstanding shall have made written request upon the Debt Trustee to institute such action, suit or proceeding in its own name as Debt Trustee hereunder and shall have offered to the Debt Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Debt Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action, suit or proceeding, it being understood and intended, and being expressly covenanted by the taker and holder of every Security with every other taker and holder and the Debt Trustee, that no one or more holders of Securities of any series shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other holder of Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities of the applicable series. Notwithstanding any other provisions in this Indenture, however, the right of any holder of any Security to receive payment of the principal of (premium, if any) and interest, if any, on such Security, on or after the same shall have become due and payable, or to institute suit for the enforcement of any such payment, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security of such series with every other such taker and holder and the Debt Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other such Securities, or to obtain or seek to obtain priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Debt Trustee shall be entitled to such relief as can be given either at law or in equity. SECTION 5.5 Proceedings by Debt Trustee. In case of an Event of Default hereunder the Debt Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Debt Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Debt Trustee by this Indenture or by law. SECTION 5.6 Remedies Cumulative and Continuing. Except as otherwise provided in the last paragraph of Section 2.8 with respect to the replacement or payment of mutilated, lost or stolen Securities, all powers and remedies given by this Article Five to the Debt Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Debt Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise established with respect to such series, and no delay or omission of the Debt Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 5.4, every power and remedy given by this Article Five or by law to the Debt Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Debt Trustee or by the Securityholders. SECTION 5.7 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders. The holders of a majority in aggregate principal amount of the Securities of any or all series affected (voting as one class) at the time outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Debt Trustee, or exercising any trust or power conferred on the Debt Trustee; provided, however, that (subject to the provisions of Section 6.1) the Debt Trustee shall have the right to decline to follow any such direction if the Debt Trustee shall determine that the action so directed would be unjustly prejudicial to the holders not taking part in such direction or if the Debt Trustee being advised by counsel determines that the action or proceeding so directed may not lawfully be taken or if the Debt Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees and/or Responsible Officers shall determine that the action or proceedings so directed would involve the Debt Trustee in personal liability. Prior to any declaration accelerating the maturity of any series of the Securities, or of all the Securities, as the case may be, the holders of a majority in aggregate principal amount of the Securities of that series at the time outstanding may on behalf of the holders of all of the Securities of such series waive any past default or Event of Default including any default established pursuant to Section 2.3 and its consequences except a default (a) in the payment of principal of, premium, if any, or interest on any of the Securities, (b) in respect of covenants or provisions hereof which cannot be modified or amended without the consent of the holder of each Security affected, or (c) a default of the covenants contained in Section 3.6; provided, however, that if the Securities of such series are held by a General Motors Capital Trust or a trustee of such trust, such waiver or modification to such waiver shall not be effective until the holders of a majority in liquidation preference of Trust Securities of the applicable General Motors Capital Trust shall have consented to such waiver or modification to such waiver; provided further, that if the consent of the Holder of each outstanding Security is required, such waiver shall not be effective until each holder of the Trust Securities of the applicable General Motors Capital Trust shall have consented to such waiver. Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Corporation, the Debt Trustee and the holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Upon any such waiver the Corporation, the Debt Trustee and the holders of the Securities of that series (or of all Securities, as the case may be) shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 5.7, said default or Event of Default shall for all purposes of the Securities of that series (or of all Securities, as the case may be) and this Indenture be deemed to have been cured and to be not continuing. The foregoing provisions shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such sections are hereby expressly excluded from this Indenture and the Securities, as permitted by the Trust Indenture Act. SECTION 5.8 Notice of Defaults. The Debt Trustee shall, within 90 days after the occurrence of a default with respect to the Securities of any series, mail to all Securityholders of that series, as the names and addresses of such holders appear upon the Security Register, notice of all defaults with respect to that series known to the Debt Trustee, unless such defaults shall have been cured before the giving of such notice (the term "defaults" for the purpose of this Section 5.8 being hereby defined to be the events specified in clauses (a), (b), (c), (d), (e) and (f) of Section 5.1, not including periods of grace, if any, provided for therein, and irrespective of the giving of written notice specified in clause (c) of Section 5.1); and provided that, except in the case of default in the payment of the principal of, premium, if any, or interest on any of the Securities of such series, the Debt Trustee shall (i) not be deemed to have knowledge of a default unless a Responsible Officer has actual knowledge or receives written notice and (ii) be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors and/or Responsible Officers of the Debt Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series; and provided further, that in the case of any default of the character specified in Section 5.1(c), no such notice to Securityholders of such series shall be given until at least 60 days after the occurrence thereof but shall be given within 90 days after such occurrence. SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture agree, and each holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Debt Trustee for any action taken or omitted by it as Debt Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.9 shall not apply to any suit instituted by the Debt Trustee, to any suit instituted by any Securityholder, or group of Securityholders of any series, holding in the aggregate more than 10% in principal amount of the Securities of that series outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security against the Corporation on or after the same shall have become due and payable. ARTICLE 6 CONCERNING THE TRUSTEE SECTION 6.1 Duties and Responsibilities of Debt Trustee. With respect to the holders of any series of Securities issued hereunder, the Debt Trustee, prior to the occurrence of an Event of Default with respect to securities of that series and after the curing or waiving of all Events of Default which may have occurred, with respect to securities of that series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Debt Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. No provision of this Indenture shall be construed to relieve the Debt Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that (a) prior to the occurrence of an Event of Default with respect to Securities of a series and after the curing or waiving of all Events of Default with respect to that series which may have occurred (1) the duties and obligations of the Debt Trustee with respect to Securities of a series shall be determined solely by the express provisions of this Indenture, and the Debt Trustee shall not be liable except for the performance of such duties and obligations with respect to such series as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Debt Trustee; and (2) in the absence of bad faith on the part of the Debt Trustee, the Debt Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Debt Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Debt Trustee, the Debt Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) the Debt Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Debt Trustee, unless it shall be proved that the Debt Trustee was negligent in ascertaining the pertinent facts; and (c) the Debt Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith, in accordance with the direction of the Securityholders pursuant to Section 5.7, relating to the time, method and place of conducting any proceeding for any remedy available to the Debt Trustee, or exercising any trust or power conferred upon the Debt Trustee, under this Indenture. None of the provisions contained in this Indenture shall require the Debt Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk is not reasonably assured to it. SECTION 6.2 Reliance on Documents, Opinions, etc. Except as otherwise provided in Section 6.1: (a) the Debt Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b). any request, direction, order or demand of the Corporation mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Debt Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Corporation; (c) the Debt Trustee may consult with counsel and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (d) the Debt Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Debt Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; (e) the Debt Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; nothing contained herein shall, however, relieve the Debt Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities (that has not been cured or waived) to exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs; (f)the Debt Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, coupon or other paper or document, unless requested in writing to do so by the holders of not less than a majority in principal amount of the outstanding Securities of the series affected thereby; provided, however, that if the payment within a reasonable time to the Debt Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Debt Trustee, not reasonably assured to the Debt Trustee by the security afforded to it by the terms of this Indenture, the Debt Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding; and (g) the Debt Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents (including any Authenticating Agent), custodians, nominees or attorneys, and the Debt Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed by it with due care. SECTION 6.3 No Responsibility for Recitals, etc. The recitals contained herein and in the Securities (except in the certificate of authentication of the Debt Trustee or the Authenticating Agent) shall be taken as the statements of the Corporation and the Debt Trustee and the Authenticating Agent assume no responsibility for the correctness of the same. The Debt Trustee and the Authenticating Agent make no representations as to the validity or sufficiency of this Indenture or of the Securities. The Debt Trustee and the Authenticating Agent shall not be accountable for the use or application by the Corporation of any Securities or the proceeds of any Securities authenticated and delivered by the Debt Trustee or the Authenticating Agent in conformity with the provisions of this Indenture. SECTION 6.4 Debt Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Securities. The Debt Trustee or any Authenticating Agent or any paying agent or any transfer agent or any Security registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Debt Trustee, Authenticating Agent, paying agent, transfer agent or Security registrar. SECTION 6.5 Moneys to be Held in Trust. Subject to the provisions of Section 11.4, all moneys received by the Debt Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purpose for which they were received, but need not be segregated from other funds except to the extent required by law. The Debt Trustee and any paying agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Corporation. So long as no Event of Default with respect to a series of Securities shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the written order of the Corporation, signed by the Chairman of the Board of Directors, the President, any Vice President, the Treasurer or any Assistant Treasurer of the Corporation. SECTION 6.6 Compensation and Expenses of Debt Trustee. The Corporation, as borrower, covenants and agrees to pay to the Debt Trustee from time to time, and the Debt Trustee shall be entitled to, compensation as agreed from time to time between the Corporation and the Debt Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Corporation will pay or reimburse the Debt Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Debt Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ and any amounts paid by the Debt Trustee to any Authenticating Agent pursuant to Section 6.14) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Corporation also covenants to indemnify the Debt Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Debt Trustee and arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises. The obligations of the Corporation under this Section 6.6 to compensate and indemnify the Debt Trustee and to pay or reimburse the Debt Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder, and shall survive the resignation or removal of the Debt Trustee and the termination of this Indenture. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Debt Trustee as such, except funds held in trust for the benefit of the holders of particular Securities. SECTION 6.7 Officers' Certificate as Evidence. Except as otherwise provided in Sections 6.1 and 6.2, whenever in the administration of the provisions of this Indenture the Debt Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Debt Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Debt Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Debt Trustee, shall be full warrant to the Debt Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof. SECTION 6.8 Conflicting Interest of Debt Trustee. If the Debt Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Debt Trustee and the Corporation shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act. SECTION 6.9 Eligibility of Debt Trustee. The Debt Trustee hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia or a corporation or other Person permitted to act as trustee by the Commission authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal, State, Territorial, or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 6.9 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Corporation may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Corporation, serve as Debt Trustee. In case at any time the Debt Trustee shall cease to be eligible in accordance with the provisions of this Section 6.9, the Debt Trustee shall resign immediately in the manner and with the effect specified in Section 6.10. SECTION 6.10 Resignation or Removal of Debt Trustee. (a) The Debt Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of such resignation to the Corporation and by mailing notice thereof to the holders of the applicable series of Securities at their addresses as they shall appear on the Security Register. Upon receiving such notice of resignation, the Corporation shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument, in duplicate, executed by order of its Board of Directors, one copy of which instrument shall be delivered to the resigning Debt Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed with respect to any series of Securities and have accepted appointment within 30 days after the mailing of such notice of resignation to the affected Securityholders, the resigning Debt Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 5.9, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. (b) In case at any time any of the following shall occur: (i) the Debt Trustee shall fail to comply with the provisions of Section 6.8 after written request therefor by the Corporation or by any Securityholder who has been a bona fide holder of a Security or Securities for at least six months, or (ii) the Debt Trustee shall cease to be eligible in accordance with the provisions of Section 6.9 and shall fail to resign after written request therefor by the Corporation or by any such Securityholder, or (iii) the Debt Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Debt Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Debt Trustee or of its property or affairs for the purpose of rehabilitation, conservation or iquidation, then, in any such case, the Corporation may remove the Debt Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Debt Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 5.9, any Securityholder who has been a bona fide holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Debt Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Debt Trustee and appoint a successor trustee. (c) The holders of a majority in aggregate principal amount of the Securities of any series at the time outstanding may at any time remove the Debt Trustee with respect to such series and nominate a successor trustee with respect to the applicable series of Securities or all series, as the case may be, which shall be deemed appointed as successor trustee with respect to the applicable series unless within 10 days after such nomination the Corporation objects thereto, in which case the Debt Trustee so removed or any Securityholder of the applicable series, upon the terms and conditions and otherwise as provided in subsection (a) of this Section 6.10, may petition any court of competent jurisdiction for an appointment of a successor trustee with respect to such series. (d) Any resignation or removal of the Debt Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.11. SECTION 6.11 Acceptance by Successor Debt Trustee. Any successor trustee appointed as provided in Section 6.10 shall execute, acknowledge and deliver to the Corporation and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the retiring trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Corporation or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 6.6, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act and shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring trustee thereunder. Upon request of any such successor trustee, the Corporation shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 6.6. If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Corporation, the retiring trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trustee hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee. No successor trustee shall accept appointment as provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 6.8 and eligible under the provisions of Section 6.9. Upon acceptance of appointment by a successor trustee as provided in this Section 6.11, the Corporation shall mail notice of the succession of such trustee hereunder to the holders of Securities of any applicable series at their addresses as they shall appear on the Security Register. If the Corporation fails to mail such notice within 10 days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Corporation. SECTION 6.12 Succession by Merger, etc. Any corporation into which the Debt Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Debt Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Debt Trustee, shall be the successor of the Debt Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case at the time such successor to the Debt Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Debt Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Debt Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the Debt Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Debt Trustee or authenticate Securities of any series in the name of any predecessor Debt Trustee shall apply only to its successor or successors by merger, conversion or consolidation. SECTION 6.13 Limitation on Rights of Debt Trustee as a Creditor. The Debt Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Debt Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein. SECTION 6.14 Authenticating Agents. There may be one or more Authenticating Agents appointed by the Debt Trustee upon the request of the Corporation with power to act on its behalf and subject to its direction in the authentication and delivery of Securities of any series issued upon exchange or transfer thereof as fully to all intents and purposes as though any such Authenticating Agent had been expressly authorized to authenticate and deliver Securities of such series; provided, that the Debt Trustee shall have no liability to the Corporation for any acts or omissions of the Authenticating Agent with respect to the authentication and delivery of Securities of any series. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof or of the District of Columbia authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of at least $5,000,000 and being subject to supervision or examination by Federal, State, Territorial or District of Columbia authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 6.14 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect herein specified in this Section. Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section 6.14 without the execution or filing of any paper or any further act on the part of the parties hereto or such Authenticating Agent. Any Authenticating Agent may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Debt Trustee and to the Corporation. The Debt Trustee may at any time terminate the agency of any Authenticating Agent with respect to one or more or all series of Securities by giving written notice of termination to such Authenticating Agent and to the Corporation. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible under this Section 6.14, the Debt Trustee may, and upon the request of the Corporation shall, promptly appoint a successor Authenticating Agent with respect to the applicable series eligible under this Section 6.14, shall give written notice of such appointment to the Corporation and shall mail notice of such appointment to all holders of the applicable series of Securities as the names and addresses of such holders appear on the Security Register. Any successor Authenticating Agent with respect to all or any series upon acceptance of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities with respect to such series of its predecessor hereunder, with like effect as if originally named as Authenticating Agent herein. The Debt Trustee agrees to pay to any Authenticating Agent from time to time reasonable compensation for its services, and the Debt Trustee shall be entitled to be reimbursed for such payments, subject to Section 6.6. Any Authenticating Agent shall have no responsibility or liability for any action taken by it as such in accordance with the directions of the Debt Trustee. ARTICLE 7 CONCERNING THE SECURITYHOLDERS SECTION 7.1 Action by Securityholders. Whenever in this Indenture it is provided that the holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action the holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by such Securityholders in person or by agent or proxy appointed in writing, or (b) by the record of such holders of Securities voting in favor thereof at any meeting of such Securityholders duly called and held in accordance with the provisions of Article Eight, or (c) by a combination of such instrument or instruments and any such record of such a meeting of such Securityholders. If the Corporation shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Corporation may, at its option, as evidenced by an Officers' Certificate, fix in advance a record date for such series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Corporation shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the outstanding Securities of that series shall be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. SECTION 7.2 Proof of Execution by Securityholders. Subject to the provisions of Section 6.1, 6.2 and 8.5, proof of the execution of any instrument by a Securityholder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Debt Trustee or in such manner as shall be satisfactory to the Debt Trustee. The ownership of Securities shall be proved by the Security Register or by a certificate of the Security registrar. The Debt Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary. The record of any Securityholders' meeting shall be proved in the manner provided in Section 8.6. SECTION 7.3 Who Are Deemed Absolute Owners. Prior to due presentment for registration of transfer of any Security, the Corporation, the Debt Trustee, any Authenticating Agent, any paying agent, any transfer agent and any Security registrar may deem the person in whose name such Security shall be registered upon the Security Register to be, and may treat him as, the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment of or on account of the principal of, premium, if any, and interest on such Security and for all other purposes; and neither the Corporation nor the Debt Trustee nor any Authenticating Agent nor any paying agent nor any transfer agent nor any Security registrar shall be affected by any notice to the contrary. All such payments so made to any holder for the time being or upon his order shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security. SECTION 7.4 Securities Owned by Corporation Deemed Not Outstanding. In determining whether the holders of the requisite aggregate principal amount of Securities have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Corporation or any other obligor on the Securities or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Corporation or any other obligor on the Securities shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Debt Trustee shall be protected in relying on any such direction, consent or waiver, only Securities which the Debt Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this Section 7.4 if the pledgee shall establish to the satisfaction of the Debt Trustee the pledgee's right to vote such Securities and that the pledgee is not the Corporation or any such other obligor or person directly or indirectly controlling or controlled by or under direct or indirect common control with the Corporation or any such other obligor. In the case of a dispute as to such right, any decision by the Debt Trustee taken upon the advice of counsel shall be full protection to the Debt Trustee. SECTION 7.5 Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Debt Trustee, as provided in Section 7.1, of the taking of any action by the holders of the percentage in aggregate principal amount of the Security specified in this Indenture in connection with such action, any holder of a Security (or any Security issued in whole or in part in exchange or substitution therefor) the serial number of which is shown by the evidence to be included in the Securities the holders of which have consented to such action may, by filing written notice with the Debt Trustee at the Principal Office of the Debt Trustee and upon proof of holding as provided in Section 7.2, revoke such action so far as concerns such Security (or so far as concerns the principal amount represented by any exchanged or substituted Security). Except as aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon such Security or any Security issued in exchange or substitution therefor. ARTICLE 8 SECURITYHOLDERS' MEETINGS SECTION 8.1 Purposes of Meetings. A meeting of Securityholders of any or all series may be called at any time and from time to time pursuant to the provisions of this Article Eight for any of the following purposes: (a) to give any notice to the Corporation or to the Debt Trustee, or to give any directions to the Debt Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Five; (b) to remove the Debt Trustee and nominate a successor trustee pursuant to the provisions of Article Six; (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 9.2; or (d) to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of such Securities under any other provision of this Indenture or under applicable law. SECTION 8.2 Call of Meetings by Debt Trustee. The Debt Trustee may at any time call a meeting of Securityholders of any or all series to take any action specified in Section 8.1, to be held at such time and at such place in New York, New York or Wilmington, Delaware, as the Debt Trustee shall determine. Notice of every meeting of the Securityholders of any or all series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to holders of Securities of each series affected at their addresses as they shall appear on the Securities register of such series. Such notice shall be mailed not less than 20 nor more than 180 days prior to the date fixed for the meeting. SECTION 8.3 Call of Meetings by Corporation or Securityholders. In case at any time the Corporation pursuant to a resolution of the Board of Directors, or the holders of at least 10% in aggregate principal amount of the Securities of any or all series, as the case may be, then outstanding, shall have requested the Debt Trustee to call a meeting of Securityholders of any or all series, as the case may be, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Debt Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Corporation or such Securityholders may determine the time and the place in said New York, New York or Wilmington, Delaware, as applicable, for such meeting and may call such meeting to take any action authorized in Section 8.1, by mailing notice thereof as provided in Section 8.2. SECTION 8.4 Qualifications for Voting. To be entitled to vote at any meeting of Securityholders a person shall (a) be a holder of one or more Securities with respect to which the meeting is being held or (b) a person appointed by an instrument in writing as proxy by a holder of one or more such Securities. The only persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Debt Trustee and its counsel and any representatives of the Corporation and its counsel. SECTION 8.5 Regulations. Notwithstanding any other provisions of this Indenture, the Debt Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. The Debt Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Corporation or by Securityholders as provided in Section 8.3, in which case the Corporation or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by majority vote of the meeting. Subject to the provisions of Section 7.4, at any meeting each holder of Securities with respect to which such meeting is being held or proxy therefor shall be entitled to one vote for each $1,000 principal amount of Securities held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Securities held by him or instruments in writing as aforesaid duly designating him as the person to vote on behalf of other Securityholders. Any meeting of Securityholders duly called pursuant to the provisions of Section 8.2 or 8.3 may be adjourned from time to time by a majority of those present, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice. SECTION 8.6 Voting. The vote upon any resolution submitted to any meeting of holders of Securities with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures of such holders or of their representatives by proxy and the serial number or numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 8.2. The record shall show the serial numbers of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Corporation and the other to the Debt Trustee to be preserved by the Debt Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. ARTICLE 9 SUPPLEMENTAL INDENTURES SECTION 9.1 Supplemental Indentures without Consent of Securityholders. The Corporation and the Debt Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders, for one or more of the following purposes: (a) to evidence the succession of another corporation to the Corporation, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Corporation pursuant to Article Ten hereof; (b) to add to the covenants of the Corporation such further covenants, restrictions or conditions for the protection of the holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities stating that such covenants are expressly being included for the benefit of such series) as the Board of Directors and the Debt Trustee shall consider to be for the protection of the holders of such Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions a default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Debt Trustee upon such default; (c) to provide for the issuance under this Indenture of Securities in coupon form (including Securities registrable as to principal only) and to provide for exchangeability of such Securities with the Securities issued hereunder in fully registered form and to make all appropriate changes for such purpose; (d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; (e) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 6.11; (f) to make any change that does not adversely affect the rights of any Securityholder in any material respect; or (g) to provide for the issuance of and establish the form and terms and conditions of the Securities of any series, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders of any series of Securities. The Debt Trustee is hereby authorized to join with the Corporation in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Debt Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture which affects the Debt Trustee's own rights, duties or immunities under this Indenture or otherwise. Any supplemental indenture authorized by the provisions of this Section 9.1 may be executed by the Corporation and the Debt Trustee without the consent of the holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 9.2. SECTION 9.2 Supplemental Indentures with Consent of Securityholders. With the consent (evidenced as provided in Section 7.1) of the holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of all series affected by such supplemental indenture (voting as a class), and in the case of Securities issued to a General Motors Capital Trust, the holders of a majority in aggregate liquidation amount of the related Preferred Securities, the Corporation, when authorized by a Board Resolution, and the Debt Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the holders of the Securities of each series so affected; provided, however, that no such supplemental indenture shall, without the consent of the holders of each Security affected thereby, (i) extend the fixed maturity of any Security of any series, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof or any premium thereon, or reduce any amount payable on redemption thereof or make the principal thereof or any interest or premium thereon payable in any coin or currency other than that provided in the Securities, or impair or affect the right of any Securityholder to institute suit for payment thereof or the right of repayment, if any, at the option of the holder, without the consent of the holder of each Security so affected or (ii) reduce the aforesaid percentage of Securities the holders of which are required to consent to any such supplemental indenture; provided, further, that if the Securities of such series are held by a General Motors Capital Trust or a trustee of such trust, such supplemental indenture shall not be effective until the holders of a majority in liquidation preference of Trust Securities of the applicable General Motors Capital Trust shall have consented to such supplemental indenture; provided further, that if the consent of the holder of each outstanding Security is required, such supplemental indenture shall not be effective until each holder of the Trust Securities of the applicable General Motors Capital Trust shall have consented to such supplemental indenture. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of Securityholders of such series with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture or the Securityholders of any other series. Upon the request of the Corporation accompanied by a copy of a resolution of the Board of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any such supplemental indenture, and upon the filing with the Debt Trustee of evidence of the consent of Securityholders as aforesaid, the Debt Trustee shall join with the Corporation in the execution of such supplemental indenture unless such supplemental indenture affects the Debt Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Debt Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. The Debt Trustee may receive an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that it is proper for the Debt Trustee under the provisions of this Article to join in the execution thereof. Promptly after the execution by the Corporation and the Debt Trustee of any supplemental indenture pursuant to the provisions of this Section, the Debt Trustee shall transmit, at the Corporation's expense, by mail, first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Debt Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. It shall not be necessary for the consent of the Securityholders under this Section 9.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article Nine shall comply with the Trust Indenture Act, as then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Nine, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Debt Trustee, the Corporation and the holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. SECTION 9.4 Notation on Securities. Securities of any series authenticated and delivered after the execution of any supplemental indenture affecting such series pursuant to the provisions of this Article Nine may bear a notation in form approved by the Corporation as to any matter provided for in such supplemental indenture. If the Corporation shall so determine, new Securities of any series so modified as to conform, in the opinion of the Corporation, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Corporation, authenticated by the Debt Trustee or the Authenticating Agent and delivered in exchange for the Securities of any series then outstanding. SECTION 9.5 Evidence of Compliance of Supplemental Indenture to be Furnished Debt Trustee. The Debt Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article Nine. ARTICLE 10 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE. SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms. Nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Corporation with or into any other corporation or corporations organized under the laws of a domestic jurisdiction (whether or not affiliated with the Corporation, as the case may be), or successive consolidations or mergers in which the Corporation, as the case may be, or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Corporation, as the case may be, or its successor or successors as an entirety, or substantially as an entirety, to any other corporation organized under the laws of a domestic jurisdiction (whether or not affiliated with the Corporation, as the case may be, or its successor or successors) authorized to acquire and operate the same; provided, however, that the Corporation hereby covenants and agrees that, upon any such consolidation, merger, sale, conveyance, transfer or other disposition, the due and punctual payment, in the case of the Corporation, of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according to their tenor and the due and punctual performance and observance of all the covenants and conditions of this Indenture with respect to each series or established with respect to such series to be kept or performed by the Corporation as the case may be, shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect) satisfactory in form to the Debt Trustee executed and delivered to the Debt Trustee by the entity formed by such consolidation, or into which the Corporation, as the case may be, shall have been merged, or by the entity which shall have acquired such property; provided, further, that after giving effect thereto, no Default shall have occurred and be continuing hereunder. SECTION 10.2 Successor Corporation to be Substituted for Corporation. In case of any such consolidation, merger, conveyance or transfer and upon the assumption by the successor corporation, by supplemental indenture, executed and delivered to the Debt Trustee and satisfactory in form to the Debt Trustee, of the due and punctual payment of the principal of and premium, if any, and interest on all of the Securities and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Corporation, such successor corporation shall succeed to and be substituted for the Corporation, with the same effect as if it had been named herein as the party of the first part, and the Corporation thereupon shall be relieved of any further liability or obligation hereunder or upon the Securities. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of General Motors Corporation, any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Corporation and delivered to the Debt Trustee or the Authenticating Agent; and, upon the order of such successor corporation instead of the Corporation and subject to all the terms, conditions and limitations in this Indenture prescribed, the Debt Trustee or the Authenticating Agent shall authenticate and deliver any Securities which previously shall have been signed and delivered by the officers of the Corporation to the Debt Trustee or the Authenticating Agent for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Debt Trustee or the Authenticating Agent for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Indentures had been issued at the date of the execution hereof. SECTION 10.3 Opinion of Counsel to be Given Debt Trustee. The Debt Trustee, subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel as conclusive evidence that any consolidation, merger, conveyance or transfer, and any assumption, permitted or required by the terms of this Article Ten complies with the provisions of this Article Ten. ARTICLE 11 SATISFACTION AND DISCHARGE OF INDENTURE. SECTION 11.1 Discharge of Indenture. When (a) the Corporation shall deliver to the Debt Trustee for cancellation all Securities theretofore authenticated (other than any Securities which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.8) and not theretofore canceled, or (b) all the Securities not theretofore canceled or delivered to the Debt Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Debt Trustee for the giving of notice of redemption, and the Corporation shall deposit with the Debt Trustee, in trust, funds sufficient to pay at maturity or upon redemption all of the Securities (other than any Securities which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.8) not theretofore canceled or delivered to the Debt Trustee for cancellation, including principal and premium, if any, and interest due or to become due to such date of maturity or redemption date, as the case may be, but excluding, however, the amount of any moneys for the payment of principal of, and premium, if any, or interest on the Securities (1) theretofore repaid to the Corporation in accordance with the provisions of Section 11.4, or (2) paid to any State or to the District of Columbia pursuant to its unclaimed property or similar laws, and if in either case the Corporation shall also pay or cause to be paid all other sums payable hereunder by the Corporation, then this Indenture shall cease to be of further effect, except that the provisions of Sections 2.5, 2.7, 2.8, 3.1, 3.2, 3.4, 6.6, 6.10 and 11.4 hereof shall survive until such Securities shall mature and be paid. Thereafter, Sections 6.6 and 11.4 shall survive, and the Debt Trustee, on demand of the Corporation accompanied by any Officers' Certificate and an Opinion of Counsel and at the cost and expense of the Corporation, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture, the Corporation, however, hereby agreeing to reimburse the Debt Trustee for any costs or expenses thereafter reasonably and properly incurred by the Debt Trustee in connection with this Indenture or the Securities. SECTION 11.2 Deposited Moneys and U.S. Government Obligations to be Held in Trust by Debt Trustee. Subject to the provisions of Section 11.4, all moneys and U.S. Government Obligations deposited with the Debt Trustee pursuant to Sections 11.1 or 11.5 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Corporation if acting as its own paying agent), to the holders of the particular Securities for the payment of which such moneys or U.S. Government Obligations have been deposited with the Debt Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest. SECTION 11.3 Paying Agent to Repay Moneys Held. Upon the satisfaction and discharge of this Indenture all moneys then held by any paying agent of the Securities (other than the Debt Trustee) shall, upon demand of the Corporation, be repaid to it or paid to the Debt Trustee, and thereupon such paying agent shall be released from all further liability with respect to such moneys. SECTION 11.4 Return of Unclaimed Moneys. Any moneys deposited with or paid to the Debt Trustee or any paying agent for payment of the principal of, and premium, if any, or interest on Securities and not applied but remaining unclaimed by the holders of Securities for 3 years after the date upon which the principal of, and premium, if any, or interest on such Securities, as the case may be, shall have become due and payable, shall be repaid to the Corporation by the Debt Trustee or such paying agent on written demand; and the holder of any of the Securities shall thereafter look only to the Corporation for any payment which such holder may be entitled to collect and all liability of the Debt Trustee or such paying agent with respect to such moneys shall thereupon cease. SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S. Government Obligations. (a) The Corporation shall be deemed to have been Discharged (as defined below) from its respective obligations with respect to any series of Securities upon satisfaction of the applicable conditions set forth below with respect to such series of Securities: (i) The Corporation shall have deposited or caused to be deposited irrevocably with the Debt Trustee or the Defeasance Agent (as defined below) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series (A) money in an amount, or (B) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination of (A) and (B), sufficient, in the opinion (with respect to (B) and (C)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Debt Trustee and the Defeasance Agent, if any, to pay and discharge each installment of principal (including any mandatory sinking fund payments) of, and interest and premium, if any, on, the outstanding Securities of such series on the dates such installments of principal, interest or premium are due; (ii) if the Securities of such series are then listed on any national securities exchange, the Corporation shall have delivered to the Debt Trustee and the Defeasance Agent, if any, an Opinion of Counsel to the effect that the exercise of the option under this Section 11.5 would not cause such Securities to be delisted from such exchange; (iii) no Event of Default or event which with notice or lapse of time would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit; and (iv) the Corporation shall have delivered to the Debt Trustee and the Defeasance Agent, if any, an Opinion of Counsel to the effect that holders of the Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result of the exercise of the option under this Section 11.5 and will be subject to United States Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised, and, in the case of the Securities of such series being Discharged, such opinion shall be accompanied by a private letter ruling to that effect received from the United States Internal Revenue Service or a revenue ruling pertaining to a comparable form of transaction to that effect published by the United States Internal Revenue Service. (b)"Discharged" means that the Corporation shall be deemed to have paid and discharged the entire indebtedness represented by, and obligations under, the Securities of such series and to have satisfied all the obligations under this Indenture relating to the Securities of such series (and the Debt Trustee, at the expense of the Corporation, shall execute proper instruments acknowledging the same), except (A) the rights of holders of Securities of such series to receive, from the trust fund described in clause (1) above, payment of the principal of and the interest and premium, if any, on such Securities when such payments are due; (B) the Corporation's obligations with respect to such Securities under Sections 2.7, 2.8, 5.2 and 11.4; and (C) the rights, powers, trusts, duties and immunities of the Debt Trustee hereunder. (c) "Defeasance Agent" means another financial institution which is eligible to act as Debt Trustee hereunder and which assumes all of the obligations of the Debt Trustee necessary to enable the Debt Trustee to act hereunder. In the event such a Defeasance Agent is appointed pursuant to this section, the following conditions shall apply: (i) The Debt Trustee shall have approval rights over the document appointing such Defeasance Agent and the document setting forth such Defeasance Agent's rights and responsibilities; (ii) The Defeasance Agent shall provide verification to the Debt Trustee acknowledging receipt of sufficient money and/or U.S. Government Obligations to meet the applicable conditions set forth in this Section 11.5; (iii) The Debt Trustee shall determine whether the Corporation shall be deemed to have been Discharged from its respective obligations with respect to any series of Securities. ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS. SECTION 12.1 Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of or premium, if any, or interest on any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Corporation in this Indenture or in any supplemental indenture, or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Corporation or of any successor corporation of the Corporation, either directly or through the Corporation or any successor corporation of the Corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Securities. ARTICLE 13 MISCELLANEOUS PROVISIONS. SECTION 13.1 Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by the Corporation shall bind its successors and assigns whether so expressed or not. SECTION 13.2 Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Corporation shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Corporation. SECTION 13.3 Surrender of Corporation Powers. The Corporation by instrument in writing executed by authority of 2/3 (two-thirds) of its Board of Directors and delivered to the Debt Trustee may surrender any of the powers reserved to the Corporation, and thereupon such power so surrendered shall terminate both as to the Corporation, as the case may be, and as to any successor corporation. SECTION 13.4 Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Debt Trustee or by the holders of Securities on the Corporation may be given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Corporation with the Debt Trustee for the purpose) to the Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301, Attention: General Counsel. Any notice, direction, request or demand by any Securityholder to or upon the Debt Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the office of the Debt Trustee, addressed to the Debt Trustee, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration. SECTION 13.5 Governing Law. This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State. SECTION 13.6 Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Corporation to the Debt Trustee to take any action under any of the provisions of this Indenture, the Corporation shall furnish to the Debt Trustee an Officers' Certificate stating that in the opinion of the signers all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each certificate or opinion provided for in this Indenture and delivered to the Debt Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. SECTION 13.7 Legal Holidays. In any case where the date of payment of interest on or principal of the Securities will be in New York, New York or Wilmington, Delaware a legal holiday or a day on which banking institutions are authorized by law to close, the payment of such interest on or principal of the Securities need not be made on such date but may be made on the next succeeding day not in the City a legal holiday or a day on which banking institutions are authorized by law to close, with the same force and effect as if made on the date of payment and no interest shall accrue for the period from and after such date. SECTION 13.8 Trust Indenture Act to Control. (a) If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control. (b) Notwithstanding the foregoing any provisions contained in this Indenture as to directions and waivers by Securityholders or impairment of Securityholders' rights to payment shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such sections are hereby expressly excluded from this Indenture and the Securities, as permitted by the Trust Indenture Act. SECTION 13.9 Table of Contents, Headings, etc. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. SECTION 13.10 Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. SECTION 13.11 Separability. In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein. SECTION 13.12 Assignment. The Corporation will have the right at all times to assign any of its respective rights or obligations under this Indenture to a direct or indirect wholly-owned Subsidiary of the Corporation, provided that, in the event of any such assignment, the Corporation, as the case may be, will remain liable for all such obligations. Subject to the foregoing, the Indenture is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns. This Indenture may not otherwise be assigned by the parties hereto. SECTION 13.13 Acknowledgment of Rights. The Corporation acknowledges that, with respect to any Securities held by a General Motors Capital Trust or a trustee of such trust, if the Institutional Trustee of such Trust fails to enforce its rights under this Indenture as the holder of the series of Securities held as the assets of such General Motors Capital Trust, any holder of Preferred Securities may institute legal proceedings directly against the Corporation to enforce such Institutional Trustee's rights under this Indenture without first instituting any legal proceedings against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Corporation to pay interest or principal on the applicable series of Securities on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), the Corporation acknowledges that a holder of Preferred Securities may directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the applicable series of Securities having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder on or after the respective due date specified in the applicable series of Securities. ARTICLE 14 REDEMPTION OF SECURITIES--MANDATORY AND OPTIONAL SINKING FUND SECTION 14.1 Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.3 for Securities of such series. SECTION 14.2 Notice of Redemption; Selection of Securities. In case the Corporation shall desire to exercise the right to redeem all, or, as the case may be, any part of the Securities of any series in accordance with their terms, it shall fix a date for redemption and shall mail a notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the holders of Securities of such series so to be redeemed as a whole or in part at their last addresses as the same appear on the Security Register. Such mailing shall be by first class mail. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. Each such notice of redemption shall specify the date fixed for redemption, the redemption price at which Securities of such series are to be redeemed, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all the Securities of such series are to be redeemed the notice of redemption shall specify the numbers of the Securities of that series to be redeemed. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of that series in principal amount equal to the unredeemed portion thereof will be issued. Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Corporation will deposit with the Debt Trustee or with one or more paying agents an amount of money sufficient to redeem on the redemption date all the Securities so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all the Securities of a series are to be redeemed, the Corporation will give the Debt Trustee notice not less than 60 days prior to the redemption date as to the aggregate principal amount of Securities of that series to be redeemed and the Debt Trustee shall select, in such manner as in its sole discretion it shall deem appropriate and fair, the Securities of that series or portions thereof (in integral multiples of $1,000, except as otherwise set forth in the applicable form of Security) to be redeemed. SECTION 14.3 Payment of Securities Called for Redemption. If notice of redemption has been given as provided in Section 14.2 or Section 14.4, the Securities or portions of Securities of the series with respect to which such notice has been given shall become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Corporation shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities of any series so called for redemption shall cease to accrue. On presentation and surrender of such Securities at a place of payment specified in said notice, the said Securities or the specified portions thereof shall be paid and redeemed by the Corporation at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption. Upon presentation of any Security of any series redeemed in part only, the Corporation shall execute and the Debt Trustee shall authenticate and deliver to the holder thereof, at the expense of the Corporation, a new Security or Securities of such series of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented. SECTION 14.4 Mandatory and Optional Sinking Fund. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment". The last date on which any such payment may be made is herein referred to as a "sinking fund payment date". In lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Corporation may at its option (a) deliver to the Debt Trustee Securities of that series theretofore purchased by the Corporation and (b) may apply as a credit Securities of that series which have been redeemed either at the election of the Corporation pursuant to the terms of such Securities or through the application of optional sinking fund payments pursuant to the next succeeding paragraph, in each case in satisfaction of all or any part of any mandatory sinking fund payment, provided that such Securities have not been previously so credited. Each such Security so delivered or applied as a credit shall be credited at the sinking fund redemption price for such Securities and the amount of any mandatory sinking fund shall be reduced accordingly. If the Corporation intends so to deliver or credit such Securities with respect to any mandatory sinking fund payment it shall deliver to the Debt Trustee at least 60 days prior to the next succeeding sinking fund payment date for such series (a) a certificate signed by any Vice President, the Treasurer or any Assistant Treasurer of the Corporation specifying the portion of such sinking fund payment, if any, to be satisfied by payment of cash and the portion of such sinking fund payment, if any, which is to be satisfied by delivering and crediting such Securities and (b) any Securities to be so delivered. All Securities so delivered to the Debt Trustee shall be canceled by the Debt Trustee and no Securities shall be authenticated in lieu thereof. If the Corporation fails to deliver such certificate and Securities at or before the time provided above, the Corporation shall not be permitted to satisfy any portion of such mandatory sinking fund payment by delivery or credit of Securities. At its option the Corporation may pay into the sinking fund for the retirement of Securities of any particular series, on or before each sinking fund payment date for such series, any additional sum in cash as specified by the terms of such series of Securities. If the Corporation intends to exercise its right to make any such optional sinking fund payment, it shall deliver to the Debt Trustee at least 60 days prior to the next succeeding sinking fund payment date for such Series a certificate signed by any Vice President, the Treasurer or any Assistant Treasurer of the Corporation stating that the Corporation intends to exercise such optional right and specifying the amount which the Corporation intends to pay on such sinking fund payment date. If the Corporation fails to deliver such certificate at or before the time provided above, the Corporation shall not be permitted to make any optional sinking fund payment with respect to such sinking fund payment date. To the extent that such right is not exercised in any year it shall not be cumulative or carried forward to any subsequent year. If the sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Corporation shall so request) with respect to the Securities of any particular series, it shall be applied by the Debt Trustee or one or more paying agents on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. The Debt Trustee shall select, in the manner provided in Section 14.2, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and the Debt Trustee shall, at the expense and in the name of the Corporation, thereupon cause notice of redemption of Securities of such series to be given in substantially the manner and with the effect provided in Sections 14.2 and 14.3 for the redemption of Securities of that series in part at the option of the Corporation, except that the notice of redemption shall also state that the Securities of such series are being redeemed for the sinking fund. Any sinking fund moneys not so applied or allocated by the Debt Trustee or any paying agent to the redemption of Securities of that series shall be added to the next cash sinking fund payment received by the Debt Trustee or such paying agent and, together with such payment, shall be applied in accordance with the provisions of this Section 14.4. Any and all sinking fund moneys held by the Debt Trustee or any paying agent on the maturity date of the Securities of any particular series, and not held for the payment or redemption of particular Securities of such series, shall be applied by the Debt Trustee or such paying agent, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of that series at maturity. On or before each sinking fund payment date, the Corporation shall pay to the Debt Trustee or to one or more paying agents in cash a sum equal to all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date pursuant to this Section. Neither the Debt Trustee nor any paying agent shall redeem any Securities of a series with sinking fund moneys, and the Debt Trustee shall not mail any notice of redemption of Securities for such series by operation of the sinking fund, during the continuance of a default in payment of interest on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph), except that if the notice of redemption of any Securities shall theretofore have been mailed in accordance with the provisions hereof, the Debt Trustee or any paying agent shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Debt Trustee or such paying agent for that purpose in accordance with the terms of this Article Fourteen. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of all such Securities; provided, however, that in case such Event of Default or default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next succeeding sinking fund payment date on which such moneys may be applied pursuant to the provisions of this Section 14.4. ARTICLE 15 SUBORDINATION OF SECURITIES SECTION 15.1 Agreement to Subordinate. The Corporation covenants and agrees, and each holder of Securities issued hereunder and under any supplemental indenture or by any resolutions by the Board of Directors ("Additional Provisions") by such Securityholder's acceptance thereof likewise covenants and agrees, that all Securities of all series shall be issued subject to the provisions of this Article Fifteen; and each holder of a Security, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions. The payment by the Corporation of the principal of, premium, if any, and interest on all Securities issued hereunder and under any Additional Provisions shall, to the extent and in the manner hereinafter set forth, be subordinated and junior in right of payment to the prior payment in full of all Senior Indebtedness and Other Financial Obligations of the Corporation and rank pari passu and equivalent to creditor obligations of those holding general unsecured claims not entitled to statutory priority under the United States Bankruptcy Code or otherwise, in each case whether outstanding at the date of this Indenture or thereafter incurred. No provision of this Article Fifteen shall prevent the occurrence of any default or Event of Default hereunder. SECTION 15.2 Default on Senior Indebtedness. No payment may be made of the principal of, premium, if any, or interest on the Securities, or in respect of any redemption, retirement, purchase or other acquisition of any of the Securities, at any time when (i) there is a default in the payment of the principal of, premium, if any, interest on or otherwise in respect of any Senior Indebtedness, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, or (ii) any event of default with respect to any Senior Indebtedness has occurred and is continuing, pursuant to which the holders of such Senior Indebtedness (or a trustee on behalf of the holders thereof) have accelerated the maturity thereof. In the event that, notwithstanding the foregoing, any payment shall be received by the Debt Trustee when such payment is prohibited by the preceding paragraph of this Section 15.2, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness and Other Financial Obligations or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness and Other Financial Obligations may have been issued, as their respective interests may appear, but only to the extent that the holders of the Senior Indebtedness and Other Financial Obligations (or their representative or representatives or a trustee) notify the Debt Trustee in writing within 90 days of such payment of the amounts then due and owing on the Senior Indebtedness and Other Financial Obligations and only the amounts specified in such notice to the Debt Trustee shall be paid to the holders of Senior Indebtedness and Other Financial Obligations. SECTION 15.3 Liquidation; Dissolution; Bankruptcy. Upon any payment by the Corporation or distribution of assets of the Corporation of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all amounts due upon all Senior Indebtedness and Other Financial Obligations of the Corporation shall first be paid in full, or payment thereof provided for in money in accordance with their terms, before any payment is made by the Corporation on account of the principal (and premium, if any) or interest on the Securities; and upon any such dissolution or winding-up or liquidation or reorganization, any payment by the Corporation, or distribution of assets of the Corporation of any kind or character, whether in cash, property or securities, to which the Securityholders or the Debt Trustee would be entitled to receive from the Corporation, except under the provisions of this Article Fifteen, shall be paid by the Corporation or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Securityholders or by the Debt Trustee under the Indenture if received by them or it, directly to the holders of Senior Indebtedness and Other Financial Obligations of the Corporation (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness and Other Financial Obligations held by such holders, as calculated by the Corporation) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness and Other Financial Obligations may have been issued, as their respective interests may appear, to the extent necessary to pay such Senior Indebtedness and Other Financial Obligations in full, in money or money's worth, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness and Other Financial Obligations, before any payment or distribution is made to the Securityholders or to the Debt Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Corporation of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Debt Trustee before all Senior Indebtedness and Other Financial Obligations of the Corporation are paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior Indebtedness and Other Financial Obligations or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness and Other Financial Obligations may have been issued, and their respective interests may appear, as calculated by the Corporation, for application to the payment of all Senior Indebtedness and Other Financial Obligations of the Corporation, as the case may be, remaining unpaid to the extent necessary to pay such Senior Indebtedness and Other Financial Obligations in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness and Other Financial Obligations. For purposes of this Article Fifteen, the words "cash, property or securities" shall not be deemed to include shares of stock of the Corporation as reorganized or readjusted, or securities of the Corporation or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article Fifteen with respect to the Securities to the payment of all Senior Indebtedness and Other Financial Obligations of the Corporation, as the case may be, that may at the time be outstanding, provided that (i) such Senior Indebtedness and Other Financial Obligations is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness and Other Financial Obligations are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Corporation with, or the merger of the Corporation into, another corporation or the liquidation or dissolution of the Corporation following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon the terms and conditions provided for in Article Ten of this Indenture shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 15.3 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Ten of this Indenture. Nothing in Section 15.2 or in this Section 15.3 shall apply to claims of, or payments to, the Debt Trustee under or pursuant to Section 6.6 of this Indenture. SECTION 15.4 Subrogation. Subject to the payment in full of all Senior Indebtedness and Other Financial Obligations of the Corporation, the rights of the Securityholders shall be subrogated to the rights of the holders of such Senior Indebtedness and Other Financial Obligations to receive payments or distributions of cash, property or securities of the Corporation, as the case may be, applicable to such Senior Indebtedness and Other Financial Obligations until all amounts owing on the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of such Senior Indebtedness and Other Financial Obligations of any cash, property or securities to which the Securityholders or the Debt Trustee would be entitled except under the provisions of this Article Fifteen, and no payment over pursuant to the provisions of this Article Fifteen to or for the benefit of the holders of such Senior Indebtedness and Other Financial Obligations by Securityholders or the Debt Trustee, shall, as between the Corporation, its creditors other than holders of Senior Indebtedness and Other Financial Obligations of the Corporation, and the holders of the Securities, be deemed to be a payment by the Corporation to or on account of such Senior Indebtedness and Other Financial Obligations. It is understood that the provisions of this Article Fifteen are and are intended solely for the purposes of defining the relative rights of the holders of the Securities, on the one hand, and the holders of such Senior Indebtedness and Other Financial Obligations, on the other hand. Nothing contained in this Article Fifteen or elsewhere in this Indenture, any Additional Provisions or in the Securities is intended to or shall impair, as between the Corporation, its creditors other than the holders of Senior Indebtedness and Other Financial Obligations of the Corporation, and the holders of the Securities, the obligation of the Corporation, which is absolute and unconditional, to pay to the holders of the Securities the principal of, premium, if any, and interest on, the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the holders of the Securities and creditors of the Corporation, as the case may be, other than the holders of Senior Indebtedness and Other Financial Obligations of the Corporation, as the case may be, nor shall anything herein or therein prevent the Debt Trustee or the holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under the Indenture, subject to the rights, if any, under this Article Fifteen of the holders of such Senior Indebtedness and Other Financial Obligations in respect of cash, property or securities of the Corporation, as the case may be, received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Corporation referred to in this Article Fifteen, the Debt Trustee, subject to the provisions of Article Six of this Indenture, and the Securityholders shall be entitled to conclusively rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, delivered to the Debt Trustee or to the Securityholders, for the purposes of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness, Other Financial Obligations and other indebtedness of the Corporation, as the case may be, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. SECTION 15.5 Debt Trustee to Effectuate Subordination. Each Securityholder by such Securityholder's acceptance thereof authorizes and directs the Debt Trustee on such Securityholder's behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Fifteen and appoints the Debt Trustee such Securityholder's attorney-in-fact for any and all such purposes. SECTION 15.6 Notice by the Corporation. The Corporation shall give prompt written notice to a Responsible Officer of any fact known to the Corporation that would prohibit the making of any payment of monies to or by the Debt Trustee in respect of the Securities pursuant to the provisions of this Article Fifteen. Notwithstanding the provisions of this Article Fifteen or any other provision of this Indenture or any Additional Provisions, the Debt Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of monies to or by the Debt Trustee in respect of the Securities pursuant to the provisions of this Article Fifteen, unless and until a Responsible Officer shall have received written notice thereof from the Corporation or a holder or holders of Senior Indebtedness or Other Financial Obligations or from any trustee therefor; and before the receipt of any such written notice, the Debt Trustee, subject to the provisions of Article Six of this Indenture, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Debt Trustee shall not have received the notice provided for in this Section 15.6 at least two Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest on any Security), then, anything herein contained to the contrary notwithstanding, the Debt Trustee shall have full power and authority to receive such money and to apply the same to the purposes for which they were received, and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date. The Debt Trustee, subject to the provisions of Article Six of this Indenture, shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness or Other Financial Obligations of the Corporation, as the case may be (or a trustee on behalf of such holder), to establish that such notice has been given by a holder of such Senior Indebtedness or Other Financial Obligations or a trustee on behalf of any such holder or holders. In the event that the Debt Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of such Senior Indebtedness or Other Financial Obligations to participate in any payment or distribution pursuant to this Article Fifteen, the Debt Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Debt Trustee as to the amount of such Senior Indebtedness or Other Financial Obligations held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Fifteen, and, if such evidence is not furnished, the Debt Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. SECTION 15.7 Rights of the Debt Trustee; Holders of Senior Indebtedness and Other Financial Obligations. The Debt Trustee in its individual capacity shall be entitled to all the rights set forth in this Article Fifteen in respect of any Senior Indebtedness or Other Financial Obligations at any time held by it, to the same extent as any other holder of Senior Indebtedness or Other Financial Obligations, and nothing in this Indenture or any Additional Provisions shall deprive the Debt Trustee of any of its rights as such holder. With respect to the holders of Senior Indebtedness or Other Financial Obligations of the Corporation, the Debt Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article Fifteen, and no implied covenants or obligations with respect to the holders of such Senior Indebtedness or Other Financial Obligations shall be read into this Indenture or any Additional Provisions against the Debt Trustee. The Debt Trustee shall not be deemed to owe any fiduciary duty to the holders of such Senior Indebtedness or Other Financial Obligations and, subject to the provisions of Article Six of this Indenture, the Debt Trustee shall not be liable to any holder of such Senior Indebtedness or Other Financial Obligations if it shall pay over or deliver to Securityholders, the Corporation or any other Person money or assets to which any holder of such Senior Indebtedness or Other Financial Obligations shall be entitled by virtue of this Article Fifteen or otherwise. SECTION 15.8 Subordination May Not Be Impaired. No right of any present or future holder of any Senior Indebtedness or Other Financial Obligations of the Corporation to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Corporation, as the case may be, or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Corporation, as the case may be, with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness or Other Financial Obligations of the Corporation may, at any time and from time to time, without the consent of or notice to the Debt Trustee or the Securityholders, without incurring responsibility to the Securityholders and without impairing or releasing the subordination provided in this Article Fifteen or the obligations hereunder of the holders of the Securities to the holders of such Senior Indebtedness or Other Financial Obligations, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, such Senior Indebtedness or Other Financial Obligations, or otherwise amend or supplement in any manner such Senior Indebtedness or Other Financial Obligations or any instrument evidencing the same or any agreement under which such Senior Indebtedness or Other Financial Obligations is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing such Senior Indebtedness or Other Financial Obligations; (iii) release any Person liable in any manner for the collection of such Senior Indebtedness or Other Financial Obligations; and (iv) exercise or refrain from exercising any rights against the Corporation, as the case may be, and any other Person. * * * * * The Debt Trustee hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers thereunto duly authorized and their respective corporate seals to be hereunto duly affixed and attested, all as of the day and year first above written. [Seal] GENERAL MOTORS CORPORATION Attest: /s/ Walter G. Borst By: /s/ John D. Finnegan Its: Vice President and Treasurer [Seal] WILMINGTON TRUST COMPANY, as Debt Trustee Attest: /s/ Patricia A. Evans By: /s/ Donald G. MacKelcan Patricia A. Evans Donald G. MacKelcan Financial Services Officer Its: Assistant Vice President STATE OF NEW YORK ) COUNTY OF NEW YORK ) ss.: On the_______ day of _________________, 1997 before me personally came John D. Finnegan, to me known, who, being by me duly sworn, did depose and say that he resides at______________; that he is 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/ John Russell NOTARY PUBLIC [seal] Commission expires: JOHN RUSSELL Notary Public, State of New York No. 31-4627519 Qualified in New York County Commission Expires March 30, 1998 STATE OF DELAWARE ) COUNTY OF NEW CASTLE ) ss.: On the ____day of ________________, 1997, before me personally came Donald G. MacKelcan, 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 Co., 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/ Kathleen A. Pedelini NOTARY PUBLIC [seal] Commission expires: KATHLEEN A. PEDELINI NOTARY PUBLIC My Commission expires October 31, 1998 - -------- * THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF THE INDENTURE. EX-4 5 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/John D. Finnegan Name: John D. Finnegan Title: Vice President and Treasurer WILMINGTON TRUST COMPANY as Debt Trustee By: /s/Donald G. MacKelcan Name: Donald G. MacKelcan Title: Assistant Vice President STATE OF NEW YORK ) COUNTY OF NEW YORK ) ss.: On the ____ day of __________, 1997 before me personally came John Finnegan, 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/ Melinda Hopkins NOTARY PUBLIC [seal] Commission expires: MELINDA HOPKINS Notary Public, State of New York No. 31-4784820 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 Donald G. MacKelcan, 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/ Kathleen A. Pedelini NOTARY PUBLIC [seal] Commission expires: KATHLEEN A. PEDELINI 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 EX-4 6 GMNEW.IN1 FOOTER B HAS BEEN ENTERED (DRAFT) SECOND SUPPLEMENTAL INDENTURE between GENERAL MOTORS CORPORATION and WILMINGTON TRUST COMPANY Dated as of July 9, 1997 WITH RESPECT TO THE SERIES G 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 G Global Debenture. 4 SECTION 2.5 Interest. 5 ARTICLE 3 REDEMPTION OF THE DEBENTURES 6 SECTION 3.1 Tax Event Redemption. 6 SECTION 3.2 Series G Optional Redemption by Corporation. 6 SECTION 3.3 No Sinking Fund. 6 ARTICLE 4 EXTENSION OF INTEREST PAYMENT PERIOD 7 SECTION 4.1 Extension of Interest Payment Period. 7 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. 9 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 G Debenture. 9 ARTICLE 8 ORIGINAL ISSUE OF DEBENTURES 9 SECTION 8.1 Original Issue of Series G Debentures. 9 ARTICLE 9 MISCELLANEOUS 10 SECTION 9.1 Ratification of Indenture. 10 SECTION 9.2 Debt Trustee Not Responsible for Recitals. 10 SECTION 9.3 Governing Law. 10 SECTION 9.4 Separability. 10 SECTION 9.5 Counterparts. 10 Exhibit A Form of Debenture SECOND SUPPLEMENTAL INDENTURE WITH RESPECT TO THE SERIES G JUNIOR SUBORDINATED DEBENTURES SECOND SUPPLEMENTAL INDENTURE, dated as of July 9, 1997 (the "Second 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 9.87% Junior Subordinated Deferrable Interest Debentures, Series G, due 2012 (the "Series G Debentures"), the form and substance of such Series G Debentures and the terms, provisions and conditions thereof to be set forth as provided in the Indenture and this Second Supplemental Indenture; WHEREAS, the Corporation and General Motors Capital Trust G, a Delaware statutory business trust (the "Series G Trust"), have made an offer to exchange (the "Series G Offer") the Series G Trust's 9.87% Trust Originated Preferred Securities, Series G (the "Series G Preferred Securities"), representing preferred undivided beneficial ownership interests in the assets of the Series G Trust, for any and all of the Corporation's depositary shares (the "Series G 9.12% Depositary Shares"), each representing one-fourth of a share of Series G 9.12% Preference Stock, $0.10 par value per share, of the Corporation not owned by the Corporation; WHEREAS, concurrently with the issuance of the Series G Preferred Securities in exchange for Series G 9.12% Depositary Shares validly tendered in the Series G Offer, (a) the Series G Trust will issue and sell to the Corporation 9.87% Trust Originated Common Securities, Series G (the "Series G Common Securities"), in an aggregate stated liquidation amount equal to at least 3% of the total capital of the Series G Trust and (b) the Corporation will deposit in the Series G Trust as trust assets the Series G Debentures having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series G Preferred Securities and the Series G Common Securities so issued; and WHEREAS, the Corporation has requested that the Debt Trustee execute and deliver this Second Supplemental Indenture and all requirements necessary to make this Second Supplemental Indenture a valid instrument in accordance with its terms, and to make the Series G 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 Second Supplemental Indenture has been duly authorized in all respects. NOW THEREFORE, in consideration of the purchase and acceptance of the Series G Debentures by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Series G 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 Second Supplemental Indenture; (b) a term defined anywhere in this Second 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 Second 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 G Declaration: (i) Dealer Manager Agreement; (ii) Delaware Trustee; (iii) Distributions; (iv) Institutional Trustee; (v) Series G 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 G Trust and distribution of the Series G Debentures held by the Institutional Trustee pro rata to the holders of the Series G Trust Securities in accordance with the Series G 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 G 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 G Redemption Price" shall mean either the Series G Tax Event Prepayment Price or the Series G Optional Prepayment Price, as the context requires. "Series G Declaration" means the Amended and Restated Declaration of Trust of General Motors Capital Trust G, a Delaware statutory business trust, dated as of July 9, 1997, as amended from time to time. "Series G Extended Interest Payment Period" shall have the meaning set forth in Section 4.1. "Series G Global Debenture" shall have the meaning set forth in Section 2.4(a). "Series G Optional Prepayment Price" shall have the meaning set forth in Section 3.2. "Series G Stated Maturity" means the date on which the Series G 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 January 1, 2001, as more fully described in Section 2.2. "Series G 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 G Debentures, there is more than an insubstantial risk that (i) the Series G 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 G Debentures, (ii) interest payable by the Corporation on the Series G 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 G 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 "9.87% Junior Subordinated Deferrable Interest Debentures, Series G, due 2012", limited in aggregate principal amount to the aggregate stated liquidation amount of the Series G Preferred Securities and Series G Common Securities to be issued by the Series G Trust, which amount shall be as set forth in any written order of the Corporation for the authentication and delivery of Series G Debentures pursuant to Section 2.4 of the Indenture. SECTION 2.2 Maturity. (a) The Series G Debentures shall mature on July 1, 2012. The Corporation has the right at any time to shorten the maturity of the Series G Debentures to a date not earlier than January 1, 2001. (b) In the event that the Corporation elects to shorten the maturity date of the Series G 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 G 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 G Debentures shall be issued in fully registered certificated form without interest coupons. Principal and interest on the Series G Debentures issued in certificated form will be payable, the transfer of such Series G Debentures will be registrable and such Series G Debentures will be exchangeable for Series G 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 G Debentures is the Institutional Trustee, the payment of the principal of and interest (including Compound Interest and Additional Interest, if any) on such Series G 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 G Global Debenture. (a) In connection with a Dissolution Event, (i) the Series G Debentures in certificated form may be presented to the Debt Trustee by the Institutional Trustee in exchange for a global Series G Debenture in an aggregate principal amount equal to the aggregate principal amount of all outstanding Series G Debentures (a "Global Series G 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 G 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 Second Supplemental Indenture. Payments on the Series G Debentures issued as a Global Series G Debenture will be made to the Depository Institution; and (ii) if any Series G Preferred Securities are held in non book-entry certificated form, the Series G Debentures in certificated form may be presented to the Debt Trustee by the Institutional Trustee and any Preferred Security Certificate which represents Series G Preferred Securities other than Series G Preferred Securities held by the Depository Institution or its nominee ("Non Book-Entry Preferred Securities") will be deemed to represent beneficial interests in Series G 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 G 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 Second Supplemental Indenture. On issue of such Series G Debentures, Series G 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 G 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 G Debentures shall no longer be represented by a Global Series G Debenture or (iii) there shall have occurred an Event of Default with respect to the Series G 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 G 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 G Debenture in exchange for such Global Series G 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 G 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 G Debenture in exchange for such Global Series G Debenture. Upon the exchange of the Global Series G Debenture for such Series G Debentures in definitive registered form without coupons, in authorized denominations, the Global Series G Debenture shall be canceled by the Debt Trustee. Such Series G Debentures in definitive registered form issued in exchange for the Global Series G 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 G Debenture will bear interest at the rate of 9.87% per annum (the "Coupon Rate") from July 3, 1997, the first date following the expiration date of the Series G 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 G Debenture or any predecessor Series G 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 G Debentures will also accrue interest at the rate of 9.12% per annum of the principal amount thereof from April 1, 1997 through and including July 2, 1997, the expiration date of the Series G Offer, payable on August 1, 1997 to the Person in whose name such Series G 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 G 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 G Debentures, the Series G 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 G Debentures held by the Institutional Trustee, such additional amounts as shall be required so that the net amounts received and retained by the Series G Trust and the Institutional Trustee after paying such taxes, duties, assessments or other governmental charges will not be less than the amounts the Series G 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 January 1, 2001, 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 G 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 G Tax Event Prepayment Price") equal to (i) 114% of the principal amount of the Series G Debentures if prepaid during the period commencing on the Accrual Date through and including December 31, 1997 and (ii) the percentage of the principal amount of the Series G 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 1998 110.5% 1999 107 2000 103.5 2001 and thereafter 100 The Series G 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 G Tax Event Prepayment Price by 10:00 a.m., Eastern time, on the date such Series G Tax Event Prepayment Price is to be paid. SECTION 3.2 Series G Optional Redemption by Corporation. Subject to the provisions of Article 14 of the Indenture, except as otherwise may be specified in this Second 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 G Debentures, in whole or in part, from time to time, on or after January 1, 2001, for cash at a prepayment price (the "Series G 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 G Debentures unless all accrued and unpaid interest on all of the Series G Debentures has been paid for all quarterly periods terminating on or prior to the redemption date. If the Series G Debentures are only partially redeemed pursuant to this Section 3.2, the Series G 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 G Debentures are registered as a Global Series G Debenture, the Depository Institution shall determine, in accordance with its procedures, the principal amount of such Series G Debentures held by each Holder to be redeemed. The Series G 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 G Optional Prepayment Price by 10:00 a.m., Eastern time, on the date such Series G Optional Prepayment Price is to be paid. SECTION 3.3 No Sinking Fund. The Series G 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 G Debentures, the Corporation shall have the right, at any time and from time to time during the term of the Series G Debentures, to defer payments of interest by extending the interest payment period of such Series G Debentures for a period not exceeding 20 consecutive quarters (the "Series G Extended Interest Payment Period"), during which Series G Extended Interest Payment Period no interest shall be due and payable; provided that no Series G Extended Interest Payment Period may extend beyond the Series G 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 G Extended Interest Payment Period ("Compound Interest"). At the end of the Series G Extended Interest Payment Period, the Corporation shall pay all interest accrued and unpaid on the Series G Debentures, including any Additional Interest and Compound Interest (together, "Deferred Interest") that shall be payable to the Holders in whose names the Series G Debentures are registered in the Security Register on the first record date after the end of the Series G Extended Interest Payment Period. Before the termination of any Series G 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 G Stated Maturity. Upon the termination of any Series G Extended Interest Payment Period and upon the payment of all Deferred Interest then due, the Corporation may commence a new Series G Extended Interest Payment Period, subject to the foregoing requirements. No interest shall be due and payable during a Series G 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 G 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 G 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 G Extended Interest Payment Period one Business Day before the earlier of (i) the next succeeding date on which Distributions on the Series G Trust Securities issued by the Series G Trust are payable, or (ii) the date the Series G 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 G Preferred Securities issued by the Series G 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 G Extended Interest Payment Period, the Corporation shall give the Holders of the Series G Debentures and the Debt Trustee written notice of its selection of such Series G 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 G 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 G 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 G Debentures, or (iii) there shall have occurred any Event of Default, as defined in the Series G 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 G 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 G Debentures and (c) make any guarantee payments with respect to the foregoing (other than pursuant to the Series G Preferred Securities Guarantee). ARTICLE 5 EXPENSES SECTION 5.1 Payment of Expenses. In connection with the offering, sale and issuance of the Series G Debentures to the Institutional Trustee and in connection with the sale of the Series G Trust Securities by the Series G Trust, the Corporation, in its capacity as borrower with respect to the Series G Debentures, shall: (a) pay all costs and expenses relating to the offering, sale and issuance of the Series G 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 G Trust Securities) and costs and expenses of the Series G Trust (including, but not limited to, costs and expenses relating to the organization, maintenance and dissolution of the Series G Trust, the offer, sale and issuance of the Series G 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 G Declaration), the costs and expenses relating to the operation of the Series G 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 G Trust assets and the enforcement by the Institutional Trustee of the rights of the holders of the Series G Preferred Securities); (c) be primarily liable for any indemnification obligations arising with respect to the Series G Declaration; and (d) pay any and all taxes (other than United States withholding taxes attributable to the Series G Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the Series G 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 G 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 Second 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 G 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 G 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 G Debentures are distributed to the holders of the Series G Preferred Securities issued by the Series G Trust, and the Series G Preferred Securities are then so listed, the Corporation will use its best efforts to list the Series G Debentures on the New York Stock Exchange, Inc. or on such other exchange as the Series G Preferred Securities are then listed. ARTICLE 7 FORM OF DEBENTURE SECTION 7.1 Form of Series G Debenture. The Series G 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 G Debentures. Series G Debentures in the aggregate principal amount of the aggregate stated liquidation amount of the Series G Preferred Securities and Series G Common Securities to be issued by the Series G Trust, may, upon execution of this Second 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 G 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 Second Supplemental Indenture, is in all respects ratified and confirmed, and this Second 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 Second Supplemental Indenture. SECTION 9.3 Governing Law. This Second Supplemental Indenture and each Series G 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 Second Supplemental Indenture or in the Series G 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 Second Supplemental Indenture or of the Series G Debentures, but this Second Supplemental Indenture and the Series G 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 Second 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 Second 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/John D. Finnegan Name: John D. Finnegan Title: Vice President and Treasurer WILMINGTON TRUST COMPANY as Debt Trustee By: /s/Donald G. MacKelcan Name: Donald G. MacKelcan Title: Assistant Vice President STATE OF NEW YORK ) COUNTY OF NEW YORK ) ss.: On the ____ day of __________, 1997 before me personally came John Finnegan, 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/ Melinda Hopkins NOTARY PUBLIC [seal] Commission expires: MELINDA HOPKINS Notary Public, State of New York No. 31-4784820 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 Donald G. MacKelcan, 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/ Kathleen A. Pedelini NOTARY PUBLIC [seal] Commission expires: KATHLEEN A. PEDELINI NOTARY PUBLIC My Commission expires October 31, 1998 EXHIBIT A No. ______________________________ GENERAL MOTORS CORPORATION 9.87% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE, SERIES G 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 G 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 G 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 9.87% 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 G 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 G 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 Second Supplemental Indenture. The Series G Debentures will also accrue interest at the rate of 9.12% 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 G 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 G 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 G 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 G 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 G Debenture is the Institutional Trustee, the payment of the principal of (and premium, if any) and interest on this Series G 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 G Debentures to a date not earlier than January 1, 2001. The indebtedness evidenced by this Series G 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 G Debenture is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Series G 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 G 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 G 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 Second 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 G 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 Second Supplemental Indenture. If, prior to January 1, 2001, 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 G 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 G Tax Event Prepayment Price") equal to (i) 114% of the principal amount of the Series G Debentures if prepaid during the period commencing on July 3, 1997 through and including December 31, 1997, and (ii) the percentage of the principal amount of the Series G Debentures specified below, if prepaid during the 12-month period beginning January 1 of the years indicated below, plus, in each case, any accrued and unpaid interest thereon to the date of prepayment: Year Percentage 1998 110.5% 1999 107 2000 103.5 2001 and thereafter 100 Subject to the provisions of Article 14 of the Indenture, except as otherwise may be specified in the Second 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 G Debentures, in whole or in part, from time to time, on or after January 1, 2001 (a "Series G Optional Redemption"), for cash at a prepayment price (the "Series G 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 G Debentures unless all accrued and unpaid interest on all of the Series G Debentures has been paid for all quarterly periods terminating on or prior to the redemption date. The Series G 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 G Redemption Price by 10:00 a.m., Eastern time, on the date such Series G Redemption Price is to be paid. If the Series G Debentures are only partially redeemed by the Corporation pursuant to a Series G Optional Redemption, the Series G 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 G Debentures are registered as a Global Series G Debenture, the Depository Institution shall determine the principal amount of such Series G Debentures held by each Holder to be redeemed in accordance with its procedures. In the event of redemption of this Series G 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 G Debentures shall have occurred and be continuing, the principal of all of the Series G 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 G Debentures; provided, however, that no such supplemental indenture shall, without the consent of the holders of each Series G 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 G Debenture, or impair or affect the right of any Holder of a Series G 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 G Debenture so affected, or (ii) reduce the aforesaid percentage of Series G Debentures, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of each Series G Debenture then outstanding and affected thereby; provided, further, that if the Series G 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 G Debentures shall have consented to such supplemental indenture; provided further, that if the consent of the holder of each outstanding Series G Debenture is required, such supplemental indenture shall not be effective until each holder of the Series G 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 G 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 G Debenture and of any Series G 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 G Debenture. No reference herein to the Indenture and no provision of this Series G 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 G 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 G Debentures and from time to time to extend the interest payment period of such Series G Debentures for up to 20 consecutive quarters (a "Series G 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 G Debentures to the extent that payment of such interest is enforceable under applicable law); provided that no Series G Extended Interest Payment Period may last beyond the Series G Stated Maturity. Before the termination of any such Series G Extended Interest Payment Period, the Corporation may further extend such Series G Extended Interest Payment Period, provided that such Series G Extended Interest Payment Period together with all such further extensions thereof shall not exceed 20 consecutive quarters or last beyond the Series G Stated Maturity date. At the termination of any such Series G 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 G Extended Interest Payment Period. As provided in the Indenture and subject to certain limitations therein set forth, this Series G Debenture is transferable by the registered Holder hereof on the Security Register (as defined in the Indenture), upon surrender of this Series G 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 G 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 G 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 G 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 G 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 G 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 EX-4 7 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 Merrill Lynch & 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 1100 North Market Street, Wilmington, Delaware 19890. "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 1100 North Market Wilmington, Delaware 19890-0001 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 100 Renaissance Corporation Detroit, Michigan 48243-7301 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/ John D. Finnegan Name: John D. Finnegan Title: Vice President and Treasurer WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Series D Preferred Guarantee Trustee By: /s/ Donald G. MacKelcan Name: Donald G. MacKelcan Title: Assistant Vice President EX-4 8 GMNEWGP1.G1 SERIES G PREFERRED SECURITIES GUARANTEE AGREEMENT General Motors Capital Trust G 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 G Preferred Guarantee Trustee 4 SECTION 2.4 Periodic Reports to Series G 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 G PREFERRED 5 SECTION 3.1 Powers and Duties of the Series G Preferred Guarantee Trustee 5 SECTION 3.2 Certain Rights of Series G Preferred Guarantee Trustee 7 SECTION 3.3 Not Responsible for Recitals or Issuance of Series G Preferred Securities Guarantee 8 ARTICLE 4 SERIES G PREFERRED GUARANTEE TRUSTEE 8 SECTION 4.1 Series G Preferred Guarantee Trustee; Eligibility 8 SECTION 4.2 Appointment, Removal and Resignation of Series G Preferred Guarantee Trustee 9 ARTICLE 5 GUARANTEE 9 SECTION 5.1 Guarantee 9 SECTION 5.2 Waiver of Notice and Demand 9 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 11 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 G, 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 G PREFERRED SECURITIES GUARANTEE AS EXECUTED. - ------------------ SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. SERIES G PREFERRED SECURITIES GUARANTEE AGREEMENT This GUARANTEE AGREEMENT (the "Series G 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 G Preferred Guarantee Trustee"), for the benefit of the Preferred Holders (as defined herein) of General Motors Capital Trust G, a Delaware statutory business trust (the "Series G Trust"). WHEREAS, Guarantor and the Series G Trust have made an offer to exchange (the "Series G Offer") 9.87% Trust Originated Preferred Securities SM ("TOPrS "), Series G, representing preferred undivided beneficial ownership interests in the assets of the Series G Trust (the "Series G Preferred Securities"), for up to 9,071,910 of the Guarantor's depositary shares (the "Series G 9.12% Depositary Shares"), each representing one-fourth of a share of Series G 9.12% Preference Stock, $0.10 par value per share, of the Guarantor (the "Series G 9.12% Preference Stock") not owned by the Guarantor; and WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Series G Declaration"), dated as of July 9, 1997, among the trustees of the Series G Trust, the Guarantor, as sponsor, and the holders from time to time of undivided beneficial ownership interests in the assets of the Series G Trust, the Series G Trust is issuing on the date hereof one Series G Preferred Security in exchange for each Series G 9.12% Depositary Share validly tendered in the Series G Offer; and WHEREAS, concurrently with the issuance of the Series G Preferred Securities in exchange for Series G 9.12% Depositary Shares validly tendered in the Series G Offer, (a) the Series G Trust will issue and sell to the Guarantor 9.87% Trust Originated Common Securities, Series G (the "Series G Common Securities"), in an aggregate liquidation amount equal to at least 3% of the total capital of the Series G Trust and (b) the Guarantor will deposit into the Series G Trust as trust assets its 9.87% Junior Subordinated Deferrable Interest Debentures, Series G, due 2012 (the "Series G Debentures"), having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series G Preferred Securities and the Series G Common Securities so issued; and WHEREAS, as incentive for the holders of Series G 9.12% Depositary Shares to exchange the Series G 9.12% Depositary Shares for Series G Preferred Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Series G Preferred Securities Guarantee, to pay to the Preferred Holders the Series G 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 G Common Securities Guarantee") in substantially identical terms to this Series G Preferred Securities Guarantee for the benefit of the holders of the Series G Common Securities (as defined herein), except that if an event of default under the Indenture (as defined herein) with respect to the Series G Debentures (an "Indenture Event of Default") has occurred and is continuing, the rights of holders of the Series G Common Securities to receive Series G Guarantee Payments under the Series G Common Securities Guarantee are subordinated to the rights of Preferred Holders to receive Series G Guarantee Payments under this Series G 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 G Preferred Securities Guarantee for the benefit of the Preferred Holders. ARTICLE 1 DEFINITIONS AND INTERPRETATION SECTION 1.1 Definitions and Interpretation. In this Series G Preferred Securities Guarantee, unless the context otherwise requires: (a) capitalized terms used in this Series G 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 G Preferred Securities Guarantee has the same meaning throughout; (c) all references to "the Series G Preferred Securities Guarantee" or "this Series G Preferred Securities Guarantee" are to this Series G Preferred Securities Guarantee as modified, supplemented or amended from time to time; (d) all references in this Series G Preferred Securities Guarantee to Articles and Sections are to Articles and Sections of this Series G Preferred Securities Guarantee, unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Series G Preferred Securities Guarantee, unless otherwise defined in this Series G 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 G Preferred Guarantee Trustee at which the corporate trust business of the Series G Preferred Guarantee Trustee shall, at any particular time, be principally administered, which office at the date of execution of this Agreement is located at 1100 North Market Street, Wilmington, Delaware 19890. "Covered Person" means any Preferred Holder or beneficial owner of Series G Preferred Securities. "Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Series G Preferred Securities Guarantee. "Indemnified Person" means the Series G Preferred Guarantee Trustee, any Affiliate of the Series G Preferred Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians or agents of the Series G Preferred Guarantee Trustee. "Indenture" means the Indenture dated as of July 1, 1997, between the Guarantor (the "Series G Debenture Issuer") and Wilmington Trust Company, as trustee, and any indenture supplemental thereto pursuant to which certain subordinated debt securities of the Series G Debenture Issuer are to be issued to the Institutional Trustee of the Series G Trust, in each case as amended. "Majority in liquidation amount of the Series G 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 G 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 G 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 G Trust, of any Series G Preferred Securities; provided, however, that, in determining whether the holders of the requisite percentage of Series G 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 G Trust or the Series G 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 G Preferred Guarantee Trustee, any officer within the Corporate Trust Office of the Series G 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 G 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 G Common Securities" means the securities representing common undivided beneficial ownership interests in the assets of the Series G Trust. "Series G Debentures" means the 9.87% Junior Subordinated Deferrable Interest Debentures, Series G, due 2012, issued by the Guarantor to the Institutional Trustee of the Series G Trust. "Series G Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Series G Preferred Securities, to the extent not paid or made by the Series G Trust: (i) any accrued and unpaid Distributions (as defined in the Series G Declaration) that are required to be paid on such Series G Preferred Securities to the extent the Series G Trust shall have funds available therefor, (ii) the redemption price, including all accrued and unpaid Distributions to the date of redemption (the "Series G Redemption Price") to the extent the Series G Trust has funds available therefor, with respect to any Series G Preferred Securities called for redemption by the Series G Trust, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Series G Trust (other than in connection with the distribution of Series G Debentures to the Preferred Holders or the redemption of all of the Series G Preferred Securities as provided in the Series G Declaration), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid Distributions on the Series G Preferred Securities to the date of payment, to the extent the Series G Trust shall have funds available therefor, and (b) the amount of assets of the Series G Trust remaining available for distribution to Preferred Holders in liquidation of the Series G Trust (in either case, the "Series G Liquidation Distribution"). If an Indenture Event of Default has occurred and is continuing, the rights of holders of the Series G Common Securities to receive payments under the Series G Common Securities Guarantee Agreement are subordinated to the rights of Preferred Holders to receive Series G Guarantee Payments. "Series G Preferred Guarantee Trustee" means Wilmington Trust Company, a Delaware banking corporation, until a Successor Series G Preferred Guarantee Trustee (as defined below) has been appointed and has accepted such appointment pursuant to the terms of this Series G Preferred Securities Guarantee and thereafter means each such Successor Series G Preferred Guarantee Trustee. "Series G Trust Securities" means the Series G Common Securities and the Series G Preferred Securities. "Successor Series G Preferred Guarantee Trustee" means a successor Series G Preferred Guarantee Trustee possessing the qualifications to act as Series G 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 G Preferred Securities Guarantee is subject to the provisions of the Trust Indenture Act that are required to be part of this Series G 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 G 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 G 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 G Preferred Guarantee Trustee with a list, in such form as the Series G 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 G 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 G Preferred Guarantee Trustee by the Guarantor. The Series G 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 G 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 G Preferred Guarantee Trustee. Within 60 days after April 11 of each year, the Series G 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 G 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 G Preferred Guarantee Trustee. The Guarantor shall provide to the Series G 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 G Preferred Guarantee Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Series G 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 G 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 G 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 G Preferred Securities to receive payment of the Series G Guarantee Payments in accordance with this Series G 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 G 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 G Preferred Guarantee Trustee, unless such defaults have been cured before the giving of such notice, provided, that, the Series G 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 G Preferred Securities. (b) The Series G Preferred Guarantee Trustee shall not be deemed to have actual knowledge of any Event of Default unless the Series G Preferred Guarantee Trustee shall have received written notice, or of which a Responsible Officer charged with the administration of this Series G Preferred Securities Guarantee shall have obtained actual knowledge. SECTION 2.8 Conflicting Interests. The Series G Declaration shall be deemed to be specifically described in this Series G 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 G PREFERRED GUARANTEE TRUSTEE SECTION 3.1 Powers and Duties of the Series G Preferred Guarantee Trustee. (a) This Series G Preferred Securities Guarantee shall be held by the Series G Preferred Guarantee Trustee in trust for the benefit of the Preferred Holders, and the Series G Preferred Guarantee Trustee shall not transfer its right, title and interest in this Series G 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 G Preferred Guarantee Trustee on acceptance by such Successor Series G Preferred Guarantee Trustee of its appointment to act as Successor Series G Preferred Guarantee Trustee. The right, title and interest of the Series G Preferred Guarantee Trustee shall automatically vest in any Successor Series G 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 G Preferred Guarantee Trustee. (b) If an Event of Default actually known to a Responsible Officer has occurred and is continuing, the Series G Preferred Guarantee Trustee shall enforce this Series G Preferred Securities Guarantee for the benefit of the Preferred Holders. (c) This Series G Preferred Securities Guarantee and all moneys received by the Series G Preferred Guarantee Trustee hereunder in respect of the Series G 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 G Preferred Guarantee Trustee or its agents or their creditors. (d) The Series G 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 G Preferred Securities Guarantee, and no implied covenants shall be read into this Series G Preferred Securities Guarantee against the Series G 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 G Preferred Guarantee Trustee shall exercise such of the rights and powers vested in it by this Series G 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 G Preferred Securities Guarantee shall be construed to relieve the Series G 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 G Preferred Guarantee Trustee shall be determined solely by the express provisions of this Series G Preferred Securities Guarantee, and the Series G Preferred Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Series G Preferred Securities Guarantee, and no implied covenants or obligations shall be read into this Series G Preferred Securities Guarantee against the Series G Preferred Guarantee Trustee; and (B) in the absence of bad faith on the part of the Series G Preferred Guarantee Trustee, the Series G 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 G Preferred Guarantee Trustee and conforming to the requirements of this Series G 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 G Preferred Guarantee Trustee, the Series G 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 G Preferred Securities Guarantee; (ii) the Series G 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 G Preferred Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Series G 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 G Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Series G Preferred Guarantee Trustee, or exercising any trust or power conferred upon the Series G Preferred Guarantee Trustee under this Series G Preferred Securities Guarantee; and (iv) no provision of this Series G Preferred Securities Guarantee shall require the Series G 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 G 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 G Preferred Securities Guarantee or indemnity, reasonably satisfactory to the Series G Preferred Guarantee Trustee, against such risk or liability is not reasonably assured to it. SECTION 3.2 Certain Rights of Series G Preferred Guarantee Trustee. (a) Subject to the provisions of Section 3.1: (i) The Series G 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 G Preferred Securities Guarantee shall be sufficiently evidenced by an Officers' Certificate. (iii) Whenever, in the administration of this Series G Preferred Securities Guarantee, the Series G Preferred Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Series G 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 G 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 G 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 G Preferred Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Series G Preferred Securities Guarantee from any court of competent jurisdiction. (vi) The Series G Preferred Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Series G Preferred Securities Guarantee at the request or direction of any Preferred Holder, unless such Preferred Holder shall have provided to the Series G Preferred Guarantee Trustee such security and indemnity, reasonably satisfactory to the Series G Preferred Guarantee Trustee, against the costs, expenses (including attorneys' fees and expenses and the expenses of the Series G 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 G Preferred Guarantee Trustee; provided that, nothing contained in this Section 3.2(a)(vi) shall relieve the Series G 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 G 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 G 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 G 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 G 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 G 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 G Preferred Guarantee Trustee or its agents hereunder shall bind the Preferred Holders, and the signature of the Series G 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 G Preferred Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of this Series G Preferred Securities Guarantee, both of which shall be conclusively evidenced by the Series G Preferred Guarantee Trustee's or its agent's taking such action. (x) Whenever in the administration of this Series G Preferred Securities Guarantee the Series G 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 G Preferred Guarantee Trustee (i) may request instructions from the Preferred Holders of a Majority in liquidation amount of the Series G 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 G Preferred Securities Guarantee shall be deemed to impose any duty or obligation on the Series G 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 G 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 G Preferred Guarantee Trustee shall be construed to be a duty. SECTION 3.3 Not Responsible for Recitals or Issuance of Series G Preferred Securities Guarantee. The recitals contained in this Series G Preferred Securities Guarantee shall be taken as the statements of the Guarantor, and the Series G Preferred Guarantee Trustee does not assume any responsibility for their correctness. The Series G Preferred Guarantee Trustee makes no representation as to the validity or sufficiency of this Series G Preferred Securities Guarantee. ARTICLE 4 SERIES G PREFERRED GUARANTEE TRUSTEE SECTION 4.1 Series G Preferred Guarantee Trustee; Eligibility. (a) There shall at all times be a Series G 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 G Preferred Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Series G Preferred Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.2(c). (c) If the Series G Preferred Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Series G 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 G Preferred Guarantee Trustee. (a) Subject to Section 4.2(b), the Series G Preferred Guarantee Trustee may be appointed or removed without cause at any time by the Guarantor. (b) The Series G Preferred Guarantee Trustee shall not be removed in accordance with Section 4.2(a) until a Successor Series G Preferred Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Series G Preferred Guarantee Trustee and delivered to the Guarantor and to the Series G Preferred Guarantee Trustee being removed. (c) The Series G Preferred Guarantee Trustee appointed to office shall hold office until a Successor Series G Preferred Guarantee Trustee shall have been appointed or until its removal or resignation as set forth herein. The Series G 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 G 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 G Preferred Guarantee Trustee shall be effective until a Successor Series G Preferred Guarantee Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Series G Preferred Guarantee Trustee and delivered to the Guarantor and the resigning Series G Preferred Guarantee Trustee. (d) If no Successor Series G 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 G Preferred Guarantee Trustee may petition any court of competent jurisdiction for appointment of a Successor Series G Preferred Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Series G Preferred Guarantee Trustee. (e) No Series G Preferred Guarantee Trustee shall be liable for the acts or omissions to act of any Successor Series G Preferred Guarantee Trustee. (f) Upon termination of this Series G Preferred Securities Guarantee or removal or resignation of the Series G Preferred Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the Series G Preferred Guarantee Trustee all amounts payable to such Series G 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 G Guarantee Payments (without duplication of amounts theretofore paid by the Series G Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the Series G Trust may have or assert. The Guarantor's obligation to make a Series G Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Preferred Holders or by causing the Series G 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 G 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 G 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 G 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 G Trust of any express or implied agreement, covenant, term or condition relating to the Series G Preferred Securities to be performed or observed by the Series G Trust; (b) the extension of time for the payment by the Series G Trust of all or any portion of the Distributions, Series G Redemption Price, Series G Liquidation Distribution or any other sums payable under the terms of the Series G Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Series G Preferred Securities (other than an extension of time for payment of Distributions, Series G Redemption Price, Series G Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Series G 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 G Preferred Securities, or any action on the part of the Series G 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 G Trust or any of the assets of the Series G Trust; (e) any invalidity of, or defect or deficiency in, the Series G 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 G Preferred Guarantee Trustee expressly acknowledge that: (a) this Series G Preferred Securities Guarantee will be deposited with the Series G Preferred Guarantee Trustee to be held for the benefit of the Preferred Holders; (b) the Series G Preferred Guarantee Trustee has the right to enforce this Series G Preferred Securities Guarantee on behalf of the Preferred Holders; (c) the Preferred Holders of a Majority in liquidation amount of the Series G Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Series G Preferred Guarantee Trustee in respect of this Series G Preferred Securities Guarantee or exercising any trust or power conferred upon the Series G Preferred Guarantee Trustee under this Series G Preferred Securities Guarantee; and (d) any Preferred Holder may institute a legal proceeding directly against the Guarantor to enforce the Series G Preferred Guarantee Trustee's rights and the obligations of the Guarantor under this Series G Preferred Securities Guarantee, without first instituting a legal proceeding against the Series G Trust, the Series G 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 G Trust or any other person or entity before proceeding directly against the Guarantor. SECTION 5.5 Guarantee of Payment. This Series G Preferred Securities Guarantee creates a guarantee of payment and not of collection. This Series G Preferred Securities Guarantee will not be discharged except by payment of the Series G Guarantee Payments in full (without duplication of amounts therefor paid by the Series G Trust). SECTION 5.6 Subrogation. The Guarantor shall be subrogated to all (if any) rights of the Preferred Holders against the Series G Trust in respect of any amounts paid to such Preferred Holders by the Guarantor under this Series G 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 G Preferred Securities Guarantee, if, at the time of any such payment, any amounts are due and unpaid under this Series G 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 G Trust with respect to the Series G Preferred Securities, and that the Guarantor shall be liable as principal and as debtor hereunder to make Series G Guarantee Payments pursuant to the terms of this Series G 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 G 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 G 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 G 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 G Debentures or (iii) make any guarantee payments with respect to the foregoing (other than pursuant to this Series G Preferred Securities Guarantee). In addition, so long as any Series G Preferred Securities remain outstanding, the Guarantor (i) will remain the sole direct or indirect owner of all of the outstanding Series G 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 G Common Securities and (ii) will not take any action which would cause the Series G 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 G Debentures as provided in the Series G Declaration. SECTION 6.2 Ranking. This Series G 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 G 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 G Preferred Securities Guarantee shall terminate and be of no further force and effect upon (i) full payment of the Series G Redemption Price of all Series G Preferred Securities, (ii) upon the distribution of the Series G Debentures to all of the Preferred Holders or (iii) upon full payment of the amounts payable in accordance with the Series G Declaration upon liquidation of the Series G Trust. Notwithstanding the foregoing, this Series G 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 G Preferred Securities or under this Series G 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 G 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 G 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 G Preferred Guarantee Trustee compensation as agreed between the Guarantor and the Series G Preferred Guarantee Trustee, and shall reimburse the Series G 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 G 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 G Preferred Securities Guarantee. ARTICLE 9 MISCELLANEOUS SECTION 9.1 Successors and Assigns. All guarantees and agreements contained in this Series G 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 G 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 G Preferred Securities Guarantee without the prior approval of the Preferred Holders of at least a Majority in liquidation amount of the Series G 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 G 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 G Preferred Securities. The provisions of Section 12.2 of the Series G 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 G 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 G Preferred Guarantee Trustee, at the Series G Preferred Guarantee Trustee's mailing address set forth below (or such other address as the Series G Preferred Guarantee Trustee may give notice of to the Preferred Holders): Wilmington Trust Company 1100 North Market Wilmington, Delaware 19890-0001 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 100 Renaissance Corporation Detroit, Michigan 48243-7301 Attention: General Counsel (c) If given to any Preferred Holder, at the address set forth on the books and records of the Series G 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 G 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 G Preferred Securities. SECTION 9.5 Governing Law. THIS SERIES G 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 G 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 G PREFERRED SECURITIES GUARANTEE is executed as of the day and year first above written. GENERAL MOTORS CORPORATION, as Guarantor By: /s/ John D. Finnegan Name: John D. Finnegan Title: Vice President and Treasurer WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Series G Preferred Guarantee Trustee By: /s/ Donald G. MacKelcan Name: Donald G. MacKelcan Title: Assistant Vice President EX-4 9 GMNEWGC_.D1 FOOTER B HAS BEEN ENTERED (DRAFT) SERIES D COMMON SECURITIES GUARANTEE AGREEMENT General Motors Capital Trust D Dated as of July 9, 1997 TABLE OF CONTENTS ARTICLE 1 DEFINITIONS AND INTERPRETATION 1 SECTION 1.1 Definitions and Interpretation. 1 ARTICLE 2 GUARANTEE 3 SECTION 2.1 Guarantee 3 SECTION 2.2 Subordination 3 SECTION 2.3 Waiver of Notice and Demand 3 SECTION 2.4 Obligations Not Affected 3 SECTION 2.5 Rights of Common Holders 4 SECTION 2.6 Guarantee of Payment 4 SECTION 2.7 Subrogation 4 SECTION 2.8 Independent Obligations 5 ARTICLE 3 LIMITATION OF TRANSACTIONS; RANKING 5 SECTION 3.1 Limitation of Transactions 5 SECTION 3.2 Ranking 5 ARTICLE 4 TERMINATION 6 SECTION 4.1 Termination 6 ARTICLE 5 MISCELLANEOUS 6 SECTION 5.1 Successors and Assigns 6 SECTION 5.2 Amendments 6 SECTION 5.3 Notices 6 SECTION 5.4 Benefit 7 SECTION 5.5 Governing Law 7 SECTION 5.6 Genders 7 SERIES D COMMON SECURITIES GUARANTEE AGREEMENT This GUARANTEE AGREEMENT (the "Series D Common Securities Guarantee"), dated as of July 9, 1997, is executed and delivered by General Motors Corporation, a Delaware corporation (the "Guarantor"), for the benefit of the Common Holders (as defined herein) of General Motors Capital Trust D, a Delaware statutory business trust (the "Series D Trust"). WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Series D Declaration") dated as of July 9, 1997, among the trustees of the Series D Trust, the Guarantor, as sponsor, and the holders from time to time of undivided beneficial ownership interests in the assets of the Series D Trust, the Series D Trust is issuing on the date hereof 94,493 common securities, having an aggregate liquidation amount of $2,362,325, designated the 8.67% Common Securities, Series D (the "Series D Common Securities"); WHEREAS, as incentive for the Common Holders to purchase the Series D Common Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Series D Common Securities Guarantee, to pay to the Common Holders the Series D Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein; and WHEREAS, the Guarantor is also executing and delivering a guarantee agreement (the "Series D Preferred Securities Guarantee") in substantially identical terms to this Series D Common Securities Guarantee for the benefit of the holders of the Series D Preferred Securities (as defined herein), except that if an event of default under the Indenture (as defined herein) with respect to the Series D Debentures (an "Indenture Event of Default") has occurred and is continuing, the rights of holders of the Series D Preferred Securities to receive Series D Guarantee Payments under the Series D Preferred Securities Guarantee will rank senior and prior in right to the rights of Common Holders to receive Series D Guarantee Payments under this Series D Common Securities Guarantee. NOW, THEREFORE, in consideration of the purchase by each Common Holder, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Series D Common Securities Guarantee for the benefit of the Common Holders. ARTICLE 1 DEFINITIONS AND INTERPRETATION SECTION 1.1 Definitions and Interpretation. In this Series D Common Securities Guarantee, unless the context otherwise requires: (a) capitalized terms used in this Series D Common Securities Guarantee but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; (b) a term defined anywhere in this Series D Common Securities Guarantee has the same meaning throughout; (c) all references to "the Series D Common Securities Guarantee" or "this Series D Common Securities Guarantee" are to this Series D Common Securities Guarantee as modified, supplemented or amended from time to time; (d) all references in this Series D Common Securities Guarantee to Articles and Sections are to Articles and Sections of this Series D Common Securities Guarantee, unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Series D Common Securities Guarantee, unless otherwise defined in this Series D Common Securities Guarantee or unless the context otherwise requires; and (f) a reference to the singular includes the plural and vice versa. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended, or any successor rule thereunder. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Business Day" means any day other than a day on which Federal or State banking institutions in New York, New York or Wilmington, Delaware, are authorized or obligated by any law, executive order or regulation to close. "Common Holder" means any holder, as registered on the books and records of the Series D Trust, of any Series D Common Securities. "Covered Person" means any Common Holder or beneficial owner of Series D Common Securities. "Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Series D Common Securities Guarantee. "Indenture" means the Indenture dated as of July 1, 1997, between the Guarantor (the "Series D Debenture Issuer") and Wilmington Trust Company, as trustee, and any indenture supplemental thereto pursuant to which certain subordinated debt securities of the Series D Debenture Issuer are to be issued to the Institutional Trustee of the Series D Trust, in each case as amended. "Officers' Certificate" means, with respect to any Person, a certificate signed by two Authorized Officers of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Series D Common Securities Guarantee shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definition relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Officers' Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Series D Debentures" means the 8.67% Junior Subordinated Deferrable Interest Debentures, Series D, due 2012, issued by the Guarantor to the Institutional Trustee of the Series D Trust. "Series D Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Series D Common Securities, to the extent not paid or made by the Series D Trust: (i) any accrued and unpaid Distributions (as defined in the Series D Declaration) that are required to be paid on such Series D Common Securities, to the extent the Series D Trust shall have funds available therefor, (ii) the redemption price, including all accrued and unpaid Distributions to the date of redemption (the "Series D Redemption Price"), to the extent the Series D Trust has funds available therefor, with respect to any Series D Common Securities called for redemption by the Series D Trust, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Series D Trust (other than in connection with the distribution of Series D Debentures to the Common Holders or the redemption of all of the Series D Common Securities as provided in the Series D Declaration), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid Distributions on the Series D Common Securities to the date of payment, to the extent the Series D Trust shall have funds available therefor, and (b) the amount of assets of the Series D Trust remaining available for distribution to Common Holders in liquidation of the Series D Trust (in either case, the "Series D Liquidation Distribution"). If an Indenture Event of Default has occurred and is continuing, the rights of holders of the Series D Preferred Securities to receive payments under the Series D Preferred Securities Guarantee Agreement shall rank senior and prior in right to the rights of Common Holders to receive Series D Guarantee Payments. "Series D Preferred Securities" mean the preferred securities of the Series D Trust having an aggregate liquidation amount of $76,381,375, designated the 8.67% Trust Originated Preferred Securities, Series D. "Series D Trust Securities" means the Series D Common Securities and the Series D Preferred Securities. ARTICLE 2 GUARANTEE SECTION 2.1 Guarantee The Guarantor irrevocably and unconditionally agrees to pay in full to the Common Holders the Series D Guarantee Payments (without duplication of amounts theretofore paid by the Series D Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the Series D Trust may have or assert. The Guarantor's obligation to make a Series D Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Common Holders or by causing the Series D Trust to pay such amounts to the Common Holders. SECTION 2.2 Subordination. If (a) an Event of Default or (b) an Indenture Event of Default has occurred and is continuing, the rights of Common Holders to receive Series D Guarantee Payments under this Series D Common Securities Guarantee are subordinated to the rights of holders of Series D Preferred Securities to receive Series D Guarantee Payments (as defined in the Series D Preferred Securities Guarantee) under the Series D Preferred Securities Guarantee. SECTION 2.3 Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Series D Common Securities Guarantee and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Series D Trust or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. SECTION 2.4 Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Series D Common Securities Guarantee shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Series D Trust of any express or implied agreement, covenant, term or condition relating to the Series D Common Securities to be performed or observed by the Series D Trust; (b) the extension of time for the payment by the Series D Trust of all or any portion of the Distributions, Series D Redemption Price, Series D Liquidation Distribution or any other sums payable under the terms of the Series D Common Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Series D Common Securities (other than an extension of time for payment of Distributions, Series D Redemption Price, Series D Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Series D Debentures); (c) any failure, omission, delay or lack of diligence on the part of the Common Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Common Holders pursuant to the terms of the Series D Common Securities, or any action on the part of the Series D Trust granting indulgence or extension of any kind; (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Series D Trust or any of the assets of the Series D Trust; (e) any invalidity of, or defect or deficiency in, the Series D Common Securities; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 2.4 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Common Holders to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing. SECTION 2.5 Rights of Common Holders. The Guarantor expressly acknowledges that any Common Holder may institute a legal proceeding directly against the Guarantor to enforce its rights under this Series D Common Securities Guarantee without first instituting a legal proceeding against the Series D Trust or any other Person. SECTION 2.6 Guarantee of Payment. This Series D Common Securities Guarantee creates a guarantee of payment and not of collection. This Series D Common Securities Guarantee will not be discharged except by payment of the Series D Guarantee Payments in full (without duplication of amounts therefor paid by the Series D Trust). SECTION 2.7 Subrogation. The Guarantor shall be subrogated to all (if any) rights of the Common Holders against the Series D Trust in respect of any amounts paid to such Common Holders by the Guarantor under this Series D Common Securities Guarantee; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Series D Common Securities Guarantee, if, at the time of any such payment, any amounts are due and unpaid under this Series D Common Securities Guarantee. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Common Holders and to pay over such amount to the Common Holders. SECTION 2.8 Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Series D Trust with respect to the Series D Common Securities, and that the Guarantor shall be liable as principal and as debtor hereunder to make Series D Guarantee Payments pursuant to the terms of this Series D Common Securities Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 2.4 hereof. ARTICLE 3 LIMITATION OF TRANSACTIONS; RANKING SECTION 3.1 Limitation of Transactions. So long as any Series D Common Securities remain outstanding, if (a) there shall have occurred an Event of Default, (b) there shall have occurred an Indenture Event of Default or (c) the Guarantor has exercised its option to defer interest payments on the Series D Debentures by extending the interest payment period and such period or extension thereof shall be continuing, then the Guarantor shall not (i) declare or pay any dividend on, make any distribution with respect to, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of its capital stock (other than (A) purchases or acquisitions of shares of Guarantor's common stock (including, without limitation, all classes of common stock now or hereafter issued) in connection with the satisfaction by the Guarantor of its obligations under any employee benefit plans or any other contractual obligation of the Guarantor (other than a contractual obligation ranking pari passu with or junior to the Series D Debentures), (B) the issuance of capital stock in connection with a recapitalization or a reclassification of the Guarantor's capital stock or the exchange or conversion of one class or series of the Guarantor's capital stock for another class or series of the Guarantor's capital stock, in each case by merger or otherwise, or (C) the purchase of fractional interests in shares of the Guarantor's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged), (ii) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by the Guarantor that rank pari passu with or junior to the Series D Debentures or (iii) make any guarantee payments with respect to the foregoing (other than pursuant to this Series D Common Securities Guarantee). In addition, so long as any Series D Common Securities remain outstanding, the Guarantor (i) will remain the sole direct or indirect owner of all of the outstanding Series D Common Securities to be transferred, provided that any permitted successor of the Guarantor under the Indenture may succeed to the Guarantor's ownership of the Series D Common Securities; and (ii) will not take any action which would cause the Series D Trust to cease to be treated as a grantor trust for United States federal income tax purposes except in connection with a distribution of Series D Debentures as provided in the Series D Declaration. SECTION 3.2 Ranking. This Series D Common Securities Guarantee will constitute an unsecured obligation of the Guarantor and will rank (i) subordinate and junior in right of payment to all other liabilities of the Guarantor, except those made pari passu or subordinate by their terms (including, without limitation, the Series D Common Securities Guarantee Agreement dated as of the date hereof, by General Motors Corporation for the benefit of holders of common securities of General Motors Capital Trust D), (ii) pari passu with the most senior preferred or preference stock now or hereafter issued by the Guarantor and with any guarantee now or hereafter entered into by the Guarantor in respect of any preferred or preference stock of any Affiliate of the Guarantor, and (iii) senior to the Guarantor's common stock (including, without limitation, all classes of common stock now or hereafter issued); provided that, in accordance with Section 2.2, this Series D Common Securities Guarantee will rank subordinate and junior in right of payment to the Series D Preferred Securities Guarantee. ARTICLE 4 TERMINATION SECTION 4.1 Termination. This Series D Common Securities Guarantee shall terminate and be of no further force and effect upon (i) full payment of the amount payable upon redemption of the Series D Common Securities, (ii) upon the distribution of the Series D Debentures to all of the holders of the Series D Preferred Securities or (iii) upon full payment of the amounts payable in accordance with the Series D Declaration upon liquidation of the Series D Trust. Notwithstanding the foregoing, this Series D Common Securities Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any Common Holder must restore payment of any sums paid under the Series D Common Securities or under this Series D Common Securities Guarantee. ARTICLE 5 MISCELLANEOUS SECTION 5.1 Successors and Assigns. All guarantees and agreements contained in this Series D Common Securities Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Common Holders of the Series D Common Securities then outstanding. Except in connection with any merger or consolidation of the Guarantor with or into another entity or any sale, transfer or lease of the Guarantor's assets to another entity, each as permitted by the Indenture, the Guarantor may not assign its rights or delegate its obligations under this Series D Common Securities Guarantee without the prior approval of the Common Holders of at least a Majority in liquidation amount of the Series D Common Securities then outstanding. SECTION 5.2 Amendments. Except with respect to any changes that do not adversely affect the rights of Common Holders (in which case no consent of Common Holders will be required), this Series D Common Securities Guarantee may only be amended with the prior approval of the Common Holders of at least a majority in liquidation amount of all the outstanding Series D Common Securities. The provisions of Section 12.2 of the Series D Declaration with respect to meetings of Common Holders apply to the giving of such approval. SECTION 5.3 Notices. All notices provided for in this Series D Common Securities Guarantee shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by registered or certified mail, as follows: (a) If given to the Guarantor, at the Guarantor's mailing address set forth below (or such other address as the Guarantor may give notice of to the Common Holders): General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 Attention: General Counsel (b) If given to any Common Holder, at the address set forth on the books and records of the Series D Trust. All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. SECTION 5.4 Benefit. This Series D Common Securities Guarantee is solely for the benefit of the Common Holders and is not separately transferable from the Series D Common Securities. SECTION 5.5 Governing Law. THIS SERIES D COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. SECTION 5.6 Genders. The masculine, feminine and neuter genders used herein shall include the masculine, feminine and neuter genders. * * * * * * THIS SERIES D COMMON SECURITIES GUARANTEE is executed as of the day and year first above written. GENERAL MOTORS CORPORATION, as Guarantor By: /s/John D. Finnegan Name: John D. Finnegan Title: Vice President and Treasurer EX-4 10 GMNEWGC_.G1 FOOTER B HAS BEEN ENTERED (DRAFT) SERIES G COMMON SECURITIES GUARANTEE AGREEMENT General Motors Capital Trust G Dated as of July 9, 1997 TABLE OF CONTENTS ARTICLE 1 DEFINITIONS AND INTERPRETATION 1 SECTION 1.1 Definitions and Interpretation. 1 ARTICLE 2 GUARANTEE 3 SECTION 2.1 Guarantee 3 SECTION 2.2 Subordination 3 SECTION 2.3 Waiver of Notice and Demand 3 SECTION 2.4 Obligations Not Affected 3 SECTION 2.5 Rights of Common Holders 4 SECTION 2.6 Guarantee of Payment 4 SECTION 2.7 Subrogation 4 SECTION 2.8 Independent Obligations 5 ARTICLE 3 LIMITATION OF TRANSACTIONS; RANKING 5 SECTION 3.1 Limitation of Transactions 5 SECTION 3.2 Ranking 5 ARTICLE 4 TERMINATION 6 SECTION 4.1 Termination 6 ARTICLE 5 MISCELLANEOUS 6 SECTION 5.1 Successors and Assigns 6 SECTION 5.2 Amendments 6 SECTION 5.3 Notices 6 SECTION 5.4 Benefit 7 SECTION 5.5 Governing Law 7 SECTION 5.6 Genders 7 SERIES G COMMON SECURITIES GUARANTEE AGREEMENT This GUARANTEE AGREEMENT (the "Series G Common Securities Guarantee"), dated as of July 9, 1997, is executed and delivered by General Motors Corporation, a Delaware corporation (the "Guarantor"), for the benefit of the Common Holders (as defined herein) of General Motors Capital Trust G, a Delaware statutory business trust (the "Series G Trust"). WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Series G Declaration") dated as of July 9, 1997, among the trustees of the Series G Trust, the Guarantor, as sponsor, and the holders from time to time of undivided beneficial ownership interests in the assets of the Series G Trust, the Series G Trust is issuing on the date hereof 156,634 common securities, having an aggregate liquidation amount of $3,915,850, designated the 9.87% Common Securities, Series G (the "Series G Common Securities"); WHEREAS, as incentive for the Common Holders to purchase the Series G Common Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Series G Common Securities Guarantee, to pay to the Common Holders the Series G 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 G Preferred Securities Guarantee") in substantially identical terms to this Series G Common Securities Guarantee for the benefit of the holders of the Series G Preferred Securities (as defined herein), except that if an event of default under the Indenture (as defined herein) with respect to the Series G Debentures (an "Indenture Event of Default") has occurred and is continuing, the rights of holders of the Series G Preferred Securities to receive Series G Guarantee Payments under the Series G Preferred Securities Guarantee will rank senior and prior in right to the rights of Common Holders to receive Series G Guarantee Payments under this Series G Common Securities Guarantee. NOW, THEREFORE, in consideration of the purchase by each Common Holder, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Series G Common Securities Guarantee for the benefit of the Common Holders. ARTICLE 1 DEFINITIONS AND INTERPRETATION SECTION 1.1 Definitions and Interpretation. In this Series G Common Securities Guarantee, unless the context otherwise requires: (a) capitalized terms used in this Series G Common Securities Guarantee but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1; (b) a term defined anywhere in this Series G Common Securities Guarantee has the same meaning throughout; (c) all references to "the Series G Common Securities Guarantee" or "this Series G Common Securities Guarantee" are to this Series G Common Securities Guarantee as modified, supplemented or amended from time to time; (d) all references in this Series G Common Securities Guarantee to Articles and Sections are to Articles and Sections of this Series G Common Securities Guarantee, unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Series G Common Securities Guarantee, unless otherwise defined in this Series G Common Securities Guarantee or unless the context otherwise requires; and (f) a reference to the singular includes the plural and vice versa. "Affiliate" has the same meaning as given to that term in Rule 405 of the Securities Act of 1933, as amended, or any successor rule thereunder. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Business Day" means any day other than a day on which Federal or State banking institutions in New York, New York or Wilmington, Delaware, are authorized or obligated by any law, executive order or regulation to close. "Common Holder" means any holder, as registered on the books and records of the Series G Trust, of any Series G Common Securities. "Covered Person" means any Common Holder or beneficial owner of Series G Common Securities. "Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Series G Common Securities Guarantee. "Indenture" means the Indenture dated as of July 1, 1997, between the Guarantor (the "Series G Debenture Issuer") and Wilmington Trust Company, as trustee, and any indenture supplemental thereto pursuant to which certain subordinated debt securities of the Series G Debenture Issuer are to be issued to the Institutional Trustee of the Series G Trust, in each case as amended. "Officers' Certificate" means, with respect to any Person, a certificate signed by two Authorized Officers of such Person. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Series G Common Securities Guarantee shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definition relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Officers' Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature. "Series G Debentures" means the 9.87% Junior Subordinated Deferrable Interest Debentures, Series G, due 2012, issued by the Guarantor to the Institutional Trustee of the Series G Trust. "Series G Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Series G Common Securities, to the extent not paid or made by the Series G Trust: (i) any accrued and unpaid Distributions (as defined in the Series G Declaration) that are required to be paid on such Series G Common Securities, to the extent the Series G Trust shall have funds available therefor, (ii) the redemption price, including all accrued and unpaid Distributions to the date of redemption (the "Series G Redemption Price"), to the extent the Series G Trust has funds available therefor, with respect to any Series G Common Securities called for redemption by the Series G Trust, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Series G Trust (other than in connection with the distribution of Series G Debentures to the Common Holders or the redemption of all of the Series G Common Securities as provided in the Series G Declaration), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid Distributions on the Series G Common Securities to the date of payment, to the extent the Series G Trust shall have funds available therefor, and (b) the amount of assets of the Series G Trust remaining available for distribution to Common Holders in liquidation of the Series G Trust (in either case, the "Series G Liquidation Distribution"). If an Indenture Event of Default has occurred and is continuing, the rights of holders of the Series G Preferred Securities to receive payments under the Series G Preferred Securities Guarantee Agreement shall rank senior and prior in right to the rights of Common Holders to receive Series G Guarantee Payments. "Series G Preferred Securities" mean the preferred securities of the Series G Trust having an aggregate liquidation amount of $126,612,225, designated the 9.87% Trust Originated Preferred Securities, Series G. "Series G Trust Securities" means the Series G Common Securities and the Series G Preferred Securities. ARTICLE 2 GUARANTEE SECTION 2.1 Guarantee The Guarantor irrevocably and unconditionally agrees to pay in full to the Common Holders the Series G Guarantee Payments (without duplication of amounts theretofore paid by the Series G Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the Series G Trust may have or assert. The Guarantor's obligation to make a Series G Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Common Holders or by causing the Series G Trust to pay such amounts to the Common Holders. SECTION 2.2 Subordination. If (a) an Event of Default or (b) an Indenture Event of Default has occurred and is continuing, the rights of Common Holders to receive Series G Guarantee Payments under this Series G Common Securities Guarantee are subordinated to the rights of holders of Series G Preferred Securities to receive Series G Guarantee Payments (as defined in the Series G Preferred Securities Guarantee) under the Series G Preferred Securities Guarantee. SECTION 2.3 Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Series G Common Securities Guarantee and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Series G Trust or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands. SECTION 2.4 Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Series G Common Securities Guarantee shall in no way be affected or impaired by reason of the happening from time to time of any of the following: (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Series G Trust of any express or implied agreement, covenant, term or condition relating to the Series G Common Securities to be performed or observed by the Series G Trust; (b) the extension of time for the payment by the Series G Trust of all or any portion of the Distributions, Series G Redemption Price, Series G Liquidation Distribution or any other sums payable under the terms of the Series G Common Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Series G Common Securities (other than an extension of time for payment of Distributions, Series G Redemption Price, Series G Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Series G Debentures); (c) any failure, omission, delay or lack of diligence on the part of the Common Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Common Holders pursuant to the terms of the Series G Common Securities, or any action on the part of the Series G 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 G Trust or any of the assets of the Series G Trust; (e) any invalidity of, or defect or deficiency in, the Series G Common Securities; (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor, it being the intent of this Section 2.4 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances. There shall be no obligation of the Common Holders to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing. SECTION 2.5 Rights of Common Holders. The Guarantor expressly acknowledges that any Common Holder may institute a legal proceeding directly against the Guarantor to enforce its rights under this Series G Common Securities Guarantee without first instituting a legal proceeding against the Series G Trust or any other Person. SECTION 2.6 Guarantee of Payment. This Series G Common Securities Guarantee creates a guarantee of payment and not of collection. This Series G Common Securities Guarantee will not be discharged except by payment of the Series G Guarantee Payments in full (without duplication of amounts therefor paid by the Series G Trust). SECTION 2.7 Subrogation. The Guarantor shall be subrogated to all (if any) rights of the Common Holders against the Series G Trust in respect of any amounts paid to such Common Holders by the Guarantor under this Series G Common Securities Guarantee; provided, however, that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any right that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Series G Common Securities Guarantee, if, at the time of any such payment, any amounts are due and unpaid under this Series G Common Securities Guarantee. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Common Holders and to pay over such amount to the Common Holders. SECTION 2.8 Independent Obligations. The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Series G Trust with respect to the Series G Common Securities, and that the Guarantor shall be liable as principal and as debtor hereunder to make Series G Guarantee Payments pursuant to the terms of this Series G Common Securities Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 2.4 hereof. ARTICLE 3 LIMITATION OF TRANSACTIONS; RANKING SECTION 3.1 Limitation of Transactions. So long as any Series G Common Securities remain outstanding, if (a) there shall have occurred an Event of Default, (b) there shall have occurred an Indenture Event of Default or (c) the Guarantor has exercised its option to defer interest payments on the Series G 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 G 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 G Debentures or (iii) make any guarantee payments with respect to the foregoing (other than pursuant to this Series G Common Securities Guarantee). In addition, so long as any Series G Common Securities remain outstanding, the Guarantor (i) will remain the sole direct or indirect owner of all of the outstanding Series G 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 G Common Securities; and (ii) will not take any action which would cause the Series G 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 G Debentures as provided in the Series G Declaration. SECTION 3.2 Ranking. This Series G Common Securities Guarantee will constitute an unsecured obligation of the Guarantor and will rank (i) subordinate and junior in right of payment to all other liabilities of the Guarantor, except those made pari passu or subordinate by their terms (including, without limitation, the Series G Common Securities Guarantee Agreement dated as of the date hereof, by General Motors Corporation for the benefit of holders of common securities of General Motors Capital Trust G), (ii) pari passu with the most senior preferred or preference stock now or hereafter issued by the Guarantor and with any guarantee now or hereafter entered into by the Guarantor in respect of any preferred or preference stock of any Affiliate of the Guarantor, and (iii) senior to the Guarantor's common stock (including, without limitation, all classes of common stock now or hereafter issued); provided that, in accordance with Section 2.2, this Series G Common Securities Guarantee will rank subordinate and junior in right of payment to the Series G Preferred Securities Guarantee. ARTICLE 4 TERMINATION SECTION 4.1 Termination. This Series G Common Securities Guarantee shall terminate and be of no further force and effect upon (i) full payment of the amount payable upon redemption of the Series G Common Securities, (ii) upon the distribution of the Series G Debentures to all of the holders of the Series G Preferred Securities or (iii) upon full payment of the amounts payable in accordance with the Series G Declaration upon liquidation of the Series G Trust. Notwithstanding the foregoing, this Series G Common Securities Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any Common Holder must restore payment of any sums paid under the Series G Common Securities or under this Series G Common Securities Guarantee. ARTICLE 5 MISCELLANEOUS SECTION 5.1 Successors and Assigns. All guarantees and agreements contained in this Series G Common Securities Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Common Holders of the Series G Common Securities then outstanding. Except in connection with any merger or consolidation of the Guarantor with or into another entity or any sale, transfer or lease of the Guarantor's assets to another entity, each as permitted by the Indenture, the Guarantor may not assign its rights or delegate its obligations under this Series G Common Securities Guarantee without the prior approval of the Common Holders of at least a Majority in liquidation amount of the Series G Common Securities then outstanding. SECTION 5.2 Amendments. Except with respect to any changes that do not adversely affect the rights of Common Holders (in which case no consent of Common Holders will be required), this Series G Common Securities Guarantee may only be amended with the prior approval of the Common Holders of at least a majority in liquidation amount of all the outstanding Series G Common Securities. The provisions of Section 12.2 of the Series G Declaration with respect to meetings of Common Holders apply to the giving of such approval. SECTION 5.3 Notices. All notices provided for in this Series G Common Securities Guarantee shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by registered or certified mail, as follows: (a) If given to the Guarantor, at the Guarantor's mailing address set forth below (or such other address as the Guarantor may give notice of to the Common Holders): General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 Attention: General Counsel (b) If given to any Common Holder, at the address set forth on the books and records of the Series G Trust. All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver. SECTION 5.4 Benefit. This Series G Common Securities Guarantee is solely for the benefit of the Common Holders and is not separately transferable from the Series G Common Securities. SECTION 5.5 Governing Law. THIS SERIES G COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. SECTION 5.6 Genders. The masculine, feminine and neuter genders used herein shall include the masculine, feminine and neuter genders. * * * * * * THIS SERIES G COMMON SECURITIES GUARANTEE is executed as of the day and year first above written. GENERAL MOTORS CORPORATION, as Guarantor By: /s/John D. Finnegan Name: John D. Finnegan Title: Vice President and Treasurer -----END PRIVACY-ENHANCED MESSAGE-----