-----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, UQeF9cZauW7a/sz/dLd/u7vDSLa39o1TwFIx/P07ciaVlsXGg8078X5XZUZaht1u Lat08ZCpBkrrjqQZTg4PhQ== 0000950124-97-002402.txt : 19970425 0000950124-97-002402.hdr.sgml : 19970425 ACCESSION NUMBER: 0000950124-97-002402 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 24 FILED AS OF DATE: 19970424 SROS: CSX SROS: NASD 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: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-25221 FILM NUMBER: 97586377 BUSINESS ADDRESS: STREET 1: 3044 WEST GRAND BLVD CITY: DETROIT STATE: MI ZIP: 48202-3091 BUSINESS PHONE: 3135565000 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL MOTORS CAPITAL TRUST G CENTRAL INDEX KEY: 0001037734 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-25221-01 FILM NUMBER: 97586378 BUSINESS ADDRESS: STREET 1: C/O GENERAL MOTORS CORP STREET 2: 100 RENAISSANCE CENTER CITY: DETROIT STATE: MI ZIP: 48243-7301 BUSINESS PHONE: 3135565000 MAIL ADDRESS: STREET 1: C/O GENERAL MOTORS CORP STREET 2: 100 RENAISSANCE CTR CITY: DETROIT STATE: MI ZIP: 48243-7301 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL MOTORS CAPITAL TRUST D CENTRAL INDEX KEY: 0001037761 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-25221-02 FILM NUMBER: 97586379 BUSINESS ADDRESS: STREET 1: C/O GENERAL MOTORS CORP STREET 2: 100 RENAISSANCE CTR CITY: DETROIT STATE: MI ZIP: 48243-7301 BUSINESS PHONE: 3135565000 MAIL ADDRESS: STREET 1: C/O GENERAL MOTORS CORP STREET 2: 100 RENAISSANCE CTR CITY: DETROIT STATE: MI ZIP: 48243-7301 S-4/A 1 S-4/A 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 24, 1997 REGISTRATION NO. 333-25221 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- AMENDMENT NO. 1 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- DELAWARE DELAWARE GENERAL MOTORS CORPORATION DELAWARE 38-0572515 7374 GENERAL MOTORS CAPITAL TRUST D (State or other jurisdiction 38-6690680 9999 GENERAL MOTORS CAPITAL TRUST G of 38-6690679 9999 (Exact name of issuer as incorporation or (I.R.S. Employer (Primary Standard Industrial specified in its charter) organization) Identification No.) Classification Number)
100 RENAISSANCE CENTER, DETROIT, MICHIGAN 48243-7301; (313) 556-5000 (Address, including zip code, and telephone number, including area code, of principal executive offices) PETER R. BIBLE CHIEF ACCOUNTING OFFICER GENERAL MOTORS CORPORATION 100 RENAISSANCE CENTER DETROIT, MI 48243-7301 (313) 556-5000 (Name, address, including zip code, and telephone number, including area code, of agent for service) --------------------- Copies to: MARTIN I. DARVICK, ESQ. GENERAL MOTORS CORPORATION 3031 WEST GRAND BOULEVARD DETROIT, MI 48202-3091 ROBERT S. OSBORNE, P.C. KIRKLAND & ELLIS 200 EAST RANDOLPH DRIVE CHICAGO, IL 60601-6636 VINCENT J. PISANO, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 919 THIRD AVENUE NEW YORK, NY 10022 --------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective and all other conditions to the Exchange Offers (the "Offers") described in the enclosed Prospectus have been satisfied or waived. If the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: [ ] --------------------- THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. ================================================================================ 2 PROSPECTUS SUBJECT TO COMPLETION GENERAL MOTORS CORPORATION GENERAL MOTORS CAPITAL TRUST D GENERAL MOTORS CAPITAL TRUST G OFFERS TO EXCHANGE General Motors Capital Trust D % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series D (Liquidation Amount $25.00 per Series D Preferred Security and guaranteed to the extent set forth herein by General Motors Corporation) for up to 5,462,917 Depositary Shares, Each Representing One-Fourth of a Share of Series D 7.92% Preference Stock of General Motors Corporation CUSIP 370442857 General Motors Capital Trust G % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series G (Liquidation Amount $25.00 per Series G Preferred Security and guaranteed to the extent set forth herein by General Motors Corporation) for up to 9,071,910 Depositary Shares, Each Representing One-Fourth of a Share of Series G 9.12% Preference Stock of General Motors Corporation CUSIP 370442790 EACH OF THE OFFERS (AND THE RELATED WITHDRAWAL RIGHTS) WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , 1997, UNLESS EITHER OR BOTH OF THE OFFERS IS EXTENDED. General Motors Corporation, a Delaware corporation ("General Motors"), and General Motors Capital Trust D, a Delaware statutory business trust (the "Series D Trust"), hereby offer, upon the terms and subject to the conditions set forth in this Prospectus and the accompanying Letter of Transmittal relating to the Series D 7.92% Depositary Shares, to exchange % Trust Originated Preferred Securities, Series D, representing undivided beneficial ownership interests in the assets of the Series D Trust (the "Series D Preferred Securities"), for up to 5,462,917 (i.e., approximately 90%) of the outstanding depositary shares (the "Series D 7.92% Depositary Shares"), each representing one-fourth of a share of General Motors' Series D 7.92% Preference Stock, $0.10 par value per share (the "Series D 7.92% Preference Stock"), not owned by General Motors (this Prospectus, together with the Letter of Transmittal for the Series D 7.92% Depositary Shares, constituting the "Series D Offer"). General Motors and General Motors Capital Trust G, a Delaware statutory business trust (the "Series G Trust"), hereby offer, upon the terms and subject to the conditions set forth in this Prospectus and the accompanying Letter of Transmittal relating to the Series G 9.12% Depositary Shares, to exchange % Trust Originated Preferred Securities, Series G, representing undivided beneficial ownership interests in the assets of the Series G Trust (the "Series G Preferred Securities"), for up to 9,071,910 (i.e., approximately 90%) of the outstanding depositary shares (the "Series G 9.12% Depositary Shares"), each representing one-fourth of a share of General Motors' Series G 9.12% Preference Stock, $0.10 par value per share (the "Series G 9.12% Preference Stock"), not owned by General Motors (this Prospectus, together with the Letter of Transmittal relating to the Series G 9.12% Depositary Shares, constituting the "Series G Offer"). Exchanges will be made on the basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange in the Series D Offer and one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange in the Series G Offer. If more than the maximum number of Depositary Shares of either series is validly tendered and not withdrawn on or prior to the Expiration Date for the applicable Offer, the applicable Trust will accept such related Depositary Shares for exchange on a pro rata basis as described herein. As of the date of this Prospectus, there are Series D 7.92% Depositary Shares outstanding and not owned by General Motors and Series G 9.12% Depositary Shares outstanding and not owned by General Motors. (Continued on next page) --------------------- SEE "RISK FACTORS AND SPECIAL CONSIDERATIONS RELATING TO THE OFFERS" STARTING ON PAGE 19 FOR A DISCUSSION OF CERTAIN FACTORS RELATING TO THE PREFERRED SECURITIES THAT SHOULD BE CONSIDERED BY INVESTORS, INCLUDING THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS OF DISTRIBUTIONS ON THE PREFERRED SECURITIES MAY BE DEFERRED AND THE RELATED UNITED STATES FEDERAL INCOME TAX CONSEQUENCES. --------------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------------- Merrill Lynch & Co. and Smith Barney Inc. have been retained as lead Dealer Managers to solicit exchanges of Depositary Shares for Preferred Securities. See "The Offers--Dealer Managers; Soliciting Dealers." The First National Bank of Boston has been retained as Exchange Agent in connection with the Offers. Georgeson & Company Inc. has been retained to act as Information Agent to assist in connection with the Offers. --------------------- The Dealer Managers for the Offers are: MERRILL LYNCH & CO. SMITH BARNEY INC. The date of this Prospectus is , 1997. - ------------------------- (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 3 The Series D Offer and the Series G Offer are each an "Offer" and together constitute the "Offers." The Series D 7.92% Depositary Shares and the Series G 9.12% Depositary Shares together constitute the "Depositary Shares." The Series D 7.92% Preference Stock and the Series G 9.12% Preference Stock are each a "Preference Stock" and together constitute the "Preference Stocks." The Series D Preferred Securities and the Series G Preferred Securities are each a "Preferred Security" and together constitute the "Preferred Securities." THERE IS A SEPARATE LETTER OF TRANSMITTAL AND NOTICE OF GUARANTEED DELIVERY FOR EACH OFFER. EACH OFFER IS INDEPENDENT FROM THE OTHER OFFER. FURTHERMORE, EACH OFFER IS SUBJECT TO CERTAIN CONDITIONS, AS DESCRIBED HEREIN. Concurrently with the issuance of Series D Preferred Securities in exchange for Series D 7.92% Depositary Shares validly tendered in the Series D Offer, General Motors will deposit in the Series D Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series D, due , 2012 (the "Series D Junior Subordinated Debentures"), having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series D Preferred Securities and the proceeds received upon issuance of the Common Securities (as defined herein) to be issued by the Series D Trust (the "Series D Common Securities"). Subject to General Motors' right to redeem the Series D Junior Subordinated Debentures upon the occurrence of a Tax Event (as defined herein) in respect of the Series D Trust as described below, the Series D Junior Subordinated Debentures will mature on , 2012, which may be shortened to a date not earlier than August 1, 1999 (such date, including as so shortened, the "Series D Stated Maturity"), subject to satisfying certain conditions. Concurrently with the issuance of Series G Preferred Securities in exchange for Series G 9.12% Depositary Shares validly tendered in the Series G Offer, General Motors will deposit in the Series G Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series G, due , 2012 (the "Series G Junior Subordinated Debentures"), having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series G Preferred Securities and the proceeds received upon issuance of the Common Securities to be issued by the Series G Trust (the "Series G Common Securities"). Subject to General Motors' right to redeem the Series G Junior Subordinated Debentures upon the occurrence of a Tax Event in respect of the Series G Trust as described below, the Series G Junior Subordinated Debentures will mature on , 2012, which may be shortened to a date not earlier than January 1, 2001 (such date, including as so shortened, the "Series G Stated Maturity"), subject to satisfying certain conditions. The Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures together constitute the "Junior Subordinated Debentures." The Series D Common Securities and the Series G Common Securities together constitute the "Common Securities" described herein. The Series D Stated Maturity and the Series G Stated Maturity are each a "Stated Maturity" and together constitute the "Stated Maturities." NONE OF GENERAL MOTORS, THE BOARD OF DIRECTORS OF GENERAL MOTORS, THE TRUSTEES OF THE SERIES D TRUST, THE SERIES D TRUST, THE TRUSTEES OF THE SERIES G TRUST NOR THE SERIES G TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF DEPOSITARY SHARES AS TO WHETHER TO EXCHANGE OR REFRAIN FROM EXCHANGING THEIR DEPOSITARY SHARES IN THE OFFERS. HOLDERS OF DEPOSITARY SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX ADVISORS IN MAKING THEIR DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES. IN ORDER TO PARTICIPATE IN AN OFFER, HOLDERS OF DEPOSITARY SHARES MUST SUBMIT A LETTER OF TRANSMITTAL RELATING TO THE DEPOSITARY SHARES BEING TENDERED IN THE APPLICABLE OFFER AND COMPLY WITH THE OTHER PROCEDURES FOR TENDERING IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN THE APPLICABLE LETTER OF TRANSMITTAL PRIOR TO THE APPLICABLE EXPIRATION DATE (AS DEFINED HEREIN). SEE "THE OFFERS--PROCEDURES FOR TENDERING." (Continued on next page) ii 4 For a description of the other terms of the Offers, see "The Offers--Terms of The Offers," "--Expiration Dates; Extensions; Amendments; Termination," and "--Withdrawals of Tenders." Application will be made to list each of the Series D Preferred Securities and the Series G Preferred Securities on the New York Stock Exchange, Inc. (the "NYSE"). In order to satisfy the NYSE listing requirements with respect to each such series of the Preferred Securities, acceptance of the Depositary Shares validly tendered in each Offer is subject to the condition with respect to each Offer that as of the applicable Expiration Date there be at least 400 record or beneficial holders of at least 1,000,000 Preferred Securities to be issued in exchange for the Depositary Shares tendered in such Offer (with respect to each Offer, the "Minimum Distribution Condition"), which condition may not be waived with respect to either Offer. See "The Offers--Expiration Dates; Extensions; Amendments; Termination" and " - --Conditions to the Offers." Each of the Trusts expressly reserves the right with respect to its Offer, in its sole discretion, subject to applicable law, to (i) terminate its Offer, not accept for exchange the Depositary Shares tendered in its Offer and promptly return such Depositary Shares upon the failure of any condition specified above or in "The Offers--Conditions to the Offers," (ii) waive any condition to its Offer (other than the Minimum Distribution Condition) and accept all Depositary Shares previously tendered pursuant to its Offer, (iii) extend the Expiration Date of its Offer and retain all Depositary Shares tendered pursuant to its Offer until such Expiration Date, subject, however, to all withdrawal rights of holders tendering Depositary Shares in its Offer (see "The Offers--Withdrawal of Tenders"), (iv) amend the terms of its Offer, (v) modify the form of the consideration to be paid pursuant to its Offer or (vi) not accept for exchange the Depositary Shares tendered in its Offer at any time on or prior to the Expiration Date for its Offer, for any reason. Any amendment applicable to an Offer will apply to all Depositary Shares tendered pursuant to such Offer. The minimum period during which an Offer must remain open following material changes in the terms of such Offer or the information concerning such Offer, other than a change in the percentage of securities sought or the price, depends upon the facts and circumstances, including the relative materiality of such terms or information. See "The Offers--Expiration Dates; Extensions; Amendments; Termination." General Motors will own directly or indirectly all of the securities representing common undivided beneficial interests in the assets of each Trust (with respect to each Trust, the "Common Securities" and, together with the Preferred Securities of such Trust, the "Trust Securities" of such Trust). The Trust Securities of the Series D Trust are sometimes referred to herein as the "Series D Trust Securities" and the Trust Securities of the Series G Trust are sometimes referred to herein as the "Series G Trust Securities." Each of the Trusts exists for the sole purpose of (i) issuing (a) its Preferred Securities in exchange for the Depositary Shares validly tendered in its Offer and delivering the Depositary Shares received in its Offer to General Motors in consideration for the deposit by General Motors in such Trust as trust assets of the related series of Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of its Preferred Securities and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equal aggregate stated principal amount of the applicable series of Junior Subordinated Debentures and (ii) engaging in those other activities as are necessary or incidental thereto. The Preferred Securities and the Common Securities of each Trust will rank pari passu with each other and will have equivalent terms, except that (i) if an event of default under the Declaration (as defined herein) relating to a Trust occurs and is continuing, the holders of such Trust's Preferred Securities will have a priority over holders of such Trust's Common Securities with respect to payments in respect of distributions and payments upon liquidation, redemption or otherwise and (ii) the holders of a Trust's Common Securities have the exclusive right (subject to the terms of the applicable Declaration) to appoint, replace or remove the Trustees (as defined herein) of such Trust and to increase or decrease the number of Trustees of such Trust upon the occurrence of certain events described herein. See "Prospectus Summary--Description of Preferred Securities and Junior Subordinated Debentures." Holders of the Series D Preferred Securities are entitled to receive cumulative cash distributions at an annual rate of % of the liquidation amount of $25 per Series D Preferred Security, accruing from the first date following the Series D Expiration Date (the "Series D Accrual Date"), and payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing August 1, 1997 ("Series D (Continued on next page) iii 5 distributions"), subject to any applicable Extension Periods (as defined herein). In addition, holders of the 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 the Series D Expiration Date ("Series D Pre-Issuance Accrued Distribution") in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series D 7.92% Depositary Shares accepted for exchange, such additional distribution to be made on August 1, 1997 to holders of the Series D Preferred Securities on the record date for such distribution. Holders of the Series G Preferred Securities are entitled to receive cumulative cash distributions at an annual rate of % of the liquidation amount of $25 per Series G Preferred Security, accruing from the first date following the Series G Expiration Date (the "Series G Accrual Date"), and payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing August 1, 1997 ("Series G distributions"), subject to any applicable Extension Periods. In addition, holders of the 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 the Series G Expiration Date ("Series G Pre-Issuance Accrued Distribution") in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series G 9.12% Depositary Shares accepted for exchange, such additional distribution to be made on August 1, 1997 to holders of the Series G Preferred Securities on the record date for such distribution. The Series D Accrual Date and the Series G Accrual Date are each an "Accrual Date" and together constitute the "Accrual Dates." The Series D distributions and Series G distributions are each "distributions" and together constitute the "distributions". The Series D Pre-Issuance Accrual Distribution and the Series G Pre-Issuance Accrual Distribution are each a "Pre-Issuance Accrual Distribution" and together constitute the "Pre-Issuance Accrual Distributions." The distribution rate and the distribution and other payment dates for each series of the Preferred Securities will correspond to the interest rate and the interest and other payment dates on the related series of Junior Subordinated Debentures. As a result, if principal or interest is not paid on the Series D Junior Subordinated Debentures, including as a result of General Motors' election to extend the interest payment period on the Series D Junior Subordinated Debentures as described below, the Series D Trust will not make payments on the Series D Trust Securities and, if principal or interest is not paid on the Series G Junior Subordinated Debentures, including as a result of General Motors' election to extend the interest payment period on the Series G Junior Subordinated Debentures as described below, the Series G Trust will not make payments on the Series G Trust Securities. The payment of distributions out of moneys held by each Trust and payments on liquidation of each Trust or the redemption of its Preferred Securities, as set forth below, are guaranteed by General Motors (with respect to each Trust, the "Preferred Securities Guarantee") to the extent described herein and under "Description of the Preferred Securities Guarantees." Each Preferred Securities Guarantee covers payments of distributions and other payments on the applicable Trust's Preferred Securities only if and to the extent that such Trust has funds available therefor, which will not be the case unless General Motors has made a payment of interest or principal or other payments on the Junior Subordinated Debentures held by such Trust as its sole asset. With respect to each Trust, the applicable Preferred Securities Guarantee, when taken together with General Motors' obligations under the applicable series of Junior Subordinated Debentures, the Indenture (as defined herein) and the applicable Declaration, including General Motors' obligations, as issuer of the applicable series of Junior Subordinated Debentures, to pay costs, expenses, debts and obligations of such Trust (other than with respect to the payment of principal, interest and premium, if any, on the Trust Securities of such Trust), provides a full and unconditional guarantee of amounts due on the Preferred Securities of such Trust. See "Risk Factors and Special Considerations Relating to the Offers--Rights Under the Preferred Securities Guarantees" herein. The obligations of General Motors under each Preferred Securities Guarantee are subordinate and junior in right of payment to all other liabilities of General Motors and rank pari passu with the most senior preferred stock issued, from time to time, if any, by General Motors. The obligations of General Motors under the Junior Subordinated Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations (each as (Continued on next page) iv 6 defined herein) of General Motors, which aggregated approximately $92.5 billion at March 31, 1997, and rank pari passu with General Motors' other general unsecured creditors. So long as General Motors shall not be in default in the payment of interest on the Junior Subordinated Debentures held by a Trust, General Motors has the right to defer payments of interest on such Junior Subordinated Debentures by extending the interest payment period on such Junior Subordinated Debentures at any time for up to 20 consecutive quarters (each, an "Extension Period"), provided that no Extension Period may extend beyond the Stated Maturity of such Junior Subordinated Debentures. If interest payments are so deferred, distributions on the Trust Securities of the applicable Trust will also be deferred. During any such Extension Period, distributions on the Trust Securities of such Trust will continue to accrue with interest thereon (to the extent permitted by applicable law) at an annual rate of (x) % with respect to the Series D Preferred Securities or (y) % with respect to the Series G Preferred Securities, in each case compounded quarterly, and during any such Extension Period, holders of the Trust Securities of such Trust will be required to include deferred interest income in their gross income for United States federal income tax purposes in advance of receipt of the cash distributions with respect to such deferred interest payments. With respect to each series of Junior Subordinated Debentures, there could be multiple Extension Periods of varying lengths throughout the term of such Junior Subordinated Debentures. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Distributions," "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Periods." The Series D Junior Subordinated Debentures are redeemable by General Motors, (i) in whole or in part, from time to time, on or after August 1, 1999, at a prepayment price (the "Series D Optional Prepayment Price") equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of prepayment or (ii) in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event, at a prepayment price (the "Series D Tax Event Prepayment Price" and, together with the Series D Optional Prepayment Price, the "Series D Prepayment Price") equal to % of the principal amount thereof from the Series D Expiration Date (as defined herein) through July 31, 1997, declining ratably on each August 1 thereafter to 100% on August 1, 1999, plus accrued and unpaid interest thereon to the date of prepayment. If General Motors redeems the Series D Junior Subordinated Debentures, the Series D Trust must redeem Series D Trust Securities on a pro rata basis having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Junior Subordinated Debentures so redeemed at a redemption price equal to (i) the Series D Optional Prepayment Price (the "Series D Optional Redemption Price") if redeemed on or after August 1, 1999 or (ii) the Series D Tax Event Prepayment Price (the "Series D Tax Event Redemption Price" and, together with the Series D Optional Redemption Price, the "Series D Redemption Price") if redeemed prior to August 1, 1999, upon the occurrence of a Tax Event. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Mandatory Redemptions." The Series D Preferred Securities will be redeemed upon maturity of the Series D Junior Subordinated Debentures. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Distributions," "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Period." The Series G Junior Subordinated Debentures are redeemable by General Motors, (i) in whole or in part, from time to time, on or after January 1, 2001, at a prepayment price (the "Series G Optional Prepayment Price") equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of prepayment or (ii) in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event, at a prepayment price (the "Series G Tax Event Prepayment Price" and, together with the Series G Optional Prepayment Price, the "Series G Prepayment Price") equal to % of the principal amount thereof from the Series G Expiration Date (as defined herein) through December 31, 1997, declining ratably on each January 1 thereafter to 100% on January 1, 2001, plus accrued interest thereon to the date of prepayment. If General Motors redeems the Series G Junior Subordinated Debentures, the Series G Trust must redeem Series G Trust Securities on a pro rata basis having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Junior Subordinated Debentures so redeemed at a redemption price equal to (i) the Series G Optional Prepayment Price (the "Series G Optional Redemption Price") if (Continued on next page) v 7 redeemed on or after January 1, 2001 or (ii) the Series G Tax Event Prepayment Price (the "Series G Tax Event Redemption Price" and, together with the Series G Optional Redemption Price, the "Series G Redemption Price") if redeemed prior to January 1, 2001, upon the occurrence of a Tax Event. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Mandatory Redemptions." The Series G Preferred Securities will be redeemed upon maturity of the Series G Junior Subordinated Debentures. See "Risk Factors and Special Considerations Relating to the Offers," "Description of the Preferred Securities--Distributions," "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Period." The Series D Optional Prepayment Price and the Series G Optional Prepayment Price are each "Optional Prepayment Prices." The Series D Tax Event Prepayment Price and the Series G Tax Event Prepayment Price are each a "Tax Event Prepayment Price." The Series D Redemption Price and the Series G Redemption Price are each a "Redemption Price." General Motors will have the right at any time to liquidate a Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of Trust Securities of such Trust. General Motors has no present intention to take such action with respect to either Trust. If the Junior Subordinated Debentures held by a Trust are distributed to the holders of the Trust Securities of such Trust, General Motors will use its best efforts to have the applicable series of Junior Subordinated Debentures listed on the NYSE or on such other exchange as the related series of Preferred Securities are then listed. See "Description of the Preferred Securities--Tax Event Redemptions or Distributions" and "Description of the Junior Subordinated Debentures." In the event of the involuntary or voluntary dissolution, winding-up or termination of the Series D Trust, the holders of the Series D Preferred Securities will be entitled to receive for each Series D Preferred Security then held a liquidation amount of $25 plus accrued and unpaid distributions thereon (including interest thereon) to the date of payment, unless, in connection with such dissolution, the Series D Junior Subordinated Debentures are distributed to the holders of the Series D Preferred Securities. In the event of the involuntary or voluntary dissolution, winding-up or termination of the Series G Trust, the holders of the Series G Preferred Securities will be entitled to receive for each Series G Preferred Security then held a liquidation amount of $25 plus accrued and unpaid distributions thereon (including interest thereon) to the date of payment, unless, in connection with such dissolution, the Series G Junior Subordinated Debentures are distributed to the holders of the Series G Preferred Securities. See "Description of the Preferred Securities--Liquidation Distribution Upon Dissolution." The Depositary Shares are listed and principally traded on the NYSE under the symbol "GM Pr D" for the Series D 7.92% Depositary Shares and "GM Pr G" for the Series G 9.12% Depositary Shares. On April , 1997, the last full day of trading prior to the date of this Prospectus, the closing sales prices of the Depositary Shares as reported on the NYSE Composite Tape were $ per Series D 7.92% Depositary Share and $ per Series G 9.12% Depositary Share. HOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE DEPOSITARY SHARES. To the extent that Depositary Shares are tendered and accepted in the Offers, the terms on which untendered Depositary Shares could subsequently be sold could be adversely affected. In addition, following the applicable Expiration Date, and in accordance with and subject to applicable law, General Motors may from time to time acquire Depositary Shares of either or both series in the open market, by tender offer, subsequent exchange offer, redemption of the underlying Preference Stock or otherwise. To the extent that any such acquisition of Depositary Shares causes the number of outstanding Depositary Shares of a series to be less than 100,000, the NYSE may delist such Depositary Shares from the NYSE and the trading market for such outstanding Depositary Shares of such series could be adversely affected. General Motors' decision to make such acquisitions is dependent on many factors, including market conditions in effect at the time of any contemplated acquisition. Accordingly, General Motors cannot predict whether and to what extent it will acquire any additional Depositary Shares and the consideration to be paid therefor. See "Listing and Trading of Preferred Securities and Depositary Shares." (Continued on next page) vi 8 General Motors will pay to Soliciting Dealers (as defined herein) designated by the record or beneficial owner, as appropriate, of Depositary Shares validly tendered and accepted pursuant to the Offers a solicitation fee of $0.50 per Depositary Share (except that in the case of transactions equal to or exceeding 10,000 Depositary Shares of any given series, General Motors will pay a solicitation fee of $0.25 per Depositary Share), in each case subject to certain conditions. Soliciting Dealers are not entitled to a solicitation fee for any Depositary Shares beneficially owned by such Soliciting Dealer. See "The Offers--Dealer Managers; Soliciting Dealers." NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFERS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY ANY OF GENERAL MOTORS, THE SERIES D TRUST, THE TRUSTEES OF THE SERIES D TRUST, THE SERIES G TRUST, THE TRUSTEES OF THE SERIES G TRUST OR THE DEALER MANAGERS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY EXCHANGE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF ANY OF GENERAL MOTORS, THE SERIES D TRUST OR THE SERIES G TRUST SINCE THE RESPECTIVE DATES AS OF WHICH INFORMATION IS GIVEN HEREIN. NO OFFER IS BEING MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS OF DEPOSITARY SHARES IN ANY JURISDICTION IN WHICH THE MAKING OF AN OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. HOWEVER, GENERAL MOTORS, THE SERIES D TRUST AND THE SERIES G TRUST MAY, AT THEIR DISCRETION, TAKE SUCH ACTION AS THEY MAY DEEM NECESSARY TO MAKE AN OFFER IN ANY SUCH JURISDICTION AND EXTEND AN OFFER TO HOLDERS OF DEPOSITARY SHARES IN SUCH JURISDICTION. IN ANY JURISDICTION THE SECURITIES LAWS OR BLUE SKY LAWS OF WHICH REQUIRE AN OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, EACH OFFER IS BEING MADE ON BEHALF OF THE APPLICABLE TRUST BY THE DEALER MANAGERS OR ONE OR MORE REGISTERED BROKERS OR DEALERS WHICH ARE LICENSED UNDER THE LAWS OF SUCH JURISDICTION. vii 9 TABLE OF CONTENTS
PAGE ---- AVAILABLE INFORMATION....................................... 1 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. 2 PROSPECTUS SUMMARY.......................................... 3 RISK FACTORS AND SPECIAL CONSIDERATIONS RELATING TO THE OFFERS.................................................... 19 COMPARISON OF PREFERRED SECURITIES AND DEPOSITARY SHARES.... 25 GENERAL MOTORS CORPORATION.................................. 33 GENERAL MOTORS SELECTED FINANCIAL DATA AND CERTAIN PER SHARE DATA...................................................... 34 RECENT DEVELOPMENTS......................................... 36 GENERAL MOTORS SUMMARY UNAUDITED CONDENSED CONSOLIDATED HISTORICAL FINANCIAL DATA................................. 36 GENERAL MOTORS RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS............................. 38 CAPITALIZATION.............................................. 39 ACCOUNTING TREATMENT........................................ 40 THE TRUSTS.................................................. 41 THE OFFERS.................................................. 44 LISTING AND TRADING OF PREFERRED SECURITIES AND DEPOSITARY SHARES.................................................... 53 TRANSACTIONS AND ARRANGEMENTS CONCERNING THE OFFERS......... 54 FEES AND EXPENSES; TRANSFER TAXES........................... 54 PRICE RANGES OF DEPOSITARY SHARES........................... 55 DESCRIPTION OF THE PREFERRED SECURITIES..................... 56 DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES.......... 68 DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES........... 71 DESCRIPTION OF THE PREFERENCE STOCKS AND DEPOSITARY SHARES.................................................... 82 RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE JUNIOR SUBORDINATED DEBENTURES AND THE PREFERRED SECURITIES GUARANTEES................................................ 88 UNITED STATES FEDERAL INCOME TAXATION....................... 90 LEGAL MATTERS............................................... 94 EXPERTS..................................................... 94
10 AVAILABLE INFORMATION This Prospectus constitutes a part of a Registration Statement on Form S-4 (together with all amendments and exhibits thereto, the "Registration Statement") filed by General Motors, the Series D Trust and the Series G Trust with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the securities offered pursuant to the Offers. This Prospectus does not contain all of the information set forth in such Registration Statement, certain parts of each of which are omitted in accordance with the rules and regulations of the Commission. With respect to each Offer, reference is made to the Registration Statement and to the exhibits relating thereto for further information with respect to General Motors, each of the Trusts and the securities. Any statements contained herein concerning the provisions of any document filed as an exhibit to the Registration Statement or otherwise filed with the Commission or incorporated by reference herein are not necessarily complete, and, in each instance, reference is made to the copy of such document so filed for a more complete description of the matter involved. Each such statement is qualified in its entirety by such reference. General Motors is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Commission. Reports, proxy statements and other information concerning General Motors can be inspected and copied at prescribed rates at the Commission's Public Reference Room, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, as well as the following Regional Offices of the Commission: 7 World Trade Center, 13th Floor, New York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material may be obtained by mail from the Commission's Public Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. If available, such reports and other information may also be accessed through the Commission's electronic data gathering, analysis and retrieval system ("EDGAR") via electronic means, including the Commission's web site on the Internet (http://www.sec.gov). Such reports, proxy statements and other information may also be inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005, where the Class H Common Stock, $0.10 par value per share, of General Motors (the "Class H Common Stock") and the Common Stock, $1 2/3 par value per share, of General Motors (the "$1 2/3 Common Stock") are listed, and at the offices of the following other stock exchanges where the $1 2/3 Common Stock is listed in the United States: the Chicago Stock Exchange, Inc., One Financial Place, 440 South LaSalle Street, Chicago, Illinois 60605; the Pacific Stock Exchange, Inc., 233 South Beaudry Avenue, Los Angeles, California 90012 and 301 Pine Street, San Francisco, California 94104; and the Philadelphia Stock Exchange, Inc., 1900 Market Street, Philadelphia, Pennsylvania 19103. No separate financial statements of either of the Trusts have been included herein. General Motors does not consider that such financial statements would be material to holders of the Preferred Securities because (i) all of the voting securities of each Trust will be owned, directly or indirectly, by General Motors, a reporting company under the Exchange Act, (ii) neither of the Trusts has any independent operations and each Trust exists for the sole purpose of issuing (a) its Preferred Securities in exchange for Depositary Shares validly tendered in its Offer and delivering such Depositary Shares to General Motors in consideration of the deposit by General Motors as trust assets of the related series of Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of its Preferred Securities and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equal aggregate stated principal amount of the applicable series of Junior Subordinated Debentures, and (iii) General Motors' obligations described herein to provide certain indemnities in respect of, and be responsible for, certain costs, expenses, debts and liabilities of each Trust under the Indenture and pursuant to the applicable Declaration, the Preferred Securities Guarantees issued by General Motors with respect to the Preferred Securities issued by such Trust, the Junior Subordinated Debentures purchased by such Trust, and the Indenture, taken together, constitute a full and unconditional guarantee of payments due on the Preferred Securities of such Trust. See "Description of Preferred Securities Guarantees" and "Description of the Junior Subordinated Debentures." Neither of the Trusts is currently subject to the information reporting requirements of the Exchange Act. Each Trust will become subject to such requirements upon the effectiveness of the Registration Statement, although each Trust intends to seek and expects to receive exemptions therefrom. 1 11 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Commission by General Motors pursuant to Section 13 of the Exchange Act are incorporated by reference in this Prospectus: (a) Annual Report on Form 10-K for the year ended December 31, 1996; (b) Current Reports on Form 8-K dated January 16, 1997, January 27, 1997, March 12, 1997 and April 14, 1997; (c) The description of the Series D 7.92% Preference Stock and the Series D 7.92% Depositary Shares contained in a Registration Statement on Form 8-A dated July 8, 1992, and any amendment or report filed for the purpose of updating such description; and (d) The description of the Series G 9.12% Preference Stock and the Series G 9.12% Depositary Shares contained in a Registration Statement on Form 8-A dated December 8, 1992, and any amendment or report filed for the purpose of updating such description. Such incorporation by reference shall not be deemed specifically to incorporate by reference the information referred to in Item 402(a)(8) of Regulation S-K. All documents filed by General Motors pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of this offering shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained in this Prospectus or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or therein (or in any subsequently filed document that also is or is deemed to be incorporated by reference herein or therein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. General Motors will provide without charge to each person to whom a copy of this Prospectus has been delivered, upon the written or oral request of such person, a copy of any or all of the documents referred to above which have been or may be incorporated by reference herein (other than exhibits to such documents unless such exhibits are specifically incorporated by reference in such documents). Requests for such copies should be directed to General Motors Corporation, Room 11-243, GM Building, 3044 West Grand Boulevard, Detroit, Michigan 48202-3091 (Telephone Number (313) 556-2044). THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM GENERAL MOTORS CORPORATION, 3044 WEST GRAND BOULEVARD, DETROIT, MICHIGAN 48202-3091 ATTENTION: BOARD AND STOCKHOLDER RELATIONS PHONE: (313) 556-2044. IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY , 1997. 2 12 PROSPECTUS SUMMARY The following summary does not purport to be complete and is qualified in its entirety by the detailed information contained elsewhere in, or incorporated by reference in, this Prospectus. GENERAL MOTORS CORPORATION The major portion of General Motors' operations is derived from the automotive products industry, consisting of the design, manufacture, assembly and sale of automobiles, trucks and related parts and accessories. Primarily through its wholly owned subsidiaries, General Motors Acceptance Corporation and Hughes Electronics Corporation ("Hughes"), General Motors also provides services and manufactures products in other industry segments. On January 16, 1997, General Motors announced a series of planned transactions (the "Hughes Transactions") designed to address strategic challenges and unlock stockholder value in the three business segments of Hughes. The transactions would include the tax-free spin-off of the Hughes defense business to holders of $1 2/3 Common Stock and Class H Common Stock, followed immediately by the tax-free merger of that business with Raytheon Company. At the same time, Delco Electronics Corporation ("Delco"), the automotive electronics subsidiary of Hughes would be transferred from Hughes to General Motors' Delphi Automotive Systems unit. Finally, General Motors' Class H Common Stock would be recapitalized into a General Motors tracking stock linked to the telecommunications and space business of Hughes. General Motors' principal executive offices are located at 100 Renaissance Center, Detroit, Michigan 48243-7301 (Telephone Number (313) 556-5000). THE TRUSTS Each of the Series D Trust and the Series G Trust is a statutory business trust, in each case formed under Delaware law pursuant to (i) a declaration of trust, dated as of April 11, 1997, executed by General Motors, as sponsor (with respect to each Trust, the "Sponsor"), and the trustees of such Trust (with respect to each Trust, respectively, the "Trustees") and (ii) the filing of a certificate of trust with the Secretary of State of the State of Delaware on April 11, 1997. Each declaration will be amended and restated in its entirety (with respect to each Trust, as so amended and restated, the "Declaration") substantially in the form filed as an exhibit to the Registration Statement of which this Prospectus forms a part. Each Declaration will be qualified as an indenture under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). Upon issuance by each Trust of its Preferred Securities, the purchasers thereof will own all of the issued and outstanding Preferred Securities of such Trust. See "Description of the Preferred Securities--Book-Entry; Delivery and Form." The Trustees of the Series D Trust are sometimes referred to herein as the "Series D Trustees" and the Trustees of the Series G Trust are sometimes referred to herein as the "Series G Trustees." The Declaration of the Series D Trust is sometimes referred to herein as the "Series D Declaration" and the Declaration of the Series G Trust is sometimes referred to herein as the "Series G Declaration." General Motors will directly or indirectly acquire all of the Common Securities of each Trust, in each case in an aggregate liquidation amount equal to at least 3% of the total capital of such Trust. Each of the Trusts exists for the sole purpose of (i) issuing (a) its Preferred Securities in exchange for Depositary Shares validly tendered in its Offer and delivering such Depositary Shares to General Motors in consideration of the deposit by General Motors as trust assets of the related series of Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of its Preferred Securities, and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equal aggregate stated principal amount of the applicable series of Junior Subordinated Debentures and (ii) engaging in those other activities necessary or incidental thereto. Pursuant to each Declaration, the number of Trustees of each Trust will initially be five. Three of such Trustees (with respect to each Trust, the "Regular Trustees") will be persons who are employees or officers of, or who are affiliated with, General Motors. With respect to each Trust, the fourth trustee will be a financial institution that is unaffiliated with General Motors, which trustee will serve as institutional trustee under the 3 13 applicable Declaration and as indenture trustee for the purposes of compliance with the provisions of the Trust Indenture Act (with respect to each Trust, the "Institutional Trustee"). Initially, Wilmington Trust Company will be the Institutional Trustee for each of the Series D Trust and the Series G Trust, in each case until removed or replaced by the holder of the Common Securities of the applicable Trust. For purposes of compliance with the provisions of the Trust Indenture Act, Wilmington Trust Company will act as trustee (with respect to each Trust, the "Guarantee Trustee") under the applicable Preferred Securities Guarantee and as Debt Trustee (as defined herein) of each of the Series D Trust and the Series G Trust under the Indenture. With respect to each Trust, the fifth trustee will be an entity that maintains its principal place of business in the state of Delaware (with respect to each Trust, the "Delaware Trustee"). Initially, Wilmington Trust Company will act as Delaware Trustee for each such Trust. See "Description of the Preferred Securities Guarantees" and "Description of the Preferred Securities--Voting Rights" herein. The Institutional Trustee of each Trust will hold title to the Junior Subordinated Debentures purchased by such Trust for the benefit of the holders of the Trust Securities of such Trust and will have the power to exercise all rights, powers and privileges under the Indenture as the holder of such Junior Subordinated Debentures. In addition, the Institutional Trustee of each Trust will maintain exclusive control of a segregated non-interest bearing bank account (with respect to each Trust, the "Institutional Account") to hold all payments made in respect of the Junior Subordinated Debentures held by such Trust for the benefit of the holders of the Trust Securities of such Trust. The Institutional Trustee of each Trust will make payments of distributions and payments on liquidation, redemption and otherwise to the holders of the Trust Securities of such Trust out of funds from the Institutional Account for such Trust. The Guarantee Trustee of each Trust will hold the applicable Preferred Securities Guarantee for the benefit of the holders of the Preferred Securities of such Trust. General Motors, as the direct or indirect holder of all the Common Securities of each Trust, will have the right to appoint, remove or replace any Trustee of such Trust and to increase or decrease the number of Trustees of such Trust, subject to certain restrictions. General Motors will pay all fees and expenses related to each Trust and the offering of the Trust Securities of such Trust. See "Description of the Junior Subordinated Debentures--Miscellaneous." The rights of the holders of the Preferred Securities of each Trust, including economic rights, rights to information and voting rights, are set forth in the applicable Declaration, the Delaware Business Trust Act, as amended (the "Business Trust Act"), and the Trust Indenture Act. See "Description of the Preferred Securities." CERTAIN POTENTIAL BENEFITS AND RISKS TO INVESTORS Prospective investors should carefully review the information contained elsewhere in this Prospectus prior to making a decision regarding either or both of the Offers and should particularly consider the following matters: POTENTIAL BENEFITS TO EXCHANGING HOLDERS - The cash distributions rate on the Series D Preferred Securities will be basis points greater than the dividend rate on the Series D 7.92% Depositary Shares and the cash distributions rate on the Series G Preferred Securities will be basis points greater than the dividend rate on the Series G 9.12% Depositary Shares. However, unlike dividends paid on the Depositary Shares, cash distributions made on the Preferred Securities are not eligible for the dividends received deduction for corporate holders. See "Comparison of Preferred Securities and Depositary Shares." - Although the obligations of General Motors under the Junior Subordinated Debentures are unsecured and will be subordinated and junior in right of payment to all Senior Indebtedness and Other Financial Obligations of General Motors (which aggregated approximately $92.5 billion at March 31, 1997), they will rank pari passu with General Motors' other general unsecured creditors and will be senior to all capital stock of General Motors now or hereafter issued by General Motors (including the Preference Stock underlying the Depositary Shares). 4 14 - While no dividends are required to be paid with respect to the Depositary Shares, interest payments on the Junior Subordinated Debentures and therefore distributions on the related Preferred Securities may not be deferred for more than 20 consecutive quarterly interest periods. Moreover, during any such Extension Period, General Motors 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 as set forth under "Description of the Preferred Securities--Distributions"), (ii) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. General Motors has no present intention of exercising its right to defer payments of interest on any of the Junior Subordinated Debentures. However, should General Motors determine to exercise such right in the future with respect to either series of Junior Subordinated Debentures, the market price of the related series of Preferred Securities is likely to be affected. In such event, because no payments on the other series of Junior Subordinated Debentures will be permitted, the market price of the other series of Preferred Securities is also likely to be affected. See "Description of the Preferred Securities." To date, General Motors has made each quarterly dividend payment with respect to the Depositary Shares on the applicable scheduled dividend payment dates, and dividends on the Preference Stocks accrue whether or not such dividends are declared. See "Description of the Preference Stocks and Depositary Shares--Preference Stocks--Dividends." - So long as payments of interest and other payments are made when due on a series of the Junior Subordinated Debentures, such payments will be sufficient to cover cash distributions and other payments made on the related series of Trust Securities because (i) the aggregate principal amount of Junior Subordinated Debentures deposited as trust assets in each Trust will be equal to the sum of (a) the aggregate stated liquidation amount of the Preferred Securities issued by such Trust in exchange for the Depositary Shares accepted by such Trust in its Offer and (b) the amount of proceeds received by such Trust from the issuance of its Common Securities to General Motors, which proceeds will be used by such Trust to purchase an equal principal amount of the applicable series of Junior Subordinated Debentures, (ii) the interest rate and interest and other payment dates on the Junior Subordinated Debentures held by each Trust will match the distribution rate and distribution and other payment dates for the Trust Securities issued by such Trust, (iii) the Declaration relating to each Trust provides that General Motors, as issuer of the Junior Subordinated Debentures held by such Trust, shall pay for all debts and obligations (other than payments of interest and principal with respect to the Trust Securities issued by such Trust) and all costs and expenses of such Trust, and (iv) the Declaration relating to each Trust further provides that the Trustees of such Trust shall not permit such Trust to, among other things, engage in any activity that is not consistent with the purposes of such Trust. See "The Trusts," "Description of the Preferred Securities," "Description of the Junior Subordinated Debentures" and "Relationship Between the Preferred Securities, the Junior Subordinated Debentures and the Preferred Securities Guarantees." - If a Declaration Event of Default (as defined herein) occurs and is continuing under the Declaration of a Trust, then the holders of Preferred Securities of such Trust would be able to rely on the enforcement by the applicable Institutional Trustee of its rights as a holder of the related series of Junior Subordinated Debentures against General Motors. In addition, the holders of a majority in liquidation amount of the Preferred Securities of such Trust will have the right to direct the time, method, and place of conducting any proceeding for any remedy available to such Institutional Trustee or (subject to the receipt of a tax opinion as described in "Description of the Preferred Securities--Voting Rights") to direct the exercise of any trust or power conferred upon such Institutional Trustee under the applicable Declaration, including the right to direct such Institutional Trustee to exercise the remedies available to it as a holder of such Junior Subordinated Debentures. If such Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures, a holder of the related Preferred Securities may institute a legal proceeding directly against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures 5 15 without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing, and such event is attributable to the failure of General Motors to pay interest or principal on the applicable series of Junior Subordinated 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 the related Preferred Securities may directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on such Junior Subordinated Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder (each, a "Direct Action") on or after the respective due date specified in such Junior Subordinated Debentures. In connection with any such Direct Action, General Motors will be subrogated to the rights of such holder of Preferred Securities under the applicable Declaration to the extent of any payment made by General Motors to such holder of Preferred Securities in such Direct Action. The holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of the related Junior Subordinated Debentures. See "Description of the Preferred Securities--Declaration Events of Default." POTENTIAL RISKS TO EXCHANGING HOLDERS - Participation in an Offer will be a taxable event for holders of Depositary Shares tendered in such Offer. See "Risk Factors and Special Considerations Relating to the Offers--Exchange of Depositary Shares for Preferred Securities is a Taxable Event." - Unlike dividends paid on the Depositary Shares, distributions made on the Preferred Securities are not eligible for the dividends received deduction for corporate holders. - The obligations of General Motors under the Junior Subordinated Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations of General Motors, which aggregated approximately $92.5 billion at March 31, 1997, and rank pari passu with General Motors' other general unsecured creditors. The obligations of General Motors under the Preferred Securities Guarantees are subordinate and junior in right of payment to all other liabilities of General Motors and rank pari passu with the most senior preferred stock issued, from time to time, if any, by General Motors. See "Risk Factors and Special Considerations Relating to the Offers--Ranking of Subordinated Obligations Under the Preferred Securities Guarantees and Junior Subordinated Debentures." - If General Motors were to default in its obligation to pay amounts payable on a series of the Junior Subordinated Debentures, the Trust holding such Junior Subordinated Debentures would lack available funds for the payment of distributions or amounts payable on redemption of its Preferred Securities or otherwise. In addition, the interest payment period on each series of the Junior Subordinated Debentures may be extended from time to time under certain circumstances by General Motors, in its sole discretion, for up to 20 consecutive quarters, such period not to extend beyond the applicable Stated Maturity. See "Risk Factors and Special Considerations Relating to the Offers--Ranking of Subordinated Obligations Under the Preferred Securities Guarantees and Junior Subordinated Debentures" and "--Options to Extend Interest Payment Periods." - Should General Motors not make interest or other payments on a series of the Junior Subordinated Debentures for any reason, including as a result of General Motors' election to defer payments of interest on such Junior Subordinated Debentures by extending the interest payment period thereon, the Trust holding such Junior Subordinated Debentures will not make distributions or other payments on its Trust Securities. In such event, holders of the Preferred Securities of such Trust would not be able to rely on the applicable Preferred Securities Guarantee since such Preferred Securities Guarantee covers distributions and other payments on such Preferred Securities only if and to the extent that General Motors has made a payment to such Trust of interest or principal on the Junior Subordinated Debentures deposited in such Trust as trust assets. See "Risk Factors and Special Considerations Relating to the Offers--Rights Under the Preferred Securities Guarantees." - If General Motors elects to defer payments of interest on a series of the Junior Subordinated Debentures by extending the interest period thereon, distributions on the related Trust Securities would also 6 16 be deferred but the Trust holding such Junior Subordinated Debentures would accrue income (as original issue discount ("OID")) in respect of such Junior Subordinated Debentures which would be taxable to beneficial owners of Trust Securities of such Trust. As a result, beneficial owners of Trust Securities of such Trust during an Extension Period would include their pro rata share of such deferred interest in gross income in advance of the receipt of cash. See "Risk Factors and Special Considerations Relating to the Offers--Options to Extend Interest Payment Periods." - Holders of Preferred Securities of a Trust have no voting rights other than as provided under the Business Trust Act or the Trust Indenture Act, except for certain enforcement rights against the Institutional Trustee and, in certain circumstances, against General Motors. Holders of Preferred Securities of a Trust will not be able to appoint, remove or replace, or to increase or decrease the number of, Trustees of the applicable Trust, which rights are vested exclusively in the Common Securities of such Trust. See "Risk Factors and Special Considerations Relating to the Offer--Limited Voting Rights" and "Description of the Preferred Securities--Voting Rights." Under the General Motors Certificate of Incorporation and the applicable Deposit Agreement (as defined herein), the Depositary Shares (and the underlying shares of Preference Stock) do not entitle holders thereof to voting rights, except (i) with respect to any amendment or alteration of any provision of the General Motors Certificate of Incorporation which would adversely affect the powers, preferences or special rights of the Depositary Shares (and the underlying shares of Preference Stock), which requires the prior approval of the holders of at least two-thirds of the outstanding Depositary Shares of the applicable series (and the underlying shares of Preference Stock), and (ii) in the event General Motors fails to pay accumulated preferential dividends on any series of General Motors Preference Stock (as defined herein) in full for any six quarterly dividend payment periods, whether or not consecutive, and all such dividends remain unpaid (as described below), or as required by law. With certain exceptions, in the event that General Motors fails to pay full accumulated preferential dividends on the shares of any series of General Motors Preference Stock, including the Series D 7.92% Preference Stock and the Series G 9.12% Preference Stock, in full for any six quarterly dividend payment periods, whether or not consecutive, and all such dividends remain unpaid (with respect to such series of General Motors Preference Stock, a "Preferential Dividend Default"), the number of directors of General Motors would be increased by two and the holders of the Depositary Shares representing the shares of such series of General Motors Preference Stock, together as a class with the holders of depositary shares representing all other series of General Motors Preference Stock ranking junior to or on a parity with such series of General Motors Preference Stock and then entitled to vote thereon, would be entitled to elect two directors of the expanded General Motors Board of Directors (the "General Motors Board") until the full dividends accumulated on all outstanding shares of such series of General Motors Preference Stock have been paid. See "Description of the Preference Stocks and Depositary Shares--Preference Stocks--Voting Rights." - The Series D 7.92% Depositary Shares and the underlying Series D 7.92% Preference Stock are redeemable at the option of General Motors on or after August 1, 1999, in whole or in part. The Series D Junior Subordinated Debentures, and as a result, the Series D Preferred Securities, are redeemable, in whole or in part, from time to time, on or after August 1, 1999, or, in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event. The Series G 9.12% Depositary Shares and the underlying Series G 9.12% Preference Stock are redeemable at the option of General Motors on or after January 1, 2001. The Series G Junior Subordinated Debentures, and as a result, the Series G Preferred Securities, are redeemable, in whole or in part, from time to time, on or after January 1, 2001, or, in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event. As a result, in the event of a Tax Event in respect of a Trust, the Preferred Securities of such Trust would become redeemable prior to the date on which Depositary Shares of the corresponding series are first redeemable. See "Risk Factors and Special Considerations Relating to the Offers--Proposed Tax Legislation." General Motors also will have the right at any time to shorten the maturity of the Series D Junior Subordinated Debentures to a date not earlier than August 1, 1999 and to shorten the maturity of the Series G Junior Subordinated Debentures to a date not earlier than January 1, 2001. - While application will be made to list each series of the Preferred Securities on the NYSE, each series of Preferred Securities is a new issue of securities with no established trading market. In addition, liquidity of 7 17 each series of the Preferred Securities will be affected by the number of Depositary Shares exchanged in the applicable Offer. See "Risk Factors and Special Considerations Relating to the Offers--Lack of Established Trading Market for Preferred Securities" and "--Reduced Trading Market for Depositary Shares." - General Motors will have the right at any time to dissolve and liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of Trust Securities of such Trust. General Motors has no present intention to take such action with respect to either Trust. While General Motors will use its best efforts in such a situation to have such Junior Subordinated Debentures listed on the NYSE, there is no guarantee that such listing will take place or that a market will exist for such Junior Subordinated Debentures. See "Risk Factors and Special Considerations Relating to the Offers--Redemption or Distribution of the Junior Subordinated Debentures." POTENTIAL RISKS TO NON-EXCHANGING HOLDERS - The liquidity and trading market for untendered Depositary Shares could be adversely affected to the extent Depositary Shares are tendered and accepted in the Offers. See "Risk Factors and Special Considerations Relating to the Offers--Reduced Trading Market for Depositary Shares." - Following the applicable Expiration Date, and in accordance with and subject to applicable law, General Motors may from time to time acquire Depositary Shares of either or both series in the open market, by tender offer, subsequent exchange offer, redemption of the underlying Preference Stock or otherwise. To the extent that any such acquisition of Depositary Shares causes the number of outstanding Depositary Shares of a series to be less than 100,000, the NYSE may delist such Depositary Shares from the NYSE and the trading market for such outstanding Depositary Shares of such series could be adversely affected. General Motors does not believe that the Offers will cause any such delisting of either series of the Depositary Shares. However, General Motors' decision to make such acquisitions in the future is dependent on many factors, including market conditions in effect at the time of any contemplated acquisition. Accordingly, General Motors cannot predict whether and to what extent it will acquire any additional Depositary Shares and the consideration to be paid therefor. See "Risk Factors and Special Considerations Relating to the Offers--Reduced Trading Market for Depositary Shares." - The Junior Subordinated Debentures held by any Trust and the Preferred Securities Guarantee relating thereto will rank senior in right of payment to the untendered Depositary Shares with respect to each Offer. See "Risk Factors and Special Considerations Relating to the Offers--Ranking of Subordinated Obligations Under the Preferred Securities Guarantees and Junior Subordinated Debentures." THE OFFERS PURPOSE OF THE OFFERS The purpose of the Offers is to refinance the Depositary Shares with the Preferred Securities to restructure a portion of General Motors' outstanding equity while achieving competitive financing and certain tax efficiencies and preserving General Motors' flexibility with respect to future financings. The refinancings effected pursuant to the Offers will permit General Motors to deduct interest payable on the Junior Subordinated Debentures for United States federal income tax purposes. TERMS OF THE OFFERS Series D Offer. Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series D 7.92% Depositary Shares, the Series D Trust hereby offers to exchange its Series D Preferred Securities for up to 5,462,917 (i.e., approximately 90%) of the outstanding Series D 7.92% Depositary Shares not owned by General Motors. Series G Offer. Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series G 9.12% Depositary Shares, the Series G Trust hereby offers to exchange its 8 18 Series G Preferred Securities for up to 9,071,910 (i.e., approximately 90%) of the outstanding Series G 9.12% Depositary Shares not owned by General Motors. EACH OFFER IS INDEPENDENT FROM THE OTHER OFFER. FURTHERMORE EACH OFFER IS SUBJECT TO CERTAIN CONDITIONS, AS DESCRIBED HEREIN. Exchanges will be made on the basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange in the Series D Offer, and one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange in the Series G Offer. As of the date of this Prospectus, there are Series D 7.92% Depositary Shares outstanding and not owned by General Motors and Series G 9.12% Depositary Shares outstanding and not owned by General Motors. See "The Offers--Terms of the Offers." EXPIRATION DATES; WITHDRAWALS Series D Offer. Upon the terms and conditions of the Series D Offer, the Series D Trust will accept for exchange up to 5,462,917 Series D 7.92% Depositary Shares validly tendered and not withdrawn prior to 12:00 Midnight, Eastern time, on , , 1997, or if the Series D Offer is extended by the Series D Trust, in its sole discretion, the latest date and time to which the Series D Offer has been extended (the "Series D Expiration Date"). Series G Offer. Upon the terms and conditions of the Series G Offer, the Series G Trust will accept for exchange up to 9,071,910 Series G 9.12% Depositary Shares validly tendered and not withdrawn prior to 12:00 Midnight, Eastern time, on , , 1997, or if the Series G Offer is extended by the Series G Trust, in its sole discretion, the latest date and time to which the Series G Offer has been extended (the "Series G Expiration Date"). The Series D Expiration Date and the Series G Expiration Date are each an "Expiration Date" and together constitute the "Expiration Dates." Tenders of Depositary Shares pursuant to an Offer may be withdrawn at any time prior to the applicable Expiration Date and, unless accepted for exchange by the offering Trust, may be withdrawn at any time after 40 Business Days (as defined herein) after the date of this Prospectus. A "Business Day" shall mean any day other than Saturday, Sunday or any other day on which banking institutions in New York, New York or Wilmington, Delaware are permitted or required by any applicable law to close. See "The Offers--Expiration Date; Extensions; Amendments; Termination" and "--Withdrawal of Tenders." Tenders in each Offer must be made to the Exchange Agent in order to be valid. CONDITIONS TO THE OFFERS; EXTENSIONS; AMENDMENTS; TERMINATION Consummation of each Offer is conditioned on, among other things, tenders by a sufficient number of holders of Depositary Shares subject to such Offer to meet the Minimum Distribution Condition with respect to such Offer, which condition may not be waived. See "The Offers--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." Each of the Trusts expressly reserves the right with respect to its Offer, in its sole discretion, subject to applicable law, to (i) terminate its Offer, and not accept for exchange any Depositary Shares tendered in its Offer and promptly return such Depositary Shares, upon the failure of any condition specified above or under "The Offers--Conditions to the Offers," (ii) waive any condition to its Offer (other than the Minimum Distribution Condition) and accept all Depositary Shares previously tendered pursuant to its Offer, (iii) extend the Expiration Date of its Offer and retain all Depositary Shares tendered pursuant to its Offer until the Expiration Date for its Offer, subject, however, to all withdrawal rights of holders (see "The Offers--Withdrawal of Tenders"), (iv) amend the terms of its Offer, (v) modify the form of the consideration to be paid pursuant to its Offer, or (vi) not accept for exchange the Depositary Shares tendered pursuant to its Offer at any time on or prior to the Expiration Date for its Offer, for any reason. Any amendment applicable to an Offer will apply to all Depositary Shares tendered pursuant to such Offer. The minimum period during which an Offer must remain open following material changes in the terms of such Offer or the information 9 19 concerning such Offer, other than a change in the percentage of securities sought or the price, depends upon the facts and circumstances, including the relative materiality of such terms or information. See "The Offers --Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." PROCEDURES FOR TENDERING Each Holder of Depositary Shares wishing to participate in an Offer must (i) properly complete and sign the Letter of Transmittal relating to the series of Depositary Shares to be tendered in such Offer (or where appropriate, an Agent's Message (as defined herein) or a facsimile thereof (all references in this Prospectus to a Letter of Transmittal shall be deemed to include a facsimile thereof) in accordance with the instructions contained herein and in such Letter of Transmittal, together with any required signature guarantees, and deliver the same to The First National Bank of Boston, as Exchange Agent, at one of its addresses set forth on the back cover page hereof, prior to the applicable Expiration Date and either (a) certificates for the Depositary Shares being tendered in such Offer must be received by the Exchange Agent at such address or (b) such Depositary Shares must be transferred pursuant to the procedures for book-entry transfer described herein and a confirmation of such book-entry transfer must be received by the Exchange Agent, in each case prior to the applicable Expiration Date, or (ii) comply with the guaranteed delivery procedures described herein with respect to such Offer. See "The Offers--Procedures for Tendering." IN ORDER TO PARTICIPATE IN AN OFFER, HOLDERS OF DEPOSITARY SHARES MUST SUBMIT THE LETTER OF TRANSMITTAL RELATING TO THE SERIES OF DEPOSITARY SHARES TO BE TENDERED IN SUCH OFFER AND COMPLY WITH THE OTHER PROCEDURES FOR TENDERING SUCH DEPOSITARY SHARES IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN THE APPLICABLE LETTER OF TRANSMITTAL PRIOR TO THE APPLICABLE EXPIRATION DATE. THERE IS A SEPARATE LETTER OF TRANSMITTAL AND NOTICE OF GUARANTEED DELIVERY FOR EACH OFFER. LETTERS OF TRANSMITTAL, DEPOSITARY SHARES AND ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE AGENT--NOT TO GENERAL MOTORS, THE SERIES D TRUST, THE SERIES G TRUST, THE DEALER MANAGERS OR THE INFORMATION AGENT. SPECIAL PROCEDURE FOR BENEFICIAL OWNERS Any beneficial owner whose Depositary Shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender such Depositary Shares in an Offer should contact such registered Holder promptly and instruct such registered Holder to tender such Depositary Shares in the applicable Offer on such beneficial owner's behalf. If such beneficial owner wishes to tender such Depositary Shares in an Offer on its own behalf, such owner must, prior to completing and executing the Letter of Transmittal relating to the series of Depositary Shares to be tendered in such Offer and delivering its Depositary Shares to be tendered in such Offer, either make appropriate arrangements to register ownership of such Depositary Shares in such owner's name or obtain a properly completed stock power from the registered Holder. The transfer of registered ownership may take considerable time and may not be able to be completed prior to the applicable Expiration Date. See "The Offers--Procedures for Tendering--Special Procedures for Beneficial Owners." GUARANTEED DELIVERY PROCEDURES If a Holder desires to accept an Offer and time will not permit the Letter of Transmittal relating to the series of Depositary Shares to be tendered in such Offer or the Depositary Shares to be tendered in such Offer to reach the Exchange Agent before the applicable Expiration Date or the procedure for book-entry transfer cannot be completed on a timely basis, a tender with respect to such Offer may be effected in accordance with the guaranteed delivery procedures set forth in "The Offers--Procedures for Tendering--Guaranteed Delivery." THERE IS A SEPARATE NOTICE OF GUARANTEED DELIVERY FOR EACH OFFER. 10 20 ACCEPTANCE OF SHARES; PRORATION Upon the terms and subject to the conditions of its Offer, including the Minimum Distribution Condition, each Trust will accept for exchange up to the specified amount of the applicable series of Depositary Shares validly tendered and not withdrawn prior to the applicable Expiration Date. If more than the maximum number of Depositary Shares of either series is validly tendered and not withdrawn on or prior to the Expiration Date for the applicable Offer, the applicable Trust will accept (subject to the terms and conditions of its Offer) such related Depositary Shares for exchange on a pro rata basis as described herein. Each of the Trusts expressly reserves the right, in its sole discretion, to delay acceptance for exchange of Depositary Shares tendered under its Offer and the delivery of its Preferred Securities with respect to the Depositary Shares accepted for exchange in its Offer (subject to Rules 13e-4 and 14e-1 under the Exchange Act, which require that General Motors and such Trust consummate such Offer or return the Depositary Shares deposited by or on behalf of the holders thereof in connection with such Offer promptly after the termination or withdrawal of such Offer), or to amend, withdraw or terminate its Offer, at any time prior to the applicable Expiration Date for any of the reasons set forth in "The Offers--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." If more than the maximum number of Depositary Shares of either series is validly tendered and not withdrawn on or prior to the Expiration Date for the applicable Offer, the applicable Trust will accept (subject to the terms and conditions of its Offer) such related Depositary Shares for exchange in its Offer on a pro rata basis, subject to adjustment to avoid the distribution of fractional Preferred Securities. If proration of tendered Depositary Shares is required in an Offer, because of the difficulty in determining the number of Depositary Shares validly tendered (including shares tendered by the guaranteed delivery procedures described below in " --Procedures for Tendering"), each Trust expects that it would not be able to announce the final proration factor to commence the exchange for any Depositary Shares of the applicable series until approximately five Business Days after the applicable Expiration Date (the period between the applicable Expiration Date and the commencement of the exchange is referred to herein as a "Proration Period"). Preliminary results of the proration required in an Offer (if any) will be announced by press release as promptly as practicable after the applicable Expiration Date. Holders of Depositary Shares may also obtain such preliminary information from the Dealer Managers, the Information Agent or the Exchange Agent and may also be able to obtain such information from their brokers. If proration is required in an Offer, until the final proration factors regarding such Offer are known, the applicable Trust will not issue any Preferred Securities in exchange for Depositary Shares accepted for exchange in its Offer or return Depositary Shares delivered to the Exchange Agent but not tendered or return Depositary Shares tendered but not accepted for exchange because of proration. Such Trust will issue its Preferred Securities in exchange for Depositary Shares accepted for exchange in its Offer and return Depositary Shares delivered to the Exchange Agent but not tendered and return Depositary Shares tendered but not accepted for exchange because of proration as promptly as practicable following the Proration Period. If a Trust decides, in its sole discretion, to decrease the number of shares of Depositary Shares sought in its Offer or to increase or decrease the consideration offered to holders of Depositary Shares in its Offer, and if its Offer is scheduled to expire less than ten Business Days from and including the date that notice of such increase or decrease is first published, sent or given in the manner specified in "The Offers--Terms of the Offers" and "--Expiration Dates; Extensions; Amendments; Termination," then its Offer will remain open for a minimum of ten Business Days from and including the date of such notice. All Depositary Shares not accepted pursuant to an Offer, including shares not accepted because of proration, will be returned to the tendering holders at the expense of the offering Trust as promptly as practicable following the applicable Expiration Date or Proration Period (if applicable). DELIVERY OF PREFERRED SECURITIES Subject to the terms and conditions of each Offer, the delivery of the Preferred Securities to be issued pursuant to such Offer will occur as promptly as practicable following the applicable Expiration Date. See "The Offers--Terms of the Offer" and "--Expiration Dates; Extensions; Amendments; Termination." 11 21 DESCRIPTION OF PREFERRED SECURITIES AND JUNIOR SUBORDINATED DEBENTURES Series D Preferred Securities. The Series D Preferred Securities evidence undivided beneficial interests in the assets of the Series D Trust and will have terms equivalent to the Series D Common Securities, except that upon the occurrence and during the continuance of a Declaration Event of Default in respect of the Series D Junior Subordinated Debentures, the rights of the 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. The Series D Declaration does not permit the issuance by the Series D Trust of any securities other than the Series D Trust Securities or the incurrence of any indebtedness by the Series D Trust. Pursuant to such Declaration, the Institutional Trustee of the Series D Trust will own the Series D Junior Subordinated Debentures purchased by the Series D Trust for the benefit of the holders of the Series D Trust Securities. The payment of distributions out of money held by the Series D Trust, and payments upon redemption of the Series D Preferred Securities or liquidation of the Series D Trust, are guaranteed by General Motors to the extent described under "Description of the Preferred Securities Guarantees." The Series D Declaration defines an event of default with respect to the Series D Trust Securities (a "Series D Declaration Event of Default") as the occurrence and continuance of an "event of default" under the Indenture relating to the Series D Junior Subordinated Debentures (a "Series D Indenture Event of Default"). Distributions on the Series D Preferred Securities will be fixed at a rate per annum of % of the stated liquidation amount of $25 per Series D Preferred Security. Distributions in arrears for more than one quarter will bear interest thereon at the rate of % per annum, compounded quarterly to the extent permitted by law. The term "distribution" as used herein includes any such interest payable unless otherwise stated. The amount of distributions payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. Distributions on the Series D Preferred Securities will be cumulative, will accrue from and including 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 August 1, 1997, when, as and if available for payment. 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 and including the Series D Expiration Date in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series D 7.92% Depositary Shares accepted for exchange, such additional distribution to be made on August 1, 1997 to holders of the Series D Preferred Securities on the record date for such distribution. Series G Preferred Securities. The Series G Preferred Securities evidence undivided beneficial interests in the assets of the Series G Trust and will have terms equivalent to the Series G Common Securities, except that upon the occurrence and during the continuance of a Declaration Event of Default in respect of the Series G Junior Subordinated Debentures, the rights of the 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. The Series G Declaration does not permit the issuance by the Series G Trust of any securities other than the Series G Trust Securities or the incurrence of any indebtedness by the Series G Trust. Pursuant to such Declaration, the Institutional Trustee of the Series G Trust will own the Series G Junior Subordinated Debentures purchased by the Series G Trust for the benefit of the holders of the Series G Trust Securities. The payment of distributions out of money held by the Series G Trust, and payments upon redemption of the Series G Preferred Securities or liquidation of the Series G Trust, are guaranteed by General Motors to the extent described under "Description of the Preferred Securities Guarantees." The Series G Declaration defines an event of default with respect to the Series G Trust Securities (a "Series G Declaration Event of Default") as the occurrence and continuance of an "event of default" under the Indenture relating to the Series G Junior Subordinated Debentures (a "Series G Indenture Event of Default"). The Series D Declaration Events of Default and the Series G Declaration Events of Default are each a "Declaration Event of Default" and together constitute "Declaration Events of Default." The Series D Indenture Events of Default and the Series G Indenture Events of Default are each an "Indenture Event of Default" and together constitute "Indenture Events of Default." Distributions on the Series G Preferred Securities will be fixed at a rate per annum of % of the stated liquidation amount of $25 per Series G Preferred Security. Distributions in arrears for more than one quarter 12 22 will bear interest thereon at the rate of % per annum, compounded quarterly to the extent permitted by law. The term "distribution" as used herein includes any such interest payable unless otherwise stated. The amount of distributions payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. Distributions on the Series G Preferred Securities will be cumulative, will accrue from and including 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 August 1, 1997, when, as and if available for payment. 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 and including the Series G Expiration Date in lieu of dividends accumulating and unpaid from April 1, 1997, on their Series G 7.92% Depositary Shares accepted for exchange, such additional distribution to be made on August 1, 1997, to holders of the Series G Preferred Securities on the record date for such distribution. The distribution rate and the distribution and other payment dates for each series of Preferred Securities will correspond to the interest rate and the interest and other payment dates on the related series of Junior Subordinated Debentures deposited in the applicable Trust as trust assets. As a result, if principal or interest is not paid on a series of Junior Subordinated Debentures, including as a result of General Motors' election to extend the interest payment period on such Junior Subordinated Debentures as described below, the Trust holding such Junior Subordinated Debentures will not make payments on its Trust Securities. General Motors has the right under the Indenture to defer payments of interest on the related Junior Subordinated Debentures held by such Trust by extending the interest payment period from time to time on such Junior Subordinated Debentures, which, if exercised, would defer quarterly distributions on the related Preferred Securities (though such distributions would continue to accrue with interest since interest would continue to accrue on such Junior Subordinated Debentures) during any such Extension Period. Such right to extend the interest payment period for such Junior Subordinated Debentures is limited to a period not exceeding 20 consecutive quarters and such period may not extend beyond the Stated Maturity of such Junior Subordinated Debentures. In the event that General Motors exercises this right with respect to either series of Junior Subordinated Debentures, then General Motors 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 common stock of General Motors (including, without limitation, the $1 2/3 Common Stock, the Class H Common Stock and any other class of common stock of General Motors now or hereafter issued) (collectively, "General Motors Common Stock") in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors' capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors' capital stock pursuant to the conversion or exchange provisions of such General Motors 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 General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Prior to the termination of any such Extension Period, General Motors may further extend the interest payment period; provided, that such Extension Period, together with all such previous and further extensions thereof, may not exceed 20 consecutive quarters or extend beyond the Stated Maturity of such Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, General Motors may select a new Extension Period, subject to the above requirements. If distributions are deferred with respect to a series of Preferred Securities, the deferred distributions and accrued interest thereon shall be paid to holders of record of such Preferred Securities as they appear on the books and records of the applicable Trust on the record date next following the termination of such Extension 13 23 Period. See "Risk Factors and Special Considerations Relating to the Offers," "--Rights Under the Preferred Securities Guarantees" and "--Options to Extend Interest Payment Periods" and "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Periods." If General Motors elects to defer payments of interest on a series of Junior Subordinated Debentures by extending the interest period thereon, distributions on the related Preferred Securities would also be deferred but the applicable Trust would accrue income (as OID) in respect of such Junior Subordinated Debentures which would be taxable to beneficial owners of the related Preferred Securities. As a result, beneficial owners of Preferred Securities during an Extension Period would include their pro rata share of such deferred interest in gross income in advance of the receipt of cash. See "Risk Factors and Special Considerations Relating to the Offers--Options to Extend Interest Payment Periods." If the Institutional Trustee of a Trust shall be the sole holder of the Junior Subordinated Debentures purchased by such Trust, General Motors shall give the Regular Trustees and the Institutional Trustee of such Trust notice of its selection of such Extension Period one Business Day prior to the earlier of (i) the date distributions on the Preferred Securities of such Trust are payable or (ii) the date the Regular Trustees of such Trust are required to give notice to the NYSE (or other applicable self-regulatory organization) or to holders of the Preferred Securities of such Trust of the record date or the date such distribution is payable. The Regular Trustees of such Trust shall give notice of General Motors' selection of such Extension Period to the holders of the Preferred Securities of such Trust. If such Institutional Trustee shall not be the sole holder of such Junior Subordinated Debentures, General Motors shall give the holders of such Junior Subordinated Debentures notice of its selection of such Extension Period ten Business Days prior to the earlier of (i) the applicable Interest Payment Date (as defined herein) or (ii) the date upon which General Motors is required to give notice to the NYSE (or other applicable self-regulatory organization) or to holders of such Junior Subordinated Debentures of the record or payment date of such related interest payment. See "Description of the Junior Subordinated Debentures--Options to Extend Interest Payment Periods." There will be deposited in each Trust as trust assets the applicable series of Junior Subordinated Debentures having an aggregate principal amount equal to the aggregate stated liquidation amount of (i) the Preferred Securities issued by such Trust in exchange for the Depositary Shares accepted in its Offer and (ii) the amount of proceeds received by such Trust from the sale of its Common Securities to General Motors. Distributions on the Trust Securities of a Trust must be paid on the dates payable to the extent that such Trust has funds available for the payment of such distributions in its Institutional Account. Each Trust's funds available for distribution to the holders of its Trust Securities will be limited to payments received from General Motors on the Junior Subordinated Debentures purchased by such Trust. See "Description of the Junior Subordinated Debentures." The payment of distributions out of moneys held by each Trust is guaranteed by General Motors on a subordinated basis as and to the extent set forth under "Description of the Preferred Securities Guarantees." Each Preferred Securities Guarantee covers distributions and other payments on the applicable series of Preferred Securities only if and to the extent that General Motors has made a payment to the applicable Trust of interest or principal on the Junior Subordinated Debentures deposited in such Trust as trust assets. Each Preferred Securities Guarantee, when taken together with General Motors' obligations under the applicable series of Junior Subordinated Debentures, the Indenture and the applicable Declaration, including its obligation (as issuer of the Junior Subordinated Debentures) to pay costs, expenses and certain liabilities of the Trust, constitutes a full and unconditional guarantee of amounts due on the applicable Preferred Securities. Subject to General Motors' right to redeem the Series D Junior Subordinated Debentures upon the occurrence of a Tax Event as described below, the Series D Junior Subordinated Debentures will mature on , 2012, which date may be shortened to a date not earlier than August 1, 1999 as provided herein. Moreover, the Series D Junior Subordinated Debentures are redeemable, in whole or in part, at any time on or after August 1, 1999, or in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event. See "Description of the Junior Subordinated Debentures." Upon the repayment of the Series D Junior Subordinated Debentures, whether at maturity or upon redemption, the proceeds from such repayment or payment shall simultaneously be applied to redeem Series D Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Junior Subordinated Debentures so repaid or 14 24 redeemed at the applicable Series D Redemption Price; provided, that holders of Series D Trust Securities shall be given not less than 30 nor more than 60 days notice of such redemption. As a result, in the event of a Tax Event in respect of the Series D Trust, the Series D Preferred Securities would become redeemable prior to the date on which the Series D 7.92% Depositary Shares are first redeemable. See "Description of the Junior Subordinated Debentures--Optional Redemptions." In the event that fewer than all of the outstanding Series D Preferred Securities are to be redeemed, the Series D Preferred Securities will be redeemed pro rata as described under "Description of Preferred Securities--Book-Entry; Delivery and Form." Subject to General Motors' right to redeem the Series G Junior Subordinated Debentures upon the occurrence of a Tax Event as described below, the Series G Junior Subordinated Debentures will mature on , 2012, which date may be shortened to a date not earlier than January 1, 2001 as provided herein. Moreover, the Series G Junior Subordinated Debentures are redeemable, in whole or in part, at any time on or after January 1, 2001, or in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event. See "Description of the Junior Subordinated Debentures." Upon the repayment of the Series G Junior Subordinated Debentures, whether at maturity or upon redemption, the proceeds from such repayment or payment shall simultaneously be applied to redeem Series G Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Junior Subordinated Debentures so repaid or redeemed at the applicable Series G Redemption Price; provided, that holders of Series G Trust Securities shall be given not less than 30 nor more than 60 days notice of such redemption. As a result, in the event of a Tax Event in respect of the Series G Trust, the Series G Preferred Securities would become redeemable prior to the date on which the Series G 9.12% Depositary Shares are first redeemable. See "Description of the Junior Subordinated Debentures--Optional Redemptions." In the event that fewer than all of the outstanding Series G Preferred Securities are to be redeemed, the Series G Preferred Securities will be redeemed pro rata as described under "Description of Preferred Securities--Book-Entry; Delivery and Form." If, at any time, a Tax Event in respect of a Trust shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to the holders of the applicable Junior Subordinated Debentures, at its option, to redeem the Junior Subordinated Debentures held by such Trust, in whole (but not in part), for cash within 90 days following the occurrence of such Tax Event at the applicable Tax Event Prepayment Price. Following such redemption, all Trust Securities of the applicable Trust shall be redeemed by such Trust at the applicable Tax Event Redemption Price. A "Tax Event" means, with respect to a Trust, that the Regular Trustees of such Trust shall have received an opinion of 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 original issuance of the Junior Subordinated Debentures purchased by such Trust, there is more than an insubstantial risk that (i) such 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 such Junior Subordinated Debentures, (ii) interest payable by General Motors on such Junior Subordinated Debentures is not, or within 90 days of the date of such opinion will not be, deductible by General Motors, in whole or in part, for United States federal income tax purposes, or (iii) such 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. See "Description of the Preferred Securities--Tax Event Redemptions or Distributions." General Motors will have the right at any time to dissolve and liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of the Trust Securities of such Trust. If such Junior Subordinated Debentures are distributed to the holders of the Preferred Securities of such Trust, General Motors will use its best efforts to have such Junior Subordinated Debentures listed on the NYSE or on such other exchange as such Preferred Securities are then listed. General Motors has no current intention to cause the distribution of either the Series D Junior Subordinated Debentures or the Series G Junior Subordinated Debentures. See "Description of the Preferred Securities--Tax Event Redemptions or Distributions" and "Description of the Junior Subordinated Debentures." 15 25 The Series D Junior Subordinated Debentures will be issued pursuant to a supplement (the "Series D Supplement") to the Indenture, dated as of , 1997 (the "Indenture"), between General Motors and Wilmington Trust Company as Trustee (the "Debt Trustee"). See "Description of the Junior Subordinated Debentures." The Series D Junior Subordinated Debentures will bear interest at an annual rate of %. Interest will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1, 1997; provided that, as described above, so long as General Motors shall not be in default in the payment of interest on the Series D Junior Subordinated Debentures, General Motors shall have the right to extend the interest payment period from time to time for a period not exceeding 20 consecutive quarterly interest periods, provided that an Extension Period may not extend beyond the Stated Maturity of the Series D Junior Subordinated Debentures. General Motors has no current intention of exercising its right to extend an interest payment period. However, should General Motors determine to exercise such right in the future, the market price of the Series D Preferred Securities is likely to be affected. Moreover, since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Accordingly, the market price of the Series G Preferred Securities is also likely to be affected in the event that General Motors determines to exercise such right in the future. See "Risk Factors and Special Considerations Relating to the Offers" and "Description of the Junior Subordinated Debentures--Option to Extend Interest Payment Period." The Series D Junior Subordinated 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 the Series D Expiration Date, payable on August 1, 1997 to holders of the Series D Junior Subordinated 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 the Series D Expiration Date. The Series G Junior Subordinated Debentures will be issued pursuant to a supplement (the "Series G Supplement") to the Indenture. See "Description of the Junior Subordinated Debentures." The Series G Junior Subordinated Debentures will bear interest at an annual rate of %. Interest will be payable quarterly on February 1, May 1, August 1 and November 1 of each year, commencing on August 1, 1997; provided that, as described above, so long as General Motors shall not be in default in the payment of interest on the Series G Junior Subordinated Debentures, General Motors shall have the right to extend the interest payment period from time to time for a period not exceeding 20 consecutive quarterly interest periods, provided that an Extension Period may not extend beyond the Stated Maturity of the Series G Junior Subordinated Debentures. General Motors has no current intention of exercising its right to extend an interest payment period. However, should General Motors determine to exercise such right in the future, the market price of the Series G Preferred Securities is likely to be affected. Moreover, since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Accordingly, the market price of the Series D Preferred Securities is also likely to be affected in the event that General Motors determines to exercise such right in the future. See "Risk Factors and Special Considerations Relating to the Offers" and "Description of the Junior Subordinated Debentures--Option to Extend Interest Payment Period." The Series G Junior Subordinated 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 the Series G Expiration Date, payable on August 1, 1997 to holders of the Series G Junior Subordinated 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 the Series G Expiration Date. The obligations of General Motors under the Junior Subordinated Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations of General Motors (which aggregated approximately $92.5 billion at March 31, 1997) and rank pari passu with obligations to or rights of General Motors' other general unsecured creditors. No payment may be made of the principal of, premium, if any, or interest on the Junior Subordinated Debentures of either series, or in respect 16 26 of any redemption, retirement, purchase or other acquisition of such of the Junior Subordinated Debentures, 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. There are no terms in the Preferred Securities, the Junior Subordinated Debentures or the Preferred Securities Guarantees that limit General Motors' ability to incur additional indebtedness, including indebtedness which ranks senior to the Junior Subordinated Debentures and the Preferred Securities Guarantees. See "Description of the Preferred Securities Guarantees--Status of the Preferred Securities Guarantees" and "Description of the Junior Subordinated Debentures--Subordination." CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS The exchange of Depositary Shares for Preferred Securities pursuant to an Offer will be a taxable event. Gain or loss generally will be recognized in an amount equal to the difference between the fair market value of the Preferred Securities received, measured on the date on which the Depositary Shares are exchanged for such Preferred Securities pursuant to an Offer (the "Exchange Date"), and the exchanging holder's tax basis in the Depositary Shares surrendered in such Offer. See "United States Federal Income Taxation--Exchange of Depositary Shares for Preferred Securities." Unlike dividends paid on Depositary Shares, distributions made on the Preferred Securities are not eligible for the dividends received deduction for corporate holders. The Preferred Securities may trade at a price that does not accurately reflect the value of accrued but unpaid interest with respect to the underlying Junior Subordinated Debentures. A holder who uses the accrual method of accounting for tax purposes (and a cash method holder, if the Junior Subordinated Debentures are deemed to have been issued with OID) and who disposes of his Preferred Securities between record dates for payments of distributions thereon will be required to include accrued but unpaid interest on the Junior Subordinated Debentures through the date of disposition in income as ordinary income (i.e., interest or, possibly, OID), and to add such amount to his adjusted tax basis in his pro rata share of the underlying Junior Subordinated Debentures deemed disposed of. To the extent the selling price is less than the holder's adjusted tax basis (which will include all accrued but unpaid interest), a holder will recognize a capital loss. Subject to certain limited exceptions, capital losses cannot be applied to offset ordinary income for United States federal income tax purposes. If the issue price of Preferred Securities received by a holder exceeds the liquidation amount of such Preferred Securities, such excess will be treated as "amortizable bond premium." A holder which receives Preferred Securities with amortizable bond premium may elect to deduct such amortizable bond premium and such deduction shall be applied against (and operate to reduce) the amount of interest (or OID) taxable as ordinary income on such Preferred Securities. A holder receiving Preferred Securities with amortizable bond premium should consult its tax advisor with respect to the manner of making such election. ACCOUNTING FOR EXCHANGES The refinancings of the Preference Stocks with the Preferred Securities will decrease General Motors' stockholders' equity and may increase or decrease earnings applicable to common stockholders depending upon the difference between the carrying value of the Preference Stocks represented by the Depositary Shares accepted in the exchange and the fair market value of the Preferred Securities at the time of the exchange. The financial statements of each Trust will be consolidated into General Motors' consolidated financial statements, with the Preferred Securities treated and disclosed as minority interest and shown in General Motors' consolidated financial statements and described in the notes thereto as "General Motors-obligated mandatorily redeemable preferred securities of subsidiaries holding solely junior subordinated debentures of General Motors." The notes to the financial statements of General Motors will also reflect that the sole assets of each Trust will be the Junior Subordinated Debentures purchased by such Trust. See "Capitalization" and 17 27 "Accounting Treatment." Holders of Depositary Shares who do not tender their Depositary Shares in the Offers or whose Depositary Shares are not accepted for exchange will continue to hold such Depositary Shares and will be entitled to all the rights and preferences, and will be subject to all of the limitations, applicable thereto. To the extent that Depositary Shares are tendered and accepted in the Offers, the terms on which untendered Depositary Shares could subsequently be sold could be adversely affected. See "Risk Factors and Special Considerations Relating to the Offers--Reduced Trading Market for Depositary Shares." EXCHANGE AGENT AND INFORMATION AGENT The First National Bank of Boston has been appointed as Exchange Agent in connection with the Offers. Questions and requests for assistance, requests for additional copies of this Prospectus or a Letter of Transmittal relating to the series of Depositary Shares to be tendered in either Offer and requests for Notices of Guaranteed Delivery relating to either Offer should be directed to Georgeson & Company Inc. which has been retained by General Motors and the Trusts to act as Information Agent for the Offers. The addresses and telephone numbers of the Exchange Agent and the Information Agent are set forth in "--Exchange Agent and Information Agent" and on the outside back cover of this Prospectus. DEALER MANAGERS Merrill Lynch, Pierce, Fenner & Smith Incorporated and Smith Barney Inc. have been retained as Dealer Managers in connection with the Offers. For information regarding fees payable to the Dealer Managers and Soliciting Dealers, see "The Offers--Dealer Managers Soliciting Dealers." 18 28 RISK FACTORS AND SPECIAL CONSIDERATIONS RELATING TO THE OFFERS Prospective exchanging holders of Depositary Shares who plan to participate in either or both of the Offers should carefully consider, in addition to the other information set forth elsewhere in this Prospectus, the following: EXCHANGE OF DEPOSITARY SHARES FOR PREFERRED SECURITIES IS A TAXABLE EVENT The exchange of Depositary Shares for Preferred Securities pursuant to an Offer will be a taxable event for the holder of such Depositary Shares. Generally, gain or loss will be recognized in an amount equal to the difference between the fair market value on the applicable Exchange Date of the holder's pro rata share of the underlying Junior Subordinated Debentures represented by the Preferred Securities received in such exchange and the exchanging holder's tax basis in the Depositary Shares exchanged therefor. See "United States Federal Income Taxation--Exchange of Depositary Shares for Preferred Securities." All holders of Depositary Shares are advised to consult their tax advisors regarding the United States federal, state, local and foreign tax consequences of the exchange of Depositary Shares and the issuance of Preferred Securities. See "Price Ranges of Depositary Shares." CORPORATE HOLDERS OF PREFERRED SECURITIES NOT ENTITLED TO DIVIDENDS RECEIVED DEDUCTION Unlike dividends paid on Depositary Shares, distributions on the Preferred Securities are not eligible for the dividends received deduction for corporate holders. RANKING OF SUBORDINATED OBLIGATIONS UNDER THE PREFERRED SECURITIES GUARANTEES AND JUNIOR SUBORDINATED DEBENTURES General Motors' obligations under the Preferred Securities Guarantees are subordinate and junior in right of payment to all liabilities of General Motors and rank pari passu with the most senior preferred stock issued, if any, from time to time by General Motors. The obligations of General Motors under the Junior Subordinated Debentures are subordinate and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations of General Motors (which aggregated approximately $92.5 billion at March 31, 1997) and rank pari passu with obligations to or rights of General Motors' other general unsecured creditors. No payment may be made of the principal of, premium, if any, or interest on the Junior Subordinated Debentures, or in respect of any redemption, retirement, purchase or other acquisition of any of the Junior Subordinated Debentures, 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. There are no terms in the Preferred Securities, the Junior Subordinated Debentures or the Preferred Securities Guarantee that limit General Motors' ability to incur additional indebtedness, including indebtedness which ranks senior to the Junior Subordinated Debentures and the Preferred Securities Guarantees. See "Description of the Preferred Securities Guarantees--Status of the Preferred Securities Guarantees" and "Description of the Junior Subordinated Debentures--Subordination." RIGHTS UNDER THE PREFERRED SECURITIES GUARANTEES Each of the Preferred Securities Guarantees will be qualified as an indenture under the Trust Indenture Act. Wilmington Trust Company will act as Guarantee Trustee for each Preferred Securities Guarantee for the purposes of compliance with the provisions of the Trust Indenture Act. The Guarantee Trustee will hold each Preferred Securities Guarantee for the benefit of the holders of the Preferred Securities to which such Preferred Securities Guarantee relates. Each Preferred Securities Guarantee guarantees to the holders of the Preferred Securities to which such Preferred Securities Guarantee relates the payment of (i) any accrued and unpaid distributions that are required to be paid on such Preferred Securities, to the extent the applicable Trust has funds available 19 29 therefor, (ii) the applicable Redemption Price, including all accrued and unpaid distributions with respect to Preferred Securities called for redemption by such Trust, to the extent such Trust has funds available therefor, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of such Trust (other than in connection with the distribution of the related Junior Subordinated Debentures to the holders of such Preferred Securities or a redemption of all the Preferred Securities of such Trust), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on such Preferred Securities to the date of the payment to the extent the applicable Trust has funds available therefor or (b) the amount of assets of such Trust remaining available for distribution to holders of such Preferred Securities in liquidation of such Trust. The holders of a majority in liquidation amount of a series of the Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable Guarantee Trustee or to direct the exercise of any trust or power conferred upon such Guarantee Trustee under the applicable Preferred Securities Guarantee. Notwithstanding the foregoing, any holder of Preferred Securities may institute a legal proceeding directly against General Motors to enforce such holder's rights under the applicable Preferred Securities Guarantee without first instituting a legal proceeding against the applicable Trust, the applicable Guarantee Trustee or any other person or entity. If General Motors were to default on its obligation to pay amounts payable on a series of the Junior Subordinated Debentures held by any Trust or otherwise, the applicable Trust would lack available funds for the payment of distributions or amounts payable on redemption of its Preferred Securities or otherwise, and, in such event, holders of the Preferred Securities of such Trust would not be able to rely upon the Preferred Securities Guarantee relating to such Preferred Securities for payment of such amounts. Instead, holders of such Preferred Securities would rely on the enforcement (i) by the applicable Institutional Trustee of its rights as registered holder of the Junior Subordinated Debentures purchased by such Trust against General Motors pursuant to the terms of such Junior Subordinated Debentures or (ii) by such holder of its right against General Motors to enforce payments on such Junior Subordinated Debentures. See "Description of the Preferred Securities Guarantees" and "Description of the Junior Subordinated Debentures." Each Declaration provides that each holder of Preferred Securities, by acceptance thereof, agrees to the provisions of the applicable Preferred Securities Guarantee, including the subordination provisions thereof, and the Indenture. ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES If a Declaration Event of Default with respect to a series of Junior Subordinated Debentures occurs and is continuing, then the holders of the related series of Preferred Securities would rely on the enforcement by the applicable Institutional Trustee of its rights as a holder of such Junior Subordinated Debentures against General Motors. In addition, the holders of a majority in liquidation amount of the Preferred Securities of a Trust will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable Institutional Trustee or (subject to the receipt of a tax opinion as described in "Description of the Preferred Securities--Voting Rights") to direct the exercise of any trust or power conferred upon such Institutional Trustee under the applicable Declaration, including the right to direct such Institutional Trustee to exercise the remedies available to it as a holder of such Junior Subordinated Debentures. If such Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures, a holder of the related Preferred Securities may institute a legal proceeding directly against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default with respect to a series of Junior Subordinated Debentures has occurred and is continuing, and such event is attributable to the failure of General Motors to pay interest or principal on such Junior Subordinated 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 the related series of Preferred Securities may directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on such Junior Subordinated Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder (each, a "Direct Action") on or after the respective due date specified in the applicable series of Junior Subordinated Debentures. In connection with any such Direct Action, the right of General Motors, as holder of the related Common Securities, will be subrogated to the rights of such holder of Preferred Securities under the applicable 20 30 Declaration to the extent of any payment made by General Motors to such holder of Preferred Securities in such Direct Action. The holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Junior Subordinated Debentures. See "Description of the Preferred Securities--Declaration Events of Default." OPTIONS TO EXTEND INTEREST PAYMENT PERIODS General Motors has the right under the Indenture to defer payments of interest on either or both series of Junior Subordinated Debentures by extending the interest payment period at any time, and from time to time, on such Junior Subordinated Debentures. As a consequence of such an extension, quarterly distributions on the related Preferred Securities would be deferred (but would continue to accrue, despite such deferral, with interest thereon compounded quarterly) by the applicable Trust during such Extension Period. Such right to extend the interest payment period for such Junior Subordinated Debentures is limited to a period not exceeding 20 consecutive quarters, but no such Extension Period may extend beyond the Stated Maturity of such Junior Subordinated Debentures. During any Extension Period, General Motors shall not (i) declare or pay any dividend on, or 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 General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors' capital stock or the exchange or conversion of one class or series of General Motors' capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors' capital stock pursuant to the conversion or exchange provisions of such General Motors 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 General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Prior to the termination of any such Extension Period, General Motors may further extend the interest payment period; provided, that such Extension Period, together with all such previous and further extensions thereof, may not exceed 20 consecutive quarters or extend beyond the Stated Maturity of such Junior Subordinated Debentures. Upon the termination of an Extension Period and the payment of all amounts then due, General Motors may commence a new Extension Period with respect to such Junior Subordinated Debentures, subject to the above requirements. See "Description of the Preferred Securities--Distributions" and "Description of the Junior Subordinated Debentures--Options to Extend Interest Payment Periods." Should General Motors exercise its right to defer payments of interest by extending the interest payment period relating to a series of Preferred Securities, each holder of such Preferred Securities will be required to accrue income (as OID) in respect of the deferred stated interest allocable to its Preferred Securities for United States federal income tax purposes, which will be allocated but not distributed to holders of record of Preferred Securities. As a result, each such holder of Preferred Securities will recognize income relating to such deferred interest for United States federal income tax purposes in advance of the receipt of cash and will not receive from the applicable Trust the cash related to such income if such holder disposes of its Preferred Securities prior to the record date for the date on which distributions of such amounts are made. General Motors has no current intention of exercising its right to defer payments of interest by extending the interest payment period on either series of the Junior Subordinated Debentures. However, should General Motors determine to exercise such right in the future, the market price of the applicable Preferred Securities is likely to be affected. Moreover, since both series of the Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Accordingly, the market price of the 21 31 other series of the Preferred Securities is also likely to be affected in the event that General Motors determines to exercise such right in the future. A holder that disposes of its Preferred Securities during an Extension Period, therefore, might not receive the same return on its investment as a holder that continues to hold its Preferred Securities. In addition, as a result of the existence of General Motors' right to defer interest payments, the market price of the Preferred Securities (which represent an undivided beneficial interest in the underlying Junior Subordinated Debentures) may be more volatile than other securities on which OID accrues that do not have such rights. See "United States Federal Income Taxation--Sales of Preferred Securities." PROPOSED TAX LEGISLATION On February 6, 1997, as part of President Clinton's Fiscal 1998 Budget Proposal, the United States Treasury Department proposed legislation that would, among other things, deny an issuer a deduction for United States federal income tax purposes for the payment of interest on instruments with characteristics similar to the Junior Subordinated Debentures. If the proposed legislation were enacted in its current form, it is not expected to apply to the Junior Subordinated Debentures since the proposed effective date for this provision is the date of first committee action. There can be no assurances, however, that the proposed legislation, if enacted, or similar legislation enacted after the date hereof would not adversely affect the tax treatment of the Junior Subordinated Debentures, resulting in a Tax Event in respect of either or both Trusts, which would permit General Motors to cause a redemption of the Preferred Securities at the applicable Tax Event Redemption Price by electing to prepay the Junior Subordinated Debentures at the applicable Tax Event Prepayment Price. See "Description of the Preferred Securities--Tax Event Redemptions" and "United States Federal Income Taxation." DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBENTURES General Motors will have the right at any time to terminate each Trust and, after satisfaction of claims of creditors as provided by applicable law, to cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of the Trust Securities of such Trust. General Motors has no present intention to take such action with respect to either Trust. Under current United States federal income tax law, a distribution of a series of Junior Subordinated Debentures upon the dissolution of the Trust holding such Junior Subordinated Debentures would not be a taxable event to holders of the related Preferred Securities. There can be no assurance as to the market prices for the Preferred Securities of either Trust or the related Junior Subordinated Debentures that may be distributed in exchange for such Preferred Securities if a dissolution or liquidation of such Trust were to occur. Accordingly, the Preferred Securities or the Junior Subordinated Debentures may trade at a discount to the price that the investor paid to purchase the Preferred Securities offered hereby pursuant to the Offers. Because holders of Preferred Securities may receive the underlying Junior Subordinated Debentures, prospective exchanging holders are also making an investment decision with regard to such Junior Subordinated Debentures and should carefully review all the information regarding such Subordinated Debentures contained herein. See "Description of the Preferred Securities--Tax Event Redemptions" and "Description of the Junior Subordinated Debentures--General." EARLY PAYMENT ON THE JUNIOR SUBORDINATED DEBENTURES AND THE TRUST SECURITIES The Series D 7.92% Depositary Shares and the underlying Series D 7.92% Preference Stock are redeemable at the option of General Motors on or after August 1, 1999, in whole or in part. The Series D Junior Subordinated Debentures are redeemable, in whole or in part, from time to time, on or after August 1, 1999, or, in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event in respect of the Series D Trust. General Motors also has the right at any time to shorten the Series D Stated Maturity to a date not earlier than August 1, 1999. Upon any repayment of the Series D Junior Subordinated Debentures prior to the Series D Stated Maturity, whether upon redemption or payment upon maturity, the Series D Trust will apply the proceeds thereof to redeem its Trust Securities in an aggregate liquidation amount equal to the aggregate principal amount so redeemed or paid. Accordingly, it is possible that the Series D Preferred Securities may be redeemed prior to the Series D Stated Maturity and, upon the occurrence of a Tax Event in 22 32 respect of the Series D Trust, prior to the date on which the Series D 7.92% Depositary Shares and the underlying Series D 7.92% Preference Stock are first redeemable. Moreover, upon the occurrence of a Tax Event in respect of the Series D Trust, a dissolution of the Series D Trust in which holders of the Series D Preferred Securities received cash would be a taxable event to such holders. See "United States Federal Income Taxation--Receipt of Junior Subordinated Debentures or Cash Upon Liquidation of the Trusts." The Series G 9.12% Depositary Shares and the underlying Series G 9.12% Preference Stock are redeemable at the option of General Motors on or after January 1, 2001. The Series G Junior Subordinated Debentures are redeemable, in whole or in part, from time to time, on or after January 1, 2001, or, in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event in respect of the Series G Trust. General Motors also has the right at any time to shorten the Series G Stated Maturity to a date not earlier than January 1, 2001. Upon any repayment of the Series G Junior Subordinated Debentures prior to the Series G Stated Maturity, whether upon redemption or payment upon maturity, the Series G Trust will apply the proceeds thereof to redeem its Trust Securities in an aggregate liquidation amount equal to the aggregate principal amount so redeemed or paid. Accordingly, it is possible that the Series G Preferred Securities may be redeemed prior to the Series G Stated Maturity and, upon the occurrence of a Tax Event in respect of the Series G Trust, prior to the date on which the Series G 9.12% Depositary Shares and the underlying Series G 9.12% Preference Stock are first redeemable. Moreover, upon the occurrence of a Tax Event in respect of the Series G Trust, a dissolution of the Series G Trust in which holders of the Series G Preferred Securities received cash would be a taxable event to such holders. See "United States Federal Income Taxation--Receipt of Junior Subordinated Debentures or Cash Upon Liquidation of the Trusts." LIMITED VOTING RIGHTS Holders of Preferred Securities of a Trust have no voting rights other than as provided under the Business Trust Act or the Trust Indenture Act, except for certain enforcement rights against the Institutional Trustee and, in certain circumstances, against General Motors. Holders of Preferred Securities of a Trust will not be entitled to vote to appoint, remove or replace, or to increase or decrease the number of, Trustees for such Trust, which voting rights are vested exclusively in the holder of the Common Securities of such Trust. See "Description of the Preferred Securities--Voting Rights." General Motors will be the holder of the Common Securities of each Trust. TRADING PRICES The Preferred Securities may trade at a price that does not fully reflect the value of accrued but unpaid interest with respect to the underlying Junior Subordinated Debentures. A holder who uses the accrual method of accounting for tax purposes (and a cash method holder, if such Junior Subordinated Debentures are deemed to have been issued with OID) and who disposes of his Preferred Securities between record dates for payments of distributions thereon will be required to include accrued but unpaid interest on such Junior Subordinated Debentures through the date of disposition in income as ordinary income (i.e., interest or, possibly, OID), and to add such amount to his adjusted tax basis in his pro rata share of the underlying Junior Subordinated Debentures deemed disposed of. To the extent the selling price is less than the holder's adjusted tax basis (which will include all accrued but unpaid interest), a holder will recognize a capital loss. Subject to certain limited exceptions, capital losses cannot be applied to offset ordinary income for United States federal income tax purposes. See "United States Federal Income Taxation--Interest Income and Original Issue Discount" and "--Sales of Preferred Securities." CONSEQUENCES OF HIGHLY LEVERAGED TRANSACTION The Indenture as it relates to a Trust does not contain provisions that afford holders of the Junior Subordinated Debentures purchased by such Trust protection in the event of a highly leveraged transaction, including a change of control, or other similar transactions involving General Motors that may adversely affect such holders. See "Description of the Junior Subordinated Debentures--General." 23 33 LACK OF ESTABLISHED TRADING MARKET FOR PREFERRED SECURITIES Each of the Series D Preferred Securities and the Series G Preferred Securities constitutes a new issue of securities of the applicable Trust with no established trading market. While application will be made to list each series of the Preferred Securities on the NYSE, there can be no assurance that an active market for either series of the Preferred Securities will develop or be sustained in the future on such exchange. Although the Dealer Managers have indicated to General Motors and each Trust that they intend to make a market in the applicable series of the Preferred Securities following the applicable Expiration Date, as permitted by applicable laws and regulations prior to the commencement of trading on the NYSE, they are not obligated to do so and may discontinue any such market-making at any time without notice. Accordingly, no assurance can be given as to the liquidity of, or trading markets for, either series of the Preferred Securities. In order to satisfy the NYSE listing requirements with respect to each series of the Preferred Securities, acceptance of Depositary Shares validly tendered in each Offer is subject to the Minimum Distribution Condition, which condition may not be waived by General Motors or the offering Trust. See "Listing and Trading of Preferred Securities and Depositary Shares." REDUCED TRADING MARKET FOR DEPOSITARY SHARES; FUTURE ACQUISITIONS OF DEPOSITARY SHARES To the extent Depositary Shares are tendered and accepted in an Offer, the liquidity and trading market for the Depositary Shares of the series tendered in such Offer to be outstanding following such Offer, and the terms upon which such Depositary Shares could be sold, could be adversely affected. In addition, if any Offer is substantially subscribed, there would be a significant risk that round lot holdings of the Depositary Shares outstanding following such Offer would be limited. Following the applicable Expiration Date, and in accordance with and subject to applicable law, General Motors may from time to time acquire Depositary Shares of either or both series in the open market, by tender offer, subsequent exchange offer, redemption of the underlying Preference Stock or otherwise. To the extent that any such acquisition of Depositary Shares causes the number of outstanding Depositary Shares of a series to be less than 100,000, the NYSE may delist such Depositary Shares from the NYSE and the trading market for such outstanding Depositary Shares of such series could be adversely affected. General Motors' decision to make such acquisitions is dependent on many factors, including market conditions in effect at the time of any contemplated acquisition. Accordingly, General Motors cannot predict whether and to what extent it will acquire any additional Depositary Shares and the consideration to be paid therefor (which consideration may be less than or greater than the value of the Preferred Securities offered in exchange for the Depositary Shares pursuant to the Offers). See "Listing and Trading of Preferred Securities and Depositary Shares." 24 34 COMPARISON OF PREFERRED SECURITIES AND DEPOSITARY SHARES The following is a brief summary of certain terms of each series of the Preferred Securities and the related Depositary Shares (and the underlying Preference Stocks). For a more complete description of the Preferred Securities, see "Description of the Preferred Securities." For a description of the Junior Subordinated Debentures which will be deposited in each Trust as trust assets and will represent the sole source for the payment of distributions and other payments on the related Preferred Securities of such Trust, see "Description of the Junior Subordinated Debentures." For a description of the Depositary Shares (and the underlying Preference Stocks), see "Description of the Preference Stocks and Depositary Shares." SERIES D PREFERRED SECURITIES AND SERIES D 7.92% DEPOSITARY SHARES (REPRESENTING INTERESTS IN SERIES D 7.92% PREFERENCE STOCK)
SERIES D 7.92% DEPOSITARY SHARES SERIES D PREFERRED SECURITIES AND SERIES D 7.92% PREFERENCE STOCK ----------------------------- ----------------------------------- ISSUER................ The Series D Trust. Payment of distributions General Motors (as issuer of the and on liquidation or redemption is guaranteed Series D 7.92% Preference Stock on a subordinated basis, as and to the extent underlying the Series D 7.92% that the Series D Trust has funds and Depositary Shares). otherwise as and to the extent described herein, by General Motors. DISTRIBUTION/DIVIDEND RATE.................. % per annum distribution, payable quarterly on 7.92% per annum dividend, payable February 1, May 1, August 1 and November 1 of quarterly for each of the quarters each year, commencing August 1, 1997 from and ending March, June, September and including the Series D Accrual Date, but only December of each year, payable in if and to the extent that interest payments arrears on the first day that is not are made in respect of the Series D Junior a legal holiday of each succeeding Subordinated Debentures held by the Series D May, August, November and February, Trust. respectively, in each case out of funds legally available therefore, when, as and if declared by the General Motors Board. Dividends are cumulative. Preferential dividends accrue whether or not General Motors has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. INTEREST ACCRUAL...... During any Extension Period applicable to the Accrued but unpaid dividends do not Series D Junior Subordinated Debentures, bear interest. distribution payments on the Series D Preferred Securities will not be made but would continue to accrue, and, in the case of distributions in arrears, would bear interest at the rate of % per annum, compounded quarterly to the extent permitted by applicable law.
25 35
SERIES D 7.92% DEPOSITARY SHARES SERIES D PREFERRED SECURITIES AND SERIES D 7.92% PREFERENCE STOCK ----------------------------- ----------------------------------- MATURITY/MANDATORY AND OPTIONAL REDEMPTION... The Series D Preferred Securities will be No maturity or mandatory redemption. redeemed upon the maturity or earlier On or after August 1, 1999, General redemption of the Series D Junior Subordinated Motors may, at its option, on not Debentures, at a redemption price equal to $25 less than 35 nor more than 60 days per Series D Preferred Security to be notice, redeem any then outstanding redeemed, plus any accrued and unpaid shares of Series D 7.92% Preference distributions to the redemption date, Stock (and the applicable Depositary including distributions accrued as a result of will redeem the number of Series D General Motors' election to defer payments of 7.92% Depositary Shares representing interest on the Series D Junior Subordinated the shares of Series D 7.92% Debentures. The Series D Junior Subordinated Preference Stock so redeemed upon not Debentures are redeemable by General Motors, less than 30 days notice to the (i) in whole or in part, from time to time, on holders thereof), as a whole or in or after August 1, 1999, at a prepayment price part, at any time or from time to (the "Series D Optional Prepayment Price") time, for cash in an amount equal to equal to 100% of the principal amount thereof $100 per share of Series D 7.92% plus accrued and unpaid interest thereon to Preference Stock (equivalent to $25 the date of prepayment or (ii) in whole but per Series D 7.92% Depositary Share), not in part, prior to August 1, 1999, upon the plus an amount equal to all dividends occurrence of a Tax Event, at a prepayment accrued and unpaid thereon to the price (the "Series D Tax Event Prepayment date fixed for redemption. Holders of Price" and, together with the Series D Series D 7.92% Depositary Shares have Optional Prepayment Price, the "Series D no right to require General Motors to Prepayment Price") equal to % of the redeem the Series D 7.92% Depositary principal amount thereof from the Series D Shares. Expiration Date through July 31, 1997, declining ratably on each August 1 thereafter to 100% on August 1, 1999, plus accrued and unpaid interest thereon to the date of prepayment. In the event that the Series D Junior Subordinated Debentures are redeemed or upon the repayment of the Series D Junior Subordinated Debentures, upon maturity, upon redemption or otherwise, the proceeds thereof will be promptly applied to redeem the Series D Preferred Securities and the Series D Common Securities. The Series D Junior Subordinated Debentures mature on , 2012, which date may be shortened as provided herein, subject to certain conditions. See "Description of the Preferred Securities--Mandatory Redemptions" and "--Tax Event Redemptions." Holders of Series D Preferred Securities have no right to require General Motors to redeem the Series D Preferred Securities.
26 36
SERIES D 7.92% DEPOSITARY SHARES SERIES D PREFERRED SECURITIES AND SERIES D 7.92% PREFERENCE STOCK ----------------------------- ----------------------------------- RANKING; SUBORDINATION......... Junior to claims of creditors of the Series D Subordinated to claims of creditors Trust, if any, upon liquidation of the Series of General Motors including the D Trust. The Series D Preferred Securities and Junior Subordinated Debentures. The the Series D Common Securities will have Series D 7.92% Preference Stock would equivalent terms; provided that if a Series D rank junior to preferred stock of Declaration Event of Default occurs and is General Motors, if any were continuing, the holders of the Series D outstanding, ranks pari passu with Preferred Securities will have a priority over other General Motors Preference Stock holders of the Series D Common Securities with and ranks senior to General Motors respect to payments in respect of Common Stock with respect to payment distributions and payments upon liquidation, of dividends and distributions in redemption or otherwise. The Series D Trust is liquidation. not permitted to issue any securities other than the Series D Trust Securities or to incur any indebtedness. General Motors will pay all fees and expenses related to the Series D Trust and the offering of the Series D Trust Securities. The Series D Junior Subordinated Debentures will rank subordinate and junior to all present and future Senior Indebtedness and Other Financial Obligations of General Motors, pari passu with General Motors' other general unsecured creditors and senior to all capital stock now or hereafter issued by General Motors and to any guarantee now or hereafter entered into by General Motors in respect of any of its capital stock. The obligations of General Motors under the Preferred Securities Guarantee relating to the Series D Preferred Securities are subordinate and junior in right of payment to all liabilities of General Motors and rank pari passu with the most senior preferred stock issued, if any, from time to time by General Motors. Such preferred stock, if any, would rank senior to the Preference Stocks with respect to the payment of dividends and distributions on liquidation. LISTING............... Application will be made to list the Series D The Series D 7.92% Depositary Shares Preferred Securities on the NYSE under the are listed on the NYSE under the symbol "GM Tr D." In order to satisfy the NYSE symbol "GM Pr D." listing requirements, acceptance of Series D 7.92% Depositary Shares validly tendered in the Series D Offer is subject to the Minimum Distribution Condition, which condition may not be waived. DIVIDENDS RECEIVED DEDUCTION............. Distributions on the Series D Preferred Dividends are eligible for the Securities are not eligible for the dividends dividends received deduction for received deduction for corporate holders. corporate holders.
27 37
SERIES D 7.92% DEPOSITARY SHARES SERIES D PREFERRED SECURITIES AND SERIES D 7.92% PREFERENCE STOCK ----------------------------- ----------------------------------- VOTING RIGHTS/ ENFORCEMENT........... Holders of Series D Preferred Securities have Under the General Motors Certificate no voting rights other than as provided under of Incorporation and the Series D the Business Trust Act or the Trust Indenture Deposit Agreement (as defined Act, except in the limited circumstances herein), the Series D 7.92% discussed below. The Institutional Trustee for Depositary Shares (and the underlying the Series D Trust has the power to exercise shares of Series D 7.92% Preference all rights under the Indenture with respect to Stock) do not entitle holders thereof the Series D Junior Subordinated Debentures to voting rights, except (i) with and is also authorized to enforce the Series D respect to any amendment or Preferred Securities Guarantee on behalf of alteration of any provision of the holders of the Series D Preferred Securities. General Motors Certificate of If the Series D Trust's failure to make Incorporation which would adversely distributions is a consequence of General affect the powers, preferences or Motors' exercise of its right to extend the special rights of the Series D 7.92% interest payment period for the Series D Depositary Shares (and the underlying Junior Subordinated Debentures as described shares of Series D 7.92% Preference under "Description of the Preferred Stock), which requires the prior Securities--Distributions," the Institutional approval of the holders of at least Trustee of the Series D Trust will have no two-thirds of the outstanding Series right to enforce the payment of distributions D 7.92% Depositary Shares (and the until a Series D Declaration Event of Default underlying shares of Series D 7.92% shall have occurred. Until such Series D Preference Stock), and (ii) in the Declaration Events of Default have been cured, event General Motors fails to pay waived or otherwise eliminated, such accumulated preferential dividends on Institutional Trustee will be deemed to be any series of General Motors acting solely on behalf of the holders of the Preference Stock in full for any six Series D Preferred Securities and only the quarterly dividend payment periods, holders of the Series D Preferred Securities whether or not consecutive, and all will have (subject to the receipt of a tax such dividends remain unpaid (as opinion as described in "Description of the described below), or as required by Preferred Securities--Voting Rights") the law. Subject to certain exceptions, right to direct such Institutional Trustee in the event that General Motors with respect to certain matters under the fails to pay full accumulated Declaration relating to the Series D Trust, preferential dividends on the shares and therefore the Indenture as it relates to of the Series D 7.92% Preference the Series D Trust. If such Institutional Stock in full for any six quarterly Trustee fails to enforce its rights under the dividend payment periods, whether or Series D Junior Subordinated Debentures after not consecutive, and all such a holder of Series D Preferred Securities has dividends remain unpaid, the number made a written request, such holder of record of directors of General Motors would of Series D Preferred Securities may institute be increased by two and the holders a legal proceeding against General Motors to of Series D 7.92% Depositary Shares, enforce such Institutional Trustee's rights together as a class with the holders under the Series D Junior Subordinated of depositary shares representing all Debentures without first instituting any legal other series of General Motors proceeding against such Institutional Trustee Preference Stock ranking pari passu or any other person or entity. Notwithstanding to on a parity with such series of the foregoing, if a Series D Declaration Event General Motors Preference Stock and of Default has occurred and is continuing and then entitled to vote thereon, would such event is attributable to the failure of be entitled to elect two directors of General Motors to pay interest or principal on the expanded General Motors Board the Series D Junior Subordinated Debentures on until the full dividends accumulated the date such interest or principal is on all outstanding shares of the otherwise payable (or in the case of Series D 7.92% Preference Stock have redemption, the redemption date), then a been paid. holder of Series D Preferred Securities may institute a Direct Action for enforcement of payment to such holder directly of the principal of, or interest on, Series D Junior Subordinated 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 Junior Subordinated Debentures. See "Description of the Preferred Securities," "Description of the Junior Subordinated Debentures" and "Description of the Preferred Securities Guarantees."
28 38 SERIES G PREFERRED SECURITIES AND SERIES G 9.12% DEPOSITARY SHARES (REPRESENTING INTERESTS IN SERIES G 9.12% PREFERENCE STOCK)
SERIES G 9.12% DEPOSITARY SHARES SERIES G PREFERRED SECURITIES AND SERIES G 9.12% PREFERENCE STOCK ----------------------------- ----------------------------------- ISSUER................ The Series G Trust. Payment of distributions General Motors (as issuer of the and on liquidation or redemption is guaranteed Series G 9.12% Preference Stock on a subordinated basis, as and to the extent underlying the Series G 9.12% that the Series G Trust has funds and Depositary Shares). otherwise as and to the extent described herein, by General Motors. DISTRIBUTION/DIVIDEND RATE.................. % per annum distribution, payable quarterly on 9.12% per annum dividend, payable February 1, May 1, August 1 and November 1 of quarterly for each of the quarters each year, commencing August 1, 1997 from and ending March, June, September and including the Series G Accrual Date, but only December of each year, payable in if and to the extent that interest payments arrears on the first day that is not are made in respect of the Series G Junior a legal holiday of each succeeding Subordinated Debentures held by the Series G May, August, November and February, Trust. respectively, in each case out of funds legally available therefore, when, as and if declared by the General Motors Board. Dividends are cumulative. Preferential dividends accrue whether or not General Motors has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. INTEREST ACCRUAL...... During any Extension Period applicable to the Accrued but unpaid dividends do not Series G Junior Subordinated Debentures, bear interest. distribution payments on the Series G Preferred Securities will not be made but would continue to accrue, and, in the case of distributions in arrears, would bear interest at the rate of % per annum, compounded quarterly to the extent permitted by applicable law.
29 39 MATURITY/MANDATORY AND OPTIONAL REDEMPTION........... The Series G Preferred Securities will be redeemed No maturity or mandatory redemption. upon the maturity or earlier redemption of the On or after January 1, 2001, General Series G Junior Subordinated Debentures, at a Motors may, at its option, on not redemption price equal to $25 per Series G less than 35 nor more than 60 days Preferred Security to be redeemed, plus any accrued notice, redeem any then outstanding and unpaid distributions to the redemption date, shares of Series G 9.12% Preference including distributions accrued as a result of Stock (and the applicable Depositary General Motors' election to defer payments of will redeem the number of Series G interest on the Series G Junior Subordinated 9.12% Depositary Shares representing Debentures. The Series G Junior Subordinated the shares of Series G 9.12% Debentures are redeemable by General Motors, (i) in Preference Stock so redeemed upon whole or in part, from time to time, on or after not less than 30 days notice to the January 1, 2001, at a prepayment price (the "Series holders thereof), as a whole or in G Optional Prepayment Price") equal to 100% of the part, at any time or from time to principal amount thereof plus accrued and unpaid time, for cash in an amount equal to interest thereon to the date of prepayment or (ii) $100 per share of Series G 9.12% in whole but not in part, prior to January 1, 2001, Preference Stock (equivalent to $25 upon the occurrence of a Tax Event, at a prepayment per Series G 9.12% Depositary price (the "Series G Tax Event Prepayment Price" Share), plus an amount equal to all and, together with the Series G Optional Prepayment dividends accrued and unpaid thereon Price, the "Series G Prepayment Price") equal to to the date fixed for redemption. % of the principal amount thereof from the Holders of Series G 9.12% Depositary Series G Expiration Date through December 31, 1997, Shares have no right to require declining ratably on each January 1 thereafter to General Motors to redeem the Series 100% on January 1, 2001, plus accrued and unpaid G 9.12% Depositary Shares. interest thereon to the date of prepayment. In the event that the Series G Junior Subordinated Debentures are redeemed or upon the repayment of the Series G Junior Subordinated Debentures, upon maturity, upon redemption or otherwise, the proceeds thereof will be promptly applied to redeem the Series G Preferred Securities and the Series G Common Securities. The Series G Junior Subordinated Debentures mature on , 2012, which date may be shortened as provided herein, subject to certain conditions. See "Description of the Preferred Securities--Mandatory Redemptions" and "--Tax Event Redemptions." Holders of Series G Preferred Securities have no right to require General Motors to redeem the Series G Preferred Securities.
30 40
RANKING; SUBORDINATION........ Junior to claims of creditors of the Series G Subordinated to claims of creditors Trust, if any, upon liquidation of the Series G of General Motors including the Trust. The Series G Preferred Securities and the Junior Subordinated Debentures. The Series G Common Securities will have equivalent Series G 9.12% Preference Stock terms; provided that if a Series G Declaration would rank junior to preferred stock Event of Default occurs and is continuing, the of General Motors, if any were holders of the Series G Preferred Securities will outstanding, ranks pari passu with have a priority over holders of the Series G Common other General Motors Preference Securities with respect to payments in respect of Stock and ranks senior to General distributions and payments upon liquidation, Motors Common Stock with respect to redemption or otherwise. The Series G Trust is not payment of dividends and permitted to issue any securities other than the distributions in liquidation. Series G Trust Securities or to incur any indebtedness. General Motors will pay all fees and expenses related to the Series G Trust and the offering of the Series G Trust Securities. The Series G Junior Subordinated Debentures will rank subordinate and junior to all present and future Senior Indebtedness and Other Financial Obligations of General Motors, pari passu with General Motors' other general unsecured creditors and senior to all capital stock now or hereafter issued by General Motors and to any guarantee now or hereafter entered into by General Motors in respect of any of its capital stock. The obligations of General Motors under the Preferred Securities Guarantee relating to the Series G Preferred Securities are subordinate and junior in right of payment to all liabilities of General Motors and rank pari passu with the most senior preferred stock issued, if any, from time to time by General Motors. Such preferred stock, if any, would rank senior to the Preference Stocks with respect to the payment of dividends and distributions on liquidation. LISTING.............. Application will be made to list the Series G The Series D 9.12% Depositary Shares Preferred Securities on the NYSE under the symbol are listed on the NYSE under the "GM Tr G." In order to satisfy the NYSE listing symbol "GM Pr G." requirements, acceptance of Series G 9.12% Depositary Shares validly tendered in the Series G Offer is subject to the Minimum Distribution Condition, which condition may not be waived. SERIES G 9.12% DEPOSITARY SHARES SERIES G PREFERRED SECURITIES AND SERIES G 9.12% PREFERENCE STOCK ----------------------------- ----------------------------------- DIVIDENDS RECEIVED DEDUCTION............ Distributions on the Series G Preferred Securities Dividends are eligible for the are not eligible for the dividends received dividends received deduction for deduction for corporate holders. corporate holders.
31 41
SERIES G 9.12% DEPOSITARY SHARES SERIES G PREFERRED SECURITIES AND SERIES G 9.12% PREFERENCE STOCK ----------------------------- ----------------------------------- VOTING RIGHTS/ ENFORCEMENT.......... Holders of Series G Preferred Securities have no Under the General Motors Certificate voting rights other than as provided under the of Incorporation and the Series G Business Trust Act or the Trust Indenture Act, Deposit Agreement (as defined except in the limited circumstances discussed herein), the Series G 9.12% below. The Institutional Trustee for the Series G Depositary Shares (and the Trust has the power to exercise all rights under underlying of Series G 9.12% the Indenture with respect to the Series G Junior Preference Stock) do not entitle Subordinated Debentures and is also authorized to holders thereof to voting rights, enforce the Series G Preferred Securities Guarantee except (i) with respect to any on behalf of holders of the Series G Preferred amendment or alteration of any Securities. If the Series G Trust's failure to make provision of the General Motors distributions is a consequence of General Motors' Certificate of Incorporation which exercise of its right to extend the interest would adversely affect the powers, payment period for the Series G Junior Subordinated preferences or special rights of the Debentures as described under "Description of the Series G 9.12% Depositary Shares Preferred Securities--Distributions," the (and the underlying shares of Series Institutional Trustee of the Series G Trust will G 9.12% Preference Stock), which have no right to enforce the payment of requires the prior approval of the distributions until a Series G Declaration Event of holders of at least two-thirds of Default shall have occurred. Until such Series G the outstanding Series G 9.12% Declaration Events of Default have been cured, Depositary Shares (and the waived or otherwise eliminated, such Institutional underlying shares of Series G 9.12% Trustee will be deemed to be acting solely on Preference Stock), and (ii) in the behalf of the holders of the Series G Preferred event General Motors fails to pay Securities and only the holders of the Series G accumulated preferential dividends Preferred Securities will have (subject to the on any series of General Motors receipt of a tax opinion as described in Preference Stock in full for any six "Description of the Preferred Securities--Voting quarterly dividend payment periods, Rights") the right to direct such Institutional whether or not consecutive, and all Trustee with respect to certain matters under the such dividends remain unpaid (as Declaration relating to the Series G Trust, and described below), or as required by therefore the Indenture as it relates to the Series law. Subject to certain exceptions, G Trust. If such Institutional Trustee fails to in the event that General Motors enforce its rights under the Series G Junior fails to pay full accumulated Subordinated Debentures after a holder of Series G preferential dividends on the shares Preferred Securities has made a written request, of the Series G 9.12% Preference such holder of record of Series G Preferred Stock in full for any six quarterly Securities may institute a legal proceeding against dividend payment periods, whether or General Motors to enforce such Institutional not consecutive, and all such Trustee's rights under the Series G Junior dividends remain unpaid, the number Subordinated Debentures without first instituting of directors of General Motors would any legal proceeding against such Institutional be increased by two and the holders Trustee or any other person or entity. of Series G 9.12% Depositary Shares, Notwithstanding the foregoing, if a Series G together as a class with the holders Declaration Event of Default has occurred and is of depositary shares representing continuing and such event is attributable to the all other series of General Motors failure of General Motors to pay interest or Preference Stock ranking junior to principal on the Series G Junior Subordinated or on a parity with such series of Debentures on the date such interest or principal General Motors Preference Stock and is otherwise payable (or in the case of redemption, then entitled to vote thereon, would the redemption date), then a holder of Series G be entitled to elect two directors Preferred Securities may institute a Direct Action of the expanded General Motors Board for enforcement of payment to such holder directly until the full dividends accumulated of the principal of, or interest on, Series G on all outstanding shares of the Junior Subordinated Debentures having a principal Series G 9.12% Preference Stock have amount equal to the aggregate liquidation amount of been paid. the Series G Preferred Securities of such holder on or after the respective due date specified in the Series G Junior Subordinated Debentures. See "Description of the Preferred Securities," "Description of the Junior Subordinated Debentures" and "Description of the Preferred Securities Guarantees."
32 42 GENERAL MOTORS CORPORATION The major portion of General Motors' operations is derived from the automotive products industry, consisting of the design, manufacture, assembly and sale of automobiles, trucks and related parts and accessories. Primarily through its wholly owned subsidiaries, General Motors Acceptance Corporation and Hughes, General Motors also provides services and manufactures products in other industry segments. On January 16, 1997, General Motors announced a series of planned transactions (the "Hughes Transactions") designed to address strategic challenges and unlock stockholder value in the three business segments of Hughes. The transactions would include the tax-free spin-off of the Hughes defense business to holders of $1 2/3 Common Stock and Class H Common Stock, followed immediately by the tax-free merger of that business with Raytheon Company. At the same time, Delco Electronics, the automotive electronics subsidiary of Hughes, would be transferred from Hughes to General Motors' Delphi Automotive Systems unit. Finally, Class H Common Stock would be recapitalized into a General Motors tracking stock linked to the telecommunications and space business of Hughes. General Motors' principal executive offices are located at 100 Renaissance Center, Detroit, Michigan 48243-7301 (Telephone Number (313) 556-5000). 33 43 GENERAL MOTORS SELECTED FINANCIAL DATA AND CERTAIN PER SHARE DATA The following General Motors selected financial data and certain per share data have been derived from General Motors' Consolidated Financial Statements. Such data should be read in conjunction with General Motors' Consolidated Financial Statements (including the notes thereto) and Management's Discussion and Analysis in the General Motors 1996 Form 10-K, which is incorporated herein by reference, including the information with respect to Hughes in Exhibit 99 thereto. The General Motors selected financial data and certain per share data as of and for the years ended December 31, 1996, 1995, 1994, 1993 and 1992 have been derived from General Motors' Consolidated Financial Statements, which have been audited by Deloitte & Touche LLP, independent auditors. The selected financial data presented with financing and insurance operations on an equity basis as of and for the years ended December 31, 1996, 1995, 1994, 1993 and 1992 are unaudited.
AS OF AND FOR THE YEARS ENDED DECEMBER 31, ---------------------------------------------------- 1996 1995(A) 1994(B) 1993 1992(C) ---- ------- ------- ---- ------- (IN MILLIONS, EXCEPT PER SHARE AMOUNTS) OPERATING RESULTS Total net sales and revenues....................... $164,069 $160,272 $148,499 $132,991 $127,378 -------- -------- -------- -------- -------- Costs and expenses................................. 158,120 151,923 141,401 130,330 130,207 Plant closings reserve adjustments and provision for other restructurings......................... (727) -- -- 950 1,237 -------- -------- -------- -------- -------- Total costs and expenses...................... 157,393 151,923 141,401 131,280 131,444 -------- -------- -------- -------- -------- Income (Loss) from continuing operations before cumulative effect of accounting changes.......... 4,953 6,033 4,866 1,777 (3,222) -------- -------- -------- -------- -------- Net income (loss).................................. $ 4,963 $ 6,881 $ 4,901 $ 2,466 $(23,498) -------- -------- -------- -------- -------- EARNINGS (LOSS) PER SHARE ATTRIBUTABLE TO COMMON STOCKS $1 2/3 Common Stock per share from continuing operations before cumulative effect of accounting changes.......................................... $ 6.07 $ 7.14 $ 5.74 $ 1.68 $ (5.33) -------- -------- -------- -------- -------- Net earnings (loss) per share attributable to $1 2/3 Common Stock.............................. $ 6.06 $ 7.21 $ 5.15 $ 2.13 $ (38.28) -------- -------- -------- -------- -------- Income per share from discontinued operations attributable to Class E Common Stock............. $ 0.04 $ 1.96 $ 1.71 $ 1.51 $ 1.33 -------- -------- -------- -------- -------- Net earnings (loss) per share attributable to Class H Common Stock................................... $ 2.88 $ 2.77 $ 2.62 $ 2.30 $ (2.29) -------- -------- -------- -------- -------- BALANCE SHEET DATA Cash and marketable securities..................... $ 22,262 $ 16,018 $ 15,331 $ 17,369 $ 14,533 -------- -------- -------- -------- -------- Total assets....................................... 222,142 213,663 191,145 182,388 184,287 -------- -------- -------- -------- -------- Notes and loans payable............................ 85,300 81,222 72,545 69,747 81,767 -------- -------- -------- -------- -------- Stockholders' equity............................... 23,418 23,346 12,824 5,598 6,226 -------- -------- -------- -------- -------- Cumulative Amount Available for Payment of Dividends(d) $1 2/3 Common Stock.............................. $ 22,081 $ 12,475 $ 9,014 $ 4,870 $ 3,488 Class E Common Stock............................. -- 10,672 3,752 3,244 2,546 Class H Common Stock............................. 3,245 2,909 2,169 1,887 1,583 -------- -------- -------- -------- -------- Total......................................... $ 25,326 $ 26,056 $ 14,935 $ 10,001 $ 7,617 ======== ======== ======== ======== ======== CERTAIN PER SHARE DATA Cash Dividends Per Share $1 2/3 Common Stock.............................. $ 1.60 $ 1.10 $ 0.80 $ 0.80 $ 1.40 -------- -------- -------- -------- -------- Class E Common Stock............................. $ 0.30 $ 0.52 $ 0.48 $ 0.40 $ 0.36 -------- -------- -------- -------- -------- Class H Common Stock............................. $ 0.96 $ 0.92 $ 0.80 $ 0.72 $ 0.72 -------- -------- -------- -------- -------- Book Value Per Share(e) $1 2/3 Common Stock.............................. $ 27.95 $ 24.37 $ 11.18 $ 1.65 $ 1.98 -------- -------- -------- -------- -------- Class E Common Stock............................. $ -- $ 3.11 $ 1.43 $ 0.21 $ 0.25 -------- -------- -------- -------- -------- Class H Common Stock............................. $ 13.97 $ 12.20 $ 5.59 $ 0.83 $ 0.99 -------- -------- -------- -------- --------
34 44
AS OF AND FOR THE YEARS ENDED DECEMBER 31, ---------------------------------------------------- 1996 1995(A) 1994(B) 1993 1992(C) ---- ------- ------- ---- ------- (IN MILLIONS) GENERAL MOTORS OPERATIONS WITH FINANCING AND INSURANCE OPERATIONS ON AN EQUITY BASIS: OPERATING RESULTS Total net sales and revenues....................... $145,427 $143,754 $134,888 $119,803 $113,489 -------- -------- -------- -------- -------- Costs and expenses................................. 142,938 138,294 129,383 118,449 117,289 Plant closings reserve adjustments and provisions for other restructurings......................... (727) -- -- 950 1,237 -------- -------- -------- -------- -------- Total costs and expenses...................... 142,211 138,294 129,383 119,399 118,526 -------- -------- -------- -------- -------- Income (Loss) from continuing operations before cumulative effect of accounting changes.......... 4,953 6,033 4,859 1,777 (3,504) -------- -------- -------- -------- -------- Net income (loss).................................. $ 4,963 $ 6,881 $ 4,901 $ 2,466 $(23,498) -------- -------- -------- -------- -------- BALANCE SHEET DATA Cash and marketable securities..................... $ 16,962 $ 10,241 $ 10,232 $ 9,891 $ 7,386 -------- -------- -------- -------- -------- Total assets....................................... 135,262 130,644 118,860 115,160 115,422 -------- -------- -------- -------- -------- Long-term debt and capitalized leases.............. 5,390 4,280 5,198 5,861 6,495 -------- -------- -------- -------- -------- Stockholders' equity............................... 23,418 23,346 12,824 5,598 6,226 -------- -------- -------- -------- --------
- ------------------------- (a) In November 1995, the Emerging Issues Task Force of the Financial Accounting Standards Board reached a consensus on its Issue No. 95-1, "Revenue Recognition of Sales with a Guaranteed Minimum Resale Value." Adoption of this consensus, effective January 1, 1995, resulted in an unfavorable cumulative effect of $52 million, or $0.07 per share, attributable to $1 2/3 Common Stock. (b) Effective January 1, 1994, General Motors adopted Statement of Financial Accounting Standards ("SFAS") No. 112, "Employers' Accounting for Postemployment Benefits." The unfavorable cumulative effect of adopting SFAS No. 112 was $758 million, or $751 million, or $1.05 per share, attributable to $1 2/3 Common Stock and $7 million, or $0.08 per share, attributable to Class H Common Stock. (c) General Motors adopted SFAS No. 106, "Employers' Accounting for Postretirement Benefits Other Than Pensions," effective January 1, 1992. The unfavorable cumulative effect of adopting SFAS No. 106 was $20.7 billion, or $33.38 per share, attributable to $1 2/3 Common Stock and $150 million, or $2.08 per share, attributable to Class H Common Stock. Also, effective January 1, 1992, Hughes changed its revenue recognition policy for certain commercial businesses. The unfavorable effect of this change on 1992 earnings was $33 million, or $0.05 per share, attributable to $1 2/3 Common Stock, and $7 million, or $0.10 per share, attributable to Class H Common Stock. (d) Amount of funds legally available as of such date for the payment of dividends on each class of General Motors Common Stock under the Restated General Motors Certificate of Incorporation, as amended. (e) Determined based on the liquidation rights with respect to the assets of General Motors associated with the various classes of General Motors Common Stock. 35 45 RECENT DEVELOPMENTS On April 14, 1997, General Motors announced that income from continuing operations for the first quarter of 1997 totaled $1.8 billion, or $2.30 per share of $1 2/3 Common Stock, compared with $800 million, or $0.93 per share of $1 2/3 Common Stock, in the first quarter of 1996. The 1996 first quarter results included an unfavorable impact of $900 million after tax, or $1.20 per share of $1 2/3 Common Stock, related to the impact of a 17-day strike at two General Motors component plants. Interim results are not necessarily indicative of the results which may be expected for any other interim period or for the full year. GENERAL MOTORS SUMMARY UNAUDITED CONDENSED CONSOLIDATED HISTORICAL FINANCIAL DATA AS OF AND FOR THE THREE MONTHS ENDED MARCH 31, (IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
1997 1996 ---- ---- OPERATING RESULTS Total net sales and revenues................................ $ 42,260 $ 39,240 -------- -------- Total costs and expenses.................................... 39,475 38,007 -------- -------- Income from continuing operations........................... 1,796 800 -------- -------- Net income.................................................. $ 1,796 $ 1,019 -------- -------- Earnings per share attributable to Common Stocks: $1 2/3 Common Stock from continuing operations............ $ 2.30 $ 0.93 Discontinued operations................................... -- 0.01 -------- -------- Net earnings attributable to $1 2/3 Common Stock....... $ 2.30 $ 0.94 ======== ======== Net earnings attributable to Class E Common Stock...... $ -- $ 0.45 ======== ======== Net earnings attributable to Class H Common Stock...... $ 0.59 $ 0.78 ======== ======== BALANCE SHEET DATA Cash and marketable securities.............................. $ 20,229 $ 13,320 -------- -------- Total assets................................................ 226,059 211,830 -------- -------- Notes and loans payable..................................... 88,111 80,299 -------- -------- Stockholders' Equity........................................ 22,805 24,022 -------- -------- CERTAIN PER SHARE DATA Cash Dividends Per Share $1 2/3 Common Stock....................................... $ 0.50 $ 0.40 -------- -------- Class E Common Stock...................................... $ -- $ 0.15 -------- -------- Class H Common Stock...................................... $ 0.25 $ 0.24 -------- -------- Book Value Per Share $1 2/3 Common Stock....................................... $ 28.10 $ 26.67 -------- -------- Class E Common Stock...................................... $ -- $ 3.40 -------- -------- Class H Common Stock...................................... $ 14.05 $ 13.35 -------- -------- GM OPERATING RESULTS WITH FINANCING AND INSURANCE OPERATIONS ON AN EQUITY BASIS OPERATING RESULTS Total net sales and revenues................................ $ 37,457 $ 34,672 -------- -------- Total costs and expenses.................................... 35,867 34,359 -------- -------- Income from continuing operations........................... 1,796 800 -------- -------- Net income.................................................. $ 1,796 $ 1,019 -------- -------- BALANCE SHEET DATA Cash and marketable securities.............................. $ 14,628 $ 7,639 -------- -------- Total assets................................................ 136,012 129,110 -------- -------- Long-term debt and capitalized leases....................... 5,507 4,673 -------- -------- Stockholders' equity........................................ $ 22,805 $ 24,022 -------- --------
36 46 NEW ACCOUNTING STANDARD In February 1997, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share," and SFAS No. 129, "Disclosure of Information about Capital Structure." SFAS No. 128 specifies the computation, presentation and disclosure requirements for earnings per share for entities with publicly held common stock or potential common stock. SFAS No. 129 requires an entity to explain the permanent rights and privileges of outstanding securities. General Motors has determined that the impact of adoption will be immaterial to its consolidated financial statements, however, General Motors will be required to increase its disclosures with regard to these matters including disclosing basic and diluted earnings per share in its consolidated financial statements. General Motors will adopt these new accounting standards in the fourth quarter of 1997, as required. 37 47 GENERAL MOTORS RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS The following ratios of earnings to combined fixed charges and preferred stock dividends of General Motors have been derived from General Motors' Consolidated Financial Statements. Such data should be read in conjunction with General Motors' Consolidated Financial Statements (including the notes thereto) and Management's Discussion and Analysis in the General Motors 1996 Form 10-K, which is incorporated herein by reference, including the information with respect to Hughes in Exhibit 99 thereto. The ratios of earnings to combined fixed charges and preferred stock dividends of General Motors as of and for the years ended December 31, 1996, 1995, 1994, 1993 and 1992 have been derived from General Motors' Consolidated Financial Statements.
YEARS ENDED DECEMBER 31, - -------------------------------- 1996 1995 1994 1993 1992 - ---- ---- ---- ---- ---- 2.07 2.20 2.14 1.21 *
- ------------------------- * Earnings were inadequate to cover combined fixed charges and preferred stock dividends by $4,510 million in 1992. For purposes of computing the ratio of earnings to fixed charges, "earnings" consist of income from continuing operations before cumulative effect of accounting changes plus income taxes and fixed charges included in income from continuing operations after eliminating the amortization of capitalized interest and the undistributed earnings of affiliates; "fixed charges" consist of interest and related charges on debt, that portion of rentals deemed to be interest and interest capitalized in the period; and "preferred stock dividends" represent the pretax earnings required to cover the dividend requirements of General Motors' preference and preferred stock, as applicable. 38 48 CAPITALIZATION The following table sets forth the capitalization of General Motors and its consolidated subsidiaries at December 31, 1996, and as adjusted to reflect consummation of the Offers, assuming that all of the Depositary Shares sought to be tendered pursuant to the Offers are validly tendered and accepted by General Motors and the Trusts in exchange for the Preferred Securities. See "The Offers--Purpose of the Offers." Thus, the following table reflects the exchange of 5,462,917 Series D 7.92% Depositary Shares and 9,071,910 Series G 9.12% Depositary Shares, in each case for an equal number of the related series of Preferred Securities offered hereby. The following should be read in conjunction with General Motors' Consolidated Financial Statements (including the notes thereto) and Management's Discussion and Analysis in General Motors' 1996 Form 10-K, which is incorporated herein by reference, including the information with respect to Hughes in Exhibit 99 thereto.
DECEMBER 31, 1996 -------------------- ACTUAL ADJUSTED ------ -------- (IN MILLIONS) Notes and loans payable..................................... $ 85,300 $ 85,300 -------- -------- Minority interest in General Motors Capital Trust D and General Motors Capital Trust G............................ -- 396 -------- -------- STOCKHOLDERS' EQUITY Preference Stocks......................................... 1 (a) Common stocks $1 2/3 Common Stock.................................... 1,261 1,261 Class H Common Stock................................... 10 10 Capital surplus (principally additional paid-in capital)............................................... 19,189 18,838 Retained earnings......................................... 6,137 6,093 -------- -------- Subtotal............................................... 26,598 26,202 Minimum pension liability adjustment...................... (3,490) (3,490) Accumulated foreign currency translation adjustments...... (113) (113) Net realized gains on investments in certain debt and equity securities...................................... 423 423 -------- -------- Total stockholders' equity............................. 23,418 23,022 -------- -------- Total capitalization................................... $108,718 $108,718 ======== ========
- ------------------------- (a) Less than $1 million. 39 49 ACCOUNTING TREATMENT The refinancings of the Preference Stocks with the Preferred Securities will decrease General Motors' stockholders' equity and may increase or decrease earnings applicable to common stockholders depending upon the difference between the carrying value of the Preference Stocks represented by the Depositary Shares accepted in the exchange and the fair market value of the Preferred Securities at the time of the exchange. The financial statements of each Trust will be consolidated into General Motors' consolidated financial statements, with the Preferred Securities treated and disclosed as minority interest in General Motors' consolidated financial statements and described in the notes thereto as "General Motors-obligated mandatorily redeemable preferred securities of subsidiaries holding solely junior subordinated debentures of General Motors." The notes to the financial statements of General Motors will also reflect that the sole assets of the Series D Trust will be the principal amount of the Series D Junior Subordinated Debentures and that the sole assets of the Series G Trust will be the principal amount of the Series G Junior Subordinated Debentures. 40 50 THE TRUSTS Each of the Series D Trust and the Series G Trust is a statutory business trust, in each case formed under Delaware law pursuant to (i) a declaration of trust, dated as of April 11, 1997, executed by General Motors, as Sponsor, and the Trustees of such Trust and (ii) the filing of a certificate of trust with the Secretary of State of the State of Delaware on April 11, 1997. The declaration relating to each Trust will be amended and restated in its entirety (with respect to each Trust, as so amended and restated, the "Declaration") substantially in the form filed as an exhibit to the Registration Statement of which this Prospectus forms a part. Each Declaration will be qualified as an indenture under the Trust Indenture Act. Upon issuance by a Trust of its Preferred Securities, the purchasers thereof will own all of such Preferred Securities. See "Description of the Preferred Securities--Book-Entry; Delivery and Form." General Motors will directly or indirectly acquire all of the Common Securities of each Trust, in each case in an aggregate liquidation amount equal to at least 3% of the total capital of such Trust. Pursuant to each Declaration, the number of Trustees for each Trust will initially be five. Three of the Trustees (with respect to each Trust, the "Regular Trustees") will be persons who are employees or officers of, or who are affiliated with, General Motors. The fourth trustee for each Trust will be a financial institution that is unaffiliated with General Motors, which trustee will serve as the Institutional Trustee of such Trust. Initially, Wilmington Trust Company will be the Institutional Trustee under each of the Series D Trust and the Series G Trust, in each case until removed or replaced by the holder of the Common Securities of the applicable Trust. For purposes of compliance with the provisions of the Trust Indenture Act, Wilmington Trust Company will act as the Guarantee Trustee for each of the Series D Trust and the Series G Trust, in each case under the applicable Preferred Securities Guarantee, and as Debt Trustee of each of the Series D Trust and the Series G Trust, in each case under the Indenture. The fifth trustee for each Trust will be the Delaware Trustee. Initially, Wilmington Trust Company will act as Delaware Trustee for each of the Series D Trust and the Series G Trust. See "Description of the Preferred Securities Guarantees" and "Description of the Preferred Securities--Voting Rights" herein. The Institutional Trustee of a Trust will hold title to the Junior Subordinated Debentures purchased by such Trust for the benefit of the holders of the Trust Securities of such Trust and will have the power to exercise all rights, powers and privileges under the Indenture as the holder of such Junior Subordinated Debentures. In addition, the Institutional Trustee of such Trust will maintain exclusive control of the Property Account of such Trust to hold all payments made in respect of the Junior Subordinated Debentures held by such Trust for the benefit of the holders of the Trust Securities of such Trust. The Institutional Trustee of a Trust will make payments of distributions and payments on liquidation, redemption and otherwise to the holders of the Trust Securities of such Trust out of funds from the Property Account of such Trust. The Guarantee Trustee of a Trust will hold the Preferred Securities Guarantee relating to such Trust for the benefit of the holders of the Preferred Securities to which such Preferred Securities Guarantee relates. General Motors, as the direct or indirect holder of all the Common Securities of each Trust, will have the right to appoint, remove or replace any Trustee for such Trust and to increase or decrease the number of Trustees for such Trust. General Motors will pay all fees and expenses related to each Trust and the offering of the Trust Securities of such Trust. See "Description of the Junior Subordinated Debentures--Miscellaneous." The rights of the holders of the Preferred Securities of a Trust, including economic rights, rights to information and voting rights, are set forth in the Declaration relating to such Trust, the Business Trust Act and the Trust Indenture Act. See "Description of the Preferred Securities." Each of the Trusts exists for the sole purpose of (i) issuing (a) its Preferred Securities in exchange for Depositary Shares validly tendered in its Offer and delivering such Depositary Shares to General Motors in consideration of the deposit by General Motors as trust assets of the related Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of its Preferred Securities, and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equal aggregate stated principal amount of such Junior Subordinated Debentures and (ii) engaging in those other activities as are necessary or incidental thereto. 41 51 Under the applicable Declaration, a Trust shall not, and the Trustees (including the Institutional Trustee) of such Trust shall cause such Trust not to, engage in any activity other than in connection with the purposes of such Trust or other than as required or authorized by such Declaration. In particular, a Trust shall not and the Trustees (including the Institutional Trustee) of such Trust shall not (i) invest any proceeds received by such Trust from holding the Junior Subordinated Debentures purchased by such Trust but shall promptly distribute all such proceeds to holders of its Trust Securities pursuant to the terms of the applicable Declaration and of such Trust Securities; (ii) acquire any assets other than as expressly provided in the applicable Declaration; (iii) possess Trust property for other than a Trust purpose; (iv) make any investments, other than investments represented by the Junior Subordinated Debentures purchased by such Trust; (v) possess any power or otherwise act in such a way as to vary trust assets or the terms of its Trust Securities in any way whatsoever; (vi) issue any securities or other evidences of beneficial ownership of, or beneficial interests in, such Trust other than its Trust Securities; (vii) incur any indebtedness for borrowed money or (viii) (a) direct the time, method and place of exercising any trust or power conferred upon the Debt Trustee of such Trust with respect to the Junior Subordinated Debentures held by such Trust, (b) waive any past default that is waivable under Section 5.7 of the Indenture, (c) exercise any right to rescind or annul any declaration that the principal of all of the Junior Subordinated Debentures held by such Trust shall be due and payable or (d) consent to any amendment, modification or termination of the Indenture as it relates to such Trust or the Junior Subordinated Debentures held by such Trust or the applicable Declaration, in each case where such consent shall be required, if such action would cause such Trust to be classified for United States federal income tax purposes as other than a grantor trust or would cause such Trust to be deemed an "investment company" which is required to be registered under the Investment Company Act of 1940, as amended (the "1940 Act"). Each Declaration may be modified and amended if approved by the Regular Trustees (and in certain circumstances the Institutional Trustee and the Delaware Trustee) of the applicable Trust, provided that, if any proposed amendment provides for, or such Regular Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Trust Securities of such Trust, whether by way of amendment to the applicable Declaration or otherwise or (ii) the dissolution, winding-up or termination of such Trust other than pursuant to the terms of applicable Declaration, then the holders of Trust Securities of such Trust voting together as a single 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 at least a majority in liquidation amount of the Trust Securities of such Trust affected thereby; provided, that, if any amendment or proposal referred to in clause (i) above would adversely affect only the Preferred Securities or the Common Securities of such Trust, 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 Securities. Each Declaration may also be amended without the consent of the holders of the Trust Securities of the applicable Trust to (i) cure any ambiguity; (ii) correct or supplement any provision in the applicable Declaration that may be defective or inconsistent with any other provision of such Declaration; (iii) add to the covenants, restrictions or obligations of General Motors, as sponsor of the applicable Trust; (iv) conform to any change in Rule 3a-5 under the 1940 Act or written change in interpretation or application of Rule 3a-5 which amendment does not have a material adverse effect on the rights, preferences or privileges of the holders of the Trust Securities of the applicable Trust; (v) preserve the status of the applicable 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 of the Trust Securities of the applicable Trust. It shall not be necessary for the consent of the holders of Trust Securities of the applicable Trust under the applicable Declaration to approve the particular form of any proposed amendment to such Declaration, but it shall be sufficient if such consent shall approve the substance thereof. The books and records of a Trust will be maintained at its principal office and will be open for inspection by a holder of the Preferred Securities of such Trust or the duly authorized representative of such holder for any purpose reasonably related to its interest in such Trust during normal business hours. Each Trust 42 52 anticipates that it will not be required to file with the Commission or distribute to holders of its Preferred Securities periodic reports regarding each Trust. Each Declaration provides that the Trustees of the applicable Trust may treat the person in whose name a Preferred Security of such Trust is registered on the books and records of such Trust as the sole holder thereof and of the Preferred Securities represented thereby for purposes of receiving distributions and for all other purposes and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such certificate or in the Preferred Securities represented thereby on the part of any person, whether or not such Trust shall have actual or other notice thereof. The Preferred Securities of each Trust will be issued in fully registered form. Investors may elect to hold their Preferred Securities directly or, subject to the rules and procedures of The Depository Trust Company or The Philadelphia Depository Trust Company (each, a "Depository Institution"), as applicable, described under "Description of the Preferred Securities--Book-Entry; Delivery and Form," hold interests in a global certificate registered on the books and records of the applicable Trust in the name of a Depository Institution or its nominee. Under each Declaration: (i) the applicable Trust and its Trustees shall be entitled to deal with a Depository Institution (or any successor depositary) for all purposes, including the payment of distributions and receiving approvals, or consents under such Declaration, and except as set forth in the applicable Declaration, shall have no obligation to persons owning its Preferred Securities (with respect to such Trust, "Preferred Security Beneficial Owners") registered in the name of and held by a Depository Institution or its nominee; and (ii) the rights of Preferred Security Beneficial Owners shall be exercised only through a Depository Institution (or any successor depository) and shall be limited to those established by law and agreements between such Preferred Security Beneficial Owners and a Depository Institution and/or its participants. See "Description of the Preferred Securities--Book-Entry; Delivery and Form." With respect to Preferred Securities registered in the name of and held by a Depository Institution or its nominee, all notices and other communications required under the applicable Declaration shall be given to, and all distributions on such Preferred Securities shall be given or made to, a Depository Institution (or its successor). THE FOREGOING SUMMARY OF CERTAIN PROVISIONS OF EACH OF THE DECLARATIONS IS A DISCUSSION OF ALL MATERIAL TERMS OF SUCH DECLARATIONS, BUT DOES NOT PURPORT TO BE COMPLETE AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE DECLARATIONS WHICH HAVE BEEN FILED AS EXHIBITS TO THE REGISTRATION STATEMENT OF WHICH THIS PROSPECTUS IS A PART. The business address of the Series D Trust is c/o General Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301, telephone number (313) 556-5000. The business address of the Series G Trust is c/o General Motors Corporation, 100 Renaissance Center, Detroit, Michigan 48243-7301, telephone number (313) 556-5000. 43 53 THE OFFERS PURPOSE OF THE OFFERS The purpose of the Offers is to refinance the Depositary Shares with the Preferred Securities to restructure a portion of General Motors' outstanding equity while achieving competitive financing and certain tax efficiencies and preserving General Motors' flexibility with respect to future financings. The refinancings effected pursuant to the Offers will permit General Motors to deduct interest payable on the Junior Subordinated Debentures for United States federal income tax purposes. GENERAL PARTICIPATION IN AN OFFER IS VOLUNTARY AND HOLDERS OF DEPOSITARY SHARES SHOULD CAREFULLY CONSIDER WHETHER TO ACCEPT AN OFFER. NONE OF GENERAL MOTORS, THE BOARD OF DIRECTORS OF GENERAL MOTORS, THE TRUSTEES OF THE SERIES D TRUST, THE SERIES D TRUST, THE TRUSTEES OF THE SERIES G TRUST NOR THE SERIES G TRUST MAKES ANY RECOMMENDATION TO HOLDERS AS TO WHETHER TO EXCHANGE OR REFRAIN FROM EXCHANGING THEIR DEPOSITARY SHARES IN ANY OFFER. HOLDERS OF DEPOSITARY SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX ADVISORS IN MAKING THEIR DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES. SEE "PRICE RANGE OF DEPOSITARY SHARES." Unless the context requires otherwise, the term "Holder" means, with respect to an Offer, (i) any person in whose name any Depositary Shares subject to such Offer are registered on the books of General Motors or (ii) any other person who has obtained a properly completed stock power from the registered holder, or (iii) any person whose Depositary Shares subject to such Offer are held of record by a Depository Institution. TERMS OF THE OFFERS Series D Offer. Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series D 7.92% Depositary Shares, the Series D Trust will exchange Series D Preferred Securities for up to 5,462,917 of the outstanding Series D 7.92% Depositary Shares not owned by General Motors. The Series D Offer will be effected on a basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange, as applicable. See "--Procedures for Tendering." Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series D 7.92% Depositary Shares, the Series D Trust will accept Series D 7.92% Depositary Shares validly tendered and not withdrawn prior to the Series D Expiration Date and, unless the Series D Offer has been withdrawn or terminated, will deliver Series D Preferred Securities in exchange therefor to tendering holders of Series D 7.92% Depositary Shares as promptly as practicable following the Series D Expiration Date. The Series D Trust expressly reserves the right, in its sole discretion, to delay acceptance for exchange of Series D 7.92% Depositary Shares tendered under the Series D Offer and the delivery of the Series D Preferred Securities with respect to the Series D 7.92% Depositary Shares accepted for exchange (subject to Rules 13e-4 and 14e-1 under the Exchange Act, which require that General Motors and the Trust consummate the Series D Offer or return the Series D 7.92% Depositary Shares deposited by or on behalf of the holders thereof promptly after the termination or withdrawal of the Series D Offer), or to amend, withdraw or terminate the Series D Offer, at any time prior to the Series D Expiration Date for any of the reasons set forth in "--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." Series G Offer. Upon the terms and subject to the conditions set forth herein and in the Letter of Transmittal relating to the Series G 9.12% Depositary Shares, the Series G Trust will exchange Series G Preferred Securities for up to 9,071,910 of the outstanding Series G 9.12% Depositary Shares not owned by General Motors. The Series G Offer will be effected on a basis of one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange, as applicable. See "--Procedures for Tendering." Upon the terms and subject to the conditions set forth herein and in the Letter of 44 54 Transmittal relating to the Series G 9.12% Depositary Shares, the Series G Trust will accept Series G 9.12% Depositary Shares validly tendered and not withdrawn prior to the Series G Expiration Date and, unless the Series G Offer has been withdrawn or terminated, will deliver Series G Preferred Securities in exchange therefor to tendering holders of Series G 9.12% Depositary Shares as promptly as practicable following the Series G Expiration Date. The Series G Trust expressly reserves the right, in its sole discretion, to delay acceptance for exchange of Series G 9.12% Depositary Shares tendered under the Series G Offer and the delivery of the Series G Preferred Securities with respect to the Series G 9.12% Depositary Shares accepted for exchange (subject to Rules 13e-4 and 14e-1 under the Exchange Act, which require that General Motors and the Trust consummate the Series G Offer or return the Series G 9.12% Depositary Shares deposited by or on behalf of the holders thereof promptly after the termination or withdrawal of the Series G Offer), or to amend, withdraw or terminate the Series G Offer, at any time prior to the Series G Expiration Date for any of the reasons set forth in "--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." If more than the maximum number of Depositary Shares of either series are validly tendered to a Trust pursuant to its Offer and are not withdrawn, the applicable Trust will, upon the terms and subject to the conditions of its Offer, accept such Depositary Shares for exchange on a pro rata basis, with adjustments to avoid distributions of fractional Preferred Securities. Such proration shall be based on the quotient of (i) the maximum number of such related Depositary Shares for such Offer divided by (ii) the total number of such related Depositary Shares validly tendered pursuant to such Offer and not withdrawn. All questions as to such proration will be determined in good faith by the applicable Trust, whose determination will be final and binding. Delivery of Preferred Securities in exchange for Depositary Shares validly tendered and accepted in an Offer will be made on a date determined by General Motors after the results of the final proration in respect of the Offer have been announced, in each case as promptly as practicable after the expiration of such Offer. If proration of tendered Depositary Shares is required in an Offer, because of the difficulty in determining the number of Depositary Shares validly tendered (including shares tendered by the guaranteed delivery procedures described below in "--Procedures for Tendering"), each Trust expects that it would not be able to announce the final proration factor to commence the exchange for any Depositary Shares of the applicable series until following a Proration Period of approximately five Business Days after the applicable Expiration Date. Preliminary results of the proration required in an Offer (if any) will be announced by press release as promptly as practicable after the applicable Expiration Date. Holders of Depositary Shares may also obtain such preliminary information from the Dealer Managers, the Information Agent or the Exchange Agent and may also be able to obtain such information from their brokers. If proration is required in an Offer, until the final proration factors regarding such Offer are known, the applicable Trust will not issue any Preferred Securities in exchange for Depositary Shares accepted for exchange in its Offer or return Depositary Shares delivered to the Exchange Agent but not tendered or return Depositary Shares tendered but not accepted for exchange because of proration. Such Trust will issue its Preferred Securities in exchange for Depositary Shares accepted for exchange in its Offer and return Depositary Shares delivered to the Exchange Agent but not tendered and return Depositary Shares tendered but not accepted for exchange because of proration as soon as practicable following the Proration Period. EACH OFFER IS INDEPENDENT FROM THE OTHER OFFER. FURTHERMORE, EACH OF THE OFFERS IS SUBJECT TO CERTAIN CONDITIONS, AS DESCRIBED HEREIN. In all cases, except to the extent waived by the applicable Trust, delivery of Preferred Securities issued with respect to the Depositary Shares accepted for exchange pursuant to the Offers will be made only after timely receipt by the Exchange Agent of such Depositary Shares (or confirmation of book-entry transfer thereof), a properly completed and duly executed Letter of Transmittal relating to such Depositary Shares and any other documents required thereby. As of the date of this Prospectus, there are outstanding Series D 7.92% Depositary Shares not owned by General Motors. As of the date of this Prospectus, there are outstanding Series G 9.12% Depositary Shares not owned by General Motors. 45 55 This Prospectus, together with the applicable Letter of Transmittal (or Letters of Transmittal), is being sent to all registered holders of Depositary Shares on or about the date of this Prospectus. A Trust shall be deemed to have accepted validly tendered Depositary Shares (or defectively tendered Depositary Shares with respect to which such Trust has waived such defect) when, as and if such Trust has given oral or written notice thereof to the Exchange Agent. The Exchange Agent will act as agent for the tendering holders for the purpose of receiving Depositary Shares from, and remitting Preferred Securities to, tendering holders who are participating in an Offer. Upon the terms and subject to the conditions of each Offer, delivery of the Preferred Securities to tendering holders in each Offer will be made as promptly as practicable following the applicable Expiration Date. If any tendered shares of Depositary Shares are not accepted for exchange because of an invalid tender with respect to an Offer, proration, the occurrence of certain other events set forth herein or otherwise, unless otherwise requested by the Holder thereof under "Special Delivery Instructions" in the applicable Letter of Transmittal, such Depositary Shares will be returned, without expense, to the tendering Holder thereof, as promptly as practicable after the applicable Expiration Date or the Proration Period (if applicable) or the withdrawal or termination of such Offer. Holders of Depositary Shares will not have any appraisal or dissenters' rights under the Delaware General Corporation Law in connection with either Offer. General Motors and each Trust intend to conduct each Offer in accordance with the applicable requirements of the Exchange Act and the rules and regulations of the Commission thereunder. Holders who tender Depositary Shares in an Offer will not be required to pay brokerage commissions or fees or, subject to the instructions in the applicable Letter of Transmittal, transfer taxes with respect to the exchange of Depositary Shares pursuant to such Offer. See "Fees and Expenses; Transfer Taxes." With respect to each Offer, holders tendering Depositary Shares held in global form shall receive Preferred Securities in global form and holders tendering Depositary Shares held directly in certificated form shall receive Preferred Securities in certificated form, in each case unless otherwise specified in the applicable Letter of Transmittal. CONDITIONS TO THE OFFERS Notwithstanding any other provisions of its Offer, or any extension of its Offer, a Trust will not be required to deliver its Preferred Securities in respect of any properly tendered Depositary Shares in its Offer and may terminate its Offer by oral or written notice to the Exchange Agent and the holders of the Depositary Shares tendered in its Offer, or, at its option, may modify or otherwise amend its Offer (other than with respect to the Minimum Distribution Condition) with respect to such Depositary Shares if the condition in clause (a) below is not satisfied at or prior to the applicable Expiration Date or if any of the events specified in clauses (b) through (d) occurs at or prior to the exchange date for such Depositary Shares: (a) tenders by a sufficient number of holders of Depositary Shares to satisfy the Minimum Distribution Condition for its Offer; (b) any action has been taken or threatened, or any statute, rule, regulation, judgment, order, stay, decree or injunction has been promulgated, enacted, entered, enforced or deemed applicable to its Offer, by or before any court or governmental regulatory or administrative agency or authority or tribunal, domestic or foreign, which (i) challenges the making of its Offer, or might directly or indirectly prohibit, prevent, restrict or delay consummation of such Offer, or otherwise and adversely affects in any material manner its Offer or (ii) could materially adversely affect the business, condition (financial or otherwise), income, operations, properties, assets, liabilities or prospects of General Motors and its subsidiaries, taken as a whole, or materially impair the contemplated benefits of its Offer to General Motors, including any such action, statute, rule, regulation, judgment, order, stay, decree or injunction which would constitute a Tax Event with respect to such Trust if it occurred after the applicable Expiration Date; (c) any event has occurred or is likely to occur affecting the business or financial affairs of General Motors that would or might prohibit, prevent, restrict or delay consummation of its Offer or that will, or is 46 56 reasonably likely to, materially impair the contemplated benefits of its Offer or might be material to holders of Depositary Shares in deciding whether to accept its Offer; and (d) any of the following events shall have occurred (i) any general suspension of or limitation on trading in securities on the NYSE or in the over-the-counter market (whether or not mandatory), (ii) any significant adverse change in the price of the Depositary Shares subject to such Offer or in the United States securities or financial markets, (iii) a material impairment in the trading market for debt or equity securities on the NYSE or in the over-the-counter market (whether or not mandatory), (iv) a declaration of a banking moratorium or any suspension of payments in respect of banks by federal or state authorities in the United States (whether or not mandatory), (v) a commencement of a war, armed hostilities or other national or international crisis directly or indirectly relating to the United States, (vi) any limitation (whether or not mandatory) by any governmental authority on, or other event having a reasonable likelihood of affecting, the extension of credit by banks or other lending institutions in the United States, or (vii) any significant adverse change in U.S. securities or financial markets generally or in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or worsening thereof. The foregoing conditions are for the sole benefit of the applicable Trust and General Motors in connection with the applicable Offer and, except for the Minimum Distribution Condition, may be waived by such Trust and General Motors, in whole or in part, in their sole discretion. Any determination made by General Motors or the applicable Trust concerning an event, development or circumstance described or referred to above will be final and binding on all parties with respect to its Offer. EXPIRATION DATES; EXTENSIONS; AMENDMENTS; TERMINATION Each Offer will expire on the applicable Expiration Date. Each Trust expressly reserves the right, as to its Offer, in its sole discretion, subject to applicable law, to (i) terminate its Offer, and not accept for exchange any Depositary Shares tendered in its Offer and promptly return such Depositary Shares upon the failure of any of the conditions specified above in "--Conditions to the Offers," (ii) waive any condition to its Offer (other than the Minimum Distribution Condition) and accept all Depositary Shares previously tendered pursuant to its Offer, (iii) extend the Expiration Date of its Offer and retain all Depositary Shares tendered pursuant to its Offer until the applicable Expiration Date, subject, however, to all withdrawal rights of holders, see "--Withdrawal of Tenders," (iv) amend the terms of its Offer, (v) modify the form of the consideration to be paid pursuant to its Offer, or (vi) not accept for exchange the Depositary Shares tendered pursuant to its Offer at any time on or prior to the Expiration Date for its Offer, for any reason. Any amendment applicable to an Offer will apply to all Depositary Shares tendered pursuant to such Offer. During any extension of an Offer, all Depositary Shares previously tendered pursuant to such Offer and not withdrawn will remain subject to such Offer. If a Trust makes a material change in the terms of its Offer, such Trust will extend its Offer. The minimum period for which a Offer must remain open following material changes in the terms of such Offer or the information concerning such Offer, other than a change in the amount of Depositary Shares sought for exchange in such Offer or an increase or decrease in the consideration offered to holders of Depositary Shares pursuant to such Offer, will depend upon the facts and circumstances, including the relative materiality of the change or information. With respect to a decrease in the number of Depositary Shares sought in an Offer or an increase or decrease in the consideration offered to holders of the Depositary Shares pursuant to such Offer, if required, such Offer will remain open for a minimum of ten (10) Business Days following public announcement of such change. In the case of any amendment, withdrawal or termination of an Offer, a public announcement will be issued no later than 9:00 a.m., Eastern time, on the next business day after the previously scheduled Expiration Date of such Offer. If any Trust withdraws or terminates its Offer, it will give immediate notice to the Exchange Agent, and the Depositary Shares theretofore tendered pursuant to its Offer will be returned promptly to the tendering holders thereof. See "--Withdrawal of Tenders." In order to satisfy the NYSE listing requirements, acceptance of Depositary Shares validly tendered in each Offer is subject to the Minimum Distribution Condition, which condition may not be waived. 47 57 PROCEDURES FOR TENDERING With respect to an Offer, the tender of Depositary Shares by a Holder thereof pursuant to one of the procedures set forth below will constitute an agreement between such Holder and the applicable Trust in accordance with the terms and subject to the conditions set forth herein and in the applicable Letter of Transmittal and such Trust's right to terminate or withdraw its Offer at any time for any reason. EACH HOLDER OF DEPOSITARY SHARES WISHING TO PARTICIPATE IN AN OFFER MUST (I) PROPERLY COMPLETE AND SIGN THE LETTER OF TRANSMITTAL RELATING TO THE SERIES OF DEPOSITARY SHARES SUBJECT TO SUCH OFFER IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED HEREIN AND IN SUCH LETTER OF TRANSMITTAL (EXCEPT WHEN AN AGENT'S MESSAGE IS APPROPRIATE AND UTILIZED), TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES, AND DELIVER THE SAME TO THE EXCHANGE AGENT AT ONE OF ITS ADDRESSES SET FORTH ON THE BACK COVER PAGE HEREOF PRIOR TO THE EXPIRATION DATE WITH RESPECT TO SUCH OFFER AND EITHER (A) CERTIFICATES FOR THE DEPOSITARY SHARES BEING TENDERED IN SUCH OFFER MUST BE RECEIVED BY THE EXCHANGE AGENT AT SUCH ADDRESS OR (B) SUCH DEPOSITARY SHARES MUST BE TRANSFERRED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER DESCRIBED BELOW AND A CONFIRMATION OF SUCH BOOK-ENTRY TRANSFER MUST BE RECEIVED BY THE EXCHANGE AGENT, IN EACH CASE PRIOR TO THE APPLICABLE EXPIRATION DATE, OR (II) COMPLY WITH THE GUARANTEED DELIVERY PROCEDURES DESCRIBED BELOW. LETTERS OF TRANSMITTAL, DEPOSITARY SHARES AND ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE AGENT, NOT TO ANY TRUST, GENERAL MOTORS, ANY DEALER MANAGER OR THE INFORMATION AGENT. Special Procedure for Beneficial Owners. Any beneficial owner whose shares of Depositary Shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender such Depositary Shares in an Offer should contact such registered Holder promptly and instruct such registered Holder to tender on such beneficial owner's behalf. If such beneficial owner wishes to tender on its own behalf, such owner must, prior to completing and executing the Letter of Transmittal relating to the series of Depositary Shares subject to such Offer and delivering its Depositary Shares, either make appropriate arrangements to register ownership of such Depositary Shares in such owner's name or obtain a properly completed stock power from the registered Holder. The transfer of registered ownership may take considerable time and may not be able to be completed prior to the applicable Expiration Date. THE METHOD OF DELIVERY OF DEPOSITARY SHARES AND ALL OTHER DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDER. IF SENT BY MAIL, IT IS RECOMMENDED THAT (1) REGISTERED MAIL, RETURN RECEIPT REQUEST, BE USED, (2) INSURANCE BE OBTAINED, AND (3) THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE APPLICABLE EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE SUCH EXPIRATION DATE. Signature Guarantees. If Depositary Shares tendered in an Offer are registered in the name of the signer of the accompanying Letter of Transmittal and the Preferred Securities to be issued in exchange therefor are to be issued (and any untendered Depositary Shares are to be reissued) in the name of the registered Holder, the signature of such signer need not be guaranteed. If the Depositary Shares tendered in an Offer are registered in the name of someone other than the signer of the accompanying Letter of Transmittal, or if Preferred Securities issued in exchange therefor are to be issued in the name of any person other than the signer of the accompanying Letter of Transmittal, such tendered Depositary Shares must be endorsed or accompanied by written instructions of transfer in form satisfactory to the applicable Trust and duly executed by the registered Holder, and the signature on the endorsement or instrument of transfer must be guaranteed by a financial institution (including most banks, savings and loans associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion Program or the Stock Exchange Medallion Program (any of the foregoing hereinafter referred to as an "Eligible Institution"). If the Preferred Securities and/or 48 58 the shares of Depositary Shares are not exchanged pursuant to an Offer or are to be delivered to an address other than that of the registered Holder appearing on the register for such Depositary Shares, the signature in the accompanying Letter of Transmittal must be guaranteed by an Eligible Institution. Book-Entry Transfer. Each Trust understands that the Exchange Agent will make a request promptly after the date of this Prospectus to establish accounts with respect to the Depositary Shares tendered in its Offer at a Depository Institution for the purpose of facilitating such Offer, and subject to the establishment thereof, any financial institution that is a participant in a Depository Institution's system may make book-entry delivery of Depositary Shares in such Offer by causing the Depository Institution to transfer such Depositary Shares into the Exchange Agent's account with respect to such Depositary Shares in accordance with such Depository Institution's Automated Tender Offer Program ("ATOP") procedures for such book-entry transfers. However, the exchange for the Depositary Shares so tendered in an Offer will only be made after timely confirmation (a "Book-Entry Confirmation") of such Book-Entry Transfer of Depositary Shares into the Exchange Agent's account with respect to such Offer, and timely receipt by the Exchange Agent of an Agent's Message (as such term is defined in the next paragraph) and any other documents required by the applicable Letter of Transmittal. The term "Agent's Message" means a message, transmitted by a Depository Institution and received by the Exchange Agent and forming a part of a Book-Entry Confirmation, which states that such Depository Institution has received an express acknowledgment from such participant tendering Depositary Shares that is the subject to such Book-Entry Confirmation, that such participant has received and agrees to be bound by the terms of the applicable Letter of Transmittal, and that the applicable Trust may enforce such agreement against such participant. Guaranteed Delivery. If a Holder desires to participate in an Offer and time will not permit the applicable Letter of Transmittal or Depositary Shares to reach the Exchange Agent before the applicable Expiration Date or the procedure for book-entry transfer cannot be completed on a timely basis, a tender may be effected if the Exchange Agent has received at one of its addresses on the back cover page hereof prior to the applicable Expiration Date, a letter, telegram or facsimile transmission from an Eligible Institution setting forth the name and address of the tendering Holder, the name(s) in which the shares of Depositary Shares are registered and, if the shares of Depositary Shares are held in certificated form, the certificate numbers of the Depositary Shares to be tendered in such Offer, and stating that the tender is being made thereby and guaranteeing that within three NYSE trading days after the date of execution of such letter, telegram or facsimile transmission by the Eligible Institution, such Depositary Shares in proper form for transfer, together with a properly completed and duly executed Letter of Transmittal relating to the series of Depositary Shares subject to such Offer (and any other required documents), or, in the case of a Depository Institution, an Agent's Message, will be delivered by such Eligible Institution. Unless the Depositary Shares being tendered by the above-described method are deposited with the Exchange Agent within the time period set forth above (accompanied or preceded by a properly completed Letter of Transmittal relating to the series of Depositary Shares subject to such Offer and any other required documents) or, in the case of a Depository Institution, in accordance with such Depository Institution's ATOP procedures (along with an applicable Letter of Transmittal or an Agent's Message) is received, the offering Trust may, at its option, reject the tender. In addition to the copy being transmitted herewith, copies of the applicable Notice of Guaranteed Delivery which may be used by Eligible Institutions for the purposes described in this paragraph are available from the Exchange Agent and the Information Agent. Miscellaneous. All questions as to the validity, form, eligibility (including time of receipt) and acceptance for exchange of any tender of Depositary Shares in connection with an Offer will be determined by the applicable Trust, whose determination will be final and binding. Each Trust reserves the absolute right to reject any or all tenders not in proper form or the acceptance for exchange of which may, in the opinion of such Trust's counsel, be unlawful. Each Trust also reserves the absolute right to waive any defect or irregularity in the tender of any Depositary Shares in its Offer, and each Trust's interpretation of the terms and conditions of its Offer (including the instructions in the applicable Letter of Transmittal) will be final and binding. None of the Series D Trust, the Series G Trust, General Motors, the Exchange Agent, the Dealer 49 59 Managers, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Tenders of Depositary Shares involving any irregularities will not be deemed to have been made until such irregularities have been cured or waived. Depositary Shares received by the Exchange Agent in connection with an Offer that are not validly tendered and as to which the irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering Holder (or in the case of Depositary Shares tendered by book-entry transfer into the Exchange Agent's account at a Depository Institution, such Depositary Shares will be credited to an account maintained at the Depository Institution designated by the participant therein who so delivered such Depositary Shares), unless otherwise requested by the Holder in the accompanying Letter of Transmittal, as promptly as practicable after the applicable Expiration Date or the withdrawal or termination of the applicable Offer. LETTERS OF TRANSMITTAL The Letter of Transmittal relating to each series of Depositary Shares contains, among other things, the following terms and conditions, which are part of the applicable Offer. The party tendering the Depositary Shares for exchange pursuant to an Offer (the "Transferor") exchanges, assigns and transfers the Depositary Shares to the applicable Trust, and irrevocably constitutes and appoints the Exchange Agent as the Transferor's agent and attorney-in-fact to cause such Depositary Shares to be assigned, transferred and exchanged in such Offer. The Transferor represents and warrants that it has full power and authority to tender, exchange, assign and transfer such Depositary Shares and to acquire the Preferred Securities issuable upon the exchange of such tendered Depositary Shares and that, when such Transferor's shares of Depositary Shares are accepted for exchange, the applicable Trust will acquire good and unencumbered title to such tendered Depositary Shares, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The Transferor also warrants that it will, upon request, execute and deliver any additional documents deemed by such Trust to be necessary or desirable to complete the exchange, assignment and transfer of tendered Depositary Shares or transfer ownership of such Depositary Shares on the account books maintained by the Depository Institution. All authority conferred by the Transferor will survive the death, bankruptcy or incapacity of the Transferor and every obligation of the Transferor shall be binding upon the heirs, legal representatives, successors, assigns, executors and administrators of such Transferor. THERE IS A SEPARATE LETTER OF TRANSMITTAL FOR EACH OFFER. WITHDRAWAL OF TENDERS Tenders of Depositary Shares pursuant to an Offer may be withdrawn at any time prior to the applicable Expiration Date and, unless accepted for exchange by the offering Trust, may be withdrawn at any time after 40 Business Days after the date of this Prospectus. To be effective, a written notice of withdrawal with respect to an Offer delivered by mail, hand delivery or facsimile transmission must be timely received by the Exchange Agent at one of its addresses set forth on the back cover page hereof. The method of notification is at the risk and election of the Holder. Any such notice of withdrawal must specify (i) the Holder named in the applicable Letter of Transmittal as having tendered Depositary Shares to be withdrawn in such Offer, (ii) if the shares of Depositary Shares are held in certificated form, the certificate numbers of the Depositary Shares to be withdrawn, (iii) that such Holder is withdrawing his election to have such Depositary Shares exchanged, (iv) the name of the registered Holder of such Depositary Shares and (v) the series of Depositary Shares tendered. In addition, the notice of withdrawal must be signed by the Holder in the same manner as the original signature on the accompanying Letter of Transmittal (including any required signature guarantees) or be accompanied by evidence satisfactory to the applicable Trust that the person withdrawing the tender has succeeded to the beneficial ownership of the Depositary Shares being withdrawn. The Exchange Agent will return the properly withdrawn Depositary Shares promptly following receipt of notice of withdrawal. If shares of Depositary Shares have been tendered pursuant to the procedure for book-entry transfer, any notice of withdrawal must specify the name and number of the account at a Depository Institution to be credited with the withdrawn Depositary 50 60 Shares and otherwise comply with such Depository Institution procedures. All questions as to the validity of notice of withdrawal, including time of receipt, will be determined by the applicable Trust, and such determination will be final and binding on all parties. Withdrawals of tenders of Depositary Shares may not be rescinded and any Depositary Shares withdrawn will thereafter be deemed not validly tendered for purposes of any Offer. Properly withdrawn Depositary Shares, however, may be retendered by following the procedures therefor described elsewhere herein at any time prior to the applicable Expiration Date. See "--Procedures for Tendering." Upon the terms and subject to the conditions of its Offer, including the Minimum Distribution Condition, each Trust will accept for exchange any and all Depositary Shares that have been validly tendered in its Offer, and not withdrawn prior to the Expiration Date for its Offer. Each Trust expressly reserves the right, in its sole discretion, to delay acceptance for exchange of Depositary Shares tendered under its Offer and the delivery of its Preferred Securities with respect to the Depositary Shares accepted for exchange in its Offer (subject to Rules 13e-4 and 14e-1 under the Exchange Act, which require that General Motors and the applicable Trust consummate such Offer or return the Depositary Shares deposited by or on behalf of the holders thereof promptly after the termination or withdrawal of such Offer), or to amend, withdraw or terminate its Offer, at any time prior to the applicable Expiration Date for any of the reasons set forth in "--Conditions to the Offers" and "--Expiration Dates; Extensions; Amendments; Termination." If a Trust decides, in its sole discretion, to decrease the number of shares of Depositary Shares sought in its Offer or to increase or decrease the consideration offered to holders of Depositary Shares in its Offer, and if such Offer is scheduled to expire less than ten (10) Business Days from and including the date that notice of such increase or decrease is first published, sent or given in the manner specified in "--Expiration Dates; Extensions; Amendments; Termination," then such Offer will be extended for a minimum of ten (10) Business Days from and including the date of such notice. All Depositary Shares not accepted pursuant to an Offer will be returned to the tendering holders at the offering Trust's expense as promptly as practicable following the applicable Expiration Date. EXCHANGE AGENT AND INFORMATION AGENT The First National Bank of Boston has been appointed as Exchange Agent for each of the Offers. The Exchange Agent is: THE FIRST NATIONAL BANK OF BOSTON If delivered by Facsimile, to: If delivered by Hand, to: (For Eligible Institutions Only) Securities Transfer The First National Bank of Boston & Reporting Services (617) 575-2233 55 Broadway, Third Floor (Confirm Receipt by Telephone: (800) 331-9922) New York, New York 10006 If delivered by Mail, to: If delivered by Overnight Courier, to: The First National Bank of Boston The First National Bank of Boston Shareholder Services Division Shareholder Services Division P.O. Box 9360 Mail Stop 45-02-53 Mail Stop 45-02-53 150 Royall Street Boston, Massachusetts 02205-9360 Canton, Massachusetts 02021
51 61 Georgeson & Company Inc. has been retained as the Information Agent to assist in connection with each of the Offers. Questions and requests for assistance regarding the Offers, requests for additional copies of this Prospectus, the Letters of Transmittal and requests for Notices of Guaranteed Delivery may be directed to the Information Agent. The Information Agent is: (GEORGESON & COMPANY INC. LOGO) Wall Street Plaza New York, New York 10005 Banks and Brokers Call Collect: (212) 440-9800 All Others Call Toll-Free: (800) 223-2064 In connection with each Offer, General Motors will pay the Exchange Agent and Information Agent reasonable and customary fees for their services and will reimburse them for all their reasonable out-of-pocket expenses in connection therewith. DEALER MANAGERS; SOLICITING DEALERS Merrill Lynch, Pierce, Fenner & Smith Incorporated and Smith Barney, Inc., as lead Dealer Managers for the Offers, have agreed to solicit exchanges of Depositary Shares for Preferred Securities. The fee payable by General Motors to the Dealer Managers is, in the aggregate, $0.125 per Depositary Share validly tendered and accepted for exchange pursuant to the Offers plus any amount that the Dealer Managers may be entitled to pursuant to the next paragraph. General Motors will also reimburse the Dealer Managers for certain reasonable out-of-pocket expenses in connection with the Offers and General Motors and the Trusts will indemnify the Dealer Managers against certain liabilities, including liabilities under the Securities Act. The Dealer Managers engage in transactions with, and from time to time have performed services for, General Motors. In addition, Merrill Lynch, Pierce, Fenner & Smith Incorporated acted as underwriter for the issuance of each series of the Depositary Shares. General Motors will pay to a Soliciting Dealer a solicitation fee for all Depositary Shares validly tendered and accepted pursuant to the Offers of $0.50 per Depositary Share (except that in the case of transactions equal to or exceeding 10,000 Depositary Shares of any given series, General Motors will pay a solicitation fee of $0.25 per Depositary Share), in each case subject to certain conditions. As used in this Prospectus, "Soliciting Dealer" includes (i) any broker or dealer in securities, including each Dealer Manager in its capacity as a broker or dealer, who is a member of any national securities exchange or of the National Association of Securities Dealers, Inc. (the "NASD"), (ii) any foreign broker or dealer not eligible for membership in the NASD who agrees to conform to the NASD's Rules of Fair Practice in soliciting tenders outside the United States to the same extent as though it were an NASD member, or (iii) any bank or trust company, any one of whom has solicited and obtained a tender pursuant to the Offers. No solicitation fee shall be payable to a Soliciting Dealer with respect to the tender of shares of Depositary Shares by the Holder unless the Letter of Transmittal accompanying such tender designates such Soliciting Dealer as such in the box captioned "Solicited Tenders." Soliciting Dealers will include any of the organizations described in clauses (i), (ii) and (iii) above even when the activities of such organizations in connection with an Offer consist solely of forwarding to clients materials relating to such Offer, including this Prospectus and the applicable Letter of Transmittal, and tendering Depositary Shares as directed by beneficial owners thereof; provided that under no circumstances shall any fee be paid to Soliciting Dealers more than once with respect to any Depositary Share. No Soliciting Dealer is required to make any recommendation to holders of Depositary Shares as to whether to tender or refrain from tendering in an Offer. No assumption is made, in making payment to any Soliciting Dealer, that its activities in connection with an Offer included any activities other than those described above, and for all purposes noted in all materials relating to an Offer, the term "solicit" shall be deemed to mean no more than "processing Depositary Receipts for Depositary Shares tendered" or "forwarding to customers materials regarding an Offer." 52 62 If tendered shares of Depositary Shares are being delivered by book-entry transfer made to an account maintained by the Exchange Agent with Depository Institutions, the Soliciting Dealer must return a Notice of Solicited Tenders (included in the materials provided to brokers and dealers) to the Exchange Agent within three trading days after the applicable Expiration Date in order to receive a solicitation fee. No solicitation fee shall be payable to a Soliciting Dealer in respect of shares of Depositary Shares (i) beneficially owned by such Soliciting Dealer or (ii) registered in the name of such Soliciting Dealer unless such shares of Depositary Shares are being held by such Soliciting Dealer as nominee and such shares of Depositary Shares are being tendered for the benefit of one or more beneficial owners identified on the accompanying Letter of Transmittal or the Notice of Solicited Tenders. No solicitation fee shall be payable to the Soliciting Dealer with respect to the tender of Depositary Shares by the Holder of record, for the benefit of the beneficial owner, unless the beneficial owner has designated such Soliciting Dealer. No solicitation fee shall be payable to a Soliciting Dealer if such Soliciting Dealer is required for any reason to transfer any portion of such fee to a tendering Holder (other than itself). No broker, dealer, bank, trust company or fiduciary shall be deemed to be the agent of General Motors, the Series D Trust, the Series G Trust, the Trustees, the Exchange Agent, the Information Agent or the Dealer Managers for purposes of the Offers. Other than as described above, General Motors will not pay any solicitation fees to any broker, dealer, bank, trust company or other person for any Depositary Shares exchanged in connection with the Offers. General Motors will reimburse such persons for customary handling and mailing expenses incurred in connection with the Offers. Additional solicitations may be made by telephone, in person or otherwise by officers and regular employees of General Motors and its affiliates. No additional compensation will be paid to any such officers and employees who engage in soliciting tenders. LISTING AND TRADING OF PREFERRED SECURITIES AND DEPOSITARY SHARES Each of the Series D Preferred Securities and the Series G Preferred Securities constitutes a new issue of securities of the applicable Trust with no established trading market. While application will be made to list each series of the Preferred Securities on the NYSE, there can be no assurance that an active market for either series of the Preferred Securities will develop or be sustained in the future on such exchange. Although the Dealer Managers have indicated to each Trust that they intend to make a market in its Preferred Securities following the applicable Expiration Date as permitted by applicable laws and regulations prior to the commencement of trading on the NYSE, they are not obligated to do so and may discontinue any such market-making at any time without notice. Accordingly, no assurance can be given as to the liquidity of, or trading markets for, either series of the Preferred Securities. In order to satisfy the NYSE listing requirements, acceptance of Depositary Shares validly tendered in each Offer is subject to the Minimum Distribution Condition, which condition may not be waived. Following each applicable Expiration Date, and in accordance with and subject to applicable law, General Motors may from time to time acquire Depositary Shares of the series tendered in the applicable Offer in the open market, by tender offer, subsequent exchange offer or otherwise. To the extent that any such acquisition of Depositary Shares causes the number of outstanding Depositary Shares for any series of Preference Stock to be less than 100,000, the NYSE may delist such Depositary Shares from the NYSE and the trading market for such outstanding Depositary Shares could be adversely affected. General Motors' decision to make such acquisitions is dependent on many factors, including market conditions in effect at the time of any contemplated acquisition. Accordingly, General Motors cannot predict whether and to what extent it may acquire any additional Depositary Shares and the consideration to be paid therefor. In addition, if an Offer is substantially subscribed, there would be a significant risk that round lot holdings of Depositary Shares outstanding following such Offer would be limited. See "Risk Factors and Special Considerations Relating to 53 63 the Offers--Lack of Established Trading Market for Preferred Securities" and "--Reduced Trading Market for Depositary Shares." TRANSACTIONS AND ARRANGEMENTS CONCERNING THE OFFERS Except as described herein, there are no contracts, arrangements, understandings or relationships in connection with either Offer between General Motors or any of its directors or executive officers, the offering Trust or its Trustees and any person with respect to any securities of General Motors or such Trust, including the Junior Subordinated Debentures to be purchased by such Trust, the Depositary Shares subject to such Offer and the Preferred Securities to be issued by such Trust. FEES AND EXPENSES; TRANSFER TAXES The expenses of soliciting tenders of the Depositary Shares in each Offer will be borne by General Motors. For information regarding compensation to be paid to the Dealer Managers and Soliciting Dealers, see "The Offer--Dealer Managers; Soliciting Dealers." The total cash expenditures to be incurred in connection with the Series D Offer, other than fees payable to the Dealer Managers and Soliciting Dealers, but including the expenses of the Dealer Managers, printing, accounting and legal fees, and the fees and expenses of the Exchange Agent, the Information Agent, the Institutional Trustee, the Guarantee Trustee and the Delaware Trustee, in each case with respect to the Series D Offer, are estimated to be approximately $350,000. The total cash expenditures to be incurred in connection with the Series G Offer, other than fees payable to the Dealer Managers and Soliciting Dealers, but including the expenses of the Dealer Managers, printing, accounting and legal fees, and the fees and expenses of the Exchange Agent, the Information Agent, the Institutional Trustee, the Guarantee Trustee and the Delaware Trustee, in each case with respect to the Series G Offer, are estimated to be approximately $585,000. General Motors will pay all transfer taxes, if any, applicable to the exchange of Depositary Shares pursuant to each Offer. If, however, certificates representing Preferred Securities or Depositary Shares not tendered or accepted for exchange in an Offer are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the Depositary Shares tendered or if a transfer tax is imposed for any reason other than the exchange of Depositary Shares pursuant to such Offer, then the amount of any such transfer taxes (whether imposed on the registered Holder or any other persons) will be payable by the tendering Holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with the applicable Letter of Transmittal, the amount of such transfer taxes will be billed directly to such tendering Holder. 54 64 PRICE RANGES OF DEPOSITARY SHARES The Depositary Shares are listed and principally traded on the NYSE. The following tables set forth, for each period shown, the high and low sales prices of the Depositary Shares as reported on the NYSE Composite Tape. The Series D 7.92% Preference Stock underlying the Series D 7.92% Depositary Shares was issued on July 15, 1992, and the Series G 9.12% Preference Stock underlying the Series G 9.12% Depositary Shares was issued on December 9, 1991. For recent closing prices of the Depositary Shares, see the cover page of this Prospectus.
SERIES D 7.92% DEPOSITARY SHARES -------------------------------------- DIVIDENDS DECLARED PER HIGH LOW DEPOSITARY SHARE ---- --- ---------------- 1996 1st Quarter............................................... 27.000 26.000 $0.495 2nd Quarter............................................... 26.250 25.375 0.495 3rd Quarter............................................... 26.500 25.375 0.495 4th Quarter............................................... 26.625 25.750 0.495 1997 1st Quarter............................................... 27.000 25.875 0.495 2nd Quarter (through April 22, 1997)...................... 26.375 25.750 -- SERIES G 9.12% DEPOSITARY SHARES -------------------------------------- DIVIDENDS DECLARED PER HIGH LOW DEPOSITARY SHARE ------ ------ ---------------- 1996 1st Quarter............................................... 28.875 27.875 $ 0.57 2nd Quarter............................................... 28.750 27.250 0.57 3rd Quarter............................................... 28.250 27.375 0.57 4th Quarter............................................... 28.875 27.375 0.57 1997 1st Quarter............................................... 28.875 27.750 0.57 2nd Quarter (through April 22, 1997)...................... 28.500 27.625 --
55 65 DESCRIPTION OF THE PREFERRED SECURITIES The Preferred Securities of a Trust will be issued pursuant to the terms of the Declaration relating to such Trust. Each Declaration will be qualified as an indenture under the Trust Indenture Act. The Institutional Trustee of both Trusts, Wilmington Trust Company will act as indenture trustee for the Preferred Securities of each Trust under the applicable Declaration for purposes of compliance with the provisions of the Trust Indenture Act. The terms of each series of the Preferred Securities will include those stated in the applicable Declaration and those made part of such Declaration by the Trust Indenture Act. The following summary of the material terms and provisions of each series of the Preferred Securities does not purport to be complete and is subject to, and qualified in its entirety by reference to, the applicable Declaration, a copy of which is filed as an exhibit to the Registration Statement of which this Prospectus is a part, the Business Trust Act and the Trust Indenture Act. GENERAL The Declaration relating to a Trust authorizes the Regular Trustees of such Trust to issue on behalf of such Trust its Trust Securities, which represent undivided beneficial interests in the assets of such Trust. All of the Common Securities of each Trust will be owned, directly or indirectly, by General Motors. The Common Securities of a Trust rank pari passu, and payments will be made thereon on a pro rata basis, with the Preferred Securities of such Trust, except that upon the occurrence and during the continuance of a Declaration Event of Default in respect of such Trust, the rights of the holders of such 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 such Preferred Securities. The Declaration relating to each Trust does not permit the issuance by such Trust of any securities other than its Trust Securities or the incurrence of any indebtedness by such Trust. Pursuant to each Declaration, the Institutional Trustee of each Trust will own the Junior Subordinated Debentures purchased by such Trust for the benefit of the holders of the Trust Securities of such Trust. The payment of distributions out of money held by each Trust, and payments upon redemption of its Preferred Securities or liquidation of such Trust, are guaranteed by General Motors to the extent described under "Description of the Preferred Securities Guarantees". The Preferred Securities Guarantees relating to both Trusts will be held by Wilmington Trust Company, the Guarantee Trustee for each Trust, in each case for the benefit of the holders of the Preferred Securities of the applicable Trust. The Preferred Securities Guarantees do not cover payment of distributions when a Trust does not have sufficient available funds to pay such distributions. In such event, the remedy of a holder of a Trust's Preferred Securities is to vote to direct the applicable Institutional Trustee to enforce such Institutional Trustee's rights under the Junior Subordinated Debentures held by such Trust except in the circumstances in which there is a default in the payment of distributions, including when such Trust does not have sufficient available funds to pay such distribution, in which case the holder may take Direct Action. See "--Voting Rights" and "--Declaration Events of Default." DISTRIBUTIONS Series D Preferred Securities. Distributions on the Series D Preferred Securities will be fixed at a rate per annum of % of the stated liquidation amount of $25 per Series D Preferred Security. Distributions in arrears for more than one quarter will bear interest thereon at the rate per annum of %, compounded quarterly. The term "distribution" as used herein includes any such interest payable unless otherwise stated. The amount of distributions payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. 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 and including the Series D Expiration Date in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series D 7.92% Depositary Shares accepted for exchange in the Series D Offer, such additional distribution to be made on August 1, 1997 to holders of the Series D Preferred Securities on the record date for such distribution. 56 66 Distributions on the Series D Preferred Securities will be cumulative, will accrue from and including 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 August 1, 1997, when, as and if available for payment. Series G Preferred Securities. Distributions on the Series G Preferred Securities will be fixed at a rate per annum of % of the stated liquidation amount of $25 per Series G Preferred Security. Distributions in arrears for more than one quarter will bear interest thereon at the rate per annum of %, compounded quarterly. The term "distribution" as used herein includes any such interest payable unless otherwise stated. The amount of distributions payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. 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 and including the Series G Expiration Date in lieu of dividends accumulating and unpaid from April 1, 1997 on their Series G 9.12% Depositary Shares accepted for exchange in the Series G Offer, such additional distribution to be made on August 1, 1997 to holders of the Series G Preferred Securities on the record date for such distribution. Distributions on the Series G Preferred Securities will be cumulative, will accrue from and including 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 August 1, 1997, when, as and if available for payment. General Motors has the right under the Indenture as it relates to a Trust to defer payments of interest on the Junior Subordinated Debentures held by such Trust by extending the interest payment period from time to time on such Junior Subordinated Debentures, which, if exercised, would defer quarterly distributions on the related Preferred Securities (though such distributions would continue to accrue with interest since interest would continue to accrue on such Junior Subordinated Debentures) during any such Extension Period. Such right to extend the interest payment period for such Junior Subordinated Debentures is limited to a period not exceeding 20 consecutive quarters and such period may not extend beyond the Stated Maturity of such Junior Subordinated Debentures. In the event that General Motors exercises this right, then (i) General Motors shall not 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 General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors' capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors' capital stock pursuant to the conversion or exchange provisions of such General Motors capital stock or the security being converted or exchanged), (ii) General Motors shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) General Motors shall not make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Prior to the termination of any such Extension Period, General Motors may further extend the interest payment period; provided, that such Extension Period, together with all such previous and further extensions thereof, may not exceed 20 consecutive quarters or extend beyond the Stated Maturity of such series of Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, General Motors may select a new Extension Period, subject to the above requirements. See "Description of the Junior Subordinated Debentures--Interest" and "--Options to Extend Interest Payment Periods." If distributions are deferred with respect to any series of Preferred Securities, the 57 67 deferred distributions and accrued interest thereon shall be paid to holders of record of such Preferred Securities as they appear on the books and records of the applicable Trust on the record date next following the termination of such Extension Period. Distributions on the Preferred Securities of a Trust must be paid on the dates payable to the extent that such Trust has funds available for the payment of such distributions in its Property Account. Each Trust's funds available for distribution to the holders of its Preferred Securities will be limited to payments received from General Motors on the underlying Junior Subordinated Debentures held by such Trust. See "Description of the Junior Subordinated Debentures." The payment of distributions out of moneys held by each Trust is guaranteed by General Motors to the extent set forth under "Description of the Preferred Securities Guarantees." Distributions on the Preferred Securities of a Trust will be made to the holders thereof as they appear on the books and records of such Trust 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 Declaration relating to each Trust provides that the payment dates or record dates for the Preferred Securities of a Trust shall be the same as the payment dates and record dates for the Junior Subordinated Debentures held by such Trust. Distributions payable on any Preferred Securities that are not punctually paid on any distribution date as a result of General Motors having failed to make the corresponding interest payment on the applicable series of Junior Subordinated Debentures will forthwith cease to be payable to the person in whose name such Preferred Security is registered on the relevant record date, and such defaulted distribution will instead be payable to the person in whose name such Preferred Security is registered on the special record date established by the Regular Trustees of such Trust, 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 an Extension Period unless General Motors has elected to make a full or partial payment of interest accrued on such Junior Subordinated Debentures on such distribution payment date. Distributions on the Preferred Securities of each Trust will be paid by such Trust. All distributions paid with respect to the Trust Securities of each Trust shall be paid on a pro rata basis to the holders thereof entitled thereto. If any date on which distributions are to be made on the Preferred Securities is not a Business Day, then payment of the distribution to be made 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. A "Business Day" shall mean any day other than Saturday, Sunday or any other day on which banking institutions in New York, New York or Wilmington, Delaware are permitted or required by any applicable law to close. MANDATORY REDEMPTION Series D Junior Subordinated Debentures. The Series D Junior Subordinated Debentures will mature on , 2012, which date may be shortened as provided herein. Upon the repayment of the Series D Junior Subordinated Debentures at maturity, the proceeds from such repayment shall simultaneously be applied to redeem Series D Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Junior Subordinated Debentures so repaid at a redemption price of $25 per Series D Trust Security, plus accrued and unpaid distributions thereon. Moreover, the Series D Junior Subordinated Debentures are redeemable, in whole or in part, at any time on or after August 1, 1999, at the Series D Optional Prepayment Price or in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event, at the Series D Tax Event Prepayment Price. See "Description of the Junior Subordinated Debentures." Upon the repayment of the Series D Junior Subordinated Debentures prior to the Series D Stated Maturity, the proceeds from such repayment or payment shall simultaneously be applied to redeem Series D Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series D Junior Subordinated Debentures so redeemed at the applicable Redemption Price; provided, that holders of Series D Trust Securities shall 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 Junior Subordinated 58 68 Debentures. See "Description of the Junior Subordinated Debentures--Optional Redemptions." In the event that fewer than all of the outstanding Series D Preferred Securities are to be redeemed, the Series D Preferred Securities will be redeemed pro rata. Series G Junior Subordinated Debentures. The Series G Junior Subordinated Debentures will mature on , 2012, which date may be shortened as provided herein. Upon the repayment of the Series G Junior Subordinated Debentures at maturity, the proceeds from such repayment shall simultaneously be applied to redeem Series G Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Junior Subordinated Debentures so repaid at a redemption price of $25 per Series G Trust Security, plus accrued and unpaid distributions thereon. Moreover, the Series G Junior Subordinated Debentures are redeemable, in whole or in part, at any time on or after January 1, 2001, at the Series G Optional Prepayment Price or in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event, at the Series G Tax Event Prepayment Price. See "Description of the Junior Subordinated Debentures." Upon the repayment of the Series G Junior Subordinated Debentures prior to the Series G Stated Maturity, the proceeds from such repayment or payment shall simultaneously be applied to redeem Series G Trust Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series G Junior Subordinated Debentures so redeemed at the applicable Redemption Price; provided, that holders of Series G Trust Securities shall 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 Junior Subordinated Debentures. See "Description of the Junior Subordinated Debentures--Optional Redemptions." In the event that fewer than all of the outstanding Series G Preferred Securities are to be redeemed, the Series G Preferred Securities will be redeemed pro rata. TAX EVENT REDEMPTIONS Series D Tax Event. If, prior to August 1, 1999, a Tax Event in respect of the Series D Trust shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series D Junior Subordinated Debentures, at its option, to redeem the Series D Junior Subordinated 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) % of the principal amount of the Series D Junior Subordinated Debentures if such Series D Junior Subordinated 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 Junior Subordinated Debentures specified below, if such Series D Junior Subordinated Debentures are prepaid during the 12-month period beginning August 1 of the years indicated below plus, in each case, accrued and unpaid interest thereon to the date of prepayment:
YEAR PERCENTAGE - ---- ---------- 1997........................................................ % 1998........................................................ 1999 and thereafter......................................... 100
Following such redemption, all Series D Trust 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"). Series G Tax Event. If, prior to January 1, 2001, a Tax Event in respect of the Series G Trust shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series G Junior Subordinated Debentures, at its option, to redeem the Series G Junior Subordinated 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) % of the principal amount of the Series G Junior Subordinated Debentures if such Series G Junior Subordinated 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 Junior Subordinated Debentures specified below, if such Series G Junior Subordinated Debentures are prepaid during the 12-month period 59 69 beginning January 1 of the years indicated below plus, in each case, accrued and unpaid interest thereon to the date of prepayment:
YEAR PERCENTAGE - ---- ---------- 1998........................................................ % 1999........................................................ 2000........................................................ 2001 and thereafter......................................... 100
Following such redemption, all Series G Trust 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"). A "Tax Event" means, with respect to a Trust, that the Regular Trustees of such Trust shall have received an opinion of 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 original issuance of the Junior Subordinated Debentures held by such Trust, there is more than an insubstantial risk that (i) such 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 such Junior Subordinated Debentures, (ii) interest payable by General Motors on such Junior Subordinated Debentures is not, or within 90 days of the date of such opinion will not be, deductible by General Motors, in whole or in part, for United States federal income tax purposes, or (iii) such 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. DISTRIBUTIONS OF THE JUNIOR SUBORDINATED DEBENTURES General Motors will have the right at any time to dissolve and liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of the Trust Securities of such Trust. If such Junior Subordinated Debentures are distributed to the holders of such Preferred Securities, General Motors will use its best efforts to cause such Junior Subordinated Debentures to be listed on the NYSE or on such other exchange as the related Preferred Securities are then listed. On the date for any distribution of Junior Subordinated Debentures held by a Trust upon dissolution of such Trust, (i) its Preferred Securities will no longer be deemed to be outstanding, (ii) the Depository Institution (as defined herein) for such Trust or its nominee, as the record holder of its Trust Securities, will receive a registered global certificate or certificates representing the Junior Subordinated Debentures to be delivered upon such distribution, and (iii) any certificates representing its Trust Securities not held by such Depository Institution or its nominee will be deemed to represent Junior Subordinated 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 Preferred Securities until such certificates are presented to General Motors or its agent for transfer or reissuance. There can be no assurance as to the market prices for either the Preferred Securities or the Junior Subordinated Debentures that may be distributed in exchange for the Preferred Securities if a dissolution and liquidation of a Trust were to occur. Accordingly, the Preferred Securities or the Junior Subordinated Debentures may trade at a discount to the price that the investor paid to purchase the Preferred Securities offered hereby. 60 70 REDEMPTION PROCEDURES A Trust may not redeem fewer than all of its outstanding Preferred Securities unless all accrued and unpaid distributions have been paid on all of its Preferred Securities for all quarterly distribution periods terminating on or prior to the date of redemption. If a Trust gives a notice of redemption in respect of its Preferred Securities (which notice will be irrevocable), then immediately prior to the close of business on the redemption date, provided that General Motors has paid to such Trust a sufficient amount of cash in connection with the related redemption or maturity of the underlying Junior Subordinated Debentures held by such Trust, distributions will cease to accrue on its Preferred Securities called for redemption, such Preferred Securities shall no longer be deemed to be outstanding and all rights of holders of such Preferred Securities so called for redemption will cease, except the right of the holders of such Preferred Securities to receive the applicable Redemption Price, but without interest on such Redemption Price. Neither such Trust nor its Trustees shall be required to register or cause to be registered the transfer of any Preferred Securities which have been so called for redemption. If any date fixed for redemption of Preferred Securities is not a Business Day, then payment of the 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 General Motors fails to repay Junior Subordinated Debentures held by such Trust on maturity or on the date fixed for a redemption or if payment of the Redemption Price in respect of the related Preferred Securities is improperly withheld or refused and not paid by such Trust or by General Motors pursuant to the applicable Preferred Securities Guarantee described under "Description of the Preferred Securities Guarantee," distributions on such Preferred Securities will continue to accrue from the original redemption date of such Preferred Securities to the date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating such Redemption Price. Neither Trust shall be required to (i) issue, or register the transfer or exchange of, any Trust Securities during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of its Trust 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 its Trust Securities so selected for redemption, in whole or in part, except the unredeemed portion of any Trust Securities being redeemed in part. In the event that fewer than all of the outstanding Preferred Securities of any Trust are to be redeemed, such Preferred Securities will be redeemed pro rata with the Common Securities of such Trust. Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws), General Motors or its subsidiaries may at any time, and from time to time, purchase outstanding Preferred Securities by tender, in the open market or by private agreement. LIQUIDATION DISTRIBUTIONS UPON DISSOLUTION General Motors will have the right at any time to dissolve and liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of its Trust Securities. General Motors has no present intention to take such action with respect to either Trust. If such Junior Subordinated Debentures are distributed to the holders of the Preferred Securities of such Trust, General Motors will use its best efforts to cause such Junior Subordinated Debentures to be listed on the NYSE or on such other exchange as such Preferred Securities are then listed. In the event of any other voluntary or involuntary liquidation, dissolution, winding-up or termination of a Trust (each, a "Liquidation" with respect to the applicable Trust), the then holders of the Trust Securities of such Trust will be entitled to receive out of the assets of such Trust, after satisfaction of liabilities to creditors, distributions in an amount equal to the aggregate of the stated liquidation amount of $25 per Trust Security plus accrued and unpaid distributions thereon to the date of payment (with respect to such Trust, the "Liquidation Distribution"), unless, in connection with such Liquidation, Junior Subordinated Debentures in 61 71 an aggregate stated 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, the Trust Securities of such Trust have been distributed on a pro rata basis to the holders of its Trust Securities. If, upon any such Liquidation, the Liquidation Distribution can be paid only in part because such Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the Preferred Securities of such Trust shall have a preference over its Common Securities with regard to such distributions. Pursuant to the Series D Declaration, 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 General Motors or the Series D Trust, (iii) upon the filing of a certificate of dissolution or its equivalent with respect to General Motors, the filing of a certificate of cancellation with respect to the Series D Trust after obtaining the consent of the holders of at least a majority in liquidation amount of its Trust Securities affected thereby, voting together as a single class to file such certificate of cancellation, or the revocation of the charter of General Motors and the expiration of 90 days after the date of revocation without a reinstatement thereof, (iv) upon the distribution of Series D Junior Subordinated Debentures to the holders of the Series D Preferred Securities, (v) upon the entry of a decree of a judicial dissolution of General Motors or the Series D Trust, or (vi) upon the redemption of all its Trust Securities. Pursuant to the Series G Declaration, 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 General Motors or the Series G Trust, (iii) upon the filing of a certificate of dissolution or its equivalent with respect to General Motors, the filing of a certificate of cancellation with respect to the Series G Trust after obtaining the consent of the holders of at least a majority in liquidation amount of its Trust Securities affected thereby, voting together as a single class to file such certificate of cancellation, or the revocation of the charter of General Motors and the expiration of 90 days after the date of revocation without a reinstatement thereof, (iv) upon the distribution of Series G Junior Subordinated Debentures to the holders of the Series G Preferred Securities, (v) upon the entry of a decree of a judicial dissolution of General Motors or the Series G Trust, or (vi) upon the redemption of all its Trust Securities. DECLARATION EVENTS OF DEFAULT An event of default under the Indenture with respect to a series of Junior Subordinated Debentures (each, an "Indenture Event of Default" with respect to such Junior Subordinated Debentures) constitutes an event of default under the applicable Declaration with respect to the Trust Securities of the applicable Trust (each, a "Declaration Event of Default" with respect to the applicable Trust); provided, that pursuant to each Declaration, the holder of the Common Securities of such Trust will be deemed to have waived any Declaration Event of Default with respect to such Common Securities until all Declaration Events of Default with respect to the related Preferred Securities have been cured, waived or otherwise eliminated. Until such Declaration Events of Default with respect to such Preferred Securities have been so cured, waived or otherwise eliminated, the Institutional Trustee of such Trust will be deemed to be acting solely on behalf of the holders of its Preferred Securities and only the holders of the Preferred Securities will have the right to direct such Institutional Trustee with respect to certain matters under such Declaration, and therefore under the Indenture. If a Declaration Event of Default with respect to such Preferred Securities is waived by holders of such Preferred Securities, such waiver will also constitute the waiver of such Declaration Event of Default with respect to the related Common Securities for all purposes under such Declaration, without any further act, vote or consent of the holders of such Common Securities. If such Institutional Trustee fails to enforce its rights under the applicable series of Junior Subordinated Debentures after a holder of the related Preferred Securities has made a written request, such holder of record of Preferred Securities may institute a legal proceeding against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing and such event is attributable to the failure of General Motors to pay interest or principal on the applicable series of Junior Subordinated Debentures on the date such interest or principal is otherwise payable (or in the case of redemption, the redemption date), then a holder of the related series of Preferred Securities 62 72 may institute a Direct Action for enforcement of payment to such holder directly of the principal of, or interest on, Junior Subordinated Debentures 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 such Junior Subordinated Debentures. In connection with any such Direct Action, General Motors will be subrogated to the rights of such holder of Preferred Securities under the applicable Declaration to the extent of any payment made by General Motors to such holder of Preferred Securities in such Direct Action. The holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Junior Subordinated Debentures. Upon the occurrence of a Declaration Event of Default with respect to a Trust, the Institutional Trustee of such Trust, as the sole holder of the Junior Subordinated Debentures purchased by such Trust, will have the right under the Indenture to declare the principal of and interest on such Junior Subordinated Debentures to be immediately due and payable. General Motors and each Trust are each required to file annually with the Institutional Trustee of such Trust an officer's certificate as to its compliance with all conditions and covenants under the applicable Declaration. VOTING RIGHTS Except as described herein, under the Business Trust Act, the Trust Indenture Act and under "Description of the Preferred Securities Guarantees--Modification of the Preferred Securities Guarantee; Assignment," and as otherwise required by law and the applicable Declaration, the holders of Preferred Securities will have no voting rights. Subject to the requirement of the Institutional Trustee of each Trust obtaining a tax opinion in certain circumstances set forth in the last sentence of this paragraph, the holders of a majority in aggregate liquidation amount of the Preferred Securities of each Trust, 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 for such Trust, or direct the exercise of any trust or power conferred upon such Institutional Trustee under the applicable Declaration, including the right to direct such Institutional Trustee, as holder of the Junior Subordinated Debentures purchased by such Trust, to (i) exercise the remedies available to it under the Indenture as a holder of such Junior Subordinated Debentures, (ii) waive any past Indenture Event of Default that is waivable under the Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all such Junior Subordinated Debentures shall be due and payable or (iv) consent to any amendment, modification or termination of the Indenture or such Junior Subordinated 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 holders of more than a majority in principal amount of such series of Junior Subordinated Debentures (a "Super-Majority") affected thereby, only the holders of at least such Super-Majority in aggregate liquidation amount of the related Preferred Securities may direct such 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 Junior Subordinated Debentures of a series who has consented thereto, such consent or action will only be effective against a holder of Preferred Securities who directs such Institutional Trustee to give such consent or take such action. If such Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures after a holder of record of the related Preferred Securities has made a written request, such holder of record of Preferred Securities may institute a legal proceeding directly against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing with respect to any Trust and such event is attributable to the failure of General Motors to pay interest or principal on the Junior Subordinated Debentures held by such Trust on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a holder of Preferred Securities of such Trust may institute a Direct Action for enforcement of payment to such holder of the principal of, or interest on, such Junior Subordinated Debentures 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 such Junior Subordinated Debentures. The Institutional Trustee of each Trust shall notify all holders of the Preferred 63 73 Securities of such Trust of any notice of default received from the Debt Trustee with respect to the Junior Subordinated Debentures held by such Trust. Such notice shall state that such Indenture Event of Default also constitutes a Declaration Event of Default. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the Institutional Trustee of such Trust shall not take any of the actions described in clauses (i), (ii) or (iii) above unless such 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, such Trust will not fail to be classified as a grantor trust for United States federal income tax purposes. In the event the consent of the Institutional Trustee of a Trust, as the holder of the Junior Subordinated Debentures purchased by such Trust, is required under the Indenture with respect to any amendment, modification or termination of such Indenture, such Institutional Trustee shall request the direction of the holders of the Trust 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 Trust Securities of such Trust voting together as a single class; provided, however, that where a consent under the Indenture would require the consent of a Super-Majority, such Institutional Trustee may only give such consent at the direction of the holders of at least the proportion in liquidation amount of the Trust Securities of such Trust which the relevant Super-Majority represents of the aggregate principal amount of the applicable series of Junior Subordinated Debentures outstanding; and provided, further, that where a consent or action under the Indenture is only effective against each holder of Junior Subordinated Debentures who has consented thereto, such consent or action will only be effective against a holder of Preferred Securities who directs such Institutional Trustee to give such consent or take such action. Such Institutional Trustee shall not take any such action in accordance with the directions of the holders of the Trust Securities of such Trust unless such 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, such Trust will not be classified as other than a grantor trust. A waiver of an Indenture Event of Default will constitute a waiver of the corresponding Declaration Event of Default. Any required approval or direction of holders of Preferred Securities may be given at a separate meeting of holders of Preferred Securities convened for such purpose, at a meeting of all of the holders of Trust Securities or pursuant to written consent. The Regular Trustees of each Trust will cause a notice of any meeting at which holders of Preferred Securities of such Trust 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 such Preferred Securities. Each such notice will include a statement setting forth the following information: (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 Preferred Securities will be required for a Trust to redeem and cancel its Preferred Securities or distribute Junior Subordinated Debentures held by such Trust in accordance with the applicable Declaration. Notwithstanding that holders of Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Preferred Securities that are owned at such time by General Motors or any entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, General Motors, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Preferred Securities were not outstanding. The procedures by which holders of Preferred Securities may exercise their voting rights are described below. See "--Book-Entry; Delivery and Form." Holders of the Preferred Securities of a Trust will have no rights to appoint or remove the Regular Trustees of such Trust, who may be appointed, removed or replaced solely by General Motors as the holder of all of the Common Securities of such Trust. 64 74 MODIFICATION OF THE DECLARATIONS Each Declaration may be modified and amended if approved by the Regular Trustees (and in certain circumstances the Institutional Trustee and the Delaware Trustee) of the applicable Trust, provided that, if any proposed amendment provides for, or such Regular Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Trust Securities of such Trust, whether by way of amendment to such Declaration or otherwise or (ii) the dissolution, winding-up or termination of such Trust other than pursuant to the terms of such Declaration, then such holders of the Trust Securities voting together as a single 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 at least a majority in liquidation amount of the Trust Securities affected thereby; provided, that, if any amendment or proposal referred to in clause (i) above would adversely affect only the Preferred Securities or the Common Securities of such Trust, 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 Trust Securities. Each Declaration may also be amended without the consent of the holders of the Trust Securities of the applicable Trust to (i) cure any ambiguity; (ii) correct or supplement any provision in the applicable Declaration that may be defective or inconsistent with any other provision of such Declaration; (iii) add to the covenants, restrictions or obligations of General Motors, as sponsor of the applicable Trust; (iv) conform to any change in Rule 3a-5 under the 1940 Act or written change in interpretation or application of Rule 3a-5 which amendment does not have a material adverse effect on the rights, preferences or privileges of the holders of the Trust Securities of the applicable Trust; (v) preserve the status of the applicable 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 of the Trust Securities of the applicable Trust. It shall not be necessary for the consent of the holders of Trust Securities of the applicable Trust under the applicable Declaration to approve the particular form of any proposed amendment to such Declaration, but it shall be sufficient if such consent shall approve the substance thereof. Notwithstanding the foregoing, no amendment or modification may be made to any Declaration if such amendment or modification would (i) cause the applicable 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 of such Trust or (iii) cause such Trust to be deemed an "investment company" which is required to be registered under the 1940 Act. MERGERS, CONSOLIDATIONS OR AMALGAMATIONS Neither Trust may 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 below. A Trust may, with the consent of its Regular Trustees and without the consent of the holders of its Trust Securities, its Institutional Trustee or its 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 such Trust is not the survivor, such successor entity either (a) expressly assumes all of the obligations of such Trust under its Trust Securities or (b) substitutes for its Preferred Securities other securities having substantially the same terms as its Trust Securities (the "Successor Securities"), so long as the Successor Securities rank the same as its Trust Securities rank with respect to distributions and payments upon liquidation, redemption and otherwise, (ii) General Motors expressly acknowledges a trustee of such successor entity possessing the same powers and duties as its Institutional Trustee as the holder of the Junior Subordinated Debentures purchased by such Trust, (iii) its Preferred Securities or any Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or with another organization on which its Preferred Securities are then listed or quoted, (iv) such merger, consolidation, amalgamation or replacement does not cause its Preferred Securities (including any Successor 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 65 75 privileges of the holders of its Trust Securities (including any Successor Securities) in any material respect (other than with respect to any dilution of the holders' interest in the new entity), (vi) such successor entity has a purpose identical to that of such Trust, (vii) prior to such merger, consolidation, amalgamation or replacement, General Motors has received an opinion of a nationally recognized independent counsel to such 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 of its Trust Securities (including any Successor Securities) in any material respect (other than with respect to any dilution of the holders' interest in the new entity), and (b) following such merger, consolidation, amalgamation or replacement, neither such Trust nor such successor entity will be required to register as an investment company under the 1940 Act and (viii) General Motors guarantees the obligations of such successor entity under the Successor Securities at least to the extent provided by the applicable Preferred Securities Guarantee and the applicable Common Securities Guarantee (as defined herein). Notwithstanding the foregoing, neither Trust shall, except with the consent of holders of 100 percent in liquidation amount of its Trust 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 such Trust or the successor entity to be classified as other than a grantor trust for United States federal income tax purposes. BOOK-ENTRY; DELIVERY AND FORM Preferred Securities will be issued in fully registered form. Investors may elect to hold their Preferred Securities directly or, subject to the rules and procedures of a Depository Institution described below, hold their interest in a global certificate (with respect to each series of Preferred Securities, a "Preferred Securities Global Certificate") registered in the name of a Depository Institution or its nominee. However, tendering holders of Depositary Shares held in global form shall initially receive an interest in a Preferred Securities Global Certificate and tendering holders of Depositary Shares held directly in certificated form shall initially receive Preferred Securities in certificated form, in each case unless otherwise specified in the accompanying Letter of Transmittal. See "The Offers--Procedures for Tendering." The laws of some jurisdictions require that certain purchasers of securities take physical delivery of securities in definitive form. Such laws may impair the ability to transfer beneficial interest in a global Preferred Security. A Depository Institution holds securities that its participants ("Participants") deposit with the Depository Institution. A Depository Institution also facilitates the settlement among Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations ("Direct Participants"). A Depository Institution is owned by a number of its Direct Participants and by the NYSE, the American Stock Exchange, Inc., and the National Association of Securities Dealers, Inc. Access to a Depository Institution's system is also available to others such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). The rules applicable to a Depository Institution and its Participants are on file with the Commission. Upon issuance of a Preferred Securities Global Certificate, a Depository Institution will credit on its book-entry registration and transfer system the number of Preferred Securities represented by such Preferred Securities Global Certificate to the accounts of institutions that have accounts with such Depository Institution. Ownership of beneficial interests in a Preferred Securities Global Certificate will be limited to Participants or persons that may hold interests through Participants. The ownership interest of each actual purchaser of each Preferred Security ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from a Depository Institution of their purchases, but Beneficial Owners are expected to receive written confirmations providing details of the transactions, as well as periodic statements of their holdings, from the Direct or Indirect Participants through which the Beneficial Owners purchased Preferred Securities. Transfers of ownership 66 76 interests in the Preferred Securities are to be accomplished by entries made on the books of Participants acting on behalf of Beneficial Owners. A Depository Institution has no knowledge of the actual Beneficial Owners of the Preferred Securities; a Depository Institution's records reflect only the identity of the Direct Participants to whose accounts such Preferred Securities are credited, which may or may not be the Beneficial Owners. The Participants will remain responsible for keeping account of their holdings on behalf of their customers. So long as a Depository Institution, or its nominee, is the owner of a Preferred Securities Global Certificate, a Depository Institution or such nominee, as the case may be, will be considered the sole owner and holder of record of the Preferred Securities represented by such Preferred Securities Global Certificate for all purposes. Conveyance of notices and other communications by a Depository Institution to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Redemption notices shall be sent to the Depository Institution. If less than all of the applicable series of the Preferred Securities are being redeemed, the Depository Institution will reduce pro rata (subject to adjustment to eliminate fractional Preferred Securities) the amount of interest of each Direct Participant in such Preferred Securities to be redeemed. Although voting with respect to the Preferred Securities is limited, in those instances in which a vote is required, a Depository Institution will not consent or vote with respect to Preferred Securities. Under its usual procedures, such Depository Institution would mail an Omnibus Proxy to the applicable Trust as soon as possible after the record date. The Omnibus Proxy assigns a Depository Institution's consenting or voting rights to those Direct Participants to whose accounts such Preferred Securities are credited on the record date (identified in a listing attached to the Omnibus Proxy). Distribution payments on Preferred Securities represented by a Preferred Securities Global Certificate will be made by the applicable Trust to the applicable Depository Institution. A Depository Institution's practice is to credit Direct Participants' accounts on the relevant payment date in accordance with their respective holdings shown on a Depository Institution's records unless such Depository Institution has reason to believe that it will not receive payments on such payment date. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices and will be the responsibility of such Participants and not of a Depository Institution, the applicable Trust or General Motors, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of distributions to a Depository Institution is the responsibility of the applicable Trust, disbursement of such payments to Direct Participants is the responsibility of the applicable Depository Institution, and disbursement of such payments to the Beneficial Owners is the responsibility of Direct and Indirect Participants. A Depository Institution may discontinue providing its services as securities depository with respect to Preferred Securities at any time by giving reasonable notice to the applicable Trust. Under such circumstances, if a successor securities depository is not obtained, Preferred Security certificates will be required to be printed and delivered. Additionally, such Trust may decide to discontinue use of the system of book-entry transfers through the Depository Institution (or a successor depository). In that event, certificates for such Preferred Securities will be printed and delivered. The information in this section concerning the Depository Institution and the Depository Institution's book-entry system has been obtained from sources that each Trust and General Motors believe to be reliable, but none of the Trusts nor General Motors takes any responsibility for the accuracy thereof. INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE The Institutional Trustee of each Trust, prior to the occurrence of a default with respect to the Trust Securities of such Trust and after the curing of any defaults that may have occurred, undertakes to perform only such duties as are specifically set forth in the applicable Declaration and, after default, shall exercise the same degree of care as a prudent individual would exercise in the conduct of his or her own affairs. Subject to 67 77 such provisions, such Institutional Trustee is under no obligation to exercise any of the powers vested in it by the applicable Declaration at the request of any holder of Preferred Securities of such Trust, unless offered reasonable indemnity by such holder against the costs, expenses and liabilities which might be incurred thereby. The holders of such Preferred Securities will not be required to offer such indemnity in the event such holders, by exercising their voting rights, direct such Institutional Trustee to take any action it is empowered to take under the applicable Declaration following a Declaration Event of Default with respect to such Trust. Each Institutional Trustee also serves as trustee under the applicable Preferred Securities Guarantee and the Indenture. General Motors or its affiliates conduct certain banking transactions with the Institutional Trustee and its affiliates in the ordinary course of their business. GOVERNING LAW Each Declaration and the related Preferred Securities will be governed by, and construed in accordance with, the internal laws of the State of Delaware. MISCELLANEOUS The Regular Trustees of each Trust are authorized and directed to operate such Trust in such a way so that such Trust will not be required to register as an "investment company" under the 1940 Act or characterized as other than a grantor trust for United States federal income tax purposes. General Motors is authorized and directed to conduct its affairs so that the Junior Subordinated Debentures will be treated as indebtedness of General Motors for United States federal income tax purposes. In this connection, General Motors and the Regular Trustees of each Trust are authorized to take any action, not inconsistent with applicable law, the certificate of trust of such Trust or the articles of incorporation of General Motors, that each of General Motors and such Regular Trustees determine in their discretion to be necessary or desirable to achieve such end, as long as such action does not adversely affect the interests of the holders of the Preferred Securities of such Trust or vary the terms thereof. Holders of the Preferred Securities have no preemptive rights. DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES Set forth below is a summary of information concerning the Preferred Securities Guarantees, each of which will be executed and delivered by General Motors to the applicable Trust for the benefit of the holders from time to time of the Preferred Securities of such Trust. Each Preferred Securities Guarantee will be qualified as an indenture under the Trust Indenture Act. Wilmington Trust Company will act as the Guarantee Trustee under each Preferred Securities Guarantee for purposes of the Trust Indenture Act. The terms of each Preferred Securities Guarantee will be those set forth in such Preferred Securities Guarantee and those made part of such Preferred Securities Guarantee by the Trust Indenture Act. The summary of the material terms of the Preferred Securities Guarantees does not purport to be complete and is subject in all respects to the provisions of, and is qualified in its entirety by reference to, the forms of the Preferred Securities Guarantees, which are filed as exhibits to the Registration Statement of which this Prospectus forms a part, and the Trust Indenture Act. Each Preferred Securities Guarantee will be held by the Guarantee Trustee for the benefit of the holders of the Preferred Securities of the applicable Trust. GENERAL Pursuant to each Preferred Securities Guarantee, General Motors will agree, to the extent set forth therein, to pay in full to the holders of the Preferred Securities issued by the applicable Trust, the Guarantee Payments (as defined herein) (except to the extent paid by such Trust), as and when due, regardless of any defense, right of set-off or counterclaim which such Trust may have or assert. The following payments with respect to Preferred Securities issued by a Trust, to the extent not paid by such Trust (with respect to each Trust, the "Guarantee Payments"), will be subject to the Preferred Securities Guarantee thereon (without 68 78 duplication): (i) any accrued and unpaid distributions which are required to be paid on such Preferred Securities, to the extent such Trust shall have funds available therefor; (ii) the applicable Redemption Price, to the extent such Trust has funds available therefor with respect to any Preferred Securities called for redemption by such Trust; and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of such Trust (other than in connection with the distribution of Junior Subordinated Debentures held by such Trust to the holders of its Preferred Securities or the redemption of all of its Preferred Securities), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on its Preferred Securities to the date of payment, to the extent such Trust has funds available therefor and (b) the amount of assets of such Trust remaining available for distribution to holders of such Preferred Securities in liquidation of such Trust. General Motors' obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by General Motors to the holders of the applicable Preferred Securities or by causing such Trust to pay such amounts to such holders. The Preferred Securities Guarantees will not apply to any payment of distributions except to the extent the applicable Trust shall have funds available therefor. If General Motors does not make interest payments on the Junior Subordinated Debentures held by a Trust, such Trust will not pay distributions on the Preferred Securities issued by such Trust and will not have funds available therefor. With respect to each Trust, the applicable Preferred Securities Guarantee, when taken together with General Motors' obligations under the related Junior Subordinated Debentures, the Indenture and the related Declaration, including its obligations to pay costs, expenses, debts and liabilities of each Trust (other than with respect to the Trust Securities of such Trust), provides a full and unconditional guarantee on a subordinated basis by General Motors of payments due on the Preferred Securities of such Trust. General Motors has also agreed separately to irrevocably and unconditionally guarantee the obligations of each Trust with respect to its Common Securities (with respect to each Trust, the "Common Securities Guarantee") to the same extent as the Preferred Securities Guarantee relating to such Trust, except that upon an event of default under the Indenture, holders of Preferred Securities of such Trust shall have priority over holders of Common Securities of such Trust with respect to distributions and payments on liquidation, redemption or otherwise. CERTAIN COVENANTS OF GENERAL MOTORS In each Preferred Securities Guarantee, General Motors will covenant that, so long as any Preferred Securities issued by the applicable Trust remain outstanding, if there shall have occurred any event that would constitute an event of default under such Preferred Securities Guarantee or the Indenture, or if General Motors has exercised its option to defer interest payments on the applicable Junior Subordinated Debentures by extending the interest payment period and such period or extension thereof shall be continuing, then (i) General Motors shall not declare or pay any dividend on, make a 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 General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation running pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors capital stock pursuant to the conversion or exchange provisions of such General Motors capital stock or the security being converted or exchanged), (ii) General Motors shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors which rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) General Motors shall not make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General 69 79 Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT Except with respect to any changes which do not adversely affect the rights of holders of the related Preferred Securities (in which case no vote will be required), a Preferred Securities Guarantee may be amended only with the prior approval of the holders of not less than a majority in liquidation amount of the outstanding Preferred Securities issued by the applicable Trust. All guarantees and agreements contained in such Preferred Securities Guarantee shall bind the successors, assigns, receivers, trustees and representatives of General Motors and shall inure to the benefit of the holders of the Preferred Securities of such Trust then outstanding. Except in connection with any merger or consolidation of General Motors with or into another entity or any sale, transfer or lease of General Motors' assets to another entity, each as permitted by the Indenture, General Motors may not assign its rights or delegate its obligations under such Preferred Securities Guarantee without the prior approval of the holders of at least a majority in liquidation amount of the outstanding Preferred Securities issued by the applicable Trust. TERMINATION Each Preferred Securities Guarantee will terminate as to the Preferred Securities issued by the applicable Trust (a) upon full payment of the Redemption Price of all Preferred Securities of such Trust, (b) upon distribution of the Junior Subordinated Debentures held by such Trust to the holders of the Trust Securities of such Trust or (c) upon full payment of the amounts payable in accordance with the applicable Declaration upon liquidation of such Trust. Notwithstanding the foregoing, such Preferred Securities Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any holder of Preferred Securities issued by the applicable Trust must restore payment of any sums paid under such Preferred Securities or such Preferred Securities Guarantee. EVENTS OF DEFAULT An event of default under each Preferred Securities Guarantee will occur upon the failure of General Motors to perform any of its payment obligations thereunder. The holders of a majority in liquidation amount of the Preferred Securities to which each Preferred Securities Guarantee relates have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of such Preferred Securities Guarantee or to direct the exercise of any trust or power conferred upon such Guarantee Trustee under such Preferred Securities. Any holder of such Preferred Securities may institute a legal proceeding directly against General Motors to enforce applicable Guarantee Trustee's rights under such Preferred Securities Guarantee, without first instituting a legal proceeding against the applicable Trust, the applicable Guarantee Trustee or any other person or entity. STATUS OF THE PREFERRED SECURITIES GUARANTEES Each Preferred Securities Guarantee will constitute an unsecured obligation of General Motors and will rank (i) subordinate and junior in right of payment to all other liabilities of General Motors, except those made pari passu or subordinate by their terms, (ii) pari passu with the most senior preferred or preference stock now or hereafter issued by General Motors and with any guarantee now or hereafter entered into by General Motors in respect of any preferred or preference stock of any affiliate of General Motors, and (iii) senior to General Motors Common Stock. The terms of the Preferred Securities provide that each holder of Preferred Securities issued by either Trust by acceptance thereof agrees to the subordination provisions and other terms of the applicable Preferred Securities Guarantee. Each Preferred Securities Guarantee will constitute a guarantee of payment and not of collection (that is, the guaranteed party may institute a legal proceeding directly against the guarantor to enforce its rights under such Preferred Securities Guarantee without instituting a legal proceeding against any other person or entity). 70 80 INFORMATION CONCERNING THE GUARANTEE TRUSTEES The Guarantee Trustee with respect to each Preferred Securities Guarantee, prior to the occurrence of a default with respect to such Preferred Securities Guarantee, undertakes to perform only such duties as are specifically set forth in such Preferred Securities Guarantee and, after default, shall exercise the same degree of care as a prudent individual would exercise in the conduct of his or her own affairs. Subject to such provisions, such Guarantee Trustee is under no obligation to exercise any of the powers vested in it by the applicable Preferred Securities Guarantee at the request of any holder of Preferred Securities to which such Preferred Securities Guarantee relates, unless offered reasonable indemnity against the costs, expenses and liabilities which might be incurred thereby. General Motors or its affiliates conduct certain banking transactions with the Guarantee Trustee and its affiliates in the ordinary course of business. GOVERNING LAW Each Preferred Securities Guarantee will be governed by and construed in accordance with the internal laws of the State of New York. DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES Set forth below is a description of the specific terms of each series of the Junior Subordinated Debentures which will be deposited in the applicable Trust as trust assets. The following description of the material terms of the Indenture, dated as of , 1997 (as supplemented with respect to the Series D Junior Subordinated Debentures and the Series G Subordinated Debentures pursuant to the Series D Supplement and the Series G Supplement, respectively, the "Indenture"), between General Motors and Wilmington Trust Company as Trustee (the "Debt Trustee"), does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the description in the Indenture, the form of which is filed as an exhibit to the Registration Statement of which this Prospectus forms a part. Certain capitalized terms used herein are defined in the Indenture. The Indenture provides for the issuance of debentures, notes (including the applicable series of the Junior Subordinated Debentures) or other evidences of indebtedness by General Motors in an unlimited amount from time to time. Each series of the Junior Subordinated Debentures constitutes a separate series under the Indenture. The Series D Junior Subordinated Debentures are issued pursuant to the Indenture, as supplemented by the Series D Supplement. The Series G Junior Subordinated Debentures are issued pursuant to the Indenture, as supplemented by the Series G Supplement. General Motors will have the right at any time to dissolve and liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of the Trust Securities of such Trust. General Motors has no present intention to take such action with respect to either Trust. If such Junior Subordinated Debentures are distributed to the holders of the Preferred Securities of such Trust, General Motors will use its best efforts to have such Junior Subordinated Debentures listed on the NYSE or on such other national securities exchange or similar organization on which such Preferred Securities are then listed or quoted. GENERAL Each of the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures constitutes unsecured, subordinated obligations of General Motors, limited in aggregate principal amount to the aggregate liquidation preference of (i) the Preferred Securities issued by the applicable Trust in its Offer and (ii) the amount of proceeds received by such Trust from the sale of its Common Securities to General Motors. The Junior Subordinated Debentures are not subject to any sinking fund provision. Series D Junior Subordinated Debentures. The entire principal amount of the Series D Junior Subordinated Debentures will mature and become due and payable, together with any accrued and unpaid interest 71 81 thereon, if any, on , 2012, subject to the right of General Motors to shorten the maturity date to a date no earlier than August 1, 1999, subject to certain conditions. If Series D Junior Subordinated Debentures are distributed to holders of Series D Preferred Securities in liquidation of such holders' interests in the Series D Trust, such Series D Junior Subordinated Debentures will be so issued in fully registered certificated form in denominations of $25 and integral multiples thereof and may be transferred or exchanged at the offices described below. Series G Junior Subordinated Debentures. The entire principal amount of the Series G Junior Subordinated Debentures will mature and become due and payable, together with any accrued and unpaid interest thereon, if any, on , 2012, subject to the right of General Motors to shorten the maturity date to a date no earlier than January 1, 2001, subject to certain conditions. If Series G Junior Subordinated Debentures are distributed to holders of Series G Preferred Securities in liquidation of such holders' interests in the Series G Trust, such Series G Junior Subordinated Debentures will be so issued in fully registered certificated form in denominations of $25 and integral multiples thereof and may be transferred or exchanged at the offices described below. With respect to each series of Junior Subordinated Debentures, payments of principal and interest on the Junior Subordinated Debentures will be payable, the transfer of the Junior Subordinated Debentures will be registrable, and Junior Subordinated Debentures will be exchangeable for Junior Subordinated Debentures of other denominations of a like aggregate principal amount, at the corporate trust office of the Institutional Trustee of the applicable Trust in Wilmington, Delaware; provided, that payment of interest may be made at the option of General Motors by check mailed to the address of the holder entitled thereto or by wire transfer to an account appropriately designated by the holder entitled thereto. Notwithstanding the foregoing, so long as the holder of any Junior Subordinated Debentures is the Institutional Trustee for the applicable Trust, the payment of principal and interest on the Junior Subordinated Debentures held by such Institutional Trustee will be made at such place and to such account as may be designated by such Institutional Trustee. The Indenture does not limit the aggregate principal amount of securities which may be issued thereunder and do not contain provisions that afford holders of either series of Junior Subordinated Debentures protection in the event of a highly leveraged transaction or other similar transaction involving General Motors that may adversely affect such holders. SUBORDINATION The Indenture provides that the Junior Subordinated Debentures are subordinated and junior in right of payment to all present and future Senior Indebtedness and Other Financial Obligations of General Motors, which aggregated approximately $92.5 billion at March 31, 1997, and rank pari passu with and are equivalent to creditor obligations of those holding general unsecured claims not entitled to statutory priority under the United States Bankruptcy Code or otherwise. In addition, no payment may be made of the principal of, premium, if any, or interest on the Junior Subordinated Debentures, or in respect of any redemption, retirement, purchase or other acquisition of any of the Junior Subordinated Debentures, 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. Upon any distribution of assets of General Motors to creditors upon any dissolution, winding-up, liquidation or reorganization, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other proceedings, the payment of the principal of, and interest on, the Junior Subordinated Debentures will, to the extent set forth in the Indenture, be subordinated in right of payment to the prior payment in full of all Senior Indebtedness and Other Financial Obligations of General Motors. Upon any payment or distribution of assets of General Motors to creditors upon any liquidation, dissolution, winding-up, reorganization, assignment for the benefit of creditors, marshaling of assets or any bankruptcy, insolvency or similar proceedings of General Motors, the holders of all Senior Indebtedness and the holders of Other Financial Obligations will first be entitled to receive payment in full of all amounts due or to become due 72 82 thereon before the holders of the Junior Subordinated Debentures will be entitled to receive and retain any payment in respect of the principal of, or interest on, the Junior Subordinated Debentures. The term "Senior Indebtedness" means, with respect to General Motors, (i) the principal, premium, if any, and interest in respect of (a) indebtedness of General Motors for money borrowed and (b) indebtedness evidenced by securities, debentures, bonds or other similar instruments issued by General Motors, (ii) all capital lease obligations of General Motors, (iii) all obligations of General Motors issued or assumed as the deferred purchased price of property, all conditional sale obligations of General Motors and all obligations of General Motors under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business), (iv) all obligations of General Motors 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 General Motors 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 General Motors (whether or not such obligation is assumed by General Motors), except that Senior Indebtedness shall not include (i) the Junior Subordinated Debentures and any such indebtedness that is by its terms subordinated to or ranks pari passu with the Junior Subordinated Debentures and (ii) any indebtedness between and among General Motors 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 General Motors that is a financing vehicle of General Motors (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. The term "Other Financial Obligations" means all obligations of General Motors 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 Junior Subordinated Debentures. Upon satisfaction of all claims of all Senior Indebtedness and Other Financial Obligations then outstanding, the rights of the holders of the Junior Subordinated Debentures will be subrogated to the rights of the holders of Senior Indebtedness and Other Financial Obligations of General Motors to receive payments or distributions applicable to Senior Indebtedness and Other Financial Obligations until all amounts owing on the Junior Subordinated Debentures are paid in full. Such Senior Indebtedness and Other Financial Obligations shall continue to be Senior Indebtedness and Other Financial Obligations and be entitled to the benefits of the subordination provisions irrespective of any amendment, modification or waiver of any term of such Senior Indebtedness or Other Financial Obligations. The Indenture does not limit the aggregate amount of Senior Indebtedness or Other Financial Obligations that may be issued or entered into by General Motors. OPTIONAL REDEMPTION Series D Junior Subordinated Debentures. General Motors shall have the right to redeem the Series D Junior Subordinated Debentures, (i) in whole or in part, from time to time, on or after August 1, 1999, at a prepayment price (the "Series D Optional Prepayment Price") equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the redemption date or (ii) in whole but not in part, prior to August 1, 1999, upon the occurrence of a Tax Event, at the Series D Tax Event Prepayment Price specified below; in either case, upon not less than 30 nor more than 60 days notice to holders of the Series D Junior Subordinated Debentures. Notwithstanding anything to the contrary contained herein, General Motors may not redeem fewer than all of the Series D Junior Subordinated Debentures unless all accrued and unpaid 73 83 interest on all of the Series D Junior Subordinated Debentures has been paid for all quarterly periods terminating on or prior to the date of redemption. If, prior to August 1, 1999, a Tax Event shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series D Junior Subordinated Debentures, at its option to redeem the Series D Junior Subordinated 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) % of the principal amount of the Series D Junior Subordinated Debentures if 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 Junior Subordinated Debentures specified below, if prepaid during the 12-month period beginning August 1 of the years indicated below plus, in each case, accrued and unpaid interest thereon to the date of prepayment:
YEAR PERCENTAGE ---- ---------- 1997........................................................ % 1998........................................................ 1999 and thereafter......................................... 100
Series G Junior Subordinated Debentures. General Motors shall have the right to redeem the Series G Junior Subordinated Debentures, (i) in whole or in part, from time to time, on or after January 1, 2001, at a prepayment price (the "Series G Optional Prepayment Price") equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the redemption date or (ii) in whole but not in part, prior to January 1, 2001, upon the occurrence of a Tax Event, at the Series G Tax Event Prepayment Price specified below; in either case, upon not less than 30 nor more than 60 days notice to holders of the Series G Junior Subordinated Debentures. Notwithstanding anything to the contrary contained herein, General Motors may not redeem fewer than all of the Series G Junior Subordinated Debentures unless all accrued and unpaid interest on all of the Series G Junior Subordinated Debentures has been paid for all quarterly periods terminating on or prior to the date of redemption. If, prior to January 1, 2001, a Tax Event shall occur and be continuing, General Motors shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series G Junior Subordinated Debentures, at its option to redeem the Series G Junior Subordinated 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) % of the principal amount of the Series G Junior Subordinated Debentures if 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 Junior Subordinated Debentures specified below, if prepaid during the 12-month period beginning January 1 of the years indicated below plus, in each case, accrued and unpaid interest thereon to the date of prepayment:
YEAR PERCENTAGE ---- ---------- 1998........................................................ % 1999........................................................ 2000........................................................ 2001 and thereafter......................................... 100
A "Tax Event" means, with respect to a Trust, that the Regular Trustees of such Trust shall have received an opinion of 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 original issuance of the Junior Subordinated Debentures purchased by such Trust, there is more than an insubstantial risk that (i) such 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 such Junior Subordinated Debentures, (ii) interest payable by General Motors on such Junior Subordinated Debentures is 74 84 not, or within 90 days of the date of such opinion will not be, deductible by General Motors, in whole or in part, for United States federal income tax purposes, or (iii) such 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. OPTIONS TO CHANGE MATURITY DATES Series D Junior Subordinated Debentures. General Motors will have the right at any time to shorten the maturity of the Series D Junior Subordinated Debentures to a date not earlier than August 1, 1999. Series G Junior Subordinated Debentures. General Motors will have the right at any time to shorten the maturity of the Series G Junior Subordinated Debentures to a date not earlier than January 1, 2001. INTEREST Series D Junior Subordinated Debentures. The Series D Junior Subordinated Debentures shall bear interest at the rate of % per annum from and including the Series D Accrual Date, payable quarterly on February 1, May 1, August 1 and November 1 of each year (each, a "Series D Interest Payment Date"), commencing August 1, 1997, to the person in whose name such Series D Junior Subordinated Debentures is registered on the 15th day of January, April, July and October prior to the applicable Series D Interest Payment Date. The Series D Junior Subordinated 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 the Series D Expiration Date, payable on August 1, 1997 to holders of the Series D Junior Subordinated 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 the Series D Expiration Date. Series G Junior Subordinated Debentures. The Series G Junior Subordinated Debentures shall bear interest at the rate of % per annum from and including the Series G Accrual Date, payable quarterly on February 1, May 1, August 1 and November 1 of each year (each, a "Series G Interest Payment Date"), commencing August 1, 1997, to the person in whose name such Series G Junior Subordinated Debentures is registered on the 15th day of January, April, July and October prior to the applicable Series G Interest Payment Date. The Series D Interest Payment Date and the Series G Interest Payment Date are each an "Interest Payment Date" and together constitute the "Interest Payment Dates." The Series G Junior Subordinated 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 the Series G Expiration Date, payable on August 1, 1997 to holders of the Series G Junior Subordinated 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 the Series G Expiration Date. General. The amount of interest payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. 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 per 30-day month. In the event that any date on which interest is payable on any Junior Subordinated Debentures is not a Business Day, then payment of the 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, then 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. OPTIONS TO EXTEND INTEREST PAYMENT PERIODS So long as General Motors shall not be in default in the payment of interest on a series of Junior Subordinated Debentures, General Motors shall have the right at any time, and from time to time, during the term of such Junior Subordinated Debentures to defer payments of interest by extending the interest payment period for a period not exceeding 20 consecutive quarters or extending beyond the Stated Maturity of such 75 85 Junior Subordinated Debentures, at the end of which Extension Period, General Motors shall pay all interest then accrued and unpaid together with interest thereon compounded quarterly at the rate specified for such Junior Subordinated Debentures to the extent permitted by applicable law; provided, that during any such Extension Period, General Motors 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 General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to the Junior Subordinated Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors' capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of General Motors' capital stock pursuant to the conversion or exchange provisions of such General Motors 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 General Motors that rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). Since the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures rank pari passu with each other, if General Motors elects to extend the interest payment period on one series of Junior Subordinated Debentures it will not be permitted to make payments on the other series. Prior to the termination of any such Extension Period, General Motors may further defer payments of interest by extending the interest payment period; provided, however, that, such Extension Period, including all such previous and further extensions, may not exceed 20 consecutive quarters or beyond the Stated Maturity of such Junior Subordinated Debentures. Upon the termination of any Extension Period and the payment of all amounts then due, General Motors may commence a new Extension Period with respect to such Junior Subordinated Debentures, subject to the terms set forth in this section. No interest during an Extension Period, except at the end thereof, shall be due and payable. General Motors has no present intention of exercising its right to defer payments of interest by extending the interest payment period on the Junior Subordinated Debentures. If the applicable Institutional Trustee shall be the sole holder of the Junior Subordinated Debentures, General Motors shall give the Regular Trustees of the applicable Trust and such Institutional Trustee notice of its selection of such Extension Period one Business Day prior to the earlier of (i) the date distributions on the applicable Preferred Securities are payable or (ii) the date such Regular Trustees are required to give notice to the NYSE (or other applicable self-regulatory organization) or to holders of such Preferred Securities of the record date or the date such distribution is payable. Such Institutional Trustee shall give notice of General Motors' selection of such Extension Period to the holders of the applicable Preferred Securities. If the applicable Institutional Trustee shall not be the sole holder of such Junior Subordinated Debentures, General Motors shall give the holders of such Junior Subordinated Debentures notice of its selection of such Extension Period ten Business Days prior to the earlier of (i) the applicable Interest Payment Date or (ii) the date upon which General Motors is required to give notice to the NYSE (or other applicable self-regulatory organization) or to holders of such Junior Subordinated Debentures of the record or payment date of such related interest payment. ADDITIONAL INTEREST If, at any time while the Institutional Trustee of a Trust is the holder of any of the Junior Subordinated Debentures purchased by such Trust, such Trust or such Institutional Trustee shall be 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, General Motors will pay as additional interest on the applicable series of Junior Subordinated Debentures such additional amounts as shall be required so that the net amounts received and retained by such Trust and by such Institutional Trustee after paying any such taxes, duties, assessments or other governmental charges will be not less than the amounts such Trust and such Institutional Trustee would have received had no such taxes, duties, assessments or other governmental charges been imposed. 76 86 PROPOSED TAX LEGISLATION On February 6, 1997, as part of President Clinton's Fiscal 1998 Budget Proposal, the United States Treasury Department proposed legislation that would, among other things, deny an issuer a deduction for United States federal income tax purposes for the payment of interest on instruments with characteristics similar to the Junior Subordinated Debentures. If the proposed legislation were enacted in its current form, it is not expected to apply to the Junior Subordinated Debentures since the proposed effective date for this provision is the date of first committee action. There can be no assurances, however, that the proposed legislation, if enacted, or similar legislation enacted after the date hereof would not adversely affect the tax treatment of the Junior Subordinated Debentures, resulting in a Tax Event in respect of either or both Trusts, which would permit General Motors to cause a redemption of the Preferred Securities at the applicable Tax Event Redemption Price by electing to prepay the Junior Subordinated Debentures at the applicable Tax Event Prepayment Price. See "Description of the Preferred Securities--Tax Event Redemptions." INDENTURE EVENTS OF DEFAULT If an Indenture Event of Default shall occur and be continuing, the applicable Institutional Trustee, as the holder of the Junior Subordinated Debentures purchased by the applicable Trust, will have the right to declare the principal of and the interest on such Junior Subordinated Debentures and any other amounts payable under the Indenture to be forthwith due and payable and to enforce its other rights as a creditor with respect to such Junior Subordinated Debentures. The Indenture provides that any one or more of the following described events which has occurred and is continuing constitutes an "Indenture Event of Default" with respect to a series of the Junior Subordinated Debentures to which the Indenture relates: (a) default for 30 days in payment of any installment of interest on such Junior Subordinated Debentures when due; provided, however, that a valid extension of the interest payment period by General Motors shall not constitute a default in the payment of interest for this purpose; or (b) default in payment of principal and premium, if any, on such Junior Subordinated Debentures when due either at maturity, upon redemption, by declaration or otherwise; or (c) default by General Motors in the performance of any other of the covenants or agreements with respect to such Junior Subordinated Debentures in such Indenture which shall not have been remedied for a period of 90 days after notice; or (d) certain events of bankruptcy, insolvency or reorganization of General Motors; or (e) the voluntary or involuntary dissolution, winding-up or termination of the applicable Trust, except in connection with the distribution of such Junior Subordinated Debentures to the holders of such Trust Securities in liquidation of the Trust, the redemption of all of the Trust Securities of such Trust, or certain mergers, consolidations or amalgamations, each as permitted by the applicable Declaration. The Indenture provides that, if an Indenture Event of Default shall have occurred and be continuing with respect to a series of Junior Subordinated Debentures, either the Debt Trustee or the holders of not less than 25 percent in aggregate principal amount of the applicable series of Junior Subordinated Debentures then outstanding may declare the principal of all Junior Subordinated Debentures of such series to be due and payable immediately. The holders of a majority in aggregate outstanding principal amount of Junior Subordinated Debentures of such series may annul such declaration and waive the default if the default (other than the non-payment of the principal of Junior Subordinated Debentures of such series which has become due solely by such acceleration) has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the applicable Debt Trustee. With respect to each Trust, an Indenture Event of Default also constitutes a Declaration Event of Default. The holders of Preferred Securities in certain circumstances have the right to direct the applicable Institutional Trustee to exercise its rights as the holder of the related Junior Subordinated Debentures. See "Description of the Preferred Securities--Declaration Events of Default" and "--Voting Rights." If such 77 87 Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures after a holder of record of Preferred Securities has made a written request, such holder of record of such Preferred Securities may institute a legal proceeding directly against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding 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 General Motors to pay interest or principal on such Junior Subordinated Debentures on the date such interest or principal is otherwise payable, General Motors acknowledges that a holder of the related Preferred Securities may then institute a Direct Action for payment on or after the respective due date specified in such Junior Subordinated Debentures. Notwithstanding any payments made to such holder of Preferred Securities by General Motors in connection with a Direct Action, General Motors shall remain obligated to pay the principal of or interest on such Junior Subordinated Debentures held by the applicable Trust or the Institutional Trustee of such Trust, and General Motors shall be subrogated to the rights of the holder of such Preferred Securities with respect to payments on such Preferred Securities to the extent of any payments made by General Motors to such holder in any Direct Action. Except as provided in the preceding sentence and in the Preferred Securities Guarantee, the holders of Preferred Securities will not be able to exercise directly any other remedy available to the holders of such Junior Subordinated Debentures. CERTAIN COVENANTS OF GENERAL MOTORS If (i) there shall have occurred any event that would constitute an Indenture Event of Default under the Indenture with respect to a series of the Junior Subordinated Debentures or (ii) General Motors shall be in default with respect to its payment of any obligations under the applicable Preferred Securities Guarantee or the applicable Common Securities Guarantee or (iii) General Motors shall have given notice of its election to defer payments of interest on the applicable series of the Junior Subordinated Debentures by extending the interest payment period and such period, or any extension thereof, shall be continuing, then (a) General Motors shall not declare or pay any dividend on, make any distributions with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock (other than (x) purchases or acquisitions or shares of General Motors Common Stock in connection with the satisfaction by General Motors of its obligations under any employee benefit plans or any other contractual obligation of General Motors (other than a contractual obligation ranking pari passu with or junior to such Junior Subordinated Debentures, such as the other series of Junior Subordinated Debentures), (y) issuance of capital stock in connection with a recapitalization or reclassification of General Motors capital stock or the exchange or conversion of one class or series of General Motors capital stock for another class or series of General Motors capital stock, in each case by merger or otherwise, or (z) the purchase of fractional interests in shares of General Motors capital stock pursuant to the conversion or exchange provisions of such General Motors capital stock or the security being converted or exchanged), (b) General Motors shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by General Motors which rank pari passu with or junior to such Junior Subordinated Debentures (including the other series of Junior Subordinated Debentures) and (c) General Motors shall not make any guarantee payments with respect to the foregoing (other than pursuant to the applicable Preferred Securities Guarantee). For so long as any such Trust Securities remain outstanding, General Motors will covenant (i) to directly or indirectly maintain 100 percent ownership of the Common Securities of the applicable Trust; provided, however, that any permitted successor of General Motors under the Indenture may succeed to General Motors' ownership of such Common Securities, (ii) to use its reasonable efforts to cause such Trust (a) to remain a statutory business trust, except in connection with the distribution of the related Junior Subordinated Debentures to the holders of such Trust Securities in liquidation of such Trust, the redemption of all of such Trust Securities of the Trust, or certain mergers, consolidations or amalgamations, each as permitted by the Declaration relating to such Trust, and (b) to otherwise continue not to be treated as an association taxable as a corporation or a partnership for United States federal income tax purposes and (iii) to use its reasonable efforts to cause each holder of such Trust Securities to be treated as owning an undivided beneficial interest in such Junior Subordinated Debentures. 78 88 BOOK-ENTRY AND SETTLEMENT If any Junior Subordinated Debentures are distributed to holders of Trust Securities (see "Description of the Preferred Securities"), such Junior Subordinated Debentures will be issued in fully registered form. In such event, investors may elect to hold their Junior Subordinated Debentures directly or, subject to the rules and procedures of a Depository Institution, hold interests in a global certificate registered in the name of a Depository Institution or its nominee. For a description of a Depository Institution and a Depository Institution's book-entry system, see "Description of the Preferred Securities--Book-Entry; Delivery and Form." As of the date of this Prospectus, the description herein of a Depository Institution's book-entry system and Depository Institution's practices as they relate to purchases, transfers, notices and payments with respect to the Preferred Securities apply in all material respects to any Junior Subordinated Debentures registered in the name of and held by a Depository Institution or its nominee. MODIFICATION OF THE INDENTURE The Indenture contains provisions permitting General Motors and the Debt Trustee, with the consent of the holders of not less than a majority in principal amount of the securities of all series affected by such modification at the time outstanding, and, in the case of the Junior Subordinated Debentures, the holders of a majority in aggregate liquidation amount of the related Preferred Securities, to modify the Indenture; provided that no such modification shall, without the consent of the holders of each Junior Subordinated Debenture affected thereby and each related Preferred Security, (i) extend the fixed maturity of such Junior Subordinated Debentures, or reduce the principal amount thereof or any premium thereon, or reduce any amount payable on redemption thereof, or reduce the rate or extend the time of payment of interest thereon, or make the principal of, or interest or premium on, such Junior Subordinated Debentures payable in any coin or currency other than that provided in such Junior Subordinated Debentures, or impair or affect the right of any holder of the applicable series of Junior Subordinated Debentures to institute suit for the payment thereof or the right of prepayment, if any, at the option of the holder or (ii) reduce the aforesaid percentage of Junior Subordinated Debentures the consent of the holders of which is required for any such modification. The Indenture also contains provisions permitting General Motors and the Debt Trustee to enter into one or more indentures supplemental to the Indenture, without the consent of the holders of the applicable series of Junior Subordinated Debentures, for one or more of the following purposes: (i) to evidence the succession of another corporation to General Motors and the assumption by such successor corporation of the covenants, agreements and obligations of General Motors as permitted under the Indenture; (ii) to add to the covenants, restrictions or obligations of General Motors, as described in the Indenture; (iii) to provide for the issuance of such series of Junior Subordinated Debentures in coupon form and to provide for exhangeability of such Junior Subordinated Debentures for the applicable series of Junior Subordinated Debentures issued under the Indenture; (iv) to cure any ambiguity or to correct or supplement any provision of the Indenture which may be defective or inconsistent with any other provision of the Indenture; (v) to evidence and provide for the acceptance of appointment under the Indenture by a successor trustee and to make appropriate additions and changes to the provisions of the Indenture to provide for the administration of the trusts thereunder by more than one trustee, as described in the Indenture; (vi) to make any change that does not adversely affect the rights of any holder of the applicable series of Junior Subordinated Debentures in any material respect; or (vii) to provide for the issuance of and establish the form and terms and conditions of any series of securities to be issued under the Indenture, to establish the form of any certifications required to be furnished pursuant to the Indenture or any series of securities, or to add to the rights of the holders of any series of securities issued under the Indenture. A supplemental indenture which changes or eliminates any covenant or other provision of the 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 the Indenture or the securityholders of any other series. 79 89 It shall not be necessary for the consent of the holders under the Indenture to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. MERGERS, CONSOLIDATIONS, CONVEYANCES AND TRANSFERS The provisions of the Indenture permit the consolidation or merger of General Motors with or into one or more other corporations (whether or not affiliated with General Motors), and successive consolidations or mergers in which General Motors (or its successor or successors) shall be a party or parties, and the sale, conveyance, transfer or other disposition of the property of General Motors (or its successor or successors) to any other corporation (whether or not affiliated with General Motors or its successor or successors) authorized to acquire and operate the same; provided, however, that, upon any such consolidation, merger, sale, conveyance, transfer or other disposition, the due and punctual payment by General Motors of the principal of and premium (if any) and interest on all of the Junior Subordinated Debentures of all series in accordance with the terms of each series, and the due and punctual performance and observance of all the covenants and conditions of the Indenture with respect to each series or established with respect to such series to be kept or performed by General Motors, as the case may be, shall be expressly assumed, by supplemental indenture executed and delivered to the Debt Trustee, by the entity formed by such consolidation, or into which General Motors shall have merged, or by the entity which shall have acquired such property; provided, further, that after giving effect to such supplemental indenture, no default shall have occurred and be continuing under the Indenture. In case of any such consolidation, merger, conveyance or transfer and upon the assumption by the successor corporation of the due and punctual payment of the principal of and premium (if any) and interest on all of such Junior Subordinated Debentures and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed or observed by General Motors, such successor corporation shall succeed to and be substituted for General Motors, with the same effect as if it had been named as the party of the Indenture, and General Motors shall be relieved of any further liability or obligation under the Indenture or upon such Junior Subordinated Debentures. Such successor corporation may issue any or all of the Junior Subordinated Debentures issuable under the Indenture; and, upon the order of such successor corporation, the Debt Trustee (or the authenticating agent) shall authenticate and deliver any such Junior Subordinated Debentures, as described in the Indenture. The Indenture further provides that all Junior Subordinated Debentures so issued shall in all respects have the same legal rank and benefit under the Indenture as the Junior Subordinated Debentures theretofore or thereafter issued in accordance with the terms of the Indenture as though all of such Junior Subordinated Debentures had been issued at the date of the execution of the Indenture. DEFEASANCE AND DISCHARGE The Indenture provides that General Motors, at General Motors' option: (i) will be discharged from any and all obligations in respect of a series of the Junior Subordinated Debentures (except for certain obligations to register the transfer or exchange of such Junior Subordinated Debentures, replace stolen, lost or mutilated Junior Subordinated Debentures, maintain paying agencies and hold moneys for payment in trust) or (ii) need not comply with certain restrictive covenants of the Indenture with respect to such Junior Subordinated Debentures (including those described herein under "Certain Covenants of General Motors"), in each case if General Motors deposits, in trust with the Debt Trustee or a defeasance agent, money or United States government obligations which through the payment of interest thereon and principal thereof in accordance with their terms will provide money, in an amount sufficient to pay all the principal of, and interest and premium, if any, on, such Junior Subordinated Debentures on the dates such payments are due in accordance with the terms of such Junior Subordinated Debentures. To exercise any such option, General Motors is required to deliver to the Debt Trustee and the applicable defeasance agent, if any, an opinion of counsel to the effect that (a) the deposit and related defeasance would not cause the holders of such Junior Subordinated Debentures to recognize income, gain or loss for United States federal income tax purposes and, in the case of a discharge pursuant to clause (i), such opinion shall be accompanied by a private letter ruling to that effect received by General Motors from the United States Internal Revenue Service or a revenue ruling 80 90 pertaining to a comparable form of transaction to that effect published by the United States Internal Revenue Service, and (b) if listed on any national securities exchange, such Junior Subordinated Debentures would not be delisted from such exchange as a result of the exercise of such option. GOVERNING LAW The Indenture and each series of the Junior Subordinated Debentures issued thereby will be governed by, and construed in accordance with, the internal laws of the State of New York. MISCELLANEOUS The Indenture will provide that General Motors will pay all fees and expenses related to (i) the offering of the Trust Securities and the Junior Subordinated Debentures, (ii) the organization, maintenance and dissolution of the Trusts, (iii) the retention of the Regular Trustees of such Trust and (iv) the enforcement by the Institutional Trustee of such Trust of the rights of the holders of such Trust's Preferred Securities. General Motors will have the right at all times to assign any of its respective rights or obligations under the Indenture to a direct or indirect wholly owned subsidiary of General Motors; provided that, in the event of any such assignment, General Motors will remain liable for all of their respective obligations. Subject to the foregoing, the Indenture will be binding upon and inure to the benefit of the parties thereto and their respective successors and assigns. The Indenture provides that it may not otherwise be assigned by the parties thereto. 81 91 DESCRIPTION OF THE PREFERENCE STOCKS AND DEPOSITARY SHARES The summary of the terms of the Preference Stocks and the Depositary Shares set forth below does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the provisions of General Motors' Restated Certificate of Incorporation, as amended (the "General Motors Certificate of Incorporation"), and the Certificate of Designation for each series of Preference Stock and the Deposit Agreement for each series of Depositary Shares. Whenever defined terms in the applicable Deposit Agreement are referred to in this "Description of the Preference Stocks and Depositary Shares," such defined terms are incorporated by reference herein. PREFERENCE STOCKS General Motors currently has outstanding three series of preference stock (collectively, "General Motors Preference Stock"): Series B 9 1/8% Preference Stock ("Series B 9 1/8% Preference Stock"), Series D 7.92% Preference Stock and Series G 9.12% Preference Stock. Each series of the General Motors Preference Stock ranks junior to General Motors' preferred stock ("General Motors Preferred Stock"), if any were outstanding, and ranks senior to General Motors Common Stock with respect to payment of dividends and distributions in liquidation. Interests in each of such series of General Motors Preference Stock are held by the public in the form of depositary shares, each of which represents a fractional interest in one share of such General Motors Preference Stock. The fractional interest which a single depositary share represents in relation to outstanding shares of the corresponding series of General Motors Preference Stock is as follows: each Series B 9 1/8% Depositary Share, $25.00 per share stated value, represents a one-fourth (0.25) interest in one share of Series B 9 1/8% Preference Stock, $100.00 per share stated value; each Series D 7.92% Depositary Share, $25.00 per share stated value, represents a one-fourth (0.25) interest in one share of Series D 7.92% Preference Stock, $100.00 per share stated value; and each Series G 9.12% Depositary Share, $25.00 per share stated value, represents a one-fourth (0.25) interest in one share of Series G 9.12% Preference Stock, $100.00 per share stated value. THE OFFERS BEING MADE HEREBY RELATE ONLY TO THE SERIES D 7.92% DEPOSITARY SHARES AND THE SERIES G 9.12% DEPOSITARY SHARES. NO OFFER IS BEING MADE FOR ANY SERIES B 9 1/8% DEPOSITARY SHARES. As of the date of this Prospectus, the following shares of the Preference Stocks were outstanding: shares of Series D 7.92% Preference Stock, represented by Series D 7.92% Depositary Shares, and shares of Series G 9.12% Preference Stock, represented by Series G 9.12% Depositary Shares. The following discussion of the Series D 7.92% Preference Stock and the Series G 9.12% Preference Stock is based on shares of General Motors Preference Stock rather than the corresponding Depositary Shares. Series D 7.92% Preference Stock Dividends. Subject to the rights of the holders of General Motors Preferred Stock (if any), dividends will be paid on the outstanding shares of Series D 7.92% Preference Stock when, as and if declared by the General Motors Board out of General Motors' assets legally available therefor. Dividends may be subject to restrictions contained in any future debt agreements of General Motors and to limitations contained in future series or classes of General Motors Preferred Stock or General Motors Preference Stock. Holders of shares of Series D 7.92% Preference Stock will be entitled to receive cumulative cash dividends, at the annual rate of 7.92% of the per share stated value (equivalent to $7.92 per annum per share of Series D 7.92% Preference Stock), payable quarterly for each of the quarters ending March, June, September and December of each year, payable in arrears on the first day that is not a legal holiday of each succeeding May, August, November and February, respectively. Each such dividend will be paid to holders of record on each record date, which shall be not less than 10 nor more than 50 days preceding the payment date, as fixed by the General Motors Board. Dividends on the shares of Series D 7.92% Preference Stock, whether 82 92 or not declared, will be cumulative from the date of original issue of the shares of Series D 7.92% Preference Stock. The amount of dividends payable for any period shorter than a full quarterly dividend period will be determined on the basis of a 360-day year consisting of twelve 30-day months. Accrued but unpaid dividends will not bear interest. Preferential dividends will accrue whether or not General Motors has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. Dividends accumulate to the extent they are not paid on the dividend payment date following the calendar quarter for which they accrue. Accumulated preferential dividends will not bear interest. Dividends will not be paid on any class of General Motors Common Stock or other stock ranking junior to the shares of Series D 7.92% Preference Stock (other than a dividend payable in shares of any class of General Motors Common Stock) and General Motors will not redeem, repurchase or otherwise acquire any shares of General Motors Common Stock or other stock ranking junior to the shares of Series D 7.92% Preference Stock (other than a redemption or purchase of shares of General Motors Common Stock made in connection with employee incentive or benefit plans of General Motors or its subsidiaries), unless the full preferential dividends accumulated on all outstanding shares of Series D 7.92% Preference Stock have been paid. Dividends will not be declared on any series of General Motors Preference Stock for any prior dividend payment period unless there shall have been declared on all outstanding shares of General Motors Preference Stock ranking on a parity with such series, in respect of all dividend payment periods of such parity stock terminating with or before such prior dividend payment period, like proportionate dividends determined ratably in proportion to the respective preferential dividends accumulated to date on such series and the dividends accumulated on all such outstanding parity General Motors Preference Stock. Conversion. The shares of Series D 7.92% Preference Stock are not convertible into shares of any other class of capital stock of General Motors. Redemption. The shares of Series D 7.92% Preference Stock may not be redeemed prior to August 1, 1999. On or after August 1, 1999, General Motors may, at its option, on not less than 35 nor more than 60 days notice, redeem the shares of Series D 7.92% Preference Stock, as a whole or in part, at any time or from time to time, for cash in an amount equal to $100 per share of Series D 7.92% Preference Stock, plus an amount equal to all dividends accrued and unpaid thereon to the date fixed for redemption. If less than all outstanding shares of Series D 7.92% Preference Stock are to be redeemed, shares to be redeemed will be selected by General Motors by lot or pro rata or by any other method determined by General Motors in its sole discretion to be equitable. Holders of shares of Series D 7.92% Preference Stock have no right to require redemption of such shares. Liquidation Preference. In the event of the liquidation, dissolution or winding up of the business of General Motors, whether voluntary or involuntary, the holders of shares of Series D 7.92% Preference Stock will be entitled to the liquidation preference described below, after the holders of General Motors Preferred Stock (if any), receive the full preferential amounts to which they are entitled and before any distribution to holders of General Motors Common Stock. The holders of the shares of Series D 7.92% Preference Stock will be entitled to receive for each share $100 plus an amount equal to all dividends accrued and unpaid thereon to the date of final distribution to such holders (subject to the right of the holders of record of any shares of Series D 7.92% Preference Stock on a record date for payment of dividends thereon to receive a dividend payable on the date of final distribution), but such holders shall not be entitled to any further payment. If there are insufficient assets to permit full payment to holders of the shares of Series D 7.92% Preference Stock and the holders of any other series of General Motors Preference Stock which is on parity with the shares of Series D 7.92% Preference Stock as to liquidation rights, then the holders of the shares of Series D 7.92% Preference Stock and such other shares shall be paid ratably in proportion to the full distributable amounts to which holders of all such parity shares are respectively entitled upon such dissolution, liquidation or winding up. Voting. The shares of Series D 7.92% Preference Stock do not entitle holders thereof to voting rights, except (i) with respect to any amendment or alteration of any provision of the General Motors Certificate of Incorporation which would adversely affect the powers, preferences or special rights of the shares of Series D 83 93 7.92% Preference Stock, which requires the prior approval of the holders of at least two-thirds of the outstanding shares of Series D 7.92% Preference Stock, and (ii) in the event General Motors fails to pay accumulated preferential dividends on the shares of Series D 7.92% Preference Stock in full for any six quarterly dividend payment periods, whether or not consecutive, and all such dividends remain unpaid (a "Preferential Dividend Default"), or as required by law. In the event of a Preferential Dividend Default, the number of directors of General Motors will be increased by two and the holders of the outstanding shares of Series D 7.92% Preference Stock, voting together as a class with all other series of General Motors Preference Stock ranking junior to or on a parity with the shares of Series D 7.92% Preference Stock and then entitled to vote on the election of such directors, will be entitled to elect such two additional directors until the full dividends accumulated on all outstanding shares of Series D 7.92% Preference Stock have been paid. Series G 9.12% Preference Stock Dividends. Subject to the rights of the holders of General Motors Preferred Stock (if any), dividends will be paid on the outstanding shares of Series G 9.12% Preference Stock when, as and if declared by the General Motors Board out of General Motors' assets legally available therefor. Dividends may be subject to restrictions contained in any future debt agreements of General Motors and to limitations contained in future series or classes of General Motors Preferred Stock or General Motors Preference Stock. Holders of shares of Series G 9.12% Preference Stock will be entitled to receive cumulative cash dividends, at the annual rate of 9.12% of the per share stated value (equivalent to $9.12 per annum per share of Series G 9.12% Preference Stock), payable quarterly for each of the quarters ending March, June, September, and December of each year, payable in arrears on the first day that is not a legal holiday of each succeeding May, August, November and February, respectively. Each such dividend will be paid to holders of record on each record date, which shall be not less than 10 nor more than 50 days preceding the payment date, as fixed by the General Motors Board. Dividends on the shares of Series G 9.12% Preference Stock, whether or not declared, will be cumulative from the date of original issue of the shares of Series G 9.12% Preference Stock. The amount of dividends payable for any period shorter than a full quarterly dividend period will be determined on the basis of a 360-day year consisting of twelve 30-day months. Accrued but unpaid dividends will not bear interest. Preferential dividends will accrue whether or not General Motors has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. Dividends accumulate to the extent they are not paid on the dividend payment date following the calendar quarter for which they accrue. Accumulated preferential dividends will not bear interest. Dividends will not be paid on any class of General Motors Common Stock or other stock ranking junior to the shares of Series G 9.12% Preference Stock (other than a dividend payable in shares of any class of General Motors Common Stock) and General Motors will not redeem, repurchase or otherwise acquire any shares of General Motors Common Stock or other stock ranking junior to the shares of Series G 9.12% Preference Stock (other than a redemption or purchase of shares of General Motors Common Stock made in connection with employee incentive or benefit plans of General Motors or its subsidiaries), unless the full preferential dividends accumulated on all outstanding shares of Series G 9.12% Preference Stock have been paid. Dividends will not be declared on any series of General Motors Preference Stock for any prior dividend payment period unless there shall have been declared on all outstanding shares of General Motors Preference Stock ranking on a parity with such series, in respect of all dividend payment periods of such parity stock terminating with or before such prior dividend payment period, like proportionate dividends determined ratably in proportion to the respective preferential dividends accumulated to date on such series and the dividends accumulated on all such outstanding parity General Motors Preference Stock. Conversion. The shares of Series G 9.12% Preference Stock are not convertible into shares of any other class of capital stock of General Motors. Redemption. The shares of Series G 9.12% Preference Stock may not be redeemed prior to January 1, 2001. On or after January 1, 2001, General Motors may, at its option, on not less than 35 nor more than 60 days notice, redeem the shares of Series G 9.12% Preference Stock, as a whole or in part, at any time or from 84 94 time to time, for cash in an amount equal to $100 per share of Series G 9.12% Preference Stock, plus an amount equal to all dividends accrued and unpaid thereon to the date fixed for redemption. If less than all outstanding shares of Series G 9.12% Preference Stock are to be redeemed, shares to be redeemed will be selected by General Motors by lot or pro rata or by any other method determined by General Motors in its sole discretion to be equitable. Holders of shares of Series G 9.12% Preference Stock have no right to require redemption of such shares. Liquidation Preference. In the event of the liquidation, dissolution or winding up of the business of General Motors, whether voluntary or involuntary, the holders of shares of Series G 9.12% Preference Stock will be entitled to the liquidation preference described below, after the holders of General Motors Preferred Stock (if any), receive the full preferential amounts to which they are entitled and before any distribution to holders of General Motors Common Stock. The holders of the shares of Series G 9.12% Preference Stock will be entitled to receive for each share $100 plus an amount equal to all dividends accrued and unpaid thereon to the date of final distribution to such holders (subject to the right of the holders of record of any Series G 9.12% Preference Share on a record date for payment of dividends thereon to receive a dividend payable on the date of final distribution), but such holders shall not be entitled to any further payment. If there are insufficient assets to permit full payment to holders of the shares of Series G 9.12% Preference Stock and the holders of any other series of General Motors Preference Stock which is on parity with the shares of Series G 9.12% Preference Stock as to liquidation rights, then the holders of the shares of Series G 9.12% Preference Stock and such other shares shall be paid ratably in proportion to the full distributable amounts to which holders of all such parity shares are respectively entitled upon such dissolution, liquidation or winding up. Voting. The shares of Series G 9.12% Preference Stock do not entitle holders thereof to voting rights, except (i) with respect to any amendment or alteration of any provision of the General Motors Certificate of Incorporation which would adversely affect the powers, preferences or special rights of the shares of Series G 9.12% Preference Stock, which requires the prior approval of the holders of at least two-thirds of the outstanding shares of Series G 9.12% Preference Stock, and (ii) in the event General Motors fails to pay accumulated preferential dividends on the shares of Series G 9.12% Preference Stock in full for any six quarterly dividend payment periods, whether or not consecutive, and all such dividends remain unpaid (a "Preferential Dividend Default"), or as required by law. In the event of a Preferential Dividend Default, the number of directors of General Motors will be increased by two and the holders of the outstanding shares of Series G 9.12% Preference Stock, voting together as a class with all other series of General Motors Preference Stock ranking junior to or on a parity with the shares of Series G 9.12% Preference Stock and then entitled to vote on the election of such directors, will be entitled to elect such two additional directors until the full dividends accumulated on all outstanding shares of Series G 9.12% Preference Stock have been paid. Transfer Agent, Registrar, Dividend Disbursing Agent and Redemption Agent The transfer agent, registrar, dividend agent and redemption agent for all shares of General Motors Preference Stock is The First National Bank of Boston (the "Transfer Agent"). The First National Bank of Boston acts as the Depositary (the "Depositary") for the Depositary Shares. DEPOSITARY SHARES The Series D 9.12% Depositary Shares are issued under a Deposit Agreement, as amended (the "Series D Deposit Agreement"), between General Motors, Boston EquiServe, as the Series D Depositary, and the holders from time to time of the related depositary receipts evidencing the Series D 7.92% Depositary Shares (the "Series D Deposit Receipts"). The Series G 9.12% Depositary Shares are issued under a Deposit Agreement, as amended (the "Series G Deposit Agreement"), between General Motors, The First National Bank of Boston, as the Series G Depositary, and the holders from time to time of the related depositary receipts evidencing the Series G 9.12% Depositary Shares (the Series G Deposit Receipts"). The Series D Deposit Agreement and the Series G Deposit Agreement are each a "Deposit Agreement" and together constitute the "Deposit Agreements." 85 95 General Each Series D 7.92% Depositary Share represents one-fourth of a share of the Series D 7.92% Preference Stock (the equivalent of $25 liquidation preference of Series D 7.92% Preference Stock). Each Series G 9.12% Depository Share represents one-fourth of a share of the Series G 9.12% Preference Stock (the equivalent of $25 liquidation preference of Series G 9.12% Preference Stock. Subject to the terms of the applicable Deposit Agreement, each owner of a Depositary Share is entitled, in proportion to the one-fourth of a share of the Preference Stock represented by such Depositary Share, to all the rights and preferences of the shares of the Preference Stock represented thereby (including dividend, voting, redemption and liquidation rights). The Series D 7.92% Depositary Shares are listed on the NYSE under the symbol "GM Pr D" and the Series G 9.12% Depository Shares are listed and traded on the NYSE under the symbol "GM Pr G". Dividends and Other Distributions Each Depositary distributes all cash dividends or other cash distributions received in respect of applicable shares of such Preference Stock to the record holders of Depositary Shares relating to the Preference Stock in proportion to the number of such Depositary Shares owned by such holders. In the event of a distribution other than in cash, each Depositary will distribute property received by it to the record holders of the applicable Depositary Shares in an equitable manner in proportion to the number of such Depositary Shares owned by such holders, unless such Depositary determines that it is not feasible to make such distribution, in which case such Depositary may sell such property and distribute the net proceeds from such sale to such holders. Redemptions of Depositary Shares If the shares of either series of the Preference Stock are redeemed, the related Depositary Shares will be redeemed from the proceeds received by the applicable Depositary resulting from the redemption, in whole or in part, of such shares of the applicable Preference Stock held by such Depositary. With respect to both series of the Depository Shares, the redemption price per Depositary Share will be equal to one-fourth of the redemption price per share payable with respect to the applicable Preference Stock. Whenever General Motors redeems shares of any Preference Stock held by the applicable Depositary, such Depositary will redeem as of the same redemption date the number of Depositary Shares representing shares of the Preference Stock so redeemed. If fewer than all of the Depositary Shares of either series are to be redeemed, the Depositary Shares to be redeemed will be selected by lot, pro rata or by any other equitable method as may be determined by the applicable Depositary. Voting the Shares of the Preference Stocks Upon receipt of notice of any meeting at which the holders of a series of the Preference Stocks are entitled to vote, the Depositary for the related Depository Shares will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such shares of the related Preference Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the shares of the related Preference Stock) is entitled to instruct such Depositary as to the exercise of the voting rights pertaining to the fraction of the shares of the Preference Stock represented by such holder's Depositary Shares. Such Depositary will endeavor, insofar as practicable, to vote the number of shares of the Preference Stock represented by such Depositary Shares in accordance with such instructions, and General Motors will agree to take all reasonable action that may be deemed necessary by the such Depositary in order to enable the such Depositary to do so. Such Depositary will abstain from voting such shares of the Preference Stock to the extent it does not receive specific instructions from the holder of Depositary Shares representing such shares of the Preference Stock. 86 96 Amendment and Termination of the Deposit Agreements The forms of Depositary Receipts evidencing each series of the Depositary Shares and any provision of the applicable Deposit Agreement may at any time be amended by agreement between General Motors and the applicable Depositary. However, any amendment that materially and adversely alters the rights of the holders of Depositary Shares will not be effective unless the holders of at least a majority of the applicable series of Depositary Shares then outstanding approve such amendment. Each Deposit Agreement will only terminate if (i) all outstanding Depositary Shares of the applicable series have been redeemed or (ii) there has been a final distribution in respect of the shares of the Preference Stock represented by such Depositary Shares in connection with any liquidation, dissolution or winding up of General Motors and such distribution has been distributed to the holders of such Depositary Shares. Charges of Depositaries General Motors is required to pay all transfer and other taxes and governmental charges arising solely from the existence of each of the depositary arrangements. General Motors paid charges of each Depositary in connection with the initial deposit of the applicable shares of the Preference Stock and the issuance of the related Depositary Shares, and is required to pay charges of each Depositary in connection with all withdrawals of shares of the applicable Preference Stock by owners of the related Depositary Shares and any redemption of the shares of such Preference Stock. Holders of Depositary Shares are required to pay other transfer and other taxes and governmental charges and such other charges as are expressly provided in the applicable Deposit Agreement to be for their accounts. Resignation and Removal of Depositaries Each Depositary may resign at any time by delivering to General Motors notice of its election to do so. General Motors may at any time remove the Depositary. Any such resignation or removal shall take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Each successor Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. Miscellaneous Each Depositary is required to forward all reports and communications from General Motors that are delivered to such Depositary and that General Motors is required or otherwise determines to furnish to the holders of the shares of the applicable series of Preference Stock. Neither Depositary nor General Motors is liable under the applicable Deposit Agreement to holders of Depositary Receipts issued by the applicable Depositary other than for negligence, bad faith or willful misconduct. Neither Depositary nor General Motors is obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares or Preference Stock unless satisfactory indemnity is furnished. General Motors and each Depositary may rely upon written advice of counsel or accountants, or upon information provided by persons presenting shares of the applicable Series of Preference Stock for deposit, holders of the applicable Depositary Receipts or other persons believed to be competent and on documents believed to be genuine. 87 97 RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE JUNIOR SUBORDINATED DEBENTURES AND THE PREFERRED SECURITIES GUARANTEES As set forth in the applicable Declaration, each Trust exists for the purpose of (i) issuing (a) its Preferred Securities in exchange for Depositary Shares validly tendered in its Offer and delivering such Depositary Shares to General Motors in consideration of the deposit by General Motors as trust assets of the applicable series of Junior Subordinated Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of such Trust's Preferred Securities, and (b) its Common Securities to General Motors in exchange for cash and investing the proceeds thereof in an equivalent amount of the applicable series of the Junior Subordinated Debentures. As long as payments of interest and other payments are made when due on each series of the Junior Subordinated Debentures, such payments will be sufficient to cover distributions and payments due on the Trust Securities of each Trust because of the following factors: (i) the aggregate principal amount of Junior Subordinated Debentures held by each Trust will be equal to the sum of the aggregate stated liquidation amount of its Trust Securities; (ii) the interest rate and the interest and other payment dates on such Junior Subordinated Debentures will match the distribution rate and distribution and other payment dates for such Preferred Securities; (iii) General Motors shall pay all, and no Trust shall not obligated to pay, directly or indirectly, any costs, expenses, debts, and obligations of such Trust (other than with respect to its Trust Securities); and (iv) the applicable Declaration further provides that the Regular Trustees of such Trust shall not take or cause or permit such Trust to, among other things, engage in any activity that is not consistent with the purposes of such Trust. Payments of distributions (to the extent funds therefor are available) and other payments due on each series of the Preferred Securities (to the extent funds therefor are available) are guaranteed by General Motors as and to the extent set forth under "Description of the Preferred Securities Guarantees." If General Motors does not make interest payments on the Junior Subordinated Debentures purchased by each Trust, such Trust will not have sufficient funds to pay distributions on its Preferred Securities. Each Preferred Securities Guarantee does not apply to any payment of distributions unless and until the applicable Trust has sufficient funds for the payment of such distributions. Each Preferred Securities Guarantee covers the payment of distributions and other payments on applicable Preferred Securities only if and to the extent that General Motors has made a payment of interest or principal on the Junior Subordinated Debentures held by such Trust as its sole asset. Each Preferred Securities Guarantee, when taken together with General Motors' obligations under the applicable Junior Subordinated Debentures and the Indenture and its obligations under the Declaration, including its obligations to pay costs, expenses, debts and liabilities of such Trust (other than with respect to its Trust Securities), provide a full and unconditional guarantee of amounts on such Trust's Preferred Securities. If General Motors fails to make interest or other payments on Junior Subordinated Debentures when due (taking account of any Extension Period), the Declaration relating to each Trust provides a mechanism whereby the holders of the Preferred Securities of such Trust, using the procedures described in "Description of the Preferred Securities--Book-Entry; Delivery and Form" and "--Voting Rights," may direct the Institutional Trustee of such Trust to enforce its rights under such Junior Subordinated Debentures. If such Institutional Trustee fails to enforce its rights under such Junior Subordinated Debentures, a holder of the related Preferred Securities may institute a legal proceeding against General Motors to enforce such Institutional Trustee's rights under such Junior Subordinated Debentures without first instituting any legal proceeding against such Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default with respect to a Trust has occurred and is continuing and such event is attributable to the failure of General Motors to pay interest or principal on the Junior Subordinated Debentures held by such Trust on the date such interest or principal is otherwise payable (or in the case of redemption on the redemption date), then a holder of the related Preferred Securities may institute a Direct Action for payment on or after the respective due date specified in such Junior Subordinated Debentures. In connection with such Direct Action, General Motors will be subrogated to the rights of such holder of Preferred Securities under applicable Declaration to the extent of any payment made by General Motors to such holder of Preferred Securities in such Direct Action. General Motors, under the applicable Preferred 88 98 Securities Guarantee, acknowledges that the Guarantee Trustee for such Preferred Securities Guarantee shall enforce such Preferred Securities Guarantee on behalf of the holders of the Preferred Securities to which such Preferred Securities Guarantee relates. If General Motors fails to make payments under any Preferred Securities Guarantee, any holder of Preferred Securities to which such Preferred Securities Guarantee relates may institute a Direct Action against General Motors to enforce the applicable Guarantee Trustee's rights and the obligations of General Motors under such Preferred Securities Guarantee without first instituting a legal proceeding against applicable Trust, such Guarantee Trustee, or any other person or entity. 89 99 UNITED STATES FEDERAL INCOME TAXATION The following is a general summary of the material United States federal income tax consequences of the issuance of Preferred Securities in exchange for the Depositary Shares pursuant to the Offers, and of the ownership and disposition of Preferred Securities. To the extent it relates to matters of law or legal conclusions, this summary constitutes the opinion of Robert N. Deitz, Esq. Tax Staff of General Motors, counsel to General Motors and each Trust ("Tax Counsel"). Unless otherwise stated, this summary deals only with Preferred Securities held as capital assets by a holder who receives such Preferred Securities pursuant to an Offer (an "Initial Holder") and who holds the Depositary Shares tendered in such Offer as capital assets. This summary does not discuss all the tax consequences that may be relevant to a particular Initial Holder in light of the Initial Holder's particular circumstances and it is not intended to be applicable in all respects to all categories of Initial Holders, some of whom (such as insurance companies, tax-exempt persons, financial institutions, regulated investment companies, dealers in securities or currencies, persons that hold Depositary Shares or Preferred Securities received in the exchange as a position in a "straddle," as part of a "synthetic security," "hedge," "conversion transaction" or other integrated investment or persons whose functional currency is other than United States dollars) may be subject to different rules not discussed below. In addition, this summary does not address any state, local or foreign tax considerations that may be relevant to a Initial Holder's decision to exchange Depositary Shares for Preferred Securities pursuant to the Offers. This summary is based on the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations thereunder and administrative and judicial interpretations thereof, as of the date hereof, all of which are subject to change (possibly on retroactive basis). However, such summary and the opinion rendered by Tax Counsel have no binding effect on the Internal Revenue Service ("IRS") or on the courts. ALL HOLDERS OF DEPOSITARY SHARES ARE ADVISED TO CONSULT THEIR TAX ADVISORS AS TO THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OF DEPOSITARY SHARES FOR PREFERRED SECURITIES PURSUANT TO AN OFFER AND OF THE OWNERSHIP AND DISPOSITION OF PREFERRED SECURITIES IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR OTHER TAX LAWS. EXCHANGE OF DEPOSITARY SHARES FOR PREFERRED SECURITIES IN THE OFFERS The exchange of Depositary Shares for Preferred Securities pursuant to an Offer will be a taxable transaction. Holders who participate in the exchange and who actually or constructively own solely Depositary Shares, or who actually or constructively own Depository Shares and a minimal percentage of any other class of General Motors capital stock, and who do not exercise any control over the affairs of General Motors, will recognize gain or loss in an amount equal to the difference between the fair market value of the Preferred Securities received, measured on the applicable Exchange Date, and the exchanging holder's tax basis in the Depositary Shares exchanged therefor. Such amount will be long-term capital gain or loss if such Depositary Shares have been held for more than one year as of such date. General Motors will provide information, prior to January 31, 1998, concerning such fair market value to the Exchange Agent, which will provide such information to holders of record who exchange Depositary Shares for Preferred Securities other than holders who demonstrate that they are not U.S. persons (as described under "--United States Alien Holders"), on a Form 1099-B reporting such information. It is anticipated that persons who hold such Depositary Shares as nominees for beneficial holders will provide such information to such beneficial holders. A holder's aggregate tax basis (and such holder's issue price) in his or her pro rata share of the underlying Junior Subordinated Debentures will be equal to the fair market value of the Preferred Securities received pursuant to an Offer on the applicable Exchange Date. Holders who actually or constructively own more than a minimal percentage of any other class of General Motors stock are advised to consult their tax advisors as to the income tax consequences of exchanging Depositary Shares in either or both of the Offers. 90 100 CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBENTURES In connection with the issuance of the Junior Subordinated Debentures, Tax Counsel will render its opinion generally to the effect that under then current law and assuming full compliance with the terms of the Indenture (and certain other documents), and based on certain facts and assumptions contained in such opinion, each series of the Junior Subordinated Debentures will be classified for United States federal income tax purposes as indebtedness of General Motors. CLASSIFICATION OF THE TRUSTS In connection with the issuance of the Preferred Securities, Tax Counsel will render its opinion generally to the effect that, under then current law and assuming full compliance with the terms of the Declaration relating to each Trust and the Indenture (and certain other documents), and based on certain facts and assumptions contained in such opinion, each Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation. Accordingly, for United States federal income tax purposes, each holder of Preferred Securities generally will be considered the owner of an undivided interest in the underlying Junior Subordinated Debentures, and each holder will be required to include in its gross income any interest (or OID accrued) with respect to its allocable share of those Junior Subordinated Debentures. INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT Under recently issued Treasury regulations (the "Regulations") applicable to debt instruments issued on or after August 13, 1996, a "remote" contingency that stated interest will not be timely paid will be ignored in determining whether a debt instrument is issued with OID. General Motors believes that the likelihood of its exercising its option to defer payments of interest on either series of Junior Subordinated Debentures is "remote" since exercising either such option would prevent General Motors from declaring dividends on any class of its equity securities. Accordingly, General Motors intends to take the position, based on the advice of Tax Counsel, that the Junior Subordinated Debentures will not be considered to be issued with OID and, accordingly, stated interest on the Junior Subordinated Debentures generally will be taxable to a holder as ordinary income at the time it is paid or accrued in accordance with such holder's method of accounting. Moreover, if the issue price of Preferred Securities received by a holder exceeds the liquidation amount of such Preferred Securities, such excess will be treated as "amortizable bond premium." A holder which receives Preferred Securities with amortizable bond premium may elect to deduct such amortizable bond premium and such deduction shall be applied against (and operate to reduce) the amount of interest taxable as ordinary income on the Preferred Securities. A holder receiving Preferred Securities with amortizable bond premium should consult its tax advisor with respect to the manner of making such election. Under the Regulations, if General Motors were to exercise its option to defer payments of interest with respect to any series of Junior Subordinated Debentures, such Junior Subordinated Debentures would at that time be treated as issued with OID, and all stated interest on such Junior Subordinated Debentures would thereafter be treated as OID as long as such Junior Subordinated Debentures remain outstanding. In such event, all of a holder's taxable interest income with respect to such Junior Subordinated Debentures would thereafter be accounted for on an economic accrual basis regardless of such holder's method of tax accounting, and actual distributions of stated interest would not be reported as taxable income. Consequently, a holder of Preferred Securities would be required to include in gross income OID even though General Motors would not make actual cash payments during any applicable Extension Period. The Regulations have not yet been addressed in any rulings or other interpretations by the IRS, and it is possible that the IRS could take a position contrary to Tax Counsel's interpretation herein. Because distributions on the Preferred Securities will constitute interest or OID, corporate holders of the Preferred Securities will not be entitled to a dividends-received deduction with respect to any income recognized with respect to such Preferred Securities. 91 101 RECEIPT OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF THE TRUSTS General Motors will have the right at any time to dissolve and liquidate each Trust and cause the Junior Subordinated Debentures held by such Trust to be distributed to the holders of its Trust Securities. General Motors has no present intention to take such action with respect to either Trust. Under current law, such a distribution, for United States federal income tax purposes, would be treated as a nontaxable event to each holder, and each holder would receive an aggregate tax basis in such Junior Subordinated Debentures equal to such holder's aggregate tax basis in its Preferred Securities. A holder's holding period in the Junior Subordinated Debentures so received in liquidation of the Trust would include the period during which such Preferred Securities were held by such holder. Under certain circumstances described herein (see "Description of the Preferred Securities"), the Junior Subordinated Debentures may be redeemed for cash and the proceeds of such redemption distributed to holders in redemption of their related Preferred Securities. Under current law, such a redemption would, for United States federal income tax purposes, constitute a taxable disposition of the redeemed Preferred Securities, and such holder could recognize gain or loss as if it sold such redeemed Preferred Securities for cash. See "--Sales of Preferred Securities." SALES OF PREFERRED SECURITIES A holder that sells Preferred Securities (including pursuant to any redemption of such Preferred Securities by General Motors) will recognize gain or loss equal to the difference between its adjusted tax basis in such Preferred Securities and the amount realized on the sale of such Preferred Securities (other than with respect to accrued and unpaid interest which has not yet been included in income, which will be treated as ordinary income). A holder's adjusted tax basis in its Preferred Securities generally will, if such Preferred Securities are received in exchange for Depositary Shares pursuant to an Offer, be equal to the fair market value of such securities on the applicable Exchange Date, increased by OID (if any) previously includable in such holder's gross income to the date of disposition and decreased by (i) payments of OID (if any) received on such Preferred Securities and (ii) amounts deducted by the holder as amortizable bond premium. Such gain or loss generally will be a capital gain or loss and generally will be a long-term capital gain or loss if the Preferred Securities have been held for more than one year, which holding period will not include the period such holder held the Depositary Shares. The Preferred Securities may trade at a price that does not accurately reflect the value of accrued but unpaid interest with respect to the underlying Junior Subordinated Debentures. A holder who uses the accrual method of accounting for tax purposes (and a cash method holder, if the applicable Junior Subordinated Debentures are deemed to have been issued with OID) and who disposes of his Preferred Securities between record dates for payments of distributions thereon will be required to include accrued but unpaid interest on such Junior Subordinated Debentures through the date of disposition in income as ordinary income (i.e., interest or, possibly, OID), and to add such amount to his adjusted tax basis in his pro rata share of such underlying Junior Subordinated Debentures deemed disposed of. To the extent the selling price is less than the holder's adjusted tax basis (which will include all accrued but unpaid interest) a holder will recognize a capital loss. Capital losses generally may be used by a corporate taxpayer only to offset capital gains and may be used by an individual taxpayer only to offset capital gains plus $3,000 of other income. UNITED STATES ALIEN HOLDERS For purposes of this discussion, a "United States Alien Holder" is any corporation, individual, partnership, estate or trust that is, as to the United States, a foreign corporation, a non-resident alien individual, a foreign partnership, or a non-resident fiduciary of a foreign estate or trust. Under present United States federal income tax law: (i) payments by a Trust or any of its paying agents to any holder of a Preferred Security who or which is a United States Alien Holder will not be subject to United States federal withholding tax; provided that, (a) the beneficial owner of such Preferred Security does not actually or constructively own 10 percent or more of the total combined voting power of all classes of stock of General Motors entitled to vote, (b) the beneficial owner of such Preferred Security is not a controlled 92 102 foreign corporation that is related to General Motors through stock ownership, and (c) either (A) the beneficial owner of such Preferred Security certifies to the applicable Trust or its agent, under penalties of perjury, that it is not a United States holder and provides its name and address or (B) a securities clearing organization, bank or other financial institution that holds customers' securities in the ordinary course of its trade or business (a "Financial Institution"), and holds such Preferred Security in such capacity, certifies to the applicable Trust or its agent, under penalties of perjury, that such statement has been received from the beneficial owner by it or by a Financial Institution between it and the beneficial owner and furnishes such Trust or its agent with a copy thereof; and (ii) a United States Alien Holder of a Preferred Security will not be subject to United States federal withholding tax on any gain realized upon the sale or other disposition of a Preferred Security. PROPOSED TAX LEGISLATION On February 6, 1997, as part of President Clinton's Fiscal 1998 Budget Proposal, the United States Treasury Department proposed legislation that would, among other things, deny an issuer a deduction for United States federal income tax purposes for the payment of interest on instruments with characteristics similar to the Junior Subordinated Debentures. If the proposed legislation were enacted in its current form, it is not expected to apply to the Junior Subordinated Debentures since the proposed effective date for this provision is the date of first committee action. There can be no assurances, however, that the proposed legislation, if enacted, or similar legislation enacted after the date hereof would not adversely affect the tax treatment of the Junior Subordinated Debentures, resulting in a Tax Event in respect of either or both Trusts, which would permit General Motors to cause a redemption of the Preferred Securities at the applicable Tax Event Redemption Price by electing to prepay the Junior Subordinated Debentures at the applicable Tax Event Prepayment Price. See "Description of the Preferred Securities--Tax Event Redemption." INFORMATION REPORTING TO HOLDERS Generally, income on the Preferred Securities will be reported to holders on Forms 1099, which forms should be mailed to holders of Preferred Securities by January 31 following each calendar year. BACKUP WITHHOLDING Payments made on, and proceeds from the sale of, the Preferred Securities may be subject to a "backup" withholding tax of 31 percent unless the holder complies with certain identification requirements. Any withheld amounts will be allowed as a credit against the holder's United States federal income tax, provided the required information is provided to the IRS. THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES FEDERAL OR OTHER TAX LAWS. 93 103 LEGAL MATTERS Certain matters of Delaware law relating to the validity of each series of the Preferred Securities will be passed upon on behalf of the applicable Trust by Richards, Layton & Finger, Wilmington, Delaware, special Delaware counsel to each Trust. The validity of the Junior Subordinated Debentures held by each Trust and the Preferred Securities Guarantees and certain matters relating thereto will be passed upon for General Motors and the applicable Trust by Martin I. Darvick, Esq., Legal Staff to General Motors Corporation. Certain United States federal income taxation matters will be passed upon for General Motors and such Trust by Robert N. Deitz, Esq., Tax Staff to General Motors Corporation. Certain legal matters will be passed upon for the Dealer Managers by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York. Mr. Darvick is the beneficial owner of shares, including shares subject to options, of General Motors Common Stock. Mr. Deitz is the beneficial owner of shares of General Motors Common Stock. EXPERTS The consolidated financial statements and financial statement schedule of General Motors appearing in General Motors' Annual Report on Form 10-K for the fiscal year ended December 31, 1996, incorporated by reference herein have been incorporated by reference herein in reliance upon the reports of Deloitte & Touche LLP, independent auditors given upon the authority of said firm as experts in accounting and auditing. 94 104 Facsimile copies of the Letters of Transmittal will be accepted. Letters of Transmittal, certificates representing Depositary Shares and any other required documents should be sent by each Holder of Depositary Shares or his or her broker, dealer, commercial bank, trust company or other nominee to the Exchange Agent at one of the addresses as set forth below: THE EXCHANGE AGENT IS: THE FIRST NATIONAL BANK OF BOSTON If delivered by Facsimile, to: If delivered by Hand, to: (For Eligible Institutions Only) Securities Transfer & The First National Bank of Boston Reporting Services (617) 575-2233 55 Broadway, Third Floor (Confirm Receipt by Telephone: New York, New York 10006 (800) 331-9922) If delivered by Mail, to: If delivered by Overnight Courier, to: The First National Bank of Boston The First National Bank of Boston Shareholder Services Division Shareholder Services Division P.O. Box 9360 Mail Stop 45-02-53 Mail Stop 45-02-53 150 Royall Street Boston, Massachusetts 02205-9360 Canton, Massachusetts 02021
THE INFORMATION AGENT IS: (GEORGESON & COMPANY INC. LOGO) Wall Street Plaza New York, New York 10005 Banks and Brokers Call Collect: (212) 440-9800 All Others Call Toll-Free: (800) 223-2064 Any questions or requests for assistance or additional copies of this Prospectus or the Letters of Transmittal or for copies of the Notices of Guaranteed Delivery may be directed to the Information Agent at its telephone number and location set forth above. You may also contact your broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offers. THE DEALER MANAGERS FOR THE OFFERS ARE: MERRILL LYNCH & CO. World Financial Center North Tower Seventh Floor New York, New York 10281 (888) ML4-TNDR (Toll-Free) (888) 654-8637 (Toll-Free) Attn: Susan L. Weinberg SMITH BARNEY INC. 388 Greenwich Street New York, New York 10013 (800) 655-4811 (Toll-Free) Attn: Paul S. Galant 105 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Exhibits A list of exhibits included as part of this Registration Statement is set forth in an Exhibit Index which immediately precedes such exhibits. (b) The following financial statement schedule is incorporated by reference to this part of this Registration Statement: FINANCIAL STATEMENT SCHEDULE II -- ALLOWANCES All other schedules are omitted because they are not applicable, or not required. 106 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this amendment to registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Warren, State of Michigan, on April 24, 1997. GENERAL MOTORS CORPORATION By: /s/ JOHN F. SMITH JR. ------------------------------------ John F. Smith, Jr., Chairman of the Board of Directors, Chief Executive Officer and President Pursuant to the requirements of the Securities Act of 1933, this amendment to registration statement has been signed by the following persons on April 24, 1997 in the capacities indicated.
SIGNATURE TITLE --------- ----- /s/ JOHN F. SMITH, JR. Chairman of the Board of - ----------------------------------------------------- Directors, Chief Executive (John F. Smith, Jr.) Officer and President /s/ HARRY J. PEARCE Vice Chairman of the Board of - ----------------------------------------------------- Directors (Harry J. Pearce) /s/ J. MICHAEL LOSH Executive Vice President and - ----------------------------------------------------- Chief Financial Officer (J. Michael Losh) /s/ LEON J. KRAIN Vice President and Group - ----------------------------------------------------- Executive (Leon J. Krain) /s/ JOHN D. FINNEGAN Vice President and Treasurer - ----------------------------------------------------- (John D. Finnegan) /s/ WALLACE W. CREEK Comptroller - ----------------------------------------------------- (Wallace W. Creek) /s/ PETER R. BIBLE Chief Accounting Officer - ----------------------------------------------------- (Peter R. Bible) /s/ ANNE L. ARMSTRONG Director - ----------------------------------------------------- (Anne L. Armstrong) /s/ PERCY BARNEVIK Director - ----------------------------------------------------- (Percy Barnevik) /s/ JOHN H. BRYAN Director - ----------------------------------------------------- (John H. Bryan) /s/ THOMAS E. EVERHART Director - ----------------------------------------------------- (Thomas E. Everhart)
Principal Financial Officers Principal Accounting Officers 107
SIGNATURE TITLE --------- ----- /s/ CHARLES T. FISHER, III Director - ----------------------------------------------------- (Charles T. Fisher, III) /s/ GEORGE M.C. FISHER Director - ----------------------------------------------------- (George M.C. Fisher) /s/ J. WILLARD MARRIOTT, JR. Director - ----------------------------------------------------- (J. Willard Marriott, Jr.) /s/ ANN D. MCLAUGHLIN Director - ----------------------------------------------------- (Ann D. McLaughlin) /s/ ECKHARD PFEIFFER Director - ----------------------------------------------------- (Eckhard Pfeiffer) /s/ EDMUND T. PRATT, JR. Director - ----------------------------------------------------- (Edmund T. Pratt, Jr.) /s/ JOHN G. SMALE Director - ----------------------------------------------------- (John G. Smale) /s/ LOUIS W. SULLIVAN Director - ----------------------------------------------------- (Louis W. Sullivan) /s/ DENNIS WEATHERSTONE Director - ----------------------------------------------------- (Dennis Weatherstone) /s/ THOMAS H. WYMAN Director - ----------------------------------------------------- (Thomas H. Wyman)
108 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Amendment to Form S-4 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on April 24, 1997. GENERAL MOTORS CAPITAL TRUST D By: /s/ JOHN D. FINNEGAN ------------------------------------ John D. Finnegan, Trustee GENERAL MOTORS CAPITAL TRUST G By: /s/ JOHN D. FINNEGAN ------------------------------------ John D. Finnegan, Trustee 109 INDEX OF EXHIBITS 1(a) Form of Dealer Manager Agreement.** 4(a)(i) Certificate of Trust of General Motors Capital Trust D.* 4(a)(ii) Certificate of Trust of General Motors Capital Trust G.* 4(b)(i) Declaration of Trust of General Motors Capital Trust D.* 4(b)(ii) Declaration of Trust of General Motors Capital Trust G.* 4(c)(i) Form of Amended and Restated Declaration of Trust to be used in connection with the issuance of the Series D Preferred Securities.** 4(c)(ii) Form of Amended and Restated Declaration of Trust to be used in connection with the issuance of the Series G Preferred Securities. (See Exhibit 4(c)(i) hereto) 4(d)(i) Form of Indenture between General Motors and Wilmington Trust Company, as Trustee.** 4(d)(ii) Form of the Supplemental Indenture with respect to the Series D Junior Subordinated Debentures between General Motors and Wilmington Trust Company.** 4(d)(iii) Form of the Supplemental Indenture with respect to the Series G Junior Subordinated Debentures between General Motors and Wilmington Trust Company, as Trustee. (See Exhibit 4(d)(ii) hereto) 4(e)(i) Form of Series D Preferred Security (included in Exhibit 4(c)(i)). 4(e)(ii) Form of Series G Preferred Security (included in Exhibit 4(c)(ii)). 4(f)(i) Form of Series D Junior Subordinated Debenture (included in Exhibit 4(d)(ii)). 4(f)(ii) Form of Series G Junior Subordinated Debenture (included in Exhibit 4(d)(iii)). 4(g)(i) Form of Preferred Securities Guarantee relating to Series D Preferred Securities.** 4(g)(ii) Form of Preferred Securities Guarantee relating to Series G Preferred Securities. (See Exhibit 4(g)(i) hereto) 5(a) Opinion of Richards, Layton & Finger.** 5(b) Opinion of Martin I. Darvick, Esq., Legal Staff of General Motors Corporation.** 8 Tax Opinion of Robert N. Deitz, Tax Staff of General Motors Corporation.** 11(a) Computation of Earnings Per Share for the Years Ended December 31, 1996, 1995 and 1994 (incorporated by reference to the Annual Report on Form 10-K for the year ended December 31, 1996). 11(b) Computation of Earnings Per Share for the Years Ended December 31, 1993 and 1992.** 12 Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends.** 23(a) Consent of Deloitte & Touche LLP.** 23(b) Consent of Richards, Layton & Finger (included in Exhibit 5(a)). 23(c) Consent of Martin I. Darvick, Esq. (included in Exhibit 5(b)). 23(d) Consent of Robert N. Deitz, Esq. (included in Exhibit 8). 24(a)(i) Powers of Attorney for General Motors Capital Trust D (included in Exhibit 4(b)(i)). 24(a)(ii) Powers of Attorney for General Motors Capital Trust G (included in Exhibit 4(b)(ii)). 25(a) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Debt Trustee under the Indenture (Series D).* 25(b) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Preferred Security Trustee under the Preferred Securities Guarantee (Series D).* 25(c) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Trustee under the Declaration of Trust (Series D).*
110 25(d) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Debt Trustee under the Indenture (Series G).* 25(e) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Preferred Security Trustee under the Preferred Securities Guarantee (Series G).* 25(f) Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Trustee under the Declaration of Trust (Series G).* 99(a)(i) Form of Series D Letter of Transmittal.** 99(a)(ii) Form of Series G Letter of Transmittal.** 99(b)(i) Form of Series D Notice of Guaranteed Delivery.** 99(b)(ii) Form of Series G Notice of Guaranteed Delivery.** 99(c) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.** 99(d)(i) Form of Series D Letter to Clients.** 99(d)(ii) Form of Series G Letter to Clients.** 99(e) Form of Exchange Agent Agreement.** 99(f) Form of Information Agent Agreement.** 99(g) Form of General Motors Letter to Holders of Depositary Shares.** 99(h) Form of Questions and Answers Regarding Preferred Securities.** 99(i) Form of Notice of Offers to Exchange.**
- ------------------------- * Previously filed. ** Filed herewith. EX-1.(A) 2 EX-1.(A) 1 EXHIBIT 1(a) DEALER MANAGER AGREEMENT , 1997 MERRILL LYNCH & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED SMITH BARNEY INC. c/o Merrill Lynch & Co. Merrill Lynch World Headquarters North Tower World Financial Center New York, New York 10281-1329 Ladies and Gentlemen: General Motors Capital Trust D (the "Series D Trust"), a statutory business trust organized under the Business Trust Act (the "Delaware Act") of the State of Delaware (Chapter 38, Title 12 of the Delaware Code, 12 Del. C. Section 3801 et. seq.), pursuant to the Amended and Restated Declaration of Trust, to be dated as of the Exchange Date (as defined herein) (the "Series D Declaration"), among General Motors Corporation (the "Company"), as sponsor, Wilmington Trust Company, as institutional trustee (the "Series D Institutional Trustee"), Wilmington Trust Company (Delaware), as Delaware trustee (the "Series D Delaware Trustee"), and the other trustees specified therein, as regular trustees (the "Series D Regular Trustees" and together with the Series D Institutional Trustee and the Series D Delaware Trustee, the "Series D Trustees"), and the holders from time to time of undivided beneficial ownership interests in the assets of the Series D Trust, proposes to issue its % Trust Originated Preferred Securities (" % TOPrS(SM)"), (the "Series D Preferred Securities"), in exchange for up to 5,462,917 __________________________________ (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co., Inc. 2 depositary shares, each representing one-fourth of a share of the Company's Series D 7.92% Preference Stock, par value $0.10 per share (the "Series D Target Securities"). In addition, General Motors Capital Trust G (the "Series G Trust", a statutory business trust organized under the Delaware Act, pursuant to the Amended and Restated Declaration of Trust, to be dated as of the Exchange Date (as defined herein) (the "Series G Declaration"), among the Company, as sponsor, Wilmington Trust Company, as institutional trustee (the "Series G Institutional Trustee"), Wilmington Trust Company, as Delaware trustee (the "Series G Delaware Trustee"), and the other trustees specified therein, as regular trustees (the "Series G Regular Trustees" and, together with the Series G Institutional Trustee and the Series G Delaware Trustee, the "Series G Trustees"), and the holders from time to time of undivided beneficial ownership interests in the assets of the Series G Trust, proposes to issue its % Trust Originated Preferred Securities (" % TOPrS(SM)")(the "Series G Preferred Securities"), in exchange for up to 9,071,910 depositary shares, each representing one-fourth of a share of the Company's Series G 9.12% Preference Stock, par value $0.10 per share (the "Series G Target Securities"). As used in this agreement, the Series D Trust and the Series G Trust are referred to collectively as the "Trusts", the Series D Declaration and the Series G Declaration are referred to collectively as the "Declarations", the Series D Institutional Trustee and the Series G Institutional Trustee are referred to collectively as the "Institutional Trustees", the Series D Delaware Trustee and the Series G Delaware Trustee are referred to collectively as the "Delaware Trustees", the Series D Regular Trustees and the Series G Regular Trustees are referred to collectively as the "Regular Trustees", the Institutional Trustees, Delaware Trustees and Regular Trustees are referred to collectively as the "Trustees", the Series D Preferred Securities and the Series G Preferred Securities are referred to collectively as the "Preferred Securities", and the Series D Target Securities and the Series G Target Securities are referred to collec- tively as the "Target Securities." The Preferred Securities will be guaranteed (the "Guarantees") by the Company to the extent described in the Prospectus (as hereinafter defined). The exchange offers described above are herein referred to as the "Exchange Offers" and any exchange of Preferred Securities for Target Securities pursuant to the Exchange Offers is herein referred to as an "Exchange". In connection with the Exchange Offers, the 2 3 Company will deposit in the Series D Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series D, due [ ], 2012 (the "Series D Debentures") and will deposit in the Series G Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series G, due [ ], 2012 (the "Series G Debentures" and, collectively with the Series D Debentures, the "Debentures"), as set forth in the Prospectus, to be issued pursuant to an Indenture (the "Indenture"), dated [ ], between the Company and Wilmington Trust Company, as trustee (the "Indenture Trustee"). Each of the Company and each of the Trusts hereby confirms its agreement with Merrill Lynch & Co. ("Merrill Lynch") and Smith Barney Inc. (the "Dealer Managers") as follows: 1. Registration Statement, Prospectus and Offering Materials. The Company and the Trusts have prepared and filed with the Securities and Exchange Commission (the "Commission"), under the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations of the Commission promulgated thereunder (the "Securities Act Regulations"), a registration statement on Form S-4 covering the registration of the Preferred Securities, the Guarantees and the Debentures, including the final prospectus. Each prospectus used before the time such registration statement becomes effective is herein called a "preliminary prospectus". Such registration statement, including the exhibits thereto and any documents incorporated by reference therein, as amended at the time it becomes effective or as thereafter amended or supplemented from time to time, is herein called the "Registration Statement". The final prospectus included in the Registration Statement (including any documents incorporated in the prospectus by reference) is herein called the "Prospectus", except that if the final prospectus furnished to the Dealer Managers for use in connection with the Exchange Offers differs from the prospectus set forth in the Registration Statement (whether or not such prospectus is required to be filed pursuant to Rule 424 (b)), the term "Prospectus" shall refer to the final prospectus furnished to the Dealer Managers for such use. The terms "supplement" and "amendment" or "amend" as used herein with respect to the Prospectus shall include all documents deemed to be incorporated by reference in the Prospectus that are filed subsequent to the date of the Prospectus and 3 4 prior to the termination of the Exchange Offers by the Company and the Trusts with the Commission pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively, the "Exchange Act"). The Registration Statement, Prospectus and the related letters from the Dealer Managers to securities brokers, dealers, commercial banks, trust companies and other nominees, letters to beneficial owners of Target Securities, letters of transmittal (the "Letters of Transmittal"), notices of guaranteed delivery (the "Notices of Guaranteed Delivery"), the Issuer Tender Offer Statement on Schedule 13E-4 and any newspaper announcements, press releases and other offering materials and information the Company may use or prepare, approve or authorize for use in connection with the Exchange Offers, as amended or supplemented from time to time, are herein collectively referred to as the "Offering Materials". 2. Exchange Offers; Agreement to Act as Dealer Managers. (a) The Company and the Trusts intend to commence the Exchange Offers as soon as practicable after the Registration Statement becomes effective under the Securities Act by publicly announcing their commencement and by mailing, or causing to be mailed on its behalf, copies of the Prospectus, the related Letter or Letters of Transmittal and such of the other Offering Materials as is required or as the Company and the Trusts elect to each holder of Target Securities (the date of the commencement of such distribution being herein called the "Commencement Date"). (b) The Company hereby appoints you as Dealer Managers and authorizes you to act on behalf of it and the Trusts in connection with this Agreement and the terms of the Exchange Offers. As Dealer Managers, you agree, in accordance with the Offering Materials and otherwise in accordance with customary practice, to perform those services in connection with the Exchange Offers as are customarily performed by investment banking concerns in connection with issuer exchange offers of like nature, including, but not limited to, soliciting tenders pursuant to the Exchange Offers and communicating generally regarding the Exchange Offers with brokers, dealers, commercial banks and trust companies and other persons, including the holders of Target Securities. You further agree to be 4 5 regarded as the broker-dealers that are making the Exchange Offers on behalf of the Company and the Trusts to holders of Target Securities in any state of the United States in which it is required that such offers be made by or through a registered or licensed broker-dealer, and you represent that you are registered or licensed as broker-dealers in each of such states. (c) The Company acknowledges and agrees that you have been retained to act solely as Dealer Managers in connection with the Exchange Offers. In such capacity, you shall act as independent contractors, and any of your duties arising out of your engagement pursuant to this Agreement shall be owed solely to the Company and the Trusts. (d) The Company further authorizes you to communicate with The First National Bank of Boston, in its capacity as exchange agent (the "Exchange Agent"), and with Georgeson & Company Inc., in its capacity as information agent (the "Information Agent"), with respect to matters relating to the Exchange Offers. (e) The Company agrees to use reasonable best efforts to (i) provide you for your use in connection with the Exchange Offers any cards, lists or other records the Company or its agents maintain showing the names and addresses of, and the numbers of Target Securities held by, the holders of Target Securities as of a recent date, (ii) provide other information in its possession concerning the holders of Target Securities reasonably requested by you in connection with the Exchange Offers and (iii) cause you to be advised each business day during the period of the Exchange Offers as to any transfers of record of Target Securities known to the Company, the Exchange Agent or the Information Agent. (f) The Company agrees to furnish you at its expense with as many copies as you may reasonably request of the Offering Materials and all other related materials, filed by the Company and the Trusts with the Commission or otherwise authorized by the Company for use in connection with the Exchange Offers, as such materials may be amended, modified or supplemented from time to time. The Offering Materials have been or will be prepared and approved by, and are the sole responsibility of, the Company and the Trusts, and the Company and the Trusts authorize you to use 5 6 the Offering Materials in connection with the Exchange Offers in accordance herewith and subject to the terms and conditions described in the Offering Materials. You agree that you shall not disseminate to customers or Soliciting Dealers (as hereinafter defined) or otherwise use any materials in connection with the solicitation of tenders other than the Offering Materials and such other materials, if any, as the Company and its counsel may approve in advance of any dissemination or use by you. You shall have no obligation to cause copies of the Offering Materials to be transmitted generally to the holders of Target Securities. 3. Compensation. (a) The Company hereby agrees to pay to the Dealer Managers for services rendered and to be rendered by them in connection with the Exchange Offers a fee (the "Management Fee") in the aggregate equal to $0.125 per Depositary Share of the Target Securities validly tendered and accepted for exchange pursuant to the Exchange Offers. The Management Fee shall be paid only if the Exchange Offers are consummated, and shall be paid within one week after the consummation of the Exchange Offers. (b) The Company agrees to pay to any Soliciting Dealer (as defined below) a solicitation fee of $0.50 per Depositary Share of Target Securities (except that in the case of transactions equal to or exceeding 10,000 Depositary Shares of Target Securities of any given series, the Company will pay a solicitation fee of $0.25 per Depositary Share) for Target Securities tendered and accepted for Exchange pursuant to either of the Exchange Offers, provided that such Target Securities are covered by a Letter of Transmittal which properly designates, as having solicited and obtained the tender, the name of (i) any dealer or broker in securities, including any Dealer Manager in its capacity as a dealer or broker, who is a member of any national securities exchange or of the National Association of Securities Dealers, Inc. ("NASD"), (ii) any foreign dealer or broker not eligible for membership in the NASD which agrees to conform to the NASD's Rules of Fair Practice in soliciting tenders outside the United States as if it were an NASD member, or (iii) any bank or trust company, any one of which has solicited and obtained the tender of Target Securities pursuant to the Exchange Offers (each of which is referred to herein as a "Soliciting Dealer"). No such fee shall be payable to a 6 7 Soliciting Dealer in respect of Target Securities beneficially owned by such Soliciting Dealer or registered in the name of such Soliciting Dealer unless such Target Securities are held by such Soliciting Dealer as nominee and such Target Securities are being tendered for the benefit of one or more beneficial owners identified on the applicable Letter of Transmittal. No such fee shall be payable to a Soliciting Dealer (i) with respect to the tender of Target Securities by a holder unless the applicable Letter of Transmittal accompanying such tender designates such Soliciting Dealer as such, (ii) with respect to a tender by the holder of record, for the benefit of the beneficial owner, of Target Securities unless such beneficial owner has designated such Soliciting Dealer as such, (iii) unless the Soliciting Dealer returns a properly completed Notice of Solicited Tenders to the Exchange Agent within three (3) trading days after the expiration of the applicable Exchange Offer or (iv) to the extent such Soliciting Dealer is required for any reason to transfer the amount of such fee to any person (other than itself). No Soliciting Dealer shall be deemed to be the agent of the Company or the Trusts. Neither the Company nor the Trusts shall be deemed to be (i) an agent of any Soliciting Dealer including any Dealer Manager in its capacity as a Soliciting Dealer, or (ii) an agent of any Dealer Manager in its capacity as Dealer Manager. 4. Expenses, Reimbursement. The Company agrees to reimburse the Dealer Managers through Merrill Lynch for up to $100,000 of their reasonable out-of-pocket expenses incurred in connection with the Exchange Offers, including, without limitation, the reasonable fees and expenses of a single law firm acting as legal counsel for the Dealer Managers. The Dealer Managers, through Merrill Lynch, will provide to the Company documentation with reasonable detail in connection with and at the time of their request for reimbursement of such expenses. 5. Certain Covenants of the Trusts and the Company. Each of the Company and each of the Trusts covenants jointly and severally with the Dealer Managers: (a) To use reasonable efforts to notify the Dealer Managers as soon as practicable and, if requested by the Dealer Managers, will confirm the notice in writing, (i) when the Registration Statement and any post-effective amendment to the Registration Statement shall have become 7 8 effective, or any supplement to the Prospectus or any amended Prospectus or any amended or additional Offering Materials shall have been filed, (ii) of the receipt of any comments from the Commission relating to the Exchange Offers, (iii) of any request by the Commission to amend the Registration Statement or amend or supplement the Prospectus or the other Offering Materials or for additional information relating to the Exchange Offers and (iv) of (A) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or (B) the issuance by the Commission of any order preventing or suspending the use of any of the Offering Materials or (C) the suspension of the qualification of the Preferred Securities for offering or sale in connection with the Exchange Offers in any jurisdiction or (D) the institution or threatening of any proceedings for any of such purposes or (E) the occurrence of any event which reasonably could cause the Company or either Trust to withdraw, rescind, terminate or modify the Exchange Offers or would permit the Company or the Trusts to exercise any right not to accept the Target Securities tendered pursuant to the Exchange Offers. The Company and the Trusts will make every reasonable effort to prevent the issuance of any such stop order, the issuance of any order preventing or suspending such use and the suspension of any such qualification and, if any such order is issued or qualification suspended, to obtain the lifting of such order or suspension at the earliest practicable time. (b) Prior to the termination of the Exchange Offers, before amending or supplementing the Registration Statement or the Prospectus, to furnish copies of drafts to, and consult with, the Dealer Managers and their counsel within a reasonable time in advance of filing with the Commission of any amendment or supplement to the Registration Statement, the Prospectus or the other Offering Materials. Neither the Company nor the Trusts shall file any such amendment or supplement to which the Dealer Managers shall reasonably object in writing; provided, however, that the foregoing shall not apply to any of the Company's filings with the Commission required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, and the Company will deliver copies of such filings to the Dealer Managers promptly after being transmitted for filing with the Commission. 8 9 (c) To make available to the Dealer Managers, without charge, a signed copy of the Registration Statement, all amendments thereto and any other filing with the Commission in connection with the Exchange Offers, whether filed before or after the Registration Statement becomes effective. (d) To furnish promptly to the Dealer Managers, without charge, as soon as the Registration Statement shall have become effective and during the period mentioned in the second sentence of paragraph (e) below such number of copies of the Prospectus and the other Offering Materials (as supplemented or amended) as the Dealer Managers may reasonably request and to cause all amendments and supplements filed with the Commission to be distributed to holders of Target Securities as may be required by the Securities Act and the Exchange Act. (e) To comply in all material respects with the Securities Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in connection with the Offering Materials, the Exchange Offers and the transactions contemplated hereby and thereby, as applicable. If at any time when the Prospectus is required by the Securities Act or the Exchange Act to be delivered in connection with any solicitation or Exchange any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement the Prospectus or any other Offering Materials in order that the Prospectus or such other Offering Materials will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements in the Prospectus or such other Offering Materials, in the light of the circumstances under which they were made, not misleading or if it shall be necessary to amend the Registration Statement or amend or supplement the Prospectus or any other Offering Materials to comply with the requirements of the Securities Act or the Exchange Act, the Company and the Trusts will promptly prepare, file with the Commission, subject to Section 5(b) of this Agreement, and furnish, at its own expense, to the Dealer Managers and to the dealers (whose names and address will be furnished to the Company by the Dealer Managers) to which Preferred Securities may have been exchanged, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus or 9 10 such other Offering Materials comply with such requirements. (f) To endeavor, in cooperation with the Dealer Managers, to qualify the Preferred Securities for offering and sale in connection with the Exchange Offers under the applicable securities or Blue Sky laws of such jurisdictions as the Company and the Trusts may elect and to maintain such qualifications in effect for such time as may be required for the consummation of the Exchange Offers; provided, however, that neither the Company nor the Trusts shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; provided, further, that the Dealer Managers shall not be obligated to solicit tenders in jurisdictions where the Preferred Securities are not qualified for offer and sale. The Company and the Trusts will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided. (g) In the case of the Company, to make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158). (h) To use its reasonable best efforts to effect the listing of the Preferred Securities on the New York Stock Exchange, Inc. (the "NYSE"), subject to official notice of issuance, as soon as practicable prior to the Exchange Date. (i) To timely file any report or other document required to be filed by the Company or the Trusts with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act during the period of time referred to in the second sentence of Section 5(e) hereof. 10 11 (j) Subject to Section 4 of this Agreement, to pay all costs and expenses incurred in connection with the performance of its obligations in connection with this Agreement and the Solicitations including, without limitation, (i) the preparation, printing and filing of the Registration Statement, as originally filed and as amended, the preliminary prospectuses, the Prospectus and the other Offering Materials and any amendments or supplements to any of the foregoing, and the cost of furnishing copies thereof to the Dealer Managers, (ii) the preparation and distribution of this Agreement and any Blue Sky surveys and the printing of certificates for the Preferred Securities, (iii) the distribution of the Offering Materials to the holders of the Target Securities, (iv) the fees and disbursements of counsel to the Company and the Trusts, and the Company's and the Trusts' accountants, (v) the qualification of the Preferred Securities under the applicable securities laws in accordance with Section 5(f) of this Agreement, (vi) the fees and expenses of the Trustees, the Indenture Trustee, the trustee under the Guarantees (the "Guarantee Trustee"), the Information Agent and the Exchange Agent and (vii) all other costs and expenses incident to the Solicitations incurred by the Trusts and the Company and its subsidiaries. The Company agrees to pay all of the aforementioned costs and expenses whether or not either Exchange Offer is consummated. (k) To advise or cause the Exchange Agent to advise the Dealer Managers at 5:00 P.M., New York City time, or as promptly as practicable thereafter, daily, by telephone or facsimile transmission, as of 4:00 P.M. on such day with respect to Target Securities tendered as follows: (i) the number of shares of Target Securities validly tendered represented by certificates physically held by the Exchange Agent (or for which the Exchange Agent has received confirmation of receipt of book-entry transfer of such Target Securities into the Exchange Agent's account at a Depository Institution (as defined in the Prospectus) pursuant to the procedures set forth in the Exchange Offers) on such day; (ii) the number of shares of Target Securities represented by Notices of Guaranteed Delivery on such day; 11 12 (iii) the number of shares of Target Securities properly withdrawn on such day; (iv) the cumulative number of shares of Target Securities in categories (i) through (iii) above. On the day following such oral communication, the Company shall furnish or cause the Exchange Agent to furnish to the Dealer Managers a written report confirming the above information which has been communicated orally. The Company shall furnish or cause the Exchange Agent to furnish to the Dealer Managers such reasonable information on the tendering holders of Targeted Securities as may be requested from time to time. (l) To give the Dealer Managers notice of any change of the expiration time of the Exchange Offers (the "Expiration Time"). 6. Representations and Warranties of the Company and the Trusts. Each of the Company and each of the Trusts jointly and severally represents and warrants to and agrees with the Dealer Managers that: (a) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the Securities Act, will comply when so filed, in all material respects, as to form with the Securities Act and the Exchange Act; the Registration Statement at the time it becomes effective and the Prospectus and any other Offering Materials, on the Commencement Date and on the date on which the Company commences delivery of the Preferred Securities for exchange of the Target Securities pursuant to the Exchange Offers (such date, the "Exchange Date"), will comply, in all material respects, as to form with the Securities Act and the Exchange Act; the Registration Statement, when it becomes effective, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and as of the Commencement Date and the Exchange Date, none of the Prospectus or the other Offering Materials or any amendments or supplements to such Offering Materials will contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under 12 13 which they were made, not misleading, except that the representations and warranties set forth in this Section 6(a) do not apply (A) to statements or omissions made based upon and in conformity with information supplied in writing by the Dealer Managers through Merrill Lynch expressly for use in the Registration Statement, Prospectus, any other Offering Materials or any amendments or supplements to any of the foregoing or (B) to that part of the Registration Statement that constitutes the Statements of Eligibility and Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the Indenture Trustee, the Property Trustees, and the institutional trustee under the Guarantees. (b) (i) The Company has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Declarations, the Indenture and the Guarantees; and this Agreement has been duly authorized, executed and delivered by the Company. (ii) Each Trust has the business trust power and authority to execute, deliver and perform its obligations under this Agreement; and this Agreement has been duly authorized, executed and delivered by each Trust. (iii) The Preferred Securities to be issued pursuant to the Exchange Offers will be duly authorized by the Declarations and, when issued in exchange for Target Securities pursuant to the Exchange Offers, will be validly issued and (subject to the terms of the Declarations) fully paid and non-assessable undivided beneficial interests in the assets of the applicable Trust, not subject to any preemptive or similar rights, and will conform in all material respects to all statements relating thereto contained in the Prospectus. Holders of the Preferred Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit. (iv) The common securities to be issued by the Trusts to the Company as described in the Registration Statement (the "Common Securities") will be duly authorized by the Declarations and, when issued to the Company for cash as described in the Registration Statement, will be validly issued and (subject to the terms of the Declarations) fully paid and non-assessable undivided beneficial interests in the assets of the applicable Trust, not 13 14 subject to any preemptive or similar rights, and will conform in all material respects to all statements relating thereto contained in the Prospectus. (c) The Declarations and the Guarantees have been duly authorized by the Company and, as of the Exchange Date, will have been duly executed and delivered by the Company. Assuming due authorization, execution and delivery of the Declarations by the applicable Trustees, the Declarations will, as of the Exchange Date, be valid and binding obligations of the Company and the Trustees, enforceable against the Company and the Trustees in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), or considerations of public policy or the effect of applicable law relating to fiduciary duties. As of the Exchange Date, the Guarantees will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (d) The Indenture (including any related supplemental indentures), the Declarations and the Guarantees will be duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee and upon execution and delivery by the Company, the Indenture will be enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) The Debentures to be deposited in the Trusts as trust assets in connection with the Exchange Offers have been duly authorized by the Company, and, assuming due 14 15 authorization, execution and delivery of the Indenture by the Indenture Trustee, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Trusts pursuant to the terms of the Exchange Offers will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (f) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. (g) The Exchange Offers, the purchase of Target Securities pursuant thereto and the issuance of the Preferred Securities, and the execution, delivery and performance of this Agreement, the Declarations, the Indenture, the Debentures and the Guarantees do not and will not (i) conflict with or violate the articles of incorporation or by-laws or equivalent organizational documents of the Company, (ii) conflict with or violate in any material respect any law, rule, regulations, order, judgment or decree applicable to the Company or the Trusts or by which any property or asset of the Company or the Trusts is bound or (iii) result in a breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or other encumbrance on any property or asset of the Company or the Trusts pursuant to, any indenture, loan agreement or other material agreement, instrument or contract to which the Company or the Trusts or any of the Company's subsidiaries is a party, or by which the Company or the Trusts or any of the Company's subsidiaries, or any property or asset of the Company or the Trusts or any of the Company's subsidiaries, is bound; except, with regard to clauses (ii) and (iii), where any such conflict, breach or default would not materially adversely affect the ability of the Company or either Trust to execute, deliver and perform this Agreement, the Declarations, the Indenture, the Debentures and 15 16 the Guarantees or to commence and consummate the Exchange Offers. (h) Except as disclosed in the Prospectus, the Exchange Offers, the purchase of Target Securities pursuant thereto, the issuance of the Preferred Securities and the execution, delivery and performance of this Agreement, the Declarations, the Indenture, the Debentures and the Guarantees comply and will comply in all material respects with all applicable laws, including the Exchange Act and the various state securities or "blue sky" laws and state "takeover" statutes (collectively, "State Laws") and with all applicable regulations of any governmental or regulatory agency, and neither the execution, delivery and performance of this Agreement, the Declarations, the Indenture, the Debentures and the Guarantees by the Company and the Trusts, nor the commencement and consummation by the Company and the Trusts of the Exchange Offers, in accordance with their terms, require or will require any consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory agency, except for such consents, approvals, authorizations, permits or other actions which have been obtained and are in full force and effect and any such filings or notifications which have been made or will be made in compliance with applicable law, except where the failure to so comply, or to obtain or make such consent, approval, authorization, permit, filing or notification, would not materially adversely affect the ability of the Company or either Trust to execute, deliver and perform this Agreement, the Declarations, the Indenture, the Debentures and the Guarantees or to commence and consummate the Exchange Offers. (i) No restraining order or denial of any application for approval has been issued or proceedings, litigation or investigation initiated or, to the best knowledge of the Company, threatened, with respect to the Exchange Offers, the purchase of Target Securities pursuant thereto or the execution, delivery and performance of this Agreement, the Declarations, the Indenture, the Debentures and the Guarantees by or before any governmental or regulatory agency, or any court. (j) Each Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act, is and will be treated as a "grantor 16 17 trust" for federal income tax purposes under existing law, has the business trust power and authority to conduct its business as presently conducted and as described in the Prospectus, and is not required to be authorized to do business in any other jurisdiction. (k) Neither of the Trusts nor the Company is or, after giving effect to the consummation of the Exchange Offers, will be, and neither of the Trusts nor the Company is directly or indirectly controlled by, or acting on behalf of any person which is, an investment company within the meaning of the Investment Company Act of 1940, as amended. (l) The documents incorporated by reference or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference or deemed to be incorporated by reference in the Registration Statement and the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and will not contain an untrue statement or a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the representations and warranties set forth in this Section 6(l) shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Trusts or the Company by the Dealer Managers through Merrill Lynch expressly for use in the Registration Statement and the Prospectus as amended or supplemented. 17 18 7. Indemnification; Limitation of Indemnified Party Liability; Contribution. (a) Each of the Company and the Trusts jointly and severally agrees to (i) indemnify and hold you and your affiliates, and you and your affiliates' respective directors, officers, employees, agents and controlling persons (you and each such person being an "Indemnified Party") harmless from and against any loss, damage, expense, liability or claim (or action in respect thereof) (A) which arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in the Offering Materials or any of the documents referred to therein or in any amendment or supplement to any of the foregoing, or which arises out of or is based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except insofar as such loss, damage, expense, liability or claim arises out of or is caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished to the Company in writing by any Indemnified Party through Merrill Lynch expressly for use therein, (B) which arises out of or is based upon any breach by the Company or a Trust of any representation or warranty or failure to comply with any of the agreements set forth herein or (C) which arises out of or is based upon a withdrawal, rescission, termination or modification of or a failure to make or consummate the Exchange Offers; and (ii) to indemnify and hold each Indemnified Party harmless against any other loss, damage, expense, liability or claim (or action in respect thereof) which otherwise arises out of or is based upon or asserted against such Indemnified Party in connection with your activities as Dealer Managers under this Agreement and as Dealer Managers in connection with the Exchange Offers or in connection with your rendering any financial advisory services to the Company in connection with the Exchange Offers or your rendering any financial advisory services to the Company in connection with any other matter referred to in this Agreement, except to the extent that any loss, damage, expense, liability or claim referred to in clause (i)(C) or this clause (ii) of this Section 7(a) is found in a final judgment by a court to have resulted primarily from your gross negligence, bad faith or willful misconduct in performing such services and activities. The Company and 18 19 the Trusts will reimburse any Indemnified Party for all reasonable expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party. The Company and the Trusts also agree that no Indemnified Party shall have any liability to the Company, the Trusts or any person asserting claims on behalf of or in right of the Company or the Trusts in connection with your activities as Dealer Managers under this Agreement and as Dealer Managers in connection with the Exchange Offers or in connection with your rendering any financial advisory services to the Company in connection with the Exchange Offers or your rendering any financial advisory services to the Company or the Trusts in connection with any other matter referred to in this Agreement, except to the extent that any loss, damage, expense, liability or claim incurred by the Company or the Trusts is found in a final judgment by a court to have resulted primarily from your gross negligence, bad faith or willful misconduct in performing such services and activities. (b) Promptly after receipt by an Indemnified Party of notice of its involvement in any action, proceeding, claim or investigation, such Indemnified Party shall notify the Company and the Trusts in writing of such involvement, but the omission so to notify the Company and the Trusts shall not relieve them from any liability which they may have hereunder, except to the extent that they are materially prejudiced by such omission. In case any such action, proceeding, claim or investigation shall be brought against or otherwise involve an Indemnified Party and such Indemnified Party shall promptly notify the Company and the Trusts of the commencement thereof or its involvement therein, the Company shall promptly retain counsel reasonable satisfactory to the Indemnified Party to represent the Indemnified Party and any others the Company may designate in such action, proceeding, claim or investigation and shall pay the reasonable fees and expenses of such counsel related thereto. In any such action, proceeding, claim or investigation, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Company and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such action, proceeding, 19 20 claim or investigation (including any impleaded parties) include both the Company or a Trust and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Company and the Trusts shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all such Indemnified Parties, and that all such fees and expenses shall be reimbursed as they are incurred. In the case where any such separate firm is required Merrill Lynch shall designate such separate firm in writing. The Company and the Trusts shall not, without your written consent, effect the settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution is being sought hereunder unless such settlement, compromise or judgment (i) includes an unconditional release of all Indemnified Parties from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or failure to act, by or on behalf of any Indemnified Party. Notwithstanding anything in this Agreement to the con- trary, the Company and the Trusts shall not be liable to any Indemnified Party for any claim arising out of, or in connection with, any settlement or compromise, or consent to entry of judgment with respect to, any pending or threatened action or claim which was affected without the written consent of the Company, unless such settlement, compromise or consent to entry of judgment was effected more than 30 days after receipt by the Company of a written notice from you, substantially reflecting the proposed terms of such settlement, compromise or consent, to which the Company had not responded prior to the date such settlement was affected. If any claim arising out of, or in connection with, any settlement or compromise, or consent to entry of judgment with respect to, any pending or threatened action or claim is settled with the written consent of the Company or if there be a final judgment for the plaintiff, the Company and the Trusts jointly and severally agree to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. (c) If for any reason the indemnification provided for in Subsection (a) of this Section 7 is un- 20 21 available or insufficient to hold any Indemnified Party harmless, then the Company and the Trusts shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, damage, expense, liability or claim (or actions in respect thereof) referred to therein in such proportion as is appropriate to reflect the relative benefits to the Company and the Trusts and their stockholders on the one hand and the Indemnified Party on the other hand in matters contemplated by this Agreement as well as the relative fault of the Company and the Trusts and the Indemnified Party with respect to such loss, damage, expense, liability or claim (or actions in respect thereof) and any other relevant equitable considerations. The relative fault of the Company and the Trusts and any Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by, or relating to, the Company and the Trusts and their affiliates or the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Trusts, and you agree that it would not be just and equitable if contribution pursuant to this Subsection (c) of this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Subsection (c) of this Section 7. (d) The reimbursement, indemnity and contribution obligations of the Company and the Trusts under this Section 7 shall be in addition to any liability that the Company and the Trusts may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company and the Trusts, you, any such affiliate and any such person. (e) Each of the Dealer Managers agrees, severally and not jointly, to indemnify the Company, its directors, its officers who sign the Registration Statement, the Trusts, the Regular Trustees and their controlling persons to the same extent as the foregoing indemnity from the Company and the Trusts contained in Section 7 (a)(A)(i) above, but only with reference to information furnished to the Company in writing through Merrill Lynch expressly for 21 22 use in the Registration Statement or the Offering Materials. 8. Conditions to Dealer Managers' Obligations. The obligations of the Dealer Managers hereunder are subject as of the Commencement Date and as of the Exchange Date to the accuracy in all material respects of the representations and warranties of the Company and the Trusts contained herein or in certificates of any officer of the Company or Trustee of the Trusts delivered pursuant to the provisions hereof, to the performance, in all material respects, by the Company and the Trusts of their obligations hereunder to be performed, and to the following additional conditions: (a) On the Commencement Date and the Exchange Date, the Registration Statement shall have become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or, to the Company's or the Trusts' knowledge, threatened by the Commission. (b) The Dealer Managers shall have received on the Commencement Date and the Exchange Date a certificate, dated such date and signed by the Treasurer or any executive officer of the Company, to the effect (i) that the representations and warranties of the Company contained in this Agreement are true and correct in all material respects with the same force and effect as though expressly made as of such date (except for representations and warranties which by their terms speak as of a different date or dates), (ii) that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied on or before such date and (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are, to the best of the Company's knowledge, threatened by the Commission. The officer signing and delivering such certificate may rely upon such officer's knowledge as to clause (iii). (c) On the Commencement Date and the Exchange Date, there shall not have been since the respective dates as of which information is given in the Registration Statement, any material adverse change, or any development 22 23 involving a prospective material adverse change, in the financial condition or results of operations of either Trust. (d) The Dealer Managers shall have received on the Commencement Date and the Exchange Date a certificate, dated such date and signed by an Administrative Trustee or other officer of each Trust, to the effect (i) set forth in clause (c) above, (ii) that the representations and warranties of such Trust contained in this Agreement are true and correct in all material respects with the same force and effect as though expressly made as of such date (except for representations and warranties which by their terms speak as of a different date or dates), (iii) that such Trust has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied on or before such date and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are, to the best of such Trusts' knowledge, threatened by the Commission. The Administrative Trustee or other Officer of the Trusts signing and delivering such certificate may rely upon knowledge as to proceedings threatened. (e) On the Exchange Date and on the Commencement Date, the Dealer Managers shall receive a signed opinion of Richards, Layton & Finger, Delaware counsel for the Trusts, dated as of such date, to the effect that: (i) each Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act and has the trust power and authority to conduct its business, all as described in the Prospectus; (ii) assuming due authorization, execution and delivery of the Declarations by the Company and the Trustees, the Declarations are valid and binding agreements of the Company and the Trustees, enforceable against the Company and the Trustees, in accordance with their terms, subject to the effect upon the Declarations of (i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent transfer or conveyance and other similar laws relating to or affecting the rights and remedies of creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceed- 23 24 ing in equity or at law), and (iii) the effect of applicable of public policy on the enforceability of provisions relating to indemnification or contribution; (iii) under the Declarations and the Delaware Act, the execution and delivery of this Agreement by the Trusts, and the performance by the Trusts of their obligations hereunder and in the Exchange Offers, have been duly authorized by all requisite trust action on the part of the Trusts; (iv) the Preferred Securities have been duly authorized by the Declarations and upon issuance in accordance with the Declarations and the Prospectus will be duly and validly issued and, subject to qualifications set forth in this paragraph (iv), fully paid and non-assessable undivided beneficial interests in the assets of the applicable Trusts. The holders of Preferred Securities will 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. Such counsel may note that the holders of Preferred Securities may be obligated pursuant to the Declarations (A) to provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers or exchanges of Preferred Security Certificates and the issuance of replacement Preferred Security Certificates, and (B) to provide indemnity and/or security in connection with requests of or directions to the Institutional Trustee to exercise its rights and powers under the Declaration; (v) under the Declarations and the Delaware Act, the issuance of the Preferred Securities is not subject to preemptive rights; (vi) the issuance and sale by the Trusts of the Preferred Securities and the Common Securities, the execution, delivery and performance by the Trusts of this Agreement, the consummation by the Trusts of the transactions contemplated hereby and compliance by the Trusts with its obligations hereunder will not violate (a) any of the provisions of the Certificate of Trusts of the Trusts or the Declaration, or (b) any applicable Delaware law or administrative regulation; 24 25 (vii) assuming that the Trusts derive no income from or connected with services provided within the State of Delaware and have no assets, activities (other than maintaining the Delaware Trustee and the filing of documents with the Secretary of State of the State of Delaware) or employees in the State of Delaware, no authorization, approval, consent or order of any Delaware court or governmental authority or agency is required to be obtained by the Trusts solely in connection with the issuance and sale of the Preferred Securities and the Common Securities of the Trusts (in rendering the opinion expressed in this paragraph (vii), such counsel need express no opinion concerning the securities laws of the State of Delaware); and (viii) assuming that the Trusts derive no income from or connected with services provided within the State of Delaware and have no assets, activities (other than maintaining the Delaware Trustee and the filing of documents with the Secretary of State of the State of Delaware) or employees in the State of Delaware, the Preferred Securityholders (other than those Preferred Securityholders who reside or are domiciled in the State of Delaware) will have no liability for income taxes imposed by the State of Delaware solely as a result of their participation in the Trusts, and the Trusts will not be liable for any income tax imposed by the State of Delaware. (f) On the Exchange Date and (except the opinion with respect to the execution and delivery of the Declarations, the Indenture, the Debentures and the Guarantees) on the Commencement Date, the Dealer Managers shall have received a signed opinion of Martin I. Darvick, counsel to the Company, dated as of such date, to the effect that: (i) the Company is a corporation validly existing and in good standing under the laws of the State of Delaware; (ii) the Company has all necessary corporate power and authority to execute and deliver this Agreement, the Declarations, the Indenture, the Guarantees and the Debentures, to perform its obligations hereunder and thereunder and to consummate the Exchange Offers in accordance with their terms; 25 26 (iii) this Agreement and the Declarations have been duly authorized, executed and delivered by the Company; (iv) the Indenture has been duly authorized, executed and delivered by the Company and constitutes (or, as of the Exchange Date, will constitute) a valid and binding agreement of the Company enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law and except as rights to indemnity or contribution thereunder may be limited by public policy; (v) the Debentures have been duly authorized, executed and delivered by the Company and, when authenticated in accordance with the provisions of the Indenture and delivered to the Trusts in exchange for the Preferred Securities and money pursuant to the terms of the Exchange Offers, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company enforceable in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law and except as rights to indemnity or contribution thereunder may be limited by public policy; (vi) the Guarantees have been duly authorized and executed by the Company, and constitute (or, as of the Exchange Date, will constitute) valid and binding agreements of the Company enforceable in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law and except as rights to indemnity or contribution thereunder may be limited by public policy; 26 27 (vii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Declarations, the Indenture, the Debentures and the Guarantees and the consummation of the Exchange Offers and the fulfillment of the terms herein contemplated (including the issuance of the Preferred Securities by the Trusts) will not contravene any provision of applicable law or the Company's Restated Certificate of Incorporation or by-laws or any agreement or other instrument known to such counsel and binding upon the Company, and no consent, approval or authorization of any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Declarations, the Indenture, the Guarantees and the Debentures or in connection with the Exchange Offers, other than under the Act and the Exchange Act and the regulations thereunder and compliance with other securities or Blue Sky laws of various jurisdictions (as to which such counsel need express no opinion); (viii) except as set forth in the Registration Statement or the Prospectus, after due inquiry, such counsel does not know of any legal or governmental proceeding pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company is subject with respect to the Exchange Offers, the purchase of Target Securities pursuant thereto, the issuance of the Preferred Securities by the Trusts, or the execution, delivery and performance of this Agreement, the Declarations, the Indenture, the Guarantees or the Debentures; (ix) the documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company or the Trusts prior to the Exchange Date (other than the financial statements and related schedules contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not express any opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act. In addition, such counsel shall state that such counsel have participated in the preparation of the Registration Statement, the Prospectus and the documents incorporated by reference therein and no facts have come to such counsel's attention that leads them to believe that 27 28 the Registration Statement (including the documents incorporated by reference therein pursuant to Item 11 of Form S-4) at the time such Registration Statement became effective, or if an amendment to the Registration Statement or an Annual Report on Form 10-K has been filed with the Commission subsequent to the effectiveness of the Registration Statement, then at the time such amendment became effective or at the time of the most recent such filing, contained an untrue statement of a material factor omitted to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading, or that the Prospectus as of its date and the date of such opinion (including the documents incorporated by reference therein pursuant to Item 11 of Form S-4) or any amendment or supplement thereto, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no belief with respect to the financial statements and schedules included or incorporated by reference in the Registration State- ments, or the Prospectus or any amendment thereto or the Statement of Eligibility on Form T-1 of the Trustee. (g) On the Exchange Date and on the Commencement Date, the Dealer Managers shall have received a signed opinion of Kirkland & Ellis, special counsel to the Company, dated as of such date, to the effect that: (i) neither of the Trusts is, or, after giving effect to the consummation of the Exchange Offers, will be, an "investment company" registered or required to be registered under the Investment Company Act of 1940, as amended; (ii) a member of the Commission's staff has advised such counsel (or the Company) by telephone that the Commission has issued an order declaring the Registration Statement effective under the Securities Act and such counsel has no knowledge that any stop order suspending the effectiveness of the Registration Statement has been issued or that any proceeding for that purpose is pending before or has been threatened by the Commission; the Registration Statement and the Prospectus (and, with respect to the opinion to be delivered on the Exchange Date, any further amendments and supplements thereto made by the Company or 28 29 the Trusts prior to the Exchange Date) (other than the financial statements and related schedules contained in the Registration Statement or the Prospectus or any further amendments or supplements thereto, or omitted therefrom, other than documents incorporated therein by reference and other than that part of the Registration Statement that constitutes the Forms T-1, as to which such counsel need not express any opinion) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act; (iii) The statements set forth in the Prospectus under the captions "Description of the Junior Subordinated Debentures", "Description of the Preferred Securities", "Description of the Preferred Securities Guarantees" and "Relationship Among the Preferred Securities, the Junior Subordinated Debentures and the Preferred Securities Guarantees", insofar as they purport to constitute summaries of certain terms of the Preferred Securities and each of the Guarantees, the Declarations, the Debentures and the Indenture, in each case are accurate in all material respects. In addition, such counsel shall state that such counsel have participated in the preparation of the Registration Statement and the Prospectus (but not the documents incorporated by reference therein) and that based on such participation and other described activities, such counsel has no knowledge that has caused such counsel to conclude that the Registration Statement (including the documents incorporated by reference therein pursuant to Item 11 of Form S-4) at the time such Registration Statement became effective, or if an amendment to the Registration Statement has been filed with the Commission subsequent to the effectiveness of the Registration Statement and prior to the date of such opinion, then at the time such amendment became effective or at the time of the most recent such filing, contained an untrue statement of a material factor omitted to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading, or that the Prospectus as of its date and the date of such opinion (including the documents incorporated by reference therein pursuant to Item 11 of Form S-4) or any amendment or supplement thereto, filed prior to the date of such opinion, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or 29 30 necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no belief with respect to the financial statements and schedules included or incorporated by reference in the Registration Statements, or the Prospectus or any amendment thereto or omitted therefrom or the Statements of Eligibility on Form T-1 of the Trustee. (h) Robert N. Deitz, special tax counsel to the Company and the Trusts, shall have furnished to the Dealer Managers his written opinion, dated the Commencement Date and the Exchange Date, respectively, in form and substance satisfactory to the Dealer Managers, to the effect that he confirms his opinion set forth in the Prospectus under the caption "Certain Federal Income Tax Consequences". (i) The Dealer Managers shall have received the favorable opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Dealer Managers, dated as of the Commencement Date and the Exchange Date, with respect to the validity of the Preferred Securities, the Registration Statement, the Prospectus and other related matters as the Dealer Managers may reasonably require. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and Delaware, and the federal law of the United States, upon the opinions of counsel satisfactory to the Dealer Managers. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company, trustees of the Trusts and certificates of public officials. (j) On the Commencement Date, the Dealer Managers shall have received from the Company's independent public accountants, in form and substance reasonably satisfactory to the Dealer Managers and dated as of such date, containing statements and information of the type ordinarily included in accountants' "comfort letters" to dealer managers with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. (k) At the Exchange Date, the Dealer Managers shall have received from the Company's independent public accountants, in form and substance reasonably satisfactory 30 31 to the Dealer Managers and dated as of such dates, to the effect that such accountants reaffirm the statements made in the letter furnished pursuant to Section 8(j). (l) At the Exchange Date, the Preferred Securities shall have been duly listed, subject to official notice of issuance, on the NYSE. 9. Termination. (a) This Agreement shall terminate with respect to each Exchange Offer upon the earliest to occur of (i) the Exchange Date, (ii) the date on which the Dealer Managers give notice to the Company and the Trusts that any of the conditions specified in Section 8 have not been fulfilled as of any date such conditions are required to be fulfilled pursuant to Section 8 with respect to such Exchange Offer or (iii) the date on which the Company terminates or withdraws such Exchange Offer for any reason (the earliest to occur of clauses (i), (ii) or (iii) being referred to as the "Termination Date "). (b) Notwithstanding termination of this Agreement pursuant to subsection (a) of this Section 9, the obligations of the Company and the Trusts to compensate and/or reimburse, as applicable, the Dealer Managers pursuant to Section 3 or 4, the representations and warranties contained in Section 6 and the provisions of Section 7 shall survive any termination of this Agreement. 10. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Dealer Managers shall be directed to them c/o Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, World Financial Center, North Tower, New York, New York 10281-1201, Attention: Syndicate Operations; notices to the Trusts shall be directed to them at [ ], Attention: Corporate Trusts Administrator and notices to the Company shall be directed to it at [ ], Attention: [ ]. 11. Tombstone. The Company and the Trusts acknowledge that the Dealer Managers may, with the prior review and approval of the Company, which approval shall not be unreasonably withheld, place an announcement in such 31 32 newspapers and periodicals as the Dealer Managers may choose, stating that the Dealer Managers are or were acting as dealer managers and financial advisors to the Company and the Trusts in connection with the Exchange Offers. The costs relating to any such tombstone shall be borne by the Dealer Managers. 12. Survival of Certain Provisions. The representations, warranties, indemnities and agreements of the Company and the Trusts will remain operative and in full force and effect regardless of any investigation made by or on behalf of the Dealer Managers or any affiliate or controlling person thereof and, subject to Section 9(b), will survive the consummation of the Exchange Offers. 13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. 14. Counterparts. This Agreement may be executed in one or more counterparts, and by different parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same Agreement. 15. Successors. This Agreement is made solely for the benefit of the Dealer Managers, the Company and the Trusts and, to the extent expressed, the parties indemnified pursuant to Section 7, and no other persons shall acquire or have any right under or by virtue of this Agreement. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and assigns, and, to the extent expressly set forth herein, the parties indemnified pursuant to Section 7 hereof, any rights or remedies under or by reason of this Agreement. Without limiting the generality of the foregoing, the parties acknowledge that nothing in this Agreement, expressed or implied, is intended to confer on holders of the securities of the Trusts, the Company or any of its subsidiaries or creditors of the Company or any of its subsidiaries or the respective successors and assigns of such creditors, any rights or remedies under or by reason of this Agreement. 32 33 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this instrument will become a binding agreement among the Company, the Trusts and the Dealer Managers in accordance with its terms. Very truly yours, [Company] By: ------------------------- [Trust] By: ------------------------- [Trust] By: ------------------------- Confirmed and accepted as of the date first above written: MERRILL LYNCH & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED [Co-Managers] By: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: --------------------------------- Authorized Signatory 33 EX-4.(C)(I) 3 EX-4.(C)(I) 1 EXHIBIT 4(c)(i) AMENDED AND RESTATED DECLARATION OF TRUST OF GENERAL MOTORS CAPITAL TRUST __ Dated as of , 1997 2 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 __ Securities.............................. 7 SECTION 2.3 Reports by the Institutional Trustee.................................. 7 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................................................................ 10 SECTION 3.3 Purpose............................................................... 11 SECTION 3.4 Authority............................................................. 11 SECTION 3.5 Title to Property of the Series __ Trust.............................. 11 SECTION 3.6 Powers and Duties of the Regular Trustees............................. 11 SECTION 3.7 Prohibition of Actions by the Series __ Trust and the Trustees........ 14 SECTION 3.8 Powers and Duties of the Institutional Trustee........................ 14 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 __ Securities...... 20 SECTION 3.14 Duration of Series __ Trust........................................... 20 SECTION 3.15 Mergers............................................................... 20 ARTICLE 4 SPONSOR SECTION 4.1 Sponsor's Purchase of Series __ Common Securities..................... 22 SECTION 4.2 Responsibilities of the Sponsor....................................... 22 SECTION 4.3 Right to Proceed...................................................... 22 SECTION 4.4 Expenses.............................................................. 22 ARTICLE 5 TRUSTEES SECTION 5.1 Number of Trustees.................................................... 23 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...................... 25 SECTION 5.7 Vacancies among Trustees.............................................. 26 SECTION 5.8 Effect of Vacancies................................................... 27 SECTION 5.9 Meetings.............................................................. 27 SECTION 5.10 Delegation of Power................................................... 27 SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business........... 27
3 ARTICLE 6 DISTRIBUTIONS SECTION 6.1 Distributions.................................................. 28 ARTICLE 7 ISSUANCE OF SECURITIES SECTION 7.1 General Provisions Regarding Series __ Securities.............. 28 ARTICLE 8 DISSOLUTION OF TRUST SECTION 8.1 Dissolution of Series __ Trust................................. 29 ARTICLE 9 TRANSFER OF INTERESTS SECTION 9.1 Transfer of Series __ Securities............................... 30 SECTION 9.2 Transfer of Certificates....................................... 30 SECTION 9.3 Deemed Security Holders........................................ 31 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 __ 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.................................................... 34 SECTION 10.3 Fiduciary Duty................................................. 35 SECTION 10.4 Indemnification................................................ 36 SECTION 10.5 Outside Businesses............................................. 38 ARTICLE 11 ACCOUNTING SECTION 11.1 Fiscal Year.................................................... 38 SECTION 11.2 Certain Accounting Matters..................................... 39 SECTION 11.3 Banking........................................................ 39 SECTION 11.4 Withholding.................................................... 39 ARTICLE 12 AMENDMENTS AND MEETINGS SECTION 12.1 Amendments...................................................... 40 SECTION 12.2 Meetings of the Holders; Action by Written Consent.............. 41 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............. 43 ARTICLE 14 MISCELLANEOUS .................................................................... 44 SECTION 14.1 Notices........................................................ 44 SECTION 14.2 Governing Law.................................................. 45 SECTION 14.3 Intention of the Parties....................................... 45 SECTION 14.4 Headings....................................................... 45 SECTION 14.5 Successors and Assigns......................................... 45 SECTION 14.6 Partial Enforceability......................................... 45 SECTION 14.7 Counterparts................................................... 45
ANNEXES AND EXHIBITS ii 4 ANNEX 1 Terms of ___% Trust Originated Preferred Securities, Series __, and __% Trust Originated Common Securities, Series __ EXHIBIT A-1 Form of Preferred Security Certificate EXHIBIT A-2 Form of Common Security Certificate iii 5 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. iv 6 AMENDED AND RESTATED DECLARATION OF TRUST OF GENERAL MOTORS CAPITAL TRUST __ ________ __, 1997 THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Series __ Declaration") is dated and effective as of ________ __, 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 __ Trust to be issued pursuant to this Series __ Declaration. WHEREAS, the Trustees and the Sponsor established General Motors Capital Trust __ (the "Series __ 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 __ Trust have made an offer to exchange (the "Series __ Offer") ___% Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series __, representing undivided preferred beneficial ownership interests in the assets of the Series __ Trust (the "Series __ Preferred Securities"), for up to ________ of the Sponsor's outstanding depositary shares (the "Series __ __% Depositary Shares"), each representing one-fourth of a share of Series __ __% Preference Stock, $0.10 par value per share, of the Sponsor (the "Series __ __% Preference Stock") not owned by the Sponsor; and WHEREAS, concurrently with the issuance of the Series __ Preferred Securities in exchange for Series __ __% Depositary Shares validly tendered in the Series __ Offer, (a) the Series __ Trust will issue and sell to the Sponsor Series __ Trust Originated Common Securities representing undivided common beneficial ownership interests in the assets of the Series __ Trust (the "Series __ Common Securities" and, together with the "Series __ Preferred Securities," the "Series __ Securities") in an aggregate liquidation amount equal to at least 3% of the total capital of the Series __ Trust and (b) the Sponsor will deposit into the Series __ Trust as trust assets its ___% Junior Subordinated Deferrable Interest Debentures, Series ___, due 2012 (the "Series __ Debentures"), having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series __ Securities so issued; and WHEREAS, the Series __ Trust has been established for the principal purposes of issuing the Series __ Securities and purchasing the Series __ Debentures from the Series __ Debenture Issuer (as defined herein); and WHEREAS, as of the date hereof, no Series __ Securities have been issued; and WHEREAS, all of the Trustees and the Sponsor, by this Series __ 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 __ Trust as a business trust under the Business Trust Act and that this Series __ Declaration constitute the governing instrument of such business trust, the Trustees declare that all assets contributed to the Series __ Trust will be held in trust for the benefit of the Holders, subject to the provisions of this Series __ Declaration. _______________ (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 7 ARTICLE 1 INTERPRETATION AND DEFINITIONS SECTION 1.1 Definitions. Unless the context otherwise requires: (a) capitalized terms used in this Series __ 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 __ Declaration has the same meaning throughout; (c) all references to "the Series __ Declaration" or "this Series __ Declaration" are to this Series __ Declaration as modified, supplemented or amended from time to time; (d) all references in this Series __ Declaration to Articles, Sections, Annexes and Exhibits are to Articles and Sections of, and Annexes and Exhibits to, this Series __ Declaration; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Series __ Declaration unless otherwise defined in this Series __ 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 __ Common Security Certificate or a Series __ 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 2 8 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 __ Trust or (ii) the Series __ Trust's Affiliates; and (b) any Holder of Series __ 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 __ Debenture Issuer, the Series __ 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 __ Preferred Security Certificates" has the meaning set forth in Section 9.4. "Delaware Trustee" has the meaning set forth in Section 5.1. "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 __ 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 __ Securities means an Event of Default under the Indenture which has occurred and is continuing in respect of the Series __ Debentures. "Exchange" means the exchange of the Series __ __% Depositary Shares for the Series __ Preferred Securities pursuant to the Series __ 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. 3 9 "Indenture" means the Indenture dated as of the date hereof, between the Series __ Debenture Issuer and the Debt Trustee, and any indenture supplemental thereto pursuant to which the Series __ Debentures are to be issued, as amended. "Institutional Trustee" means the Trustee meeting the eligibility requirements 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 __ Securities" means, except as provided in the terms of the Series __ Preferred Securities set forth in Annex I hereto or by the Trust Indenture Act, Holder(s) of outstanding Series __ Securities voting together as a single class or, as the context may require, Holders of outstanding Series __ Preferred Securities or Holders of outstanding Series __ 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 __ 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 __ 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. 4 10 "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 __ Common Securities" has the meaning set forth in Section 7.1(a). "Series __ Common Securities Guarantee" means the guarantee agreement to be dated as of the date hereof of the Sponsor in respect of the Series __ Common Securities, as amended. "Series __ Common Security Certificate" means a definitive certificate in fully registered form representing a Series __ Common Security substantially in the form of Exhibit A-2. "Series __ Debenture Issuer" means General Motors Corporation, a Delaware corporation, in its capacity as issuer of the Series __ Debentures under the Indenture. "Series __ Extension Period" has the meaning set forth in Section 2(b) of Annex I. "Series __ Preferred Guarantee Trustee" means Wilmington Trust Company, a national banking association, as trustee under the Series __ Preferred Securities Guarantee until a successor is appointed thereunder, and thereafter means such successor trustee. "Series __ 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). 5 11 "Series __ Preferred Security Certificate" means a certificate representing a Series __ Preferred Security substantially in the form of Exhibit A-1. "Series __ Preferred Securities Guarantee" means the guarantee agreement to be dated as of the date hereof, of the Sponsor in respect of the Series __ Preferred Securities, as amended. "Series __ Redemption Price" has the meaning set forth in Section 4(c) of Annex I. "Series __ Securities" means the Series __ Common Securities and the Series __ Preferred Securities. "Series __ Securities Guarantees" means the Series __ Common Securities Guarantee and the Series __ Preferred Securities Guarantee. "Series __ 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 __ 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 __ 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 __ 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 __ Securities" means, except as provided in the terms of the Series __ Preferred Securities set forth in Annex I hereto or by the Trust Indenture Act, Holder(s) of outstanding Series __ Securities voting together as a single class or, as the context may require, Holders of outstanding Series __ Preferred Securities or Holders of outstanding Series __ 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 __ 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. 6 12 "Trustee" or "Trustees" means each Person who has signed this Series __ 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 __ Declaration is subject to the provisions of the Trust Indenture Act that are required to be part of this Series __ 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 __ 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 __ Declaration shall not affect the nature of the Series __ Securities as equity securities representing undivided beneficial ownership interests in the assets of the Series __ Trust. SECTION 2.2 Lists of Holders of Series __ Securities. (a) Each of the Sponsor and the Regular Trustees on behalf of the Series __ 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 __ 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 __ Trust, and (ii) at any other time, within 30 days of receipt by the Series __ 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 __ 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. 7 13 SECTION 2.4 Periodic Reports to the Institutional Trustee. Each of the Sponsor and the Regular Trustees on behalf of the Series __ 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 __ Trust shall provide to the Institutional Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Series __ 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 __ Preferred Securities may, by vote, on behalf of the Holders of all of the Series __ Preferred Securities, waive any past Event of Default in respect of the Series __ 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 __ 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 __ Debentures (a "Super Majority") to be waived under the Indenture, then the Event of Default under the Series __ Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation amount of the Series __ Preferred Securities that the relevant Super Majority represents of the aggregate principal amount of the Series __ Debentures outstanding; or (iii) requires the consent or vote of each Holder of Series __ Debentures to be waived under the Indenture, then the Event of Default under the Series __ Declaration may only be waived by each Holder of Series __ 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 __ Declaration and the Series __ 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 __ Preferred Securities arising therefrom shall be deemed to have been cured, for every purpose of this Series __ Declaration, but no such waiver shall extend to any subsequent or other default or an Event of Default with respect to the Series __ Preferred Securities or impair any right consequent thereon. Any waiver by the Holders of the Series __ Preferred Securities of an Event of Default with respect to the Series __ Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Series __ Common Securities of any such Event of Default with respect to the Series __ Common Securities for all purposes of this Series __ Declaration without any further act, vote, or consent of the Holders of the Series __ Common Securities. (b) Subject to Section 2.6(c), the Holders of a Majority in liquidation amount of the Series __ Common Securities may, by vote, on behalf of the Holders of all of the Series __ Common Securities, waive any past Event of Default with respect to the Series __ Common Securities and its consequences, provided that, if the underlying Event of Default under the Indenture: 8 14 (i) is not waivable under the Indenture, except where the Holders of the Series __ Common Securities are deemed to have waived such Event of Default under the Series __ Declaration as provided below in this Section 2.6(b), then the Event of Default under the Series __ 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 __ Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation amount of the Series __ Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Series __ Debentures outstanding or (B) each holder of Series __ Debentures to be waived, then the Event of Default under the Series __ Declaration may only be waived by each Holder of Series __ Common Securities, except where the Holders of the Series __ Common Securities are deemed to have waived such Event of Default under the Series __ Declaration as provided below in this Section 2.6(b); provided further, each Holder of Series __ Common Securities will be deemed to have waived any such Event of Default and all Events of Default with respect to the Series __ Common Securities and its consequences until all Events of Default with respect to the Series __ 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 __ Preferred Securities and only the Holders of the Series __ Preferred Securities will have the right to direct the Institutional Trustee in accordance with the terms of the Series __ Securities set forth in Annex I hereto. If any Event of Default with respect to the Series __ Preferred Securities is waived by the Holders of Series __ Preferred Securities as provided in this Series __ Declaration, the Holders of Series __ Common Securities agree that such waiver shall also constitute the waiver of such Event of Default with respect to the Series __ Common Securities for all purposes under this Series __ Declaration without any further act, vote or consent of the Holders of the Series __ 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 __ Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Series __ Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Series __ 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 __ Declaration and the Series __ 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 __ Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Series __ Declaration, but no such waiver shall extend to any subsequent or other default or Event of Default with respect to the Series __ Common Securities or impair any right consequent thereon. (c) The right of any Holder to receive payment of Distributions in accordance with this Series __ Declaration and the terms of the Series __ 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. 9 15 (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 __ Preferred Securities, constitutes a waiver of the corresponding Event of Default under this Series __ 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 __ Declaration and the Series __ 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 __ 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 __ Debentures or in the payment of any sinking fund installment established for the Series __ 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 __ Declaration shall have actual knowledge. ARTICLE 3 ORGANIZATION SECTION 3.1 Name. The Series __ Trust continued by this Series __ Declaration is named "General Motors Capital Trust __," as such name may be modified from time to time by the Regular Trustees following written notice to the Holders. The Series __ Trust's activities may be conducted under the name of the Series __ Trust or any other name deemed advisable by the Regular Trustees. SECTION 3.2 Office. The address of the principal office of the Series __ 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 __ Securities, the Regular Trustees may designate another principal office. 10 16 SECTION 3.3 Purpose. The exclusive purposes and functions of the Series __ Trust are (i) to issue (a) its Series __ Preferred Securities in exchange for Series __ __% Depositary Shares validly tendered in the Series __ Offer and deliver such Series __ __% Depositary Shares to the Series __ Debenture Issuer in consideration of the deposit by the Series __ Debenture Issuer in the Series __ Trust as trust assets of Series __ Debentures having an aggregate stated principal amount equal to the aggregate stated liquidation amount of the Series __ __% Depositary Shares so delivered and (b) its Series __ Common Securities to the Sponsor in exchange for cash and invest the proceeds thereof in an equal aggregate principal amount of Series __ Debentures, (ii) to enter into such agreements and arrangements as may be necessary in connection with the Series __ Offer and to take all actions, and exercise such discretion, as may be necessary or desirable in connection with the Series __ 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 __ Offer and the issuance of the Series __ 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 __ 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 __ 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 __ 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 __ Trust. Any action taken by the Regular Trustees in accordance with their powers shall constitute the act of and serve to bind the Series __ Trust and any action taken by the Institutional Trustee on behalf of the Series __ Trust in accordance with its powers shall constitute the act of and serve to bind the Series __ Trust. In dealing with the Trustees acting on behalf of the Series __ Trust, no person shall be required to inquire into the authority of the Trustees to bind the Series __ Trust. Persons dealing with the Series __ Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Series __ Declaration. SECTION 3.5 Title to Property of the Series __ Trust. Except as provided in Section 3.8 with respect to the Series __ Debentures and the Institutional Trustee Account or as otherwise provided in this Series __ Declaration, legal title to all assets of the Series __ Trust shall be vested in the Series __ Trust. The Holders shall not have legal title to any part of the assets of the Series __ Trust, but shall have an undivided beneficial interest in the assets of the Series __ 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 __ Trust to engage in the following activities: (a) to issue the Series __ Securities in accordance with this Series __ Declaration in connection with the exchange of the Series __ Preferred Securities and the sale of the Series __ Common Securities; provided, however, that the Series __ Trust may issue no more than one series of Series __ Preferred Securities and no more than one series of Series __ Common Securities; and, provided further, that there shall be no interests in the Series __ Trust other than the Series __ Securities, and the issuance of Series __ Securities shall be limited to a one-time simultaneous issuance of both Series __ Preferred Securities and Series __ Common Securities on the Closing Date; (b) in connection with the issue and exchange of the Series __ Preferred Securities, at the direction of the Sponsor, to: 11 17 (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 __ 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 __ Preferred Securities in any State in which the Sponsor has determined to qualify or register such Series __ 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 __ 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 __ 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 __ 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 __ Offer; and (viii) execute and deliver letters, documents or instruments with DTC and PDTC. (c) to acquire the Series __ Debentures in consideration of the transfer of the Series __ __% Depositary Shares received upon exchange of the Series __ Preferred Securities and the sale of the Series __ Common Securities; provided, however, that the Regular Trustees shall cause legal title to the Series __ 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 __ 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 __ 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 __ Trust ("Legal Action"), unless pursuant 12 18 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 __ Trust to comply with the Series __ 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 __ Trust; (l) to act as, or appoint another Person to act as, registrar, transfer agent and paying agent for the Series __ Securities; (m) to give prompt written notice to the Holders of any notice received from the Series __ Debenture Issuer of its election to defer payments of interest on the Series __ 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 __ 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 __ 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 __ Trust to effect the purposes for which the Series __ Trust was created; (p) to take any action, not inconsistent with this Series __ 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 __ Trust as set out in this Section 3.6, including, but not limited to: (i) causing the Series __ Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act; (ii) causing the Series __ Trust to be classified for United States federal income tax purposes as a grantor trust; and (iii) cooperating with the Series __ Debenture Issuer to ensure that the Series __ Debentures will be treated as indebtedness of the Series __ 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 __ Trust to be duly prepared and filed by the Regular Trustees, on behalf of the Series __ Trust. 13 19 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 __ 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 __ 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 __ Debenture Issuer. SECTION 3.7 Prohibition of Actions by the Series __ Trust and the Trustees. (a) The Series __ Trust shall not, and the Trustees (including the Institutional Trustee) shall cause the Series __ Trust not to, engage in any activity other than in connection with the purpose of the Series __ Trust or other than as required or authorized by this Series __ Declaration. In particular, the Series __ Trust shall not, and the Trustees (including the Institutional Trustee) shall cause the Series __ Trust not to: (i) invest any proceeds received by the Series __ Trust from holding the Series __ Debentures, but shall distribute all such proceeds to Holders pursuant to the terms of this Series __ Declaration and of the Series __ Securities; (ii) acquire any assets other than as expressly provided herein; (iii) possess Series __ Trust property for other than a Series __ Trust purpose; (iv) make any investments, other than investments represented by the Series __ Debentures; (v) possess any power or otherwise act in such a way as to vary the Series __ Trust assets or the terms of the Series __ Securities in any way whatsoever; (vi) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Series __ Trust other than the Series __ Securities; (vii) incur any indebtedness for borrowed money; or (viii) other than as provided in this Series __ 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 __ 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 __ Debentures held in the Series __ Trust shall be due and payable, or (D) consent to any amendment, modification or termination of the Indenture or the Series __ Debentures if such action would cause the Series __ Trust to be classified for United States federal income tax purposes as other than a grantor trust or would cause the Series __ 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 __ 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 __ Debentures shall vest automatically in each 14 20 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 __ Debentures have been executed and delivered. (b) The Institutional Trustee shall not transfer its right, title and interest in the Series __ 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 __ 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 __ Declaration; (ii) engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Series __ Securities to the extent the Series __ 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 __ Securities, engage in such ministerial activities as shall be necessary or appropriate to effect the distribution of the Series __ 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 __ 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 __ Declaration or the Trust Indenture Act. If the Institutional Trustee fails to enforce its rights under the Series __ Debentures after a Holder of Series __ Preferred Securities has made a written request, such Holder may institute a legal proceeding against the Series __ Debenture Issuer to enforce the Institutional Trustee's rights under the Series __ 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 __ Debenture Issuer to pay interest or principal on the Series __ 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 __ Preferred Securities may directly institute a proceeding for enforcement of payment to such Holder of the principal of, or interest on, the Series __ Debentures having a principal amount equal to the aggregate liquidation amount of the Series __ Preferred Securities of such Holder (a "Direct Action") on or after the respective due date specified in the Series __ Debentures. Notwithstanding any payments made to such Holder of Series __ Preferred Securities by the Series __ Debenture Issuer in connection with a Direct Action, the Series __ Debenture Issuer shall remain obligated to pay the principal of or interest on the Series __ Debentures held by the Series __ Trust or the Institutional Trustee of the Series __ Trust, and the Series __ Debenture Issuer shall be subrogated to the rights of the Holder of such Series __ 15 21 Preferred Securities with respect to payments on the Series __ Preferred Securities. Except as provided in the preceding sentences and in the Series __ Preferred Securities Guarantee, the Holders of Series __ Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Series __ Debentures. (f) The Institutional Trustee shall not resign as a Trustee unless either: (i) the Series __ Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders pursuant to the terms of the Series __ 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 __ 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 __ Debentures subject to the rights of the Holders pursuant to the terms of such Series __ Securities. (h) The Institutional Trustee may authorize one or more Persons acceptable to the Series __ Trust (each, a "Paying Agent") to pay Distributions, redemption payments or liquidation payments on behalf of the Series __ Trust with respect to the Series __ 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 __ 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 __ Trust, an Affiliate of the Series __ 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 __ Securities. (i) The Institutional Trustee shall give prompt written notice to the Holders of the Series __ Securities of any notice received by it from the Series __ Debenture Issuer of the Series __ Debenture Issuer's election to defer payments of interest on the Series __ Debentures by extending the interest payment period with respect thereto. (j) The Institutional Trustee shall notify all Holders of the Series __ Preferred Securities of any notice of default received from the Debt Trustee with respect to the Series __ Debentures. Such notice shall state that such event of default under the Indenture with respect to the Series __ 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 __ 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 __ Trust set out in Section 3.3. 16 22 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 __ Declaration and no implied covenants shall be read into this Series __ 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 __ 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 __ 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 __ 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 __ Declaration, and no implied covenants or obligations shall be read into this Series __ 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 __ 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 __ 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 __ 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 __ Declaration; (iv) no provision of this Series __ 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 17 23 liability is not reasonably assured to it under the terms of this Series __ 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 __ 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 __ 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 __ 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; and (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 __ Declaration, nor shall the Institutional Trustee be liable for any default or misconduct of the Regular Trustees or the Sponsor. 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 __ Declaration shall be sufficiently evidenced by an Officers' Certificate; (iii) whenever in the administration of this Series __ 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 18 24 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 __ 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 __ 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 __ 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 __ 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 __ 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 __ 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 __ Securities as would be entitled to direct the Institutional Trustee under the terms of the Series __ 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 19 25 (xi) except as otherwise expressly provided by this Series __ Declaration, the Institutional Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Series __ Declaration. (b) No provision of this Series __ 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 __ 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 __ 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 __ Trust or of the Regular Trustees except such acts as the Delaware Trustee is expressly obligated or authorized to undertake under this Series __ 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 __ 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 __ Securities. The recitals contained in this Series __ Declaration and the Series __ 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 __ Trust or any part thereof. The Trustees make no representations as to the validity or sufficiency of this Series __ Declaration or the Series __ Securities. SECTION 3.14 Duration of Series __ Trust. The Series __ 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 __ 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 __ 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: 20 26 (i) if the Series __ Trust is not the survivor, such successor entity (the "Successor Entity") either: (A) expressly assumes all of the obligations of the Series __ Trust under the Series __ Securities; or (B) substitutes for the Series __ Preferred Securities other securities having substantially the same terms as the Series __ Preferred Securities (the "Successor Series __ Securities") so long as the Successor Series __ Securities rank the same as the Series __ Preferred Securities rank with respect to Distributions and payments upon liquidation, redemption and otherwise; (ii) the Series __ 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 __ Debentures; (iii) the Series __ Preferred Securities or any Successor Series __ Securities are listed, or any Successor Series __ Securities will be listed upon notification of issuance, on any national securities exchange or with another organization on which the Series __ Preferred Securities are then listed or quoted; (iv) such merger, consolidation, amalgamation or replacement does not cause the Series __ Preferred Securities (including any Successor Series __ 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 __ 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 __ Trust; (vii) prior to such merger, consolidation, amalgamation or replacement, the Series __ Debenture Issuer has received an opinion of a nationally recognized independent counsel to the Series __ 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 __ 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 __ 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 __ 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 __ Securities at least to the extent provided by the Series __ Preferred Securities Guarantee and the Series __ Common Securities Guarantee. 21 27 (c) Notwithstanding Section 3.15(b), the Series __ Trust shall not, except with the consent of Holders of 100% in liquidation amount of the Series __ 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 __ 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 __ Common Securities. On the Closing Date, the Sponsor will purchase all of the Series __ Common Securities issued by the Series __ Trust, in an amount at least equal to 3% of the total capital of the Series __ Trust, at the same time as the Series __ Preferred Securities are issued in exchange for Series __ __% Depositary Shares in the Series __ Offer. SECTION 4.2 Responsibilities of the Sponsor. In connection with the issue and sale of the Series __ 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 __ Trust with the Commission one or more registration statements on Form S-4 in relation to the Series __ 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 __ Preferred Securities and to do any and all such acts, other than actions which must be taken by the Series __ Trust, and advise the Series __ Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Series __ 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 __ 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 __ Preferred Securities; (d) to prepare for filing by the Series __ Trust with the Commission a registration statement on Form 8-A relating to the registration of the Series __ 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 __ Debentures to the Institutional Trustee and in connection with the issuance of the Series __ Securities by the Series __ Trust, the Series __ Debenture Issuer, in its capacity as borrower with respect to the Series __ Debentures, shall: 22 28 (a) pay all costs and expenses relating to the offering, sale and issuance of the Series __ 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 __ Securities) and all costs and expenses of the Series __ Trust (including, but not limited to, costs and expenses relating to the organization, maintenance and dissolution of the Series __ Trust, the offer, sale and issuance of the Series __ 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 __ Declaration), the costs and expenses relating to the operation of the Series __ 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 __ Trust assets and the enforcement by the Institutional Trustee of the rights of Holders of the Series __ Preferred Securities); (c) be primarily liable for any indemnification obligations arising with respect to this Series __ Declaration; and (d) pay any and all taxes (other than United States withholding taxes attributable to the Series __ Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the Series __ Trust. The Series __ 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 __ Debenture Issuer's obligations under this Section 4.4 directly against the Series __ Debenture Issuer and the Series __ Debenture Issuer irrevocably waives any right of remedy to require that any such Creditor take any action against the Series __ Trust or any other Person before proceeding against the Series __ Debenture Issuer. The Series __ 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 __ Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees. After the issuance of any Series __ Securities, the number of Trustees may be increased or decreased by vote of the Holders of a majority in liquidation amount of the Series __ Common Securities voting as a class at a meeting of the Holders of the Series __ Common Securities; provided, however, that, the number of Trustees shall in no event be less than two; and provided further that (i) one Trustee, in the case of a natural person, shall be a person who is a resident of the State of Delaware or that, if not a natural person, is an entity which has its principal place of business in the State of Delaware (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) one Trustee shall be the Institutional Trustee for 23 29 so long as this Series __ Declaration is required to qualify as an indenture under the Trust Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets the applicable requirements. (b) Any action taken by Holders of Series __ Common Securities pursuant to this Article 5 shall be taken at a meeting of Holders of Series __ 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 __ Common Securities. SECTION 5.2 Delaware Trustee. If required by the Business Trust Act, 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 shall 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) There shall at all times be one Trustee which shall act as 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 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 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 24 30 the Holder of the Series __ 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 __ Preferred Securities Guarantee shall be deemed to be specifically described in this Series __ 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 __ 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 __ 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 __ 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 __ Securities, by written instrument executed by the Sponsor; and (ii) after the issuance of any Series __ Securities, by vote of the Holders of a Majority in liquidation amount of the Series __ Common Securities voting as a class at a meeting of the Holders of the Series __ Common Securities. (b) (i) 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 25 31 to the Regular Trustees, the Sponsor and the Institutional Trustee being removed; and (ii) 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 __ 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 __ Trust, the Sponsor and the resigning Institutional Trustee; or (B) until the assets of the Series __ Trust have been completely liquidated and the proceeds thereof distributed to the Holders of the Series __ 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 __ Trust, the Sponsor and the resigning Delaware Trustee. (d) The Holders of the Series __ 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 __ 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. 26 32 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 __ 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 __ 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 __ 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 __ Trust the doing of such things and the execution of such instruments either in the name of the Series __ 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 __ 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. 27 33 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 __ Securities as set forth in Annex I. If and to the extent that the Series __ Debenture Issuer makes a payment of interest (including Compound Interest and Additional Interest), premium and/or principal on the Series __ 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 __ Securities. (a) The Regular Trustees shall on behalf of the Series __ Trust issue the Series __ Preferred Securities, which shall be one class of preferred securities representing undivided preferred beneficial ownership interests in the assets of the Series __ 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 __ Declaration as if specifically set forth herein) and the Series __ Common Securities, which shall be one class of common securities representing undivided common beneficial ownership interests in the assets of the Series __ 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 __ Declaration as if specifically set forth herein). The Series __ Trust shall issue no securities or other interests in the assets of the Series __ Trust other than the Series __ Preferred Securities and the Series __ Common Securities. Each Security shall be dated the date of its authentication. (b) The Certificates shall be signed on behalf of the Series __ Trust by a Regular Trustee. Such signature shall be the manual 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 __ Trust who shall have signed any of the Series __ Securities shall cease to be such Regular Trustee before the Certificates so signed shall be delivered by the Series __ 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 __ Trust by such persons who, at the actual date of execution of such Security, shall be the Regular Trustees of the Series __ Trust, although at the date of the execution and delivery of the Series __ 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 __ Securities may be listed, or to conform to usage. Pending the preparation of definitive Certificates, the Regular Trustees on behalf of the Series __ 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 28 34 Regular Trustees on behalf of the Series __ 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 __ 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 signature of an authorized signatory of the Institutional Trustee. The signature shall be conclusive evidence that the Security has been authenticated under this Series __ Declaration. The Institutional Trustee may appoint an authenticating agent acceptable to the Series __ Trust to authenticate Series __ Securities. An authenticating agent may authenticate Series __ Securities whenever the Institutional Trustee may do so. Each reference in this Series __ 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 __ Trust or a Related Party of the Sponsor. The Institutional Trustee hereby appoints Wilmington Trust Company initially to act as authenticating agent for the Series __ Securities. (d) The consideration received by the Series __ Trust for the issuance of the Series __ Securities shall constitute a contribution to the capital of the Series __ Trust and shall not constitute a loan to the Series __ Trust. (e) Upon issuance of the Series __ Securities as provided in this Series __ Declaration, the Series __ 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 __ Preferred Security Beneficial Owner in accordance with the terms of this Series __ Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Series __ Declaration. ARTICLE 8 DISSOLUTION OF TRUST SECTION 8.1 Dissolution of Series __ Trust. (a) Notwithstanding anything to the contrary contained herein, the Sponsor shall have the right at any time to dissolve and liquidate the Series __ Trust and cause the distribution of all of the Series __ Debentures to the Holders in exchange for all of the Series __ Securities in accordance with the terms of the Series __ Securities. In addition, the Series __ Trust shall dissolve: (i) on April 11, 2052, the expiration of the term of the Series __ Trust; (ii) upon the bankruptcy of the Sponsor or the Series __ 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 __ Trust after having obtained the consent of the Holders of at least a Majority in liquidation amount of the Series __ 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; 29 35 (iv) upon the entry of a decree of judicial dissolution of the Holder of the Series __ Common Securities, the Sponsor or the Series __ Trust; (v) when all of the Series __ 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 __ Securities; (vi) upon the distribution of all of the Series __ Debentures to the Holders in exchange for all of the Series __ Securities in accordance with the terms of the Series __ Securities; or (vii) before the issuance of any Series __ 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 __ Trust. ARTICLE 9 TRANSFER OF INTERESTS SECTION 9.1 Transfer of Series __ Securities. (a) Series __ Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Series __ Declaration and in the terms of the Series __ Securities. Any transfer or purported transfer of any Security not made in accordance with this Series __ Declaration shall be null and void. (b) Subject to this Article 9, the Series __ Preferred Securities shall be freely transferable. (c) The Sponsor may not transfer the Series __ 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 __ Declaration. 30 36 (b) Upon receipt by the Institutional Trustee of a Definitive Series __ 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 __ Preferred Security Certificate for a beneficial interest in a Global Certificate, the Institutional Trustee shall cancel such Definitive Series __ Preferred Security Certificate and cause, or direct the Depository Institution to cause, the aggregate number of Series __ Preferred Securities represented by the appropriate Global Certificate to be increased accordingly. If no Global Certificates are then outstanding, the Series __ Trust shall issue and the Institutional Trustee shall authenticate, upon written order of any Regular Trustee, an appropriate number of Series __ 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 __ 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 __ Trust will execute and the Institutional Trustee will authenticate and deliver to the transferee a Definitive Series __ Preferred Security Certificate. Definitive Series __ 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 __ Preferred Securities to the persons in whose names such Series __ Preferred Securities are so registered in accordance with the instructions of the Depository Institution. (d) Notwithstanding any other provisions of this Series __ 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. (e) The Institutional Trustee may appoint a transfer agent and registrar ("Transfer Agent") acceptable to the Series __ 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 __ Declaration to registration and transfer of Series __ 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 __ Trust, an Affiliate of the Series __ 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 __ 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 __ Trust as the sole holder of such Certificate and of the Series __ Securities represented by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to 31 37 recognize any equitable or other claim to or interest in such Certificate or in the Series __ Securities represented by such Certificate on the part of any Person, whether or not the Series __ Trust shall have actual or other notice thereof. SECTION 9.4 Book-Entry Interests. The Series __ Preferred Securities Certificates, on original issuance, will be executed and issued by the Series __ Trust and authenticated by the Institutional Trustee either (i) in the form of one or more, fully-registered, global Series __ 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 __ Trust to those tendering holders of Series __ __% Depositary Shares held in global form or (ii) in certificated form (the "Definitive Series __ Preferred Security Certificates") to be held directly by the Holder to those tendering holders of Series __ __% Depositary Shares held directly in certificated form. Investors may elect to hold their Series __ 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 __ Trust in the name of DTC or PDTC, as applicable, or their respective nominees. With respect to Series __ Preferred Security Beneficial Owners holding their interest in Series __ Preferred Securities pursuant to a Global Certificate: (a) the Series __ Trust and the Trustees shall be entitled to deal with the Depository Institution, with respect to such Series __ Preferred Security Beneficial Owners, for all purposes of this Series __ Declaration (including the payment of Distributions on the Global Certificates and receiving approvals, votes or consents hereunder) as the Holder of such Series __ Preferred Securities and the sole holder of the Global Certificates and shall have no obligation to such Series __ Preferred Security Beneficial Owners; (b) to the extent that the provisions of this Section 9.4 conflict with any other provisions of this Series __ Declaration, the provisions of this Section 9.4 shall control; and (c) the rights of such Series __ 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 __ 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 __ 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 __ Trust, the Institutional Trustee and any agent of the Series __ 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 __ Trust, the Institutional Trustee or any agent of the Series __ 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 __ Preferred Security Certificates to the extent permitted by this Series __ Declaration or redeemed, repurchased or canceled in accordance with the terms of this Series __ 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 __ Preferred Security Certificates, or if Definitive Series __ Preferred Security Certificates are exchanged for a beneficial interest in a Global Certificate, Series __ 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 32 38 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 __ Preferred Security Holders is required under this Series __ Declaration, unless and until Definitive Series __ Preferred Security Certificates shall have been issued to the Series __ 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 __ Preferred Security Holders to the applicable Depository Institution, and shall have no notice obligations to the Series __ 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 __ Preferred Securities, the Regular Trustees may, in their sole discretion, appoint a successor Depository Institution with respect to such Series __ Preferred Securities. SECTION 9.7 Definitive Series __ Preferred Security Certificates. If: (a) a Depository Institution elects to discontinue its services as securities depositary with respect to the Series __ 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 __ Preferred Securities; or (c) there shall have occurred a Series __ Declaration Event of Default, then: (a) Definitive Series __ Preferred Security Certificates shall be prepared by the Regular Trustees on behalf of the Series __ Trust with respect to such Series __ 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 __ Preferred Security Certificates to be delivered to Series __ Preferred Security Beneficial Owners in accordance with the instructions of such Depository Institution. Neither the Trustees nor the Series __ 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 __ 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 __ Preferred Securities may be listed, or to conform to usage. 33 39 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 __ 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 __ 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 __ Declaration, the Series __ Securities Guarantees and the terms of the Series __ 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 __ Trust; and (ii) be required to pay to the Series __ Trust or to any Holder any deficit upon dissolution of the Series __ Trust or otherwise. (b) The Series __ Debenture Issuer shall be liable for all of the debts and obligations of the Series __ Trust (other than payments of distributions, if any, with respect to the Series __ 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 __ 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 __ Trust and in a manner such Indemnified Person reasonably 34 40 believed to be within the scope of the authority conferred on such Indemnified Person by this Series __ 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 __ Trust and upon such information, opinions, reports or statements presented to the Series __ 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 __ 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 __ Trust or to any other Covered Person, an Indemnified Person acting under this Series __ Declaration shall not be liable to the Series __ Trust or to any other Covered Person for its good faith reliance on the provisions of this Series __ Declaration. The provisions of this Series __ 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 __ 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 __ 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 __ 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 __ 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 __ Trust or any other Person; or 35 41 (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 __ Declaration or by applicable law. SECTION 10.4 Indemnification. (a) (i) The Series __ 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 __ 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 __ 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 __ Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (ii) The Series __ 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 __ 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 __ 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 __ 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 __ 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 36 42 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 __ Common Security Holder of the Series __ 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 __ 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 __ Debenture Issuer as authorized in this Section 10.4(a). Notwithstanding the foregoing, no advance shall be made by the Series __ 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 __ Debenture Issuer, that, based upon the facts known to the Regular Trustees, counsel or the Series __ 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 __ 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 __ Debenture Issuer reasonably determine that such person deliberately breached his duty to the Series __ 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 __ Debenture Issuer or Series __ Preferred Security Holders of the Series __ 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 __ 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 __ Debenture Issuer or the Series __ 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 __ 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 __ Trust" shall include, in addition to the resulting or surviving entity, any constituent entity 37 43 (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 __ 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 __ 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 __ Trust, and the Series __ Trust and the Holders shall have no rights by virtue of this Series __ 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 __ 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 __ Trust even if such opportunity is of a character that, if presented to the Series __ Trust, could be taken by the Series __ 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 __ Trust shall be the calendar year, or such other year as is required by the Code. 38 44 SECTION 11.2 Certain Accounting Matters. (a) At all times during the existence of the Series __ 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 __ 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 __ Trust shall use the accrual method of accounting for United States federal income tax purposes. The books of account and the records of the Series __ Trust shall be examined by and reported upon as of the end of each Fiscal Year of the Series __ Trust by a firm of independent certified public accountants selected by the Regular Trustees. The books and records of the Series __ Trust, together with a copy of the Series __ 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 __ 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 __ Trust during normal business hours. (b) The Regular Trustees shall cause to be prepared and delivered to each of the Holders, within 90 days after the end of each Fiscal Year of the Series __ Trust, annual financial statements of the Series __ Trust, including a balance sheet of the Series __ Trust as of the end of such Fiscal Year, and the related statements of income or loss. (c) 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 __ 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 __ Trust. (d) 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 __ Trust with any state or local taxing authority. SECTION 11.3 Banking. The Series __ Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Series __ Trust; provided, however, that all payments of funds in respect of the Series __ Debentures held by the Institutional Trustee shall be made directly to the Institutional Trustee Account and no other funds of the Series __ 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 __ Trust and the Regular Trustees shall comply with all withholding requirements under United States federal, state and local law. The Series __ Trust shall request, and the Holders shall provide to the Series __ 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 __ 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 39 45 withheld with respect to the Holder to applicable jurisdictions. To the extent that the Series __ 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 __ 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 __ Declaration or by any applicable terms of the Series __ Securities, this Series __ 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 __ Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Series __ Declaration (including the terms of the Series __ 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 __ Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Series __ Declaration (including the terms of the Series __ Securities); and (B) an opinion of counsel (who may be counsel to the Sponsor or the Series __ Trust) that such amendment is permitted by, and conforms to, the terms of this Series __ Declaration (including the terms of the Series __ 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 40 46 (C) cause the Series __ 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 __ Trust has issued any Series __ 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 __ 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 __ Securities; (e) Article 4 shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Series __ Common Securities; (f) The rights of the holders of the Series __ 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 __ Common Securities; and (g) Notwithstanding Section 12.1(c), this Series __ Declaration may be amended without the consent of the Holders to: (i) cure any ambiguity; (ii) correct or supplement any provision in this Series __ Declaration that may be defective or inconsistent with any other provision of this Series __ 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 __ 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 __ 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 __ Securities may be called at any time by the Regular Trustees (or as provided in the terms of the Series __ Securities) to consider and act on any matter on which Holders of such class of Series __ Securities are entitled to act under the terms of this Series __ Declaration, the terms of the Series __ Securities or the rules of any stock exchange on which the Series __ 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 __ 41 47 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 __ 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 __ 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 __ Declaration or the rules of any stock exchange on which the Series __ 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 __ 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 __ 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 __ 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 __ Declaration, the terms of the Series __ Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Series __ 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. 42 48 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 __ Trust and to the Sponsor at the date of this Series __ Declaration, and each Successor Institutional Trustee represents and warrants to the Series __ 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 __ Declaration; (b) the execution, delivery and performance by the Institutional Trustee of this Series __ Declaration has been duly authorized by all necessary corporate action on the part of the Institutional Trustee. This Series __ 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 __ 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 __ Declaration; (e) on the closing date of the Series __ Offer, the Institutional Trustee will be the record holder of the Series __ Debentures and the Institutional Trustee has not knowingly created any liens or encumbrances on such Series __ 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 __ Trust and to the Sponsor at the date of this Series __ Declaration, and each Successor Delaware Trustee represents and warrants to the Series __ 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 __ Declaration; 43 49 (b) the Delaware Trustee has been authorized to perform its obligations under the Certificate of Trust and this Series __ Declaration. The Series __ 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 __ 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 __ 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 __ Trust, in care of the Regular Trustees at the Trust's mailing address set forth below (or such other address as the Series __ Trust may give notice of to the Holders): General Motors Capital Trust __ 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 __ Common Securities, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Series __ Common Securities may give notice to the Series __ Trust): 44 50 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 __ 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 __ 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 __ Trust be classified for United States federal income tax purposes as a grantor trust. The provisions of this Series __ Declaration shall be interpreted to further this intention of the parties. SECTION 14.4 Headings. Headings contained in this Series __ Declaration are inserted for convenience of reference only and do not affect the interpretation of this Series __ Declaration or any provision hereof. SECTION 14.5 Successors and Assigns Whenever in this Series __ 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 __ 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 __ Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Series __ 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 __ Declaration may contain more than one counterpart of the signature page and this Series __ 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 45 51 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. * * * * * 46 52 IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. ------------------------------------- John D. Finnegan, as Regular Trustee ------------------------------------- Walter G. Borst, as Regular Trustee ------------------------------------- Martin I. Darvick, as Regular Trustee WILMINGTON TRUST COMPANY, as Institutional Trustee and as Delaware Trustee By: ---------------------------------- Name: -------------------------------- Title: ------------------------------- GENERAL MOTORS CORPORATION, as Sponsor By: ---------------------------------- Name: -------------------------------- Title: ------------------------------- 53 ANNEX I TERMS OF ___% TRUST ORIGINATED PREFERRED SECURITIES, SERIES __ ___% TRUST ORIGINATED COMMON SECURITIES, SERIES __ Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of __________________________________ , 1997 (as amended from time to time, the "Series __ Declaration"), the designation, rights, privileges, restrictions, preferences and other terms and provisions of the Series __ Securities are set out below (each capitalized term used but not defined herein has the meaning set forth in the Series __ Declaration or, if not defined in the Series __ Declaration, as defined in the Prospectus referred to below): 1. Designation and Number. (a) Series __ Preferred Securities. _____________________________________ Series __ Preferred Securities of the Series __ Trust with an aggregate stated liquidation amount with respect to the assets of the Series __ Trust of _________________________________________ Dollars ($ _____________) and a stated liquidation amount with respect to the assets of the Series __ Trust of $25 per preferred security, are hereby designated for the purposes of identification only as "___% Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series __ (the "Series __ Preferred Securities"). The Series __ Preferred Security Certificates evidencing the Series __ Preferred Securities shall be substantially in the form of Exhibit A-1 to the Series __ Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the Series __ Preferred Securities are listed. The Series __ Preferred Securities shall be issued to former holders of Series __ __% Depositary Shares ("Series __ __% Depositary Shares"), each representing one-fourth of a share of Series __ ___% Preference Stock (the "Series __ __% Preference Stock"), of General Motors Corporation (the "Sponsor") in exchange for such Series __ __% Depositary Shares pursuant to the Series __ Offer. (b) Series __ Common Securities. _________________________________________ Series __ Common Securities of the Series __ Trust with an aggregate stated liquidation amount with respect to the assets of the Series __ Trust of Dollars ($ __________________ ) and a stated liquidation amount with respect to the assets of the Series __ Trust of $25 per common security, are hereby designated for the purposes of identification only as "___% Trust Originated Common Securities, Series __" (the "Series __ Common Securities"). The Series __ Common Security Certificates evidencing the Series __ Common Securities shall be substantially in the form of Exhibit A-2 to the Series __ Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice. The Series __ Common Securities are to be issued and sold to the Sponsor in consideration of $ _____________________ in cash. (c) The Series __ Preferred Securities and the Series __ Common Securities represent undivided beneficial ownership interests in the assets of the Series __ Trust. (d) In connection with the Series __ Offer and the purchase by the Sponsor of the Series __ Common Securities, the Sponsor will deposit in the Series __ Trust, and the Series __ Trust will purchase, respectively, as trust assets, Series __ Debentures of the Sponsor having an aggregate principal amount equal to ________________________________________________________________________ Dollars ($ ____________________ ), and bearing interest at an annual rate equal to the annual Distribution rate on the Series __ Preferred Securities and Series __ Common Securities and having payment and redemption provisions which correspond to the payment and redemption provisions of the Series __ Preferred Securities and Series __ Common Securities. 2. Distributions. (a) Distributions payable on each Security will be fixed at a rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of $25 per Security, such rate being the rate of interest payable on the Series __ Debentures to be held by the Institutional Trustee. Distributions in arrears for more than one quarter will bear interest ____________________ (SM)"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. I-1 54 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 __ Debentures held by the Institutional Trustee and to the extent the Series __ 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 __ 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 _____________, 1997, (the expiration date of the Series __ Offer, the "Expiration Date"), in lieu of dividends accumulating and unpaid from April 1, 1997 on Series __ __% Depositary Shares accepted for exchange in the Series __ Offer, such additional distributions to be made on August 1, 1997 to Holders of the Series __ 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 __ Securities will be cumulative, will accrue from _____________________ , 1997, the first date following the Expiration Date (the "Series __ 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 __ Debenture Issuer shall not be in default in the payment of interest on the Series __ Debentures, the Series __ Debenture Issuer has the right under the Indenture to defer payments of interest on the Series __ Debentures by extending the interest payment period from time to time on the Series __ Debentures for a period not exceeding 20 consecutive quarters (each a "Series __ Extension Period"), during which Series __ Extension Period no interest shall be due and payable on the Series __ Debentures, provided that no Series __ Extension Period shall last beyond the Series __ 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 __ Extension Period. Prior to the termination of any such Series __ Extension Period, the Series __ Debenture Issuer may further extend such Series __ Extension Period; provided that such Series __ Extension Period, together with all such previous and further extensions thereof, may not exceed 20 consecutive quarters or extend beyond the Series __ Stated Maturity. Any interest accrued on the Series __ Debentures during a Series __ Extension Period shall be paid Pro Rata to holders of Series __ Debentures on the first payment date following the Series __ Extension Period and the Payment Amount shall be paid Pro Rata to the Holders on the first Distribution Payment Date following the Series __ Extension Period. Upon the termination of any Series __ Extension Period and the payment of all amounts then due, the Series __ Debenture Issuer may commence a new Series __ Extension Period, subject to the above requirements. In the event that the Series __ Debenture Issuer exercises this right, then the Series __ 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 __ Debenture Issuer of its obligations under any employee benefit plans or any other contractual obligation of the Series __ Debenture Issuer (other than a contractual obligation ranking pari passu with or junior to the Series __ Debentures), (b) the issuance of capital stock in connection with a recapitalization or reclassification of the Series __ Debenture Issuer's capital stock or the exchange or conversion of one class or series of the Series __ Debenture Issuer's capital stock for another class or series of the Series __ Debenture Issuer's capital stock, in each case by merger or otherwise, or (c) the purchase of fractional interests in shares of the Series __ 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 __ Debenture Issuer that rank pari passu with or junior to such Series __ Debentures (including any other series of debentures) and (iii) make any guarantee payments with respect to the foregoing (other than pursuant to the Series __ Series __ Preferred Securities Guarantee). (c) Distributions on the Series __ 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 __ Trust on the relevant record dates, which will be 15 days prior to the relevant distribution dates. The record dates and distribution dates shall be the same as the record dates and payment dates on the Series __ Debentures. Distributions payable on any Series __ Securities that are not punctually paid on any Distribution Payment Date, as a result of the Series __ Debenture Issuer having failed to make the corresponding interest payment on the Series __ Debentures, will I-2 55 forthwith cease to be payable to the Person in whose name such Series __ Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Series __ 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 __ Extension Period unless the Series __ Debenture Issuer has elected to make a full or partial payment of interest accrued on the Series __ Debentures on such Distribution Payment Date. Distributions on the Series __ Securities will be paid by the Series __ Trust. All Distributions paid with respect to the Series __ 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 __ 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 __ Securities, the Series __ 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 __ Debenture Issuer will pay as additional interest ("Additional Interest") on the Series __ Securities held by the Institutional Trustee, such amounts as shall be required so that the net amounts received and retained by the Series __ Trust and the Institutional Trustee after paying any such taxes, duties, assessments or other governmental charges will be equal to the amounts the Series __ 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 __ 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 __ 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 __ 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 __ Debentures in an aggregate stated principal amount equal to the aggregate stated liquidation amount of such Series __ 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 __ Securities, shall be distributed on a Pro Rata basis to the Holders in exchange for such Series __ Securities. 4. Redemption and Distribution. (a) Redemption of the Series __ Securities will occur simultaneously with any repayment of the Series __ Debentures. The Series __ Debentures will mature on ___________________ , 2012 (which date may be shortened to a date no earlier than [EARLIEST REDEMPTION DATE OF APPLICABLE SERIES OF PREFERENCE STOCK], subject to certain conditions) (such date, including as so shortened, the "Series __ Stated Maturity"). Upon the repayment of the Series __ Debentures at maturity, the proceeds from such repayment shall be simultaneously applied to redeem Series __ Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series __ 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 __ Debentures. (b) If, at any time prior to [EARLIEST REDEMPTION DATE OF APPLICABLE SERIES OF PREFERENCE STOCK], a Tax Event shall occur and be continuing, the Series __ Debenture Issuer shall have the right, upon not less than 30 and no more than 60 days notice to holders of the Series __ Debentures, at its option, to redeem the Series __ 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 __ Tax Event Prepayment Price") equal to (i) ___% of the principal amount of the Series __ Debentures if such Series __ I-3 56 Debentures are prepaid during the period commencing on the Series __ Accrual Date through and including _______________, 1997 and (ii) the percentage of the principal amount of the Series __ Debentures specified below, if such Series __ Debentures are prepaid during the 12-month period beginning _______________ of the years indicated below, plus, in each case, any accrued and unpaid interest thereon to the date of prepayment: Year Percentage - ---- ---------- ____ ................................................................ ____% ____ ................................................................ ____ ____ ................................................................ ____ ____ and thereafter ................................................. 100
Upon such redemption, all Series __ Securities shall be redeemed by the Series __ Trust at a redemption price equal to the Series __ Tax Event Prepayment Price (the "Series __ Tax Event Redemption Price"). (c) The Series __ Debentures are redeemable in whole or in part, from time to time, on or after [EARLIEST REDEMPTION DATE OF APPLICABLE SERIES OF PREFERENCE STOCK] upon not less than 30 nor more than 60 days notice, at a prepayment price (the "Series __ 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 __ Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Series __ Debentures so prepaid at a redemption price equal to the Series __ Optional Prepayment Price (the "Series __ Optional Redemption Price"). Notwithstanding anything to the contrary contained herein, the Series __ Debenture Issuer may not redeem fewer than all of the Series __ Debentures unless all accrued and unpaid interest on all of the Series __ Debentures has been paid for all quarterly periods terminating on or prior to the date of prepayment. "Series __ Redemption Price" means the Maturity Redemption Price, the Series __ Optional Redemption Price or the Series __ 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 __ Securities, there is more than an insubstantial risk that (i) the Series __ 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 __ Debentures, (ii) interest payable on the Series __ 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 __ 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 __ Securities are to be so redeemed, the Series __ Common Securities and the Series __ 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 __ Trust may not redeem fewer than all the outstanding Series __ Securities unless all accrued and unpaid Distributions have been paid on all Series __ Securities for all quarterly Distribution periods terminating on or before the date of redemption. (f) The Series __ Debenture Issuer will have the right at any time to liquidate the Series __ Trust and cause the Series __ Debentures to be distributed to the Holders. If the Series __ Debentures are distributed to the Holders and the Series __ Preferred Securities are then listed on an exchange, the Series __ Debenture Issuer will use its best efforts to cause the Series __ Debentures to be listed on the NYSE or on such other exchange as the Series __ Preferred Securities are then listed. I-4 57 On the date fixed for any distribution of Series __ Debentures upon dissolution of the Series __ Trust, (i) the Series __ Preferred Securities will no longer be deemed to be outstanding, (ii) the Depository Institution or its nominee, as the record holder of the Series __ Preferred Securities, will receive a registered global certificate or certificates representing the Series __ Debentures to be delivered upon such distribution, and (iii) any certificates representing Series __ Preferred Securities not held by the Depository Institution or its nominee will be deemed to represent Series __ 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 __ Preferred Securities until such certificates are presented to the Series __ Debenture Issuer or its agent for transfer or reissuance. (g) Redemption or Distribution Procedures. (i) Notice of any redemption of the Series __ Debentures, or notice of distribution of Series __ Debentures in exchange for the Series __ Securities (a "Series __ Redemption/Distribution Notice") will be given by the Series __ Trust by mail to each Holder of Series __ 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 __ 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 __ 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 __ 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 __ Trust. No defect in the Series __ 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 __ Securities are to be redeemed, the Series __ Securities to be redeemed shall be redeemed Pro Rata from each Holder, it being understood that, in respect of Series __ 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 __ Securities are to be redeemed and the Series __ Trust gives a Series __ Redemption/Distribution Notice, which notice may only be issued if the Series __ 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 __ Debenture Issuer will deposit with one or more paying agents an amount of money sufficient to redeem on the redemption date all the Series __ Securities so called for redemption at the Series __ Redemption Price. If a Series __ 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 __ Securities so called for redemption and all rights of Holders of such Series __ Securities so called for redemption will cease, except the right of the Holders of such Series __ Securities to receive the Series __ Redemption Price, but without interest on such Series __ Redemption Price. On presentation and surrender of such Series __ Securities at a place of payment specified in said notice, the said Series __ Securities or the specified portions thereof shall be paid and redeemed by the Series __ Trust at the applicable Series __ Redemption Price. Neither the Regular Trustees nor the Series __ Trust shall be required to register or cause to be registered the transfer of any Series __ Securities that have been so called for redemption. If any date fixed for redemption of Series __ Securities is not a Business Day, then payment of the Series __ 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 I-5 58 each case with the same force and effect as if made on such date fixed for redemption. If payment of the Series __ Redemption Price in respect of any Series __ 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 __ Securities Guarantee, Distributions on such Series __ 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 __ Redemption Price. (iv) The Series __ Trust shall not be required to (i) issue, or register the transfer or exchange of, any Series __ Securities during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of Series __ 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 __ Securities so selected for redemption, in whole or in part, except the unredeemed portion of any Series __ 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 __ Preferred Securities by tender, in the open market or by private agreement. 5. Voting Rights - Series __ Preferred Securities. (a) Except as provided under Sections 5(b) and 7 and as otherwise required by law and the Series __ Declaration, the Holders of the Series __ 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 __ 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 __ Declaration, including the right to direct the Institutional Trustee, as holder of the Series __ Debentures, to (i) exercise the remedies available to it under the Indenture as holder of the Series __ 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 __ Debentures shall be due and payable, or (iv) consent to any amendment, modification or termination of the Indenture or the Series __ 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 __ 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 __ Debentures who has consented thereto, such consent or action will only be effective against a holder of Series __ 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 __ Preferred Securities. If the Institutional Trustee fails to enforce its rights under the Series __ Debentures after a holder of record of Series __ Preferred Securities has made a written request, such holder of record of Series __ Preferred Securities may institute a legal proceeding directly against the Series __ Debenture Issuer to enforce the Institutional Trustee's rights under the Series __ 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 __ Debenture Issuer to pay interest or principal on the Series __ 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 __ Preferred Securities may institute a Direct Action for enforcement of payment to such Holder of the principal of or interest on the Series __ Debentures having a principal amount equal to the aggregate liquidation amount of the Series __ Preferred Securities of such holder on or after the respective due date specified in the Series __ Debentures. Notwithstanding any payments made to such Holder of Series __ Preferred Securities by the Series __ Debenture Issuer in connection with a Direct Action, the Series __ Debenture Issuer shall remain obligated to pay the principal of or interest on the Series __ Debentures held by the Series __ Trust or the Institutional Trustee of the Series __ Trust, and the Series __ Debenture Issuer shall be subrogated to the rights of the Holder of such Series __ Preferred Securities with respect to payments on I-6 59 the Series __ Preferred Securities to the extent of any payments made by the Series __ Debenture Issuer to such Holder in any Direct Action. Except as provided in the preceding sentences, the Holders of Series __ Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Series __ 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 __ 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 __ Preferred Securities may be given at a separate meeting of Holders of Series __ Preferred Securities convened for such purpose, at a meeting of all of the Holders of Series __ Securities in the Series __ Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Series __ 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 __ 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 __ Preferred Securities will be required for the Series __ Trust to redeem and cancel Series __ Preferred Securities or to distribute the Series __ Debentures in accordance with the Series __ Declaration and the terms of the Series __ Securities. Notwithstanding that Holders of Series __ Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Series __ 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 __ 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 __ Common Securities. 6. Voting Rights - Series __ Common Securities. (a) Except as provided under Sections 6(b), (c) and 7 and as otherwise required by law and the Series __ Declaration, the Holders of the Series __ Common Securities will have no voting rights. (b) The Holders of the Series __ Common Securities are entitled, in accordance with Article 5 of the Series __ 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 __ Declaration and only after the Event of Default with respect to the Series __ 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 __ 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 __ 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 __ 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 __ 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 __ 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 __ Common Securities which the relevant Super Majority represents of the aggregate principal amount of the Series __ 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 __ Debentures, each Holder of Series __ 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 __ Preferred Securities. Except with respect to directing the time, method and place of conducting a proceeding for a remedy, the I-7 60 Institutional Trustee shall not take any action in accordance with the directions of the Holders of the Series __ 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 __ 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 __ Declaration, any Holder of Series __ Common Securities may institute a legal proceeding directly against any Person to enforce the Institutional Trustee's rights under the Series __ Declaration, without first instituting a legal proceeding against the Institutional Trustee or any other Person. Any approval or direction of Holders of Series __ Common Securities may be given at a separate meeting of Holders of Series __ Common Securities convened for such purpose, at a meeting of all of the Holders of Series __ Securities in the Series __ Trust or pursuant to written consent. The Regular Trustees will cause a notice of any meeting at which Holders of Series __ 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 __ 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 __ Common Securities will be required for the Series __ Trust to redeem and cancel Series __ Common Securities or to distribute the Series __ Debentures in accordance with the Series __ Declaration and the terms of the Series __ Securities. 7. Amendments to Series __ Declaration and Indenture. (a) In addition to any requirements under Section 12.1 of the Series __ Declaration, if any proposed amendment to the Series __ 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 __ Securities, whether by way of amendment to the Series __ Declaration or otherwise, or (ii) the dissolution, winding-up or termination of the Series __ Trust, other than as described in Section 8.1 of the Series __ Declaration, then the Holders of outstanding Series __ 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 __ Securities affected thereby, provided, that, if any amendment or proposal referred to in clause (i) above would adversely affect only the Series __ Preferred Securities or only the Series __ 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 __ Securities. (b) In the event the consent of the Institutional Trustee, as the holder of the Series __ 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 __ 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 __ 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 __ Securities which the relevant Super Majority represents of the aggregate principal amount of the Series __ Debentures outstanding; provided, that where a consent or action under the Indenture is only effective against each holder of Series __ Debentures who has consented thereto, such consent or action will only be effective against a holder of Series __ 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 __ 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 __ 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 __ Declaration if such amendment or modification would (i) cause the Series __ 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 __ Trust to be deemed an "investment company" which is required to be registered under the Investment Company Act. I-8 61 8. Pro Rata. A reference in these terms of the Series __ 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 __ Securities held by the relevant Holder in relation to the aggregate stated liquidation amount of all Series __ Securities outstanding unless, in relation to a payment, an Event of Default under the Series __ 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 __ Preferred Securities pro rata according to the aggregate stated liquidation amount of Series __ Preferred Securities held by the relevant Holder relative to the aggregate stated liquidation amount of all Series __ Preferred Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Series __ Preferred Securities, to each Holder of Series __ Common Securities pro rata according to the aggregate stated liquidation amount of Series __ Common Securities held by the relevant Holder relative to the aggregate stated liquidation amount of all Series __ Common Securities outstanding. 9. Ranking. The Series __ Preferred Securities rank pari passu, and payment thereon shall be made Pro Rata, with the Series __ Common Securities except that, where an Event of Default occurs and is continuing, the rights of Holders of the Series __ 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 __ Preferred Securities. 10. Listing. The Regular Trustees shall use their best efforts to cause the Series __ Preferred Securities to be listed for quotation on the NYSE. 11. Acceptance of Series __ Securities Guarantee and Indenture. Each Holder of Series __ Preferred Securities and Series __ Common Securities, by the acceptance thereof, agrees to the provisions of the Series __ Series __ Preferred Securities Guarantee and the Series __ 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 __ Declaration. The Sponsor will provide a copy of the Series __ Declaration, the Series __ Series __ Preferred Securities Guarantee or the Series __ 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. I-9 62 EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE Certificate Number _____ Number of Preferred Securities _____ CUSIP NO. _____ Certificate Evidencing Preferred Securities of GENERAL MOTORS CAPITAL TRUST __ ___% Trust Originated Preferred Securities(SM), Series __ ("TOPrS(SM)") (liquidation amount $25 per Preferred Security) GENERAL MOTORS CAPITAL TRUST __, a statutory business trust formed under the laws of the State of Delaware (the "Series __ Trust"), hereby certifies that ______________ (the "Holder") is the registered owner of preferred securities of the Series __ Trust representing undivided beneficial ownership interests in the assets of the Series __ Trust, designated the ___% Trust Originated Preferred Securities(SM), Series __ (liquidation amount $25 per Preferred Security) (the "Series __ Preferred Securities"). The Series __ Preferred Securities are transferable on the books and records of the Series __ 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 __ 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 __ Trust dated as of _____________________, 1997, as the same may be amended from time to time (the "Series __ Declaration"), including the designation of the terms of the Series __ Preferred Securities as set forth in Annex I to the Series __ Declaration. Capitalized terms used herein but not defined shall have the meanings given them in the Series __ Declaration. The Holder is entitled to the benefits of the Series __ Preferred Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the Series __ Declaration, the Series __ Preferred Securities Guarantee and the Indenture to a Holder without charge upon written request to the Series __ Trust at its principal place of business. Upon receipt of this certificate, the Holder is bound by the Series __ 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 __ Debentures, including that the Series __ 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 __ Preferred Securities Guarantee, including that the Series __ Preferred Securities Guarantee is subordinate and junior in right of payment to all other liabilities of the Sponsor, including the Series __ 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 __ Debentures as indebtedness and the Series __ Preferred Securities as evidence of indirect beneficial ownership in the Series __ Debentures. Unless the Authenticating Agent's Certificate of Authentication hereon has been properly executed, these Series __ Preferred Securities shall not be entitled to any benefit under the Series __ Declaration or be valid or obligatory for any purpose. ____________________ (SM)"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. A-1 63 IN WITNESS WHEREOF, the Series __ Trust has caused this certificate to be signed by its duly authorized Regular Trustees. GENERAL MOTORS CAPITAL TRUST __ By: ---------------------------- Name: Title: Regular Trustee By: ---------------------------- Name: Title: Regular Trustee By: ---------------------------- Name: Title: Regular Trustee CERTIFICATE OF AUTHENTICATION This is one of the Series __ Preferred Securities referred to in the within-mentioned Series __ Declaration. Dated _____________, ________ -------------------------- , as Authenticating Agent By: ----------------------- Authorized Signatory A-2 64 [FORM OF REVERSE OF SECURITY] Distributions payable on each Series __ Preferred Security will be fixed at a rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of $25 per Preferred Security, such rate being the rate of interest payable on the Series __ 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 __ 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 ____% per annum of the stated liquidation amount from April 1, 1997 through _________________________, 1997 (the expiration date of the Series __ Offer, the "Expiration Date") in lieu of dividends accumulating and unpaid from April 1, 1997 on Series __ __% Depositary Shares accepted for exchange in the Series __ 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 __ Preferred Securities will be cumulative, will accrue from ____________________, 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 __ Debentures. With the exception of Pre-Issuance Interest, so long as the Series __ Debenture Issuer shall not be in default in the payment of interest on the Series __ Debentures, the Series __ 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 __ Debentures for a period not exceeding 20 consecutive quarters (each an "Series __ Extension Period"), provided that no Series __ Extension Period shall last beyond Series __ 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 __ Extension Period. Prior to the termination of any such Series __ Extension Period, the Series __ Debenture Issuer may further extend such Series __ Extension Period; provided that such Series __ Extension Period together with all such previous and further extensions thereof may not exceed 20 consecutive quarters or extend beyond the Series __ Stated Maturity. Payments of accrued Distributions will be payable to Holders as they appear on the books and records of the Series __ Trust on the first record date after the end of the Series __ Extension Period. Upon the termination of any Series __ Extension Period and the payment of all amounts then due, the Series __ Debenture Issuer may commence a new Series __ Extension Period, subject to the above requirements. The Series __ Preferred Securities shall be redeemable as provided in the Series __ Declaration. A-3 65 ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Series __ 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 __ Preferred Security Certificate on the books of the Series __ 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 __ 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 Series __ Securities Exchange Act of 1934, as amended.) A-4 66 EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE Certificate Number __________ Number of Common Securities __________ Certificate Evidencing Common Securities of GENERAL MOTORS CAPITAL TRUST __ ___% Trust Originated Common Securities, Series __ (liquidation amount $25 per Common Security) GENERAL MOTORS CAPITAL TRUST __, a statutory business trust formed under the laws of the State of Delaware (the "Series __ Trust"), hereby certifies that ______________ (the "Holder") is the registered owner of common securities of the Series __ Trust representing undivided beneficial ownership interests in the assets of the Series __ Trust, designated the ___% Trust Originated Common Securities (liquidation amount $25 per Common Security) (the "Series __ Common Securities"). The Series __ Common Securities are transferable on the books and records of the Series __ 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 __ 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 __ Trust dated as of ___________________________ , 1997, as the same may be amended from time to time (the "Series __ Declaration"), including the designation of the terms of the Series __ Common Securities as set forth in Annex I to the Series __ Declaration. Capitalized terms used herein but not defined shall have the meaning given them in the Series __ Declaration. The Holder is entitled to the benefits of the Series __ Common Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the Series __ Declaration, the Series __ 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 __ 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 __ Debentures, including that the Series __ 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 __ Preferred Securities Guarantee, including that the Series __ Preferred Securities Guarantee is subordinate and junior in right of payment to all other liabilities of the Sponsor, including the Series __ 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 __ Debentures as indebtedness and the Series __ Common Securities as evidence of indirect beneficial ownership in the Series __ Debentures. Unless the Authenticating Agent's Certificate of Authentication hereon has been properly executed, these Series __ Common Securities shall not be entitled to any benefit under the Series __ Declaration or be valid or obligatory for any purpose. A-5 67 IN WITNESS WHEREOF, the Series __ Trust has caused this certificate to be signed by its duly authorized Regular Trustees. GENERAL MOTORS CAPITAL TRUST __ By: ----------------------------- Name: Title: Regular Trustee By: ----------------------------- Name: Title: Regular Trustee By: ----------------------------- Name: Title: Regular Trustee CERTIFICATE OF AUTHENTICATION This is one of the Series __ Common Securities referred to in the within-mentioned Series __ Declaration. Dated _____________, ________ , ------------------------------- as Authenticating Agent By: --------------------------- Authorized Signatory A-6 68 [FORM OF REVERSE OF SECURITY] Distributions payable on each Series __ Common Security will be fixed at a rate per annum of ___% (the "Coupon Rate") of the stated liquidation amount of $25 per Common Security, such rate being the rate of interest payable on the Series __ 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 __ 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 __ Common Securities will be cumulative, will accrue from ____________________________ , 1997, the first date following the expiration date of the Series __ 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 __ Debentures. So long as the Series __ Debenture Issuer shall not be in default in the payment of interest on the Series __ Debentures, the Series __ 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 __ Debentures for a period not exceeding 20 consecutive quarters (each an "Series __ Extension Period"), provided that no Series __ Extension Period shall last beyond the Series __ 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 __ Extension Period. Prior to the termination of any such Series __ Extension Period, the Series __ Debenture Issuer may further extend such Series __ Extension Period; provided that such Series __ Extension Period together with all such previous and further extensions thereof may not exceed 20 consecutive quarters or extend beyond the Series __ Stated Maturity. Payments of accrued Distributions will be payable to Holders as they appear on the books and records of the Series __ Trust on the first record date after the end of the Series __ Extension Period. Upon the termination of any Series __ Extension Period and the payment of all amounts then due, the Series __ Debenture Issuer may commence a new Series __ Extension Period, subject to the above requirements. The Series __ Common Securities shall be redeemable as provided in the Series __ Declaration. A-7 69 ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Series __ 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 __ Common Security Certificate on the books of the Series __ 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 __ 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 Series __ Securities Exchange Act of 1934, as amended.) A-8 EX-4.(D)(I) 4 EX-4.(D)(I) 1 EXHIBIT 4(d)(i) INDENTURE between GENERAL MOTORS CORPORATION and WILMINGTON TRUST COMPANY Dated as of ________________, 1997 JUNIOR SUBORDINATED DEBENTURES 2 TABLE OF CONTENTS
Page ARTICLE 1 DEFINITIONS......................................................................... 1 SECTION 1.1 Definitions............................................................... 1 Additional Provisions ................................................................... 1 Affiliate ............................................................................... 1 Authenticating Agent..................................................................... 2 Bankruptcy Law........................................................................... 2 Board of Directors....................................................................... 2 Board Resolution......................................................................... 2 Business Day............................................................................. 2 Certificate.............................................................................. 2 Certificate of Authentication ........................................................... 2 Commission............................................................................... 2 Common Securities ....................................................................... 2 Common Securities Guarantee ............................................................. 2 Corporation ............................................................................. 2 Custodian ............................................................................... 2 Declaration ............................................................................. 2 Default ................................................................................. 2 Defaulted Interest....................................................................... 3 Defeasance Agent......................................................................... 3 Depository Institution................................................................... 3 Discharged............................................................................... 3 Event of Default......................................................................... 3 Exchange Act............................................................................. 3 General Motors Capital Trust............................................................. 3 General Motors Common Stock ............................................................. 3 Global Security ......................................................................... 3 Indenture ............................................................................... 3 Institutional Trustee ................................................................... 3 Interest................................................................................. 3 Interest Payment Date ................................................................... 3 Mortgage................................................................................. 3 Officers' Certificate ................................................................... 3 Opinion of Counsel....................................................................... 4 Other Financial Obligations ............................................................. 4 outstanding ............................................................................. 4 Person................................................................................... 4 Predecessor Security..................................................................... 4 Securities............................................................................... 4 "Preferred Securities Guarantee ......................................................... 5 Principal Office of the Debt Trustee..................................................... 5 Responsible Officer ..................................................................... 5 Security................................................................................. 5 Securities............................................................................... 5 Security Register ....................................................................... 5
- -------------------- * THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART OF THE INDENTURE. i 3 Securityholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 holder of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Trust Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARTICLE 2 SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SECTION 2.1 Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SECTION 2.2 Form of Debt Trustee's Certificate of Authentication . . . . . . . . . . . . . . . 6 SECTION 2.3 Amount Unlimited; Issuable in Series.. . . . . . . . . . . . . . . . . . . . . . . 6 SECTION 2.4 Authentication and Dating. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 SECTION 2.5 Date and Denomination of Securities. . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 2.6 Execution of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SECTION 2.7 Exchange and Registration of Transfer of Securities. . . . . . . . . . . . . . . . 10 SECTION 2.8 Mutilated, Destroyed, Lost or Stolen Securities. . . . . . . . . . . . . . . . . . 11 SECTION 2.9 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 2.10 Cancellation of Securities Paid, etc.. . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 2.11 Global Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE 3 PARTICULAR COVENANTS OF THE CORPORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 3.1 Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . 13 SECTION 3.2 Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 3.3 Appointments to Fill Vacancies in Debt Trustee's Office. . . . . . . . . . . . . . 13 SECTION 3.4 Provision as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 3.5 Certificate to Debt Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 3.6 Compliance with Consolidation Provisions . . . . . . . . . . . . . . . . . . . . . 14 SECTION 3.7 Limitation on Dividends; Transactions with Affiliates. . . . . . . . . . . . . . . 14 SECTION 3.8 Covenants as to General Motors Capital Trusts. . . . . . . . . . . . . . . . . . . 15 SECTION 3.9 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE 4 SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE . . . . . . . . . . . . . 15 SECTION 4.1 Securityholders' Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 4.2 Preservation and Disclosure of Lists.. . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 4.3 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 4.4 Reports by the Debt Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT . . . . . . . . . . . . . . 18 SECTION 5.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SECTION 5.2 Payment of Securities on Default; Suit Therefor. . . . . . . . . . . . . . . . . . 19 SECTION 5.3 Application of Moneys Collected by Debt Trustee. . . . . . . . . . . . . . . . . . 20 SECTION 5.4 Proceedings by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 5.5 Proceedings by Debt Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 5.6 Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . 21 SECTION 5.7 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders . . 22 SECTION 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 5.9 Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARTICLE 6 CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 SECTION 6.1 Duties and Responsibilities of Debt Trustee. . . . . . . . . . . . . . . . . . . . 23 SECTION 6.2 Reliance on Documents, Opinions, etc.. . . . . . . . . . . . . . . . . . . . . . . 24
ii 4 SECTION 6.3 No Responsibility for Recitals, etc. . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 6.4 Debt Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 6.5 Moneys to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 6.6 Compensation and Expenses of Debt Trustee. . . . . . . . . . . . . . . . . . . . . 25 SECTION 6.7 Officers' Certificate as Evidence. . . . . . . . . . . . . . . . . . . . . . . . . 26 SECTION 6.8 Conflicting Interest of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . 26 SECTION 6.9 Eligibility of Debt Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 SECTION 6.10 Resignation or Removal of Debt Trustee . . . . . . . . . . . . . . . . . . . . . . 26 SECTION 6.11 Acceptance by Successor Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . 27 SECTION 6.12 Succession by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 SECTION 6.13 Limitation on Rights of Debt Trustee as a Creditor . . . . . . . . . . . . . . . . 28 SECTION 6.14 Authenticating Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 ARTICLE 7 CONCERNING THE SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 SECTION 7.1 Action by Securityholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 SECTION 7.2 Proof of Execution by Securityholders. . . . . . . . . . . . . . . . . . . . . . . 30 SECTION 7.3 Who Are Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . . . . . . . . 30 SECTION 7.4 Securities Owned by Corporation Deemed Not Outstanding . . . . . . . . . . . . . . 30 SECTION 7.5 Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . 30 ARTICLE 8 SECURITYHOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 SECTION 8.1 Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 SECTION 8.2 Call of Meetings by Debt Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 31 SECTION 8.3 Call of Meetings by Corporation or Securityholders . . . . . . . . . . . . . . . . 31 SECTION 8.4 Qualifications for Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 SECTION 8.5 Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 SECTION 8.6 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 ARTICLE 9 SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 SECTION 9.1 Supplemental Indentures without Consent of Securityholders . . . . . . . . . . . . 32 SECTION 9.2 Supplemental Indentures with Consent of Securityholders. . . . . . . . . . . . . . 33 SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Indentures . . . . . . 34 SECTION 9.4 Notation on Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 SECTION 9.5 Evidence of Compliance of Supplemental Indenture to be Furnished Debt Trustee. . . 35 ARTICLE 10 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE . . . . . . . . . . . . . . . . . . . . 35 SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms. . . . . . . . . . . . . . . . 35 SECTION 10.2 Successor Corporation to be Substituted for Corporation. . . . . . . . . . . . . . 35 SECTION 10.3 Opinion of Counsel to be Given Debt Trustee. . . . . . . . . . . . . . . . . . . . 36 ARTICLE 11 SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . 36 SECTION 11.1 Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 SECTION 11.2 Deposited Moneys and U.S. Government Obligations to be Held in Trust by Debt Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 SECTION 11.3 Paying Agent to Repay Moneys Held. . . . . . . . . . . . . . . . . . . . . . . . . 36 SECTION 11.4 Return of Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S. Government Obligations . . . . . . . . . 37 ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS . . . . . . . . . . . . . 38 SECTION 12.1 Indenture and Securities Solely Corporate Obligations . . . . . . . . . . . . . . 38 ARTICLE 13 MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
iii 5 SECTION 13.1 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 SECTION 13.2 Official Acts by Successor Corporation . . . . . . . . . . . . . . . . . . . . . . 38 SECTION 13.3 Surrender of Corporation Powers. . . . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 13.4 Addresses for Notices, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 13.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 13.6 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . 39 SECTION 13.7 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 13.8 Trust Indenture Act to Control . . . . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 13.9 Table of Contents, Headings, etc.. . . . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 13.10 Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 13.11 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 13.12 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 13.13 Acknowledgment of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 ARTICLE 14 REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND . . . . . . . . . . . . 41 SECTION 14.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 14.2 Notice of Redemption; Selection of Securities. . . . . . . . . . . . . . . . . . . 41 SECTION 14.3 Payment of Securities Called for Redemption. . . . . . . . . . . . . . . . . . . . 41 SECTION 14.4 Mandatory and Optional Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . 42 ARTICLE 15 SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 SECTION 15.1 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 SECTION 15.2 Default on Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 43 SECTION 15.3 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . 44 SECTION 15.4 Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 SECTION 15.5 Debt Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . 46 SECTION 15.6 Notice by the Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 SECTION 15.7 Rights of the Debt Trustee; Holders of Senior Indebtedness and Other Financial Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 SECTION 15.8 Subordination May Not Be Impaired. . . . . . . . . . . . . . . . . . . . . . . . . 47
iv 6 CROSS-REFERENCE TABLE of provisions of the Trust Indenture Act to the provisions of the Indenture dated as of ___________________, 1997 between General Motors Corporation and Wilmington Trust Company, as Debt Trustee: ACT SECTION INDENTURE SECTION 310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . 6.9 310(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . 6.9 310(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . N/A 310(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . N/A 310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8; 6.10(a), (b) and (d) 310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N/A 311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . 6.13 311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N/A 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1; 4.2(a) 312(b) and (c) . . . . . . . . . . . . . . . . . . . . . . 4.2(b) and (c) 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(a) 313(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . N/A 313(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . 4.4(b) 313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(c) 313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(d) 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . N/A 314(c)(1) and (2). . . . . . . . . . . . . . . . . . . . . 13.6 314(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . N/A 314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . N/A 314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 13.0 314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . N/A 315(a), (c) and (d). . . . . . . . . . . . . . . . . . . . 6.1 315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8 315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.9 316(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . 5.1; 5.7 316(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . Omitted 316(a) last sentence . . . . . . . . . . . . . . . . . . . 7.4 316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4(a) 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 13.8
THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE AS EXECUTED. v 7 THIS INDENTURE, dated as of ____________, 1997, between General Motors Corporation, a Delaware corporation (hereinafter sometimes called the "Corporation"), and the Wilmington Trust Company, a Delaware banking corporation, as trustee (hereinafter sometimes called the "Debt Trustee"), W I T N E S S E T H : WHEREAS, for its lawful corporate purposes, the Corporation has duly authorized the issuance from time to time of its junior subordinated unsecured debentures, notes or other evidence of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and, to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Corporation has duly authorized the execution of this Indenture; and WHEREAS, all acts and things necessary to make this Indenture a valid agreement according to its terms, have been done and performed; NOW, THEREFORE, this Indenture Witnesseth: In consideration of the premises, and the purchase of the Securities by the holders thereof, the Corporation covenants and agrees with the Debt Trustee for the equal and proportionate benefit of the respective holders from time to time of the Securities or of a series thereof, as follows: ARTICLE 1 DEFINITIONS SECTION 1.1 Definitions. The terms defined in this Section 1.1 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.1. All other terms used in this Indenture which are defined in the Trust Indenture Act, as amended (the "Trust Indenture Act"), or which are by reference therein defined in the Securities Act of 1933, as amended (the "Securities Act"), shall (except as herein otherwise expressly provided or unless the context otherwise requires) have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture as originally executed. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles and the term "generally accepted accounting principles" means such accounting principles as are generally accepted at the time of any computation. The words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. "Additional Provisions" shall have the meaning given to such term in Section 15.1. "Affiliate" means, with respect to a specified Person, (a) any Person directly or indirectly owning, controlling or holding with power to vote, 10% or more of the outstanding voting securities or other ownership interests of the specified Person, (b) any Person 10% or more of whose outstanding voting securities or other ownership interests are directly or indirectly owned, controlled or held with power to vote by the specified Person, (c) any Person directly or indirectly controlling, controlled by, or under common control with the specified Person, (d) a partnership in which the specified Person is a general partner, (e) any officer or director of the specified Person, and (f) if the specified Person is an individual, any entity of which the specified Person is an officer, director or general partner. "Authenticating Agent" shall mean any agent or agents of the Debt Trustee which at the time shall be appointed 1 8 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. 2 9 "Defeasance Agent" shall have the meaning given to such term in Section 11.5(c). "Depository Institution" shall mean, with respect to Securities of any series, for which the Corporation shall determine that such Securities will be issued as a Global Security, The Depository Trust Company, New York, New York, The Philadelphia Depository Trust Company, Philadelphia, Pennsylvania, another clearing agency, or any successor registered as a clearing agency under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable statute or regulation, which, in each case, shall be designated by the Corporation pursuant to either Section 2.3 or 2.11. "Discharged" shall have the meaning given to such term in Section 11.5(b). "Event of Default" shall mean, with respect to any series of Securities, any event specified in Section 5.1, continued for the period of time, if any, and after the giving of the notice, if any, therein designated. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "General Motors Capital Trust" shall mean each of General Motors Capital Trust D and General Motors Capital Trust G, each a Delaware business trust, or any other similar trust created for the purpose of issuing securities in connection with the issuance of Securities under this Indenture. "General Motors Common Stock" shall mean the common stock of the Corporation (including, without limitation, the Class H Common Stock, par value $0.10 per share, of the Corporation, the Common Stock, par value $1 2/3 per share, of the Corporation and all other classes of common stock of the Corporation now or hereafter issued) or any other class of stock resulting from changes or reclassifications of such Common Stock consisting solely of changes in par value, or from par value to no par value, or from no par value to par value. "Global Security" means, with respect to any series of Securities, a Security executed by the Corporation and delivered by the Debt Trustee to the Depository Institution or pursuant to the Depository Institution's instruction, all in accordance with the Indenture, which shall be registered in the name of the applicable Depository Institution or its nominee. "Indenture" shall mean this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented, or both, and shall include the form and terms of particular series of Securities established as contemplated hereunder. "Institutional Trustee", with respect to a General Motors Capital Trust, has the meaning set forth in the Declaration of such General Motors Capital Trust. "Interest" shall mean, when used with respect to non-interest bearing Securities, interest payable at maturity. "Interest Payment Date", when used with respect to any installment of interest on a Security of a particular series, shall mean the date specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect to Securities of that series is due and payable. "Mortgage" shall mean and include any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar encumbrance. "Officers' Certificate" shall mean a certificate signed by the Chairman of the Board, the President or any Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Corporation and delivered to the Debt Trustee. Each such certificate shall include the statements provided for in Section 13.6 if and to the extent provided by the provisions of such Section. "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel experienced in the matters as 3 10 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. 4 11 "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 5 12 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); 6 13 (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. 7 14 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 8 15 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. 9 16 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. 10 17 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. 11 18 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. 12 19 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, 13 20 or interest, if any, on, the Securities of such series when the same shall be due and payable; and (3) at any time during the continuance of any such default, upon written request of the Debt Trustee, forthwith pay to the Debt Trustee all sums so held by such paying agent. (b) If the Corporation shall act as its own paying agent, it will, on or before each due date of the principal of and premium, if any, interest, if any, on the Securities of any series, set aside, segregate and hold in trust for the benefit of the holders of the Securities of such series a sum sufficient to pay such principal, premium or interest so becoming due and will notify the Debt Trustee of any failure to take such action. (c) Anything in this Section 3.4 to the contrary notwithstanding, the Corporation may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Debt Trustee all sums held in trust for any such series by the Debt Trustee or any paying agent hereunder, as required by this Section 3.4, such sums to be held by the Debt Trustee upon the trusts herein contained. (d) Anything in this Section 3.4 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.4 is subject to Sections 11.3 and 11.4. SECTION 3.5 Certificate to Debt Trustee. The Corporation will deliver to the Debt Trustee, within 120 days after the end of each fiscal year, commencing with the first calendar year following the issuance of Securities of any series under this Indenture, so long as Securities of any series are outstanding hereunder, an Officers' Certificate stating that in the course of the performance by the signers of their duties as officers of the Corporation they would normally have knowledge of any default by the Corporation in the performance of any covenants contained herein, stating whether or not they have knowledge of any such default and, if so, specifying each such default of which the signers have knowledge and the nature thereof. SECTION 3.6 Compliance with Consolidation Provisions. The Corporation will not, while any of the Securities remain outstanding, consolidate with, or merge into, or merge into itself, or sell or convey all or substantially all of its property to any other company unless the provisions of Article Ten hereof are complied with. SECTION 3.7 Limitation on Dividends; Transactions with Affiliates. If Securities are issued to a General Motors Capital Trust or a trustee of such trust in connection with the issuance of Trust Securities by such General Motors Capital Trust and (i) there shall have occurred an Event of Default with respect to such Securities, or (ii) the Corporation shall be in default with respect to its payment of any obligations under a Preferred Securities Guarantee or Common Securities Guarantee relating to such General Motors Capital Trust, then the Corporation shall not (a) declare or pay any dividend on, make any distribution with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock (other than (i) purchases or acquisitions of shares of General Motors Common Stock in connection with the satisfaction by the Corporation of its obligations under any employee benefit plans or any other contractual obligation of the Corporation (other than a contractual obligation ranking pari passu with or junior to the Securities), (ii) issuance of capital stock in connection with a recapitalization or reclassification of the Corporation's capital stock or the exchange or conversion of one class or series of the Corporation's capital stock for another class or series of the Corporation's capital stock , in each case by merger or otherwise, or (iii) the purchase of fractional interests in shares of the Corporation's capital stock pursuant to the conversion or exchange provisions of such Company capital stock or the security being converted or exchanged), (b) make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities issued by the Corporation that rank pari passu with or junior to such Securities (including any other series of Securities issued to a General Motors Capital Trust) and (c) make any guarantee payments with respect to the foregoing (other than pursuant to a Preferred Securities Guarantee relating to such General Motors Capital Trust). 14 21 SECTION 3.8 Covenants as to General Motors Capital Trusts. In the event Securities are issued to a General Motors Capital Trust or a trustee of such trust in connection with the issuance of Trust Securities by such General Motors Capital Trust, for so long as such Trust Securities remain outstanding, the Corporation will (i) maintain 100% direct or indirect ownership of the Common Securities of such General Motors Capital Trust; provided, however, that any permitted successor of the Corporation under the Indenture may succeed to the Corporation's ownership of the Common Securities, (ii) use its reasonable efforts to cause such General Motors Capital Trust (a) to remain a statutory business trust, except in connection with a distribution of Securities, the redemption of all of the Trust Securities of such General Motors Capital Trust or certain mergers, consolidations or amalgamations, each as permitted by the Declaration relating to such General Motors Capital Trust, and (b) to otherwise continue not to be treated as an association taxable as a corporation or partnership for United States federal income tax purposes and (iii) use its reasonable efforts to cause each holder of Trust Securities to be treated as owning an undivided beneficial interest in the Securities. SECTION 3.9 Notice of Default. The Corporation shall file with the Debt Trustee written notice of the occurrence of any Event of Default within 30 business days of its becoming aware of any such Event of Default. ARTICLE 4 SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE. SECTION 4.1 Securityholders' Lists. The Corporation covenants and agrees that it will furnish or cause to be furnished to the Debt Trustee: (a) on a semi-annual basis on each regular record date for each series of Securities, a list, in such form as the Debt Trustee may reasonably require, of the names and addresses of the Securityholders of such series of Securities as of such record date (and on dates to be determined pursuant to Section 2.3 for non-interest bearing securities in each year); and (b) at such other times as the Debt Trustee may request in writing, within 30 days after the receipt by the Corporation, of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, except that no such lists need be furnished so long as the Debt Trustee is in possession thereof by reason of its acting as Security registrar for such series. SECTION 4.2 Preservation and Disclosure of Lists. (a) The Debt Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders of each series of Securities (1) contained in the most recent list furnished to it as provided in Section 4.1 or (2) received by it in the capacity of Securities registrar (if so acting) hereunder. The Debt Trustee may destroy any list furnished to it as provided in Section 4.1 upon receipt of a new list so furnished. (b) In case three or more holders of Securities of any series (hereinafter referred to as "applicants") apply in writing to the Debt Trustee and furnish to the Debt Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least 6 months preceding the date of such application, and such application states that the applicants desire to communicate with other holders of Securities of such series or with holders of all Securities with respect to their rights under this Indenture or under such Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Debt Trustee shall within 5 Business Days after the receipt of such application, at its election, either: 15 22 (1) afford such applicants access to the information preserved at the time by the Debt Trustee in accordance with the provisions of subsection (a) of this Section 4.2; or (2) inform such applicants as to the approximate number of holders of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Debt Trustee in accordance with the provisions of subsection (a) of this Section 4.2, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communication, if any, specified in such application. If the Debt Trustee shall elect not to afford such applicants access to such information, the Debt Trustee shall, upon the written request of such applicants, mail to each Securityholder of such series or all Securities, as the case may be, whose name and address appear in the information preserved at the time by the Debt Trustee in accordance with the provisions of subsection (a) of this Section 4.2 a copy of the form of proxy or other communication which is specified in such request with reasonable promptness after a tender to the Debt Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within 5 days after such tender, the Debt Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Debt Trustee, such mailing would be contrary to the best interests of the holders of Securities of such series or all Securities, as the case may be, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Debt Trustee shall mail copies of such material to all such Securityholders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Debt Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (c) Each and every holder of Securities, by receiving and holding the same, agrees with the Corporation and the Debt Trustee that neither the Corporation nor the Debt Trustee nor any paying agent shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the holders of Securities in accordance with the provisions of subsection (b) of this Section 4.2, regardless of the source from which such information was derived, and that the Debt Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b). SECTION 4.3 Reports by Company. (a) The Corporation covenants and agrees to file with the Debt Trustee, within 15 days after the Corporation is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Corporation may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Corporation is not required to file information, documents or reports pursuant to either of such sections, then to file with the Debt Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. (b) The Corporation covenants and agrees to file with the Debt Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Corporation with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. 16 23 (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 17 24 (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 18 25 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 19 26 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 20 27 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 21 28 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. 22 29 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. 23 30 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. 24 31 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. 25 32 SECTION 6.9 Eligibility of Debt Trustee. The Debt Trustee hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia or a corporation or other Person permitted to act as trustee by the Commission authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal, State, Territorial, or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 6.9 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Corporation may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Corporation, serve as Debt Trustee. In case at any time the Debt Trustee shall cease to be eligible in accordance with the provisions of this Section 6.9, the Debt Trustee shall resign immediately in the manner and with the effect specified in Section 6.10. SECTION 6.10 Resignation or Removal of Debt Trustee. (a) The Debt Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of such resignation to the Corporation and by mailing notice thereof to the holders of the applicable series of Securities at their addresses as they shall appear on the Security Register. Upon receiving such notice of resignation, the Corporation shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument, in duplicate, executed by order of its Board of Directors, one copy of which instrument shall be delivered to the resigning Debt Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed with respect to any series of Securities and have accepted appointment within 30 days after the mailing of such notice of resignation to the affected Securityholders, the resigning Debt Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 5.9, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. (b) In case at any time any of the following shall occur: (i) the Debt Trustee shall fail to comply with the provisions of Section 6.8 after written request therefor by the Corporation or by any Securityholder who has been a bona fide holder of a Security or Securities for at least six months, or (ii) the Debt Trustee shall cease to be eligible in accordance with the provisions of Section 6.9 and shall fail to resign after written request therefor by the Corporation or by any such Securityholder, or (iii) the Debt Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Debt Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Debt Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Corporation may remove the Debt Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Debt Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 5.9, any Securityholder who has been a bona fide holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Debt Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as 26 33 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. 27 34 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 28 35 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. 29 36 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; 30 37 (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 31 38 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 32 39 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. 33 40 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. 34 41 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. 35 42 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. 36 43 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; 37 44 (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- 38 45 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. 39 46 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 40 47 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 41 48 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. 42 49 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 43 50 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. 44 51 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 45 52 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. * * * * * 46 53 The Debt Trustee hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their respective officers thereunto duly authorized and their respective corporate seals to be hereunto duly affixed and attested, all as of the day and year first above written. [Seal] GENERAL MOTORS CORPORATION Attest: By: Its: [Seal] WILMINGTON TRUST COMPANY, as Debt Trustee Attest: By: Its: 54 STATE OF DELAWARE ) COUNTY OF [ ] ) ss.: On the ____ day of ________________________________, 1997 before me personally came ______________________, to me known, who, being by me duly sworn, did depose and say that he resides at ______________________________ ; that he is ____________________ of General Motors Corporation, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. NOTARY PUBLIC [seal] Commission expires: STATE OF ) COUNTY OF ) ss.: On the _____ day of ________________, 1997, before me personally came __________________________, to me known, who, being by me duly sworn, did depose and say that he resides at ___________________; that he is ___________________ of __________________________, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. NOTARY PUBLIC [seal] Commission expires: EX-4.(D)(II) 5 EX-4.(D)(II) 1 EXHIBIT 4(d)(ii) ________ SUPPLEMENTAL INDENTURE between GENERAL MOTORS CORPORATION and WILMINGTON TRUST COMPANY Dated as of __________, 1997 WITH RESPECT TO THE SERIES __ JUNIOR SUBORDINATED DEBENTURES 2 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 ...................................... 4 SECTION 2.4 Series __ 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 __ 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 ............................ 8 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 __ Debenture ........................... 9 ARTICLE 8 ORIGINAL ISSUE OF DEBENTURES .................................. 9 SECTION 8.1 Original Issue of Series __ 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 i 3 _____ SUPPLEMENTAL INDENTURE WITH RESPECT TO THE SERIES __ JUNIOR SUBORDINATED DEBENTURES _____ SUPPLEMENTAL INDENTURE, dated as of __________, 1997 (the "_____ 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 ___________, 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 ____% Junior Subordinated Deferrable Interest Debentures, Series __, due 2012 (the "Series __ Debentures"), the form and substance of such Series __ Debentures and the terms, provisions and conditions thereof to be set forth as provided in the Indenture and this _____ Supplemental Indenture; WHEREAS, the Corporation and General Motors Capital Trust __, a Delaware statutory business trust (the Series __ Trust ), have made an offer to exchange (the "Series __ Offer") the Series __ Trust s ____% Trust Originated Preferred Securities, Series __ (the "Series __ Preferred Securities"), representing preferred undivided beneficial ownership interests in the assets of the Series __ Trust, for any and all of the Corporation's depositary shares (the "Series __ ___% Depositary Shares"), each representing one-fourth of a share of Series __ ____% Preference Stock, $0.10 par value per share, of the Corporation not owned by the Corporation; WHEREAS, concurrently with the issuance of the Series __ Preferred Securities in exchange for Series __ ___% Depositary Shares validly tendered in the Series __ Offer, (a) the Series __ Trust will issue and sell to the Corporation ____% Trust Originated Common Securities, Series __ (the "Series __ Common Securities"), in an aggregate stated liquidation amount equal to at least 3% of the total capital of the Series __ Trust and (b) the Corporation will deposit in the Series __ Trust as trust assets the Series __ Debentures having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series __ Preferred Securities and the Series __ Common Securities so issued; and WHEREAS, the Corporation has requested that the Debt Trustee execute and deliver this _____ Supplemental Indenture and all requirements necessary to make this _____ Supplemental Indenture a valid instrument in accordance with its terms, and to make the Series __ 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 _____ Supplemental Indenture has been duly authorized in all respects. NOW THEREFORE, in consideration of the purchase and acceptance of the Series __ Debentures by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Series __ Debentures and the terms, provisions and conditions thereof, the Corporation covenants and agrees with the Debt Trustee as follows: 4 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 _____ Supplemental Indenture; (b) a term defined anywhere in this _____ 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 _____ 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 __ Declaration: (i) Dealer Manager Agreement; (ii) Delaware Trustee; (iii) Distributions; (iv) Institutional Trustee; (v) Series __ 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 __ Trust and distribution of the Series __ Debentures held by the Institutional Trustee pro rata to the holders of the Series __ Trust Securities in accordance with the Series __ 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 __ 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 __ Redemption Price" shall mean either the Series __ Tax Event Prepayment Price or the Series __ Optional Prepayment Price, as the context requires. "Series __ Declaration" means the Amended and Restated Declaration of Trust of General Motors Capital Trust __, a Delaware statutory business trust, dated as of _________, 1997, as amended from time to time. 2 5 "Series __ Extended Interest Payment Period" shall have the meaning set forth in Section 4.1. "Series __ Global Debenture" shall have the meaning set forth in Section 2.4(a). "Series __ Optional Prepayment Price" shall have the meaning set forth in Section 3.2. "Series __ Stated Maturity" means the date on which the Series __ 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 ________, 2012, unless shortened to a date not earlier than___________, ____, as more fully described in Section 2.2. "Series __ 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 __ Debentures, there is more than an insubstantial risk that (i) the Series __ 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 __ Debentures, (ii) interest payable by the Corporation on the Series __ 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 __ 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 "____% Junior Subordinated Deferrable Interest Debentures, Series __, due 2012", limited in aggregate principal amount to the aggregate stated liquidation amount of the Series __ Preferred Securities and Series __ Common Securities to be issued by the Series __ Trust, which amount shall be as set forth in any written order of the Corporation for the authentication and delivery of Series __ Debentures pursuant to Section 2.4 of the Indenture. SECTION 2.2 Maturity. (a) The Series __ Debentures shall mature on ___________, 2012. The Corporation has the right at any time to shorten the maturity of the Series __ Debentures to a date not earlier than [EARLIEST REDEMPTION DATE OF APPLICABLE SERIES OF PREFERENCE STOCK]. (b) In the event that the Corporation elects to shorten the maturity date of the Series __ 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 __ Debentures no more than 90 and no less than 30 days prior to the effectiveness thereof. 3 6 SECTION 2.3 Form and Payment. Except as provided in Section 2.4, the Series __ Debentures shall be issued in fully registered certificated form without interest coupons. Principal and interest on the Series __ Debentures issued in certificated form will be payable, the transfer of such Series __ Debentures will be registrable and such Series __ Debentures will be exchangeable for Series __ 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 __ Debentures is the Institutional Trustee, the payment of the principal of and interest (including Compound Interest and Additional Interest, if any) on such Series __ 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 __ Global Debenture. (a) In connection with a Dissolution Event, (i) the Series __ Debentures in certificated form may be presented to the Debt Trustee by the Institutional Trustee in exchange for a global Series __ Debenture in an aggregate principal amount equal to the aggregate principal amount of all outstanding Series __ Debentures (a "Global Series __ 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 __ 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 _____ Supplemental Indenture. Payments on the Series __ Debentures issued as a Global Series __ Debenture will be made to the Depository Institution; and (ii) if any Series __ Preferred Securities are held in non book-entry certificated form, the Series __ Debentures in certificated form may be presented to the Debt Trustee by the Institutional Trustee and any Preferred Security Certificate which represents Series __ Preferred Securities other than Series __ Preferred Securities held by the Depository Institution or its nominee ("Non Book-Entry Preferred Securities") will be deemed to represent beneficial interests in Series __ 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 __ 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 _____ Supplemental Indenture. On issue of such Series __ Debentures, Series __ 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 __ 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 4 7 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 __ Debentures shall no longer be represented by a Global Series __ Debenture or (iii) there shall have occurred an Event of Default with respect to the Series __ 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 __ 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 __ Debenture in exchange for such Global Series __ 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 __ 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 __ Debenture in exchange for such Global Series __ Debenture. Upon the exchange of the Global Series __ Debenture for such Series __ Debentures in definitive registered form without coupons, in authorized denominations, the Global Series __ Debenture shall be canceled by the Debt Trustee. Such Series __ Debentures in definitive registered form issued in exchange for the Global Series __ 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 __ Debenture will bear interest at the rate of ____% per annum (the "Coupon Rate") from ________ __, 1997, the first date following the expiration date of the Series __ 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 __ Debenture or any predecessor Series __ 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 __ Debentures will also accrue interest at the rate of ____% per annum of the principal amount thereof from April 1, 1997 through and including __________ __, 1997, the expiration date of the Series __ Offer, payable on August 1, 1997 to the Person in whose name such Series __ 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 __ 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 __ Debentures, the Series __ 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 __ Debentures held by the Institutional Trustee, such additional amounts as shall be required so that the net amounts received and retained by the Series __ Trust and the Institutional Trustee after paying such taxes, duties, assessments or other governmental charges will not be less than the amounts the Series __ Trust and the Institutional Trustee would have received had no such taxes, duties, assessments or other governmental charges been imposed. 5 8 ARTICLE 3 REDEMPTION OF THE DEBENTURES SECTION 3.1 Tax Event Redemption. If, prior to [EARLIEST REDEMPTION DATE OF APPLICABLE SERIES OF PREFERENCE STOCK], 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 __ 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 __ Tax Event Prepayment Price") equal to (i) ___% of the principal amount of the Series __ Debentures if prepaid during the period commencing on the Accrual Date through and including ______________ and (ii) the percentage of the principal amount of the Series __ 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 ____ ....................................................... ___% ____ ....................................................... ___ ____ and thereafter ........................................ 100 The Series __ 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 __ Tax Event Prepayment Price by 10:00 a.m., Eastern time, on the date such Series __ Tax Event Prepayment Price is to be paid. SECTION 3.2 Series __ Optional Redemption by Corporation. Subject to the provisions of Article 14 of the Indenture, except as otherwise may be specified in this _____ 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 __ Debentures, in whole or in part, from time to time, on or after [EARLIEST REDEMPTION DATE OF APPLICABLE SERIES OF PREFERENCE STOCK], for cash at a prepayment price (the "Series __ 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 __ Debentures unless all accrued and unpaid interest on all of the Series __ Debentures has been paid for all quarterly periods terminating on or prior to the redemption date. If the Series __ Debentures are only partially redeemed pursuant to this Section 3.2, the Series __ 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 __ Debentures are registered as a Global Series __ Debenture, the Depository Institution shall determine, in accordance with its procedures, the principal amount of such Series __ Debentures held by each Holder to be redeemed. The Series __ 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 __ Optional Prepayment Price by 10:00 a.m., Eastern time, on the date such Series __ Optional Prepayment Price is to be paid. SECTION 3.3 No Sinking Fund. The Series __ Debentures are not entitled to the benefit of any sinking fund. 6 9 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 __ Debentures, the Corporation shall have the right, at any time and from time to time during the term of the Series __ Debentures, to defer payments of interest by extending the interest payment period of such Series __ Debentures for a period not exceeding 20 consecutive quarters (the "Series __ Extended Interest Payment Period"), during which Series __ Extended Interest Payment Period no interest shall be due and payable; provided that no Series __ Extended Interest Payment Period may extend beyond the Series __ 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 __ Extended Interest Payment Period ("Compound Interest"). At the end of the Series __ Extended Interest Payment Period, the Corporation shall pay all interest accrued and unpaid on the Series __ Debentures, including any Additional Interest and Compound Interest (together, "Deferred Interest") that shall be payable to the Holders in whose names the Series __ Debentures are registered in the Security Register on the first record date after the end of the Series __ Extended Interest Payment Period. Before the termination of any Series __ 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 __ Stated Maturity. Upon the termination of any Series __ Extended Interest Payment Period and upon the payment of all Deferred Interest then due, the Corporation may commence a new Series __ Extended Interest Payment Period, subject to the foregoing requirements. No interest shall be due and payable during a Series __ 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 __ 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 __ 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 __ Extended Interest Payment Period one Business Day before the earlier of (i) the next succeeding date on which Distributions on the Series __ Trust Securities issued by the Series __ Trust are payable, or (ii) the date the Series __ 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 __ Preferred Securities issued by the Series __ 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 __ Extended Interest Payment Period, the Corporation shall give the Holders of the Series __ Debentures and the Debt Trustee written notice of its selection of such Series __ 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 __ 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 __ Extended Interest Payment Period permitted under Section 4.1. 7 10 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 __ Debentures, or (iii) there shall have occurred any Event of Default, as defined in the Series __ 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 __ 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 __ Debentures and (c) make any guarantee payments with respect to the foregoing (other than pursuant to the Series __ Preferred Securities Guarantee). ARTICLE 5 EXPENSES SECTION 5.1 Payment of Expenses. In connection with the offering, sale and issuance of the Series __ Debentures to the Institutional Trustee and in connection with the sale of the Series __ Trust Securities by the Series __ Trust, the Corporation, in its capacity as borrower with respect to the Series __ Debentures, shall: (a) pay all costs and expenses relating to the offering, sale and issuance of the Series __ 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 __ Trust Securities) and costs and expenses of the Series __ Trust (including, but not limited to, costs and expenses relating to the organization, maintenance and dissolution of the Series __ Trust, the offer, sale and issuance of the Series __ 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 __ Declaration), the costs and expenses relating to the operation of the Series __ 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 __ Trust assets and the enforcement by the Institutional Trustee of the rights of the holders of the Series __ Preferred Securities); (c) be primarily liable for any indemnification obligations arising with respect to the Series __ Declaration; and (d) pay any and all taxes (other than United States withholding taxes attributable to the Series __ Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the Series __ Trust. 8 11 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 __ 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 _____ 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 __ 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 __ 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 __ Debentures are distributed to the holders of the Series __ Preferred Securities issued by the Series __ Trust, and the Series __ Preferred Securities are then so listed, the Corporation will use its best efforts to list the Series __ Debentures on the New York Stock Exchange, Inc. or on such other exchange as the Series __ Preferred Securities are then listed. ARTICLE 7 FORM OF DEBENTURE SECTION 7.1 Form of Series __ Debenture. The Series __ 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 __ Debentures. Series __ Debentures in the aggregate principal amount of the aggregate stated liquidation amount of the Series __ Preferred Securities and Series __ Common Securities to be issued by the Series __ Trust, may, upon execution of this _____ 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 __ 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. 9 12 ARTICLE 9 MISCELLANEOUS SECTION 9.1 Ratification of Indenture. The Indenture, as supplemented by this _____ Supplemental Indenture, is in all respects ratified and confirmed, and this _____ 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 _____ Supplemental Indenture. SECTION 9.3 Governing Law. This _____ Supplemental Indenture and each Series __ 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 _____ Supplemental Indenture or in the Series __ 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 _____ Supplemental Indenture or of the Series __ Debentures, but this _____ Supplemental Indenture and the Series __ 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 _____ 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. * * * * * * 10 13 IN WITNESS WHEREOF, the parties hereto have caused this ________ 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: _______________________________________ Name: Title: WILMINGTON TRUST COMPANY as Debt Trustee By:________________________________________ Name: Title: 11 14 STATE OF ) COUNTY OF ) ss.: On the ____ day of __________, 1997 before me personally came _______________________, to me known, who, being by me duly sworn, did depose and say that he resides at _________________________________; that he is ________________________________ of General Motors Corporation, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. - ------------------------ NOTARY PUBLIC [seal] Commission expires: STATE OF ) COUNTY OF ) ss.: On the _____ day of ________________, 1997, before me personally came __________________________, to me known, who, being by me duly sworn, did depose and say that he resides at ____________________________; that he is ___________________ of 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. - ----------------------- NOTARY PUBLIC [seal] Commission expires: 15 EXHIBIT A (FORM OF FACE OF DEBENTURE) IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Series __ Debenture is a Global Series __ Debenture within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee of a Depositary. This Series __ Debenture is exchangeable for Series __ Debentures registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and no transfer of this Series __ Debenture (other than a transfer of this Series __ Debenture as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances. Unless this Series __ Debenture is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any Series __ Debenture issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein. No. ______________________________ GENERAL MOTORS CORPORATION ____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE, SERIES __ 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 __ under that certain Amended and Restated Declaration of Trust dated as of __________ __, 1997, or registered assigns, the principal sum of ____________________ Dollars ($___________) on __________ __, 2012 (such date, as it may be shortened as provided below, the "Series __ Stated Maturity"), and to pay interest on said principal sum from _________________, 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 ____% 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 __ 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 __ 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 _____ Supplemental Indenture. The Series __ Debentures will also accrue interest at the rate of ____% per annum of the principal amount thereof from April 1, 1997 through __________ __, 1997, payable on August 1, 1997 to holders of the Series A-1 16 __ 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 __________ __, 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 __ 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 __ 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 __ 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 __ Debenture is the Institutional Trustee, the payment of the principal of (and premium, if any) and interest on this Series __ 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 __ Debentures to a date not earlier than [EARLIEST REDEMPTION DATE OF THE APPLICABLE SERIES OF PREFERENCE STOCK]. The indebtedness evidenced by this Series __ 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 __ Debenture is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Series __ 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 __ 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. The provisions of this Series __ Debenture are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place. A-2 17 IN WITNESS WHEREOF, the Corporation has caused this instrument to be executed. Dated: __________ __, ____ GENERAL MOTORS CORPORATION Attest: By:____________________________________ Name: Title: (FORM OF CERTIFICATE OF AUTHENTICATION) 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 A-3 18 (FORM OF REVERSE OF DEBENTURE) This Debenture is one of a duly authorized series of Debentures of the Corporation (herein sometimes referred to as the "Series __ 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 __________ __, 1997, duly executed and delivered between the Corporation and Wilmington Trust Company as Trustee (the "Debt Trustee"), as supplemented by the _____ Supplemental Indenture dated as of __________ __, 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 __ 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 _____ Supplemental Indenture. If, prior to [EARLIEST REDEMPTION DATE OF THE APPLICABLE SERIES OF PREFERENCE STOCK], 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 __ 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 __ Tax Event Prepayment Price") equal to (i) ___% of the principal amount of the Series __ Debentures if prepaid during the period commencing on __________ __, 1997 through and including __________, ____, and (ii) the percentage of the principal amount of the Series __ Debentures specified below, if prepaid during the 12-month period beginning ________ of the years indicated below, plus, in each case, any accrued and unpaid interest thereon to the date of prepayment: Year Percentage ---- ---------- ____ ....................................................... ___% ____ ....................................................... ___ ____ and thereafter ........................................ 100 Subject to the provisions of Article 14 of the Indenture, except as otherwise may be specified in the _____ 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 __ Debentures, in whole or in part, from time to time, on or after [EARLIEST REDEMPTION DATE OF THE APPLICABLE SERIES OF PREFERENCE STOCK] (a "Series __ Optional Redemption"), for cash at a prepayment price (the "Series __ 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 __ Debentures unless all accrued and unpaid interest on all of the Series __ Debentures has been paid for all quarterly periods terminating on or prior to the redemption date. The Series __ 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 __ Redemption Price by 10:00 a.m., Eastern time, on the date such Series __ Redemption Price is to be paid. If the Series __ Debentures are only partially redeemed by the Corporation pursuant to a Series __ Optional Redemption, the Series __ 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 __ Debentures are registered as a Global Series __ Debenture, the Depository Institution shall determine the principal amount of such Series __ Debentures held by each Holder to be redeemed in accordance with its procedures. In the event of redemption of this Series __ 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. A-4 19 In case an Event of Default, as defined in the Indenture, with respect to the Series __ Debentures shall have occurred and be continuing, the principal of all of the Series __ 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 __ Debentures; provided, however, that no such supplemental indenture shall, without the consent of the holders of each Series __ 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 __ Debenture, or impair or affect the right of any Holder of a Series __ 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 __ Debenture so affected, or (ii) reduce the aforesaid percentage of Series __ Debentures, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of each Series __ Debenture then outstanding and affected thereby; provided, further, that if the Series __ 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 __ Debentures shall have consented to such supplemental indenture; provided further, that if the consent of the holder of each outstanding Series __ Debenture is required, such supplemental indenture shall not be effective until each holder of the Series __ 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 __ 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 __ Debenture and of any Series __ 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 __ Debenture. No reference herein to the Indenture and no provision of this Series __ 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 __ 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 __ Debentures and from time to time to extend the interest payment period of such Series __ Debentures for up to 20 consecutive quarters (a "Series __ 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 __ Debentures to the extent that payment of such interest is enforceable under applicable law); provided that no Series __ Extended Interest Payment Period may last beyond the Series __ Stated Maturity. Before the termination of any such Series __ Extended Interest Payment Period, the Corporation may further extend such Series __ Extended Interest Payment Period, provided that such Series __ Extended Interest Payment Period together with all such further extensions thereof shall not exceed 20 consecutive quarters or last beyond the Series __ Stated Maturity date. At the termination of any such Series __ 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 __ Extended Interest Payment Period. A-5 20 As provided in the Indenture and subject to certain limitations therein set forth, this Series __ Debenture is transferable by the registered Holder hereof on the Security Register (as defined in the Indenture), upon surrender of this Series __ 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 __ 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 __ 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 __ 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 __ 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 __ Debenture that are defined in the Indenture shall have the meanings assigned to them in the Indenture. A-6 EX-4.(G)(I) 6 EX-4.(G)(I) 1 EXHIBIT 4(g)(i) SERIES __ PREFERRED SECURITIES GUARANTEE AGREEMENT General Motors Capital Trust __ Dated as of , 1997 2 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 __ Preferred Guarantee Trustee............................................. 4 SECTION 2.4 Periodic Reports to Series __ 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 __ PREFERRED ............. 5 SECTION 3.1 Powers and Duties of the Series __ Preferred Guarantee Trustee .................................. 5 SECTION 3.2 Certain Rights of Series __ Preferred Guarantee Trustee ............................................ 7 SECTION 3.3 Not Responsible for Recitals or Issuance of Series __ Preferred Securities Guarantee ........ 8 ARTICLE 4 SERIES __ PREFERRED GUARANTEE TRUSTEE ........................ 8 SECTION 4.1 Series __ Preferred Guarantee Trustee; Eligibility... 8 SECTION 4.2 Appointment, Removal and Resignation of Series __ Preferred Guarantee Trustee .............. 8 ARTICLE 5 GUARANTEE .................................................... 9 SECTION 5.1 Guarantee ............................................ 9 SECTION 5.2 Waiver of Notice and Demand .......................... 9 SECTION 5.3 Obligations Not Affected ............................. 9 SECTION 5.4 Enforcement of Guarantee; Rights of Preferred Holders.................................... 10 SECTION 5.5 Guarantee of Payment ................................. 10 SECTION 5.6 Subrogation .......................................... 10 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 .................................................. 11 SECTION 7.1 Termination .......................................... 11 ARTICLE 8 INDEMNIFICATION .............................................. 12 SECTION 8.1 Exculpation .......................................... 12 SECTION 8.2 Fees; Indemnification ................................ 12 ARTICLE 9 MISCELLANEOUS ................................................ 12 SECTION 9.1 Successors and Assigns ............................... 12 SECTION 9.2 Amendments ........................................... 12 SECTION 9.3 Notices .............................................. 13 SECTION 9.4 Benefit .............................................. 13 SECTION 9.5 Governing Law ........................................ 13 SECTION 9.6 Genders .............................................. 13 SECTION 9.7 Counterparts ......................................... 13 i 3 CROSS REFERENCE TABLE of the provisions of the Trust Indenture Act with Series __, Preferred Securities Guarantee Agreement dated as of ____________, 1997 between General Motors Corporation and Wilmington Trust Company PREFERRED SECURITIES ACT SECTION GUARANTEE 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 __ PREFERRED SECURITIES GUARANTEE AS EXECUTED. ii 4 SERIES __ PREFERRED SECURITIES GUARANTEE AGREEMENT This GUARANTEE AGREEMENT (the "Series __ Preferred Securities Guarantee"), dated as of ________________, 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 __ Preferred Guarantee Trustee"), for the benefit of the Preferred Holders (as defined herein) of General Motors Capital Trust __, a Delaware statutory business trust (the "Series __ Trust"). WHEREAS, Guarantor and the Series __ Trust have made an offer to exchange (the "Series __ Offer") ___% Trust Originated Preferred Securities (SM) ("TOPrS"(SM)), Series __, representing preferred undivided beneficial ownership interests in the assets of the Series __ Trust (the "Series __ Preferred Securities"), for up to _____________ of the Guarantor s depositary shares (the "Series __ ___% Depositary Shares"), each representing one-fourth of a share of Series __ ___% Preference Stock, $0.10 par value per share, of the Guarantor (the "Series __ __% Preference Stock") not owned by the Guarantor; and WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Series __ Declaration"), dated as of ____________________, 1997, among the trustees of the Series __ Trust, the Guarantor, as sponsor, and the holders from time to time of undivided beneficial ownership interests in the assets of the Series __ Trust, the Series __ Trust is issuing on the date hereof one Series __ Preferred Security in exchange for each Series __ ____% Depositary Share validly tendered in the Series __ Offer; and WHEREAS, concurrently with the issuance of the Series __ Preferred Securities in exchange for Series __ ___% Depositary Shares validly tendered in the Series __ Offer, (a) the Series __ Trust will issue and sell to the Guarantor ___% Trust Originated Common Securities, Series __ (the "Series __ Common Securities"), in an aggregate liquidation amount equal to at least 3% of the total capital of the Series __ Trust and (b) the Guarantor will deposit into the Series __ Trust as trust assets its ___% Junior Subordinated Deferrable Interest Debentures, Series ____, due 2012 (the "Series __ Debentures") having an aggregate principal amount equal to the aggregate stated liquidation amount of the Series __ Preferred Securities and the Series __ Common Securities so issued; and WHEREAS, as incentive for the holders of Series __ ___% Depositary Shares to exchange the Series __ ___% Depositary Shares for Series __ Preferred Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Series __ Preferred Securities Guarantee, to pay to the Preferred Holders the Series __ 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 __ Common Securities Guarantee") in substantially identical terms to this Series __ Preferred Securities Guarantee for the benefit of the holders of the Series __ Common Securities (as defined herein), except that if an event of default under the Indenture (as defined herein) with respect to the Series __ Debentures (an "Indenture Event of Default") has occurred and is continuing, the rights of holders of the Series __ Common Securities to receive Series __ Guarantee Payments under the Series __ Common Securities Guarantee are subordinated to the rights of Preferred Holders to receive Series __ Guarantee Payments under this Series __ 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 __ Preferred Securities Guarantee for the benefit of the Preferred Holders. ___________________ (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 5 ARTICLE 1 DEFINITIONS AND INTERPRETATION SECTION 1.1 Definitions and Interpretation. In this Series __ Preferred Securities Guarantee, unless the context otherwise requires: (a) capitalized terms used in this Series __ 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 __ Preferred Securities Guarantee has the same meaning throughout; (c) all references to "the Series __ Preferred Securities Guarantee" or "this Series __ Preferred Securities Guarantee" are to this Series __ Preferred Securities Guarantee as modified, supplemented or amended from time to time; (d) all references in this Series __ Preferred Securities Guarantee to Articles and Sections are to Articles and Sections of this Series __ Preferred Securities Guarantee, unless otherwise specified; (e) a term defined in the Trust Indenture Act has the same meaning when used in this Series __ Preferred Securities Guarantee, unless otherwise defined in this Series __ 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 __ Preferred Guarantee Trustee at which the corporate trust business of the Series __ 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 __ Preferred Securities. "Event of Default" means a default by the Guarantor on any of its payment or other obligations under this Series __ Preferred Securities Guarantee. "Indemnified Person" means the Series __ Preferred Guarantee Trustee, any Affiliate of the Series __ Preferred Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians or agents of the Series __ Preferred Guarantee Trustee. "Indenture" means the Indenture dated as of the date hereof, between the Guarantor (the "Series __ Debenture Issuer") and Wilmington Trust Company, as trustee, and any indenture supplemental thereto pursuant to which certain subordinated debt securities of the Series __ Debenture Issuer are to be issued to the Institutional Trustee of the Series __ Trust, in each case as amended. "Majority in liquidation amount of the Series __ 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 __ Preferred Securities. 2 6 "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 __ 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 __ Trust, of any Series __ Preferred Securities; provided, however, that, in determining whether the holders of the requisite percentage of Series __ 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 __ Trust or the Series __ 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 __ Preferred Guarantee Trustee, any officer within the Corporate Trust Office of the Series __ 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 __ 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 __ Common Securities" means the securities representing common undivided beneficial ownership interests in the assets of the Series __ Trust. "Series __ Debentures" means the ___% Junior Subordinated Deferrable Interest Debentures, Series ____, due 2012, issued by the Guarantor to the Institutional Trustee of the Series __ Trust. "Series __ Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Series __ Preferred Securities, to the extent not paid or made by the Series __ Trust: (i) any accrued and unpaid Distributions (as defined in the Series __ Declaration) that are required to be paid on such Series __ Preferred Securities to the extent the Series __ Trust shall have funds available therefor, (ii) the redemption price, including all accrued and unpaid Distributions to the date of redemption (the "Series __ Redemption Price") to the extent the Series __ Trust has funds available therefor, with respect to any Series __ Preferred Securities called for redemption by the Series __ Trust, and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of the Series __ Trust (other than in connection with the distribution of Series __ Debentures to the Preferred Holders or the redemption of all of the Series __ Preferred Securities as provided in the Series __ Declaration), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid Distributions on the Series __ Preferred Securities to the date of payment, to the extent the Series __ Trust shall have funds available therefor, and (b) the amount of assets of the Series __ Trust remaining available for distribution to Preferred Holders in liquidation of the Series __ Trust (in either case, the "Series __ Liquidation Distribution"). If an Indenture Event of Default has occurred and is continuing, the rights of holders of the Series __ Common Securities to receive payments under the Series __ Common Securities Guarantee Agreement are subordinated to the rights of Preferred Holders to receive Series __ Guarantee Payments. 3 7 "Series __ Preferred Guarantee Trustee" means Wilmington Trust Company, a Delaware banking corporation, until a Successor Series __ Preferred Guarantee Trustee (as defined below) has been appointed and has accepted such appointment pursuant to the terms of this Series __ Preferred Securities Guarantee and thereafter means each such Successor Series __ Preferred Guarantee Trustee. "Series __ Trust Securities" means the Series __ Common Securities and the Series __ Preferred Securities. "Successor Series __ Preferred Guarantee Trustee" means a successor Series __ Preferred Guarantee Trustee possessing the qualifications to act as Series __ 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 __ Preferred Securities Guarantee is subject to the provisions of the Trust Indenture Act that are required to be part of this Series __ 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 __ 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 __ 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 __ Preferred Guarantee Trustee with a list, in such form as the Series __ 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 __ 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 __ Preferred Guarantee Trustee by the Guarantor. The Series __ 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 __ 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 __ Preferred Guarantee Trustee. Within 60 days after April 11 of each year, the Series __ 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 __ 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 __ Preferred Guarantee Trustee. The Guarantor shall provide to the Series __ 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. 4 8 SECTION 2.5 Evidence of Compliance with Conditions Precedent. The Guarantor shall provide to the Series __ Preferred Guarantee Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Series __ 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 __ 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 __ 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 __ Preferred Securities to receive payment of the Series __ Guarantee Payments in accordance with this Series __ 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 __ 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 __ Preferred Guarantee Trustee, unless such defaults have been cured before the giving of such notice, provided, that, the Series __ 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 __ Preferred Securities. (b) The Series __ Preferred Guarantee Trustee shall not be deemed to have actual knowledge of any Event of Default unless the Series __ Preferred Guarantee Trustee shall have received written notice, or of which a Responsible Officer charged with the administration of this Series __ Preferred Securities Guarantee shall have obtained actual knowledge. SECTION 2.8 Conflicting Interests. The Series __ Declaration shall be deemed to be specifically described in this Series __ 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 __ PREFERRED GUARANTEE TRUSTEE SECTION 3.1 Powers and Duties of the Series __ Preferred Guarantee Trustee. (a) This Series __ Preferred Securities Guarantee shall be held by the Series __ Preferred Guarantee Trustee in trust for the benefit of the Preferred Holders, and the Series __ Preferred Guarantee Trustee shall not transfer its right, title and interest in this Series __ 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 __ Preferred Guarantee Trustee on acceptance by such Successor Series __ Preferred Guarantee Trustee of its appointment to act as Successor Series __ Preferred Guarantee Trustee. The right, title and interest of the Series __ Preferred Guarantee Trustee shall automatically vest in any Successor Series __ 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 __ Preferred Guarantee Trustee. (b) If an Event of Default actually known to a Responsible Officer has occurred and is continuing, the Series __ Preferred Guarantee Trustee shall enforce this Series __ Preferred Securities Guarantee for the benefit of the Preferred Holders. 5 9 (c) This Series __ Preferred Securities Guarantee and all moneys received by the Series __ Preferred Guarantee Trustee hereunder in respect of the Series __ 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 __ Preferred Guarantee Trustee or its agents or their creditors. (d) The Series __ 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 __ Preferred Securities Guarantee, and no implied covenants shall be read into this Series __ Preferred Securities Guarantee against the Series __ 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 __ Preferred Guarantee Trustee shall exercise such of the rights and powers vested in it by this Series __ 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 __ Preferred Securities Guarantee shall be construed to relieve the Series __ 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 __ Preferred Guarantee Trustee shall be determined solely by the express provisions of this Series __ Preferred Securities Guarantee, and the Series __ Preferred Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Series __ Preferred Securities Guarantee, and no implied covenants or obligations shall be read into this Series __ Preferred Securities Guarantee against the Series __ Preferred Guarantee Trustee; and (B) in the absence of bad faith on the part of the Series __ Preferred Guarantee Trustee, the Series __ 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 __ Preferred Guarantee Trustee and conforming to the requirements of this Series __ 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 __ Preferred Guarantee Trustee, the Series __ 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 __ Preferred Securities Guarantee; (ii) the Series __ 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 __ Preferred Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made; (iii) the Series __ 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 __ Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Series __ Preferred Guarantee Trustee, or exercising any trust or power conferred upon the Series __ Preferred Guarantee Trustee under this Series __ Preferred Securities Guarantee; and (iv) no provision of this Series __ Preferred Securities Guarantee shall require the Series __ 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 __ 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 __ Preferred Securities Guarantee or indemnity, reasonably satisfactory to the Series __ Preferred Guarantee Trustee, against such risk or liability is not reasonably assured to it. 6 10 SECTION 3.2 Certain Rights of Series __ Preferred Guarantee Trustee. (a) Subject to the provisions of Section 3.1: (i) The Series __ 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 __ Preferred Securities Guarantee shall be sufficiently evidenced by an Officers' Certificate. (iii) Whenever, in the administration of this Series __ Preferred Securities Guarantee, the Series __ Preferred Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Series __ 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 __ 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 __ 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 __ Preferred Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Series __ Preferred Securities Guarantee from any court of competent jurisdiction. (vi) The Series __ Preferred Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Series __ Preferred Securities Guarantee at the request or direction of any Preferred Holder, unless such Preferred Holder shall have provided to the Series __ Preferred Guarantee Trustee such security and indemnity, reasonably satisfactory to the Series __ Preferred Guarantee Trustee, against the costs, expenses (including attorneys' fees and expenses and the expenses of the Series __ 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 __ Preferred Guarantee Trustee; provided that, nothing contained in this Section 3.2(a)(vi) shall relieve the Series __ 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 __ 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 __ 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 __ 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 __ 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 __ 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 __ Preferred Guarantee Trustee or its agents hereunder shall bind the Preferred Holders, and the signature of the Series __ 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 __ Preferred Guarantee Trustee to so act or as to its compliance with 7 11 any of the terms and provisions of this Series __ Preferred Securities Guarantee, both of which shall be conclusively evidenced by the Series __ Preferred Guarantee Trustee's or its agent's taking such action. (x) Whenever in the administration of this Series __ Preferred Securities Guarantee the Series __ 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 __ Preferred Guarantee Trustee (i) may request instructions from the Preferred Holders of a Majority in liquidation amount of the Series __ 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 __ Preferred Securities Guarantee shall be deemed to impose any duty or obligation on the Series __ 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 __ 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 __ Preferred Guarantee Trustee shall be construed to be a duty. SECTION 3.3 Not Responsible for Recitals or Issuance of Series __ Preferred Securities Guarantee. The recitals contained in this Series __ Preferred Securities Guarantee shall be taken as the statements of the Guarantor, and the Series __ Preferred Guarantee Trustee does not assume any responsibility for their correctness. The Series __ Preferred Guarantee Trustee makes no representation as to the validity or sufficiency of this Series __ Preferred Securities Guarantee. ARTICLE 4 SERIES __ PREFERRED GUARANTEE TRUSTEE SECTION 4.1 Series __ Preferred Guarantee Trustee; Eligibility. (a) There shall at all times be a Series __ 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 __ Preferred Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Series __ Preferred Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.2(c). (c) If the Series __ Preferred Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Series __ 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 __ Preferred Guarantee Trustee. (a) Subject to Section 4.2(b), the Series __ Preferred Guarantee Trustee may be appointed or removed without cause at any time by the Guarantor. 8 12 (b) The Series __ Preferred Guarantee Trustee shall not be removed in accordance with Section 4.2(a) until a Successor Series __ Preferred Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Series __ Preferred Guarantee Trustee and delivered to the Guarantor and to the Series __ Preferred Guarantee Trustee being removed. (c) The Series __ Preferred Guarantee Trustee appointed to office shall hold office until a Successor Series __ Preferred Guarantee Trustee shall have been appointed or until its removal or resignation as set forth herein. The Series __ 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 __ 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 __ Preferred Guarantee Trustee shall be effective until a Successor Series __ Preferred Guarantee Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Series __ Preferred Guarantee Trustee and delivered to the Guarantor and the resigning Series __ Preferred Guarantee Trustee. (d) If no Successor Series __ 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 __ Preferred Guarantee Trustee may petition any court of competent jurisdiction for appointment of a Successor Series __ Preferred Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Series __ Preferred Guarantee Trustee. (e) No Series __ Preferred Guarantee Trustee shall be liable for the acts or omissions to act of any Successor Series __ Preferred Guarantee Trustee. (f) Upon termination of this Series __ Preferred Securities Guarantee or removal or resignation of the Series __ Preferred Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the Series __ Preferred Guarantee Trustee all amounts payable to such Series __ 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 __ Guarantee Payments (without duplication of amounts theretofore paid by the Series __ Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the Series __ Trust may have or assert. The Guarantor's obligation to make a Series __ Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Preferred Holders or by causing the Series __ 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 __ 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 __ 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 __ 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 __ Trust of any express or implied agreement, covenant, term or condition relating to the Series __ Preferred Securities to be performed or observed by the Series __ Trust; (b) the extension of time for the payment by the Series __ Trust of all or any portion of the Distributions, Series __ Redemption Price, Series __ Liquidation Distribution or any other sums payable under the terms of the Series 9 13 __ Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Series __ Preferred Securities (other than an extension of time for payment of Distributions, Series __ Redemption Price, Series __ Liquidation Distribution or other sum payable that results from the extension of any interest payment period on the Series __ 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 __ Preferred Securities, or any action on the part of the Series __ 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 __ Trust or any of the assets of the Series __ Trust; (e) any invalidity of, or defect or deficiency in, the Series __ 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 __ Preferred Guarantee Trustee expressly acknowledge that: (a) this Series __ Preferred Securities Guarantee will be deposited with the Series __ Preferred Guarantee Trustee to be held for the benefit of the Preferred Holders; (b) the Series __ Preferred Guarantee Trustee has the right to enforce this Series __ Preferred Securities Guarantee on behalf of the Preferred Holders; (c) the Preferred Holders of a Majority in liquidation amount of the Series __ Preferred Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Series __ Preferred Guarantee Trustee in respect of this Series __ Preferred Securities Guarantee or exercising any trust or power conferred upon the Series __ Preferred Guarantee Trustee under this Series __ Preferred Securities Guarantee; and (d) any Preferred Holder may institute a legal proceeding directly against the Guarantor to enforce the Series __ Preferred Guarantee Trustee's rights and the obligations of the Guarantor under this Series __ Preferred Securities Guarantee, without first instituting a legal proceeding against the Series __ Trust, the Series __ 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 __ Trust or any other person or entity before proceeding directly against the Guarantor. SECTION 5.5 Guarantee of Payment. This Series __ Preferred Securities Guarantee creates a guarantee of payment and not of collection. This Series __ Preferred Securities Guarantee will not be discharged except by payment of the Series __ Guarantee Payments in full (without duplication of amounts therefor paid by the Series __ Trust). SECTION 5.6 Subrogation. The Guarantor shall be subrogated to all (if any) rights of the Preferred Holders against the Series __ Trust in respect of any amounts paid to such Preferred Holders by the Guarantor under this Series __ 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 __ Preferred Securities Guarantee, if, at the time of any such payment, any amounts are due and unpaid under this Series __ Preferred Securities Guarantee. 10 14 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 __ Trust with respect to the Series __ Preferred Securities, and that the Guarantor shall be liable as principal and as debtor hereunder to make Series __ Guarantee Payments pursuant to the terms of this Series __ 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 __ 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 __ 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 __ 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 __ Debentures or (iii) make any guarantee payments with respect to the foregoing (other than pursuant to this Series __ Preferred Securities Guarantee). In addition, so long as any Series __ Preferred Securities remain outstanding, the Guarantor (i) will remain the sole direct or indirect owner of all of the outstanding Series __ 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 __ Common Securities and (ii) will not take any action which would cause the Series __ 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 __ Debentures as provided in the Series __ Declaration. SECTION 6.2 Ranking. This Series __ 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 __ 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 __ Preferred Securities Guarantee shall terminate and be of no further force and effect upon (i) full payment of the Series __ Redemption Price of all Series __ Preferred Securities, (ii) upon the distribution of the Series 11 15 __ Debentures to all of the Preferred Holders or (iii) upon full payment of the amounts payable in accordance with the Series __ Declaration upon liquidation of the Series __ Trust. Notwithstanding the foregoing, this Series __ 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 __ Preferred Securities or under this Series __ 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 __ 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 __ 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 __ Preferred Guarantee Trustee compensation as agreed between the Guarantor and the Series __ Preferred Guarantee Trustee, and shall reimburse the Series __ 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 __ 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 __ Preferred Securities Guarantee. ARTICLE 9 MISCELLANEOUS SECTION 9.1 Successors and Assigns. All guarantees and agreements contained in this Series __ 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 __ 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 __ Preferred Securities Guarantee without the prior approval of the Preferred Holders of at least a Majority in liquidation amount of the Series __ 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 __ Preferred Securities Guarantee may only be amended 12 16 with the prior approval of the Preferred Holders of at least a Majority in liquidation amount of all the outstanding Series __ Preferred Securities. The provisions of Section 12.2 of the Series __ 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 __ 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 __ Preferred Guarantee Trustee, at the Series __ Preferred Guarantee Trustee's mailing address set forth below (or such other address as the Series __ 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 __ 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 __ 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 __ Preferred Securities. SECTION 9.5 Governing Law. THIS SERIES __ 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 __ 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. * * * * * * 13 17 THIS SERIES __ PREFERRED SECURITIES GUARANTEE is executed as of the day and year first above written. GENERAL MOTORS CORPORATION, as Guarantor By: __________________________ Name: Title: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Series __ Preferred Guarantee Trustee By: __________________________ Name: Title: EX-5.(A) 7 EX-5.(A) 1 EXHIBIT 5(a) [LETTERHEAD OF RICHARDS, LAYTON & FINGER] April 23, 1997 General Motors Capital Trust D General Motors Capital Trust G c/o General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 Re: General Motors Capital Trust D and General Motors Capital Trust G Ladies and Gentlemen: We have acted as special Delaware counsel for General Motors Capital Trust D, a Delaware business trust ("Trust D"), and General Motors Capital Trust G, a Delaware business trust ("Trust G") (Trust D and Trust G are hereinafter collectively referred to as the "Trusts" and sometimes hereinafter individually referred to as a "Trust"), in connection with the matters set forth herein. At your request, this opinion is being furnished to you. For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals or copies of the following: (a) The Certificate of Trust of Trust D, dated April 11, 1997, as filed in the office of the Secretary of State of the State of Delaware (the "Secretary of State") on April 11, 1997; (b) The Certificate of Trust of Trust G, dated April 11, 1997, as filed in the office of the Secretary of State on April 11, 1997; 2 General Motors Capital Trust D General Motors Capital Trust G April 23, 1997 Page 2 (c) The Declaration of Trust of Trust D, dated as of April 11, 1997, among General Motors Corporation, a Delaware corporation (the "Company"), and the trustees of the Trust named therein; (d) The Declaration of Trust of Trust G, dated as of April 11, 1997, among the Company and the trustees of the Trust named therein; (e) The Registration Statement (the "Registration Statement") on Form S-4, including the prospectus with respect to the Trusts (the "Prospectus") relating to the Trust Originated Preferred Securities of the Trusts (each, a "Preferred Security" and collectively, the "Preferred Securities"), as filed by the Company and the Trusts with the Securities and Exchange Commission on April 15, 1997; (f) A form of Amended and Restated Declaration of Trust for each of the Trusts, to be entered into among the Company, the trustees of the Trust named therein, and the holders, from time to time, of undivided beneficial interests in such Trust (collectively, the "Trust Agreements" and individually, a "Trust Agreement"), attached as an exhibit to the Registration Statement; and (g) A Certificate of Good Standing for each of the Trusts, dated April 23, 1997, obtained from the Secretary of State. Initially capitalized terms used herein and not otherwise defined are used as defined in the Trust Agreement. For purposes of this opinion, we have not reviewed any documents other than the documents listed above, and we have assumed that there exists no provision in any document that we have not reviewed that bears upon or is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects. With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures. For purposes of this opinion, we have assumed (i) that each of the Trust Agreements constitutes the entire agreement among the parties thereto with respect to the subject 3 General Motors Capital Trust D General Motors Capital Trust G April 23, 1997 Page 3 matter thereof, including with respect to the creation, operation and termination of the applicable Trust, and that the Trust Agreements and the Certificates of Trust are in full force and effect and have not been amended, (ii) except to the extent provided in paragraph 1 below, the due creation or due organization or due formation, as the case may be, and valid existence in good standing of each party to the documents examined by us under the laws of the jurisdiction governing its creation, organization or formation, (iii) the legal capacity of natural persons who are parties to the documents examined by us, (iv) that each of the parties to the documents examined by us has the power and authority to execute and deliver, and to perform its obligations under, such documents, (v) the due authorization, execution and delivery by all parties thereto of all documents examined by us, (vi) the receipt by each Person to whom a Preferred Security is to be issued by the Trusts (collectively, the "Preferred Security Holders") of a Preferred Security Certificate for such Preferred Security and the payment for the Preferred Security acquired by it, in accordance with the applicable Trust Agreement and the applicable Prospectus, and (vii) that the Preferred Securities are authenticated, issued and sold to the Preferred Security Holders in accordance with the applicable Trust Agreement and the applicable Prospectus. We have not participated in the preparation of the Registration Statement and assume no responsibility for its contents. This opinion is limited to the laws of the State of Delaware (excluding the securities laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations and orders thereunder which are currently in effect. Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that: 1. Each of the Trusts has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act, 12 Del. C. Section 3801, et seq. 2. The Preferred Securities of each Trust will represent valid and, subject to the qualifications set forth in paragraph 3 below, fully paid and nonassessable undivided beneficial interests in the assets of the applicable Trust. 3. The Preferred Security Holders, as beneficial owners of the applicable Trust, will 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 4 General Motors Capital Trust D General Motors Capital Trust G April 23, 1997 Page 4 Delaware. We note that the Preferred Security Holders may be obligated to make payments as set forth in the applicable Trust Agreement. We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. In addition, we hereby consent to the use of our name under the heading "Legal Matters" in the Prospectus. In giving the foregoing consents, we do not thereby admit that we come within the category of Persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Except as stated above, without our prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other Person for any purpose. Very truly yours, /s/ Richards, Layton & Finger Richards, Layton & Finger EX-5.(B) 8 EX-5.(B) 1 EXHIBIT 5(b) [LETTERHEAD OF GENERAL MOTORS CORPORATION] April 23, 1997 General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 General Motors Capital Trust D c/o General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 General Motors Capital Trust G c/o General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 Re: Registration Statement on Form S-4, Registration Number 333-25221 Ladies and Gentlemen: I have examined the Registration Statement on Form S-4 (Registration Number 333-25221) filed by General Motors Corporation, a Delaware corporation ("General Motors"), General Motors Capital Trust D, a Delaware business trust (the "Series D Trust"), and General Motors Capital Trust G, a Delaware business trust (the "Series G Trust"), with the Securities and Exchange Commission (the "Commission") on April 15, 1997, and as amended pursuant to Amendment No. 1 thereto filed on the date hereof (as amended, the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), of (i) % Trust Originated Preferred Securities(SM) ("TOPrS"), Series D (the "Series D Preferred Securities"), and % Junior Subordinated Deferrable Interest Debentures, Series D, due 2012, of General Motors (the "Series D Junior Subordinated Debentures") pursuant to the offer (the "Series D Offer") by General Motors and the Series D Trust to exchange the Series D Preferred Securities for up to 5,462,917 depositary shares, each representing a one-fourth of a share of General Motors' Series D 7.92% Preference Stock, $0.10 par value per share, not owned by General Motors, and (ii) % Trust Originated Preferred Securities ("TOPrS"), Series G (the "Series G Preferred Securities"), and % Junior Subordinated Deferrable Interest Debentures, Series G, due 2012, of General Motors (the "Series G Junior Subordinated Debentures") pursuant to the offer (the "Series G Offer") by General Motors and the Series G Trust to exchange the Series G Preferred Securities for up to 9,071,910 depositary shares, each representing a one-fourth of a share of General Motors' Series G 9.12% Preference Stock, $0.10 par value per share, not owned by General Motors. The Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures will be issued in accordance with the provisions of an indenture (the "Indenture"), to be supplemented by a Supplemental Indenture relating to the Series D Junior Subordinated Debentures (the "Series D Supplement") and by a Supplemental Indenture relating to the Series G Junior Subordinated Debentures (the "Series G Supplement"), each executed by General Motors and Wilmington Trust Company, as trustee (the "Trustee"), the forms of which are exhibits to the Registration Statement. Each of the Series D Preferred Securities and the Series G Preferred Securities will be guaranteed by General Motors in the manner and the extent set forth in - --------------- (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 2 Guarantee Agreements (the "Preferred Securities Guarantee (Series D)" and the "Preferred Securities Guarantee (Series G)," respectively), the forms of which are exhibits to the Registration Statement. I, in my capacity as an attorney on the Legal Staff of General Motors, have examined the following documents and records: (1) the Registration Statement, including the prospectus (the "Prospectus") contained therein; (2) the forms of the Indenture, the Series D Supplement and the Series G Supplement; (3) the forms of the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures; (4) the forms of the Preferred Securities Guarantee (Series D) and the Preferred Securities Guarantee (Series G); and (5) all corporate minutes and proceedings of General Motors relating to the issuance of the Series D Preferred Securities, the Series G Preferred Securities, the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures. I have also examined such further documents, records and proceedings as I have deemed pertinent in connection with the issuance of the Series D Junior Subordinated Debentures and the Series G Junior Subordinated Debentures and the execution of the Preferred Securities Guarantee (Series D) and the Preferred Securities Guarantee (Series G). In my examination, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the completeness and authenticity of all documents submitted to us as originals, and the conformity to the originals of all documents submitted to us as certified, photostatic or conformed copies, and the validity of all laws and regulations. I am also familiar with the additional proceedings proposed to be taken by General Motors in connection with the authorization, registration and issuance of the Series D Junior Subordinated Debentures and Series G Junior Subordinated Debentures, and the execution of the Preferred Securities Guarantee (Series D) and the Preferred Securities Guarantee (Series G), and I have assumed that all documents relating thereto are duly executed and delivered in substantially the forms reviewed by me. As to all questions of fact material to this opinion that have not been independently established, I have relied upon certificates or comparable documents of officers and representatives of General Motors, the Series D Trust and the Series G Trust. I express no opinion with respect to matters involving the Delaware Business Trust Act, as amended, and the rules and regulations thereunder. Based on the foregoing, and subject to the qualifications stated herein, it is my opinion that: 1. The Series D Junior Subordinated Debentures have been duly and validly authorized by General Motors and, when executed, authenticated, issued and delivered in the manner contemplated in the Indenture and the Series D Supplement, will constitute legal, valid and binding obligations of General Motors, entitled to the benefits of the Indenture and the Series D Supplement and enforceable against it in accordance with their terms except as enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws or equitable principles relating to or limiting creditors' rights and remedies generally and except to the extent that rights to indemnification thereunder may be limited by federal or state securities laws or public policy relating thereto. I express no opinion as the availability of equitable remedies. 2. The Series G Junior Subordinated Debentures have been duly and validly authorized by General Motors and, when executed, authenticated, issued and delivered in the manner contemplated in the Indenture and the Series G Supplement, will constitute legal, valid and binding obligations of General Motors, entitled to the benefits of the Indenture and the Series G Supplement and enforceable against it in accordance with their terms except as enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws or equitable principles relating to or limiting creditors' rights and remedies generally and except to the extent that rights to indemnification thereunder may be limited by federal or state securities laws or public policy relating thereto. I express no opinion as the availability of equitable remedies. 3. Each of the Preferred Securities Guarantee (Series D) and the Preferred Securities Guarantee (Series G) has been duly and validly authorized by General Motors and, when executed and delivered by General Motors, will constitute the legal, valid and binding obligations of General Motors except as enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganizaton, moratorium and similar laws or equitable principles relating to or limiting creditors' rights and remedies generally. I express no opinion as to the availability of equitable remedies. 3 I am qualified to practice law in the State of Michigan, and I do not purport to express any opinion herein concerning any law other than the laws of the State of Michigan and the federal law of the United States. I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the use of my name under the caption "Legal Matters" in the Prospectus forming a part of the Registration Statement. Very truly yours, /s/ Martin I. Darvick Martin I. Darvick EX-8 9 EX-8 1 EXHIBIT 8 [LETTERHEAD OF GENERAL MOTORS CORPORATION] April 24, 1997 General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 General Motors Capital Trust D c/o General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 General Motors Capital Trust G c/o General Motors Corporation 100 Renaissance Center Detroit, Michigan 48243-7301 Re: Registration Statement on Form S-4 Registration No. 333-25221 Ladies and Gentlemen: I have acted as counsel to General Motors Corporation, a Delaware corporation (the "Corporation"), and General Motors Capital Trust D and General Motors Capital Trust G, each of which is a statutory business trust formed under the laws of the State of Delaware (together, the "Trusts"), in connection with the above-captioned registration statement on Form S-4 (as amended, the "Registration Statement") filed with the Securities Exchange Commission (the "Commission") for the purpose of registering (i) Preferred Securities representing undivided beneficial interests in the assets of the Trusts, and (ii) Junior Subordinated Debentures issued by the Corporation to the Trusts, in connection with the sale of the Preferred Securities. All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Prospectus for an offering of Preferred Securities constituting a part of the Registration Statement (as amended, the "Prospectus"). I hereby confirm that, although the discussion set forth under the heading "UNITED STATES FEDERAL INCOME TAXATION" in the Prospectus does not purport to discuss all possible United States federal income tax consequences of the purchase, ownership and disposition 2 General Motors Corporation General Motors Capital Trust D General Motors Capital Trust G April 24, 1997 Page 2 of Preferred Securities, in my opinion, such discussion constitutes, in all material respects, a fair and accurate summary of the United States federal income tax consequences of the purchase, ownership and disposition of Preferred Securities, based upon current law. It is possible that contrary positions may be taken by the Internal Revenue Service and that a court may agree with such contrary positions. This opinion is furnished to you solely for your benefit in connection with the filing of the Registration Statement and, except as set forth below, is not to be used, circulated, quoted or otherwise referred to for any other purpose or relied upon by any other person for any purpose without our prior written consent. I hereby consent to the use of my name under the headings "LEGAL MATTERS" and "UNITED STATES FEDERAL INCOME TAXATION" in the Prospectus and the filing of this opinion with the Commission as Exhibit 8 to the Registration Statement. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated and applies only to the disclosure under the heading "UNITED STATES FEDERAL INCOME TAXATION" set forth in the Prospectus filed on April 15, 1997 and amended as of the date hereof. I disclaim any undertaking to advise you of any subsequent changes of the facts stated or assumed herein or any subsequent changes in applicable law. Very truly yours, /s/ Robert N. Deitz Robert N. Deitz Senior Tax Counsel EX-11.(B) 10 EX-11.(B) 1 GENERAL MOTORS CORPORATION EXHIBIT 11(b) AND SUBSIDIARIES COMPUTATION OF EARNINGS PER SHARE ATTRIBUTABLE TO COMMON STOCKS
Year Ended December 31, 1993 -------------------------------- $1-2/3 Par Value Class E Class H Common Common Common Stock Stock Stock -------------------------------- (Dollars in Millions Except Per Share Amounts) Income from continuing operations $1,573 $ - $204 Income from discontinued operations 322 367 - ----- ----- ----- Net Income 1,895 367 204 Dividends and accumulation of redemption value on preferred and preference stocks 357 - - ----- ----- ----- Earnings on common stocks 1,538 367 204 Dividends on common stocks 566 97 64 Adjustments for assumed common stock transactions (19) 8 5 ----- ----- ----- Adjusted net earnings retained $953 $278 $145 ===== ===== ===== Memo: Adjusted net earnings retained from continuing operations $631 $ - $145 ===== ===== ===== Adjusted income retained from discontinued operations $322 $278 $ - ===== ===== ===== Adjusted weighted average shares outstanding (in millions) 718 250 91 ===== ===== ===== Per Share Data Adjusted net earnings retained per share from continuing operations $0.88 $ - $1.58 Adjusted income retained per share from discontinued operations 0.45 1.11 - Cash dividends per share 0.80 0.40 0.72 ----- ----- ----- Net earnings per share $2.13 $1.51 $2.30 ===== ===== =====
- --------------- Note: The difference between fully diluted and primary earnings per share is immaterial. 1 2 GENERAL MOTORS CORPORATION EXHIBIT 11(b) AND SUBSIDIARIES COMPUTATION OF EARNINGS PER SHARE ATTRIBUTABLE TO COMMON STOCKS - Concluded
Year Ended December 31, 1992 ---------------------------------------- $1-2/3 Par Value Class E Class H Common Common Common Stock Stock Stock ----------------------------------------- (Dollars in Millions Except Per Share Amounts) Income (loss) from continuing operations before cumulative effect of accounting changes $ (3,237) $ - $ 15 Income from discontinued operations 322 278 - Cumulative effect of accounting changes (20,720) - (157) -------- ------- ------ Net income (loss) (23,635) 278 (142) Dividends and accumulation of redemption value on preferred and preference stocks 306 - - -------- ------- ------ Earnings (loss) on common stocks (23,941) 278 (142) Dividends on common stocks 945 76 53 Adjustments for assumed common stock transactions (26) 34 -- -------- ------- ------ Adjusted net earnings (loss) retained $(24,912) $ 236 $ (195) ======== ======= ====== Memo: Adjusted net earnings (loss) retained from continuing operations $(25,234) $ - $ (195) ======== ======= ====== Adjusted income retained from discontinued operations $ 322 $ 236 $ - ======== ======= ====== Adjusted weighted average shares outstanding (in millions) 671 244 75 ======== ======= ====== Per Share Data Adjusted net earnings (loss) retained per share from continuing operations before cumulative effect of accounting changes $ (6.73) $ - $(0.50) Adjusted income retained per share from discontinued operations 0.48 0.97 - Cumulative effect of accounting changes (33.43) - (2.18) Cash dividends per share 1.40 0.36 0.72 Adjustment (1) - - (0.33) -------- ------- ------ Net earnings per share $ (38.28) 1.33 $(2.29) ======== ======= ======
- ---------------- Note: The difference between fully diluted and primary earnings per share is immaterial. (1) The per-share reported loss attributable to Class H common stock of $2.29 equals the sum of the separate computations for each of the four quarters, consistent with the requirements for calculating earnings per share based on Hughes earnings and the Class H denominator. The calendar year calculation shown above (based on 1992 weighted average outstanding Class H shares for the year) requires an unfavorable adjustment of $0.33 due to the significant differences in the average number of shares outstanding in each quarter and the variations in quarterly earnings. 2 EX-12 11 EX-12 1 GENERAL MOTORS CORPORATION EXHIBIT 12 AND SUBSIDIARIES COMPUTATION OF RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Years ended December 31, -------------------------- 1996 1995 1994 ------- ------- -------- (Dollars in Millions) Income from continuing operations before cumulative effect of accounting changes $4,953 $6,033 $4,866 Income taxes 1,723 2,316 2,232 Equity in income of associates (107) (216) (48) Cash dividends received from associates 48 16 10 Amortization of capitalized interest 54 51 50 ------- ------- ------- Income from continuing operations before cumulative effect of accounting changes, income taxes, undistributed income of associates, and amortization of capitalized interest 6,671 8,200 7,110 ------- ------- ------- Fixed charges included in income from continuing operations Interest and related charges on debt 5,673 5,557 4,984 Portion of rentals deemed to be interest 287 256 288 ------- ------- ------- Total fixed charges included in income from continuing operations 5,960 5,813 5,272 ------- ------- ------- Earnings available for combined fixed charges and preferred stock dividends $12,631 $14,013 $12,382 ======= ======= ======= Combined fixed charges and preferred stock dividends Fixed charges included in income from continuing operations $5,960 $5,813 $5,272 Interest capitalized in the period 49 50 33 Preferred stock dividend requirement (1) 101 498 475 ------- ------- ------- Total combined fixed charges and preferred stock dividends $6,110 $6,361 $5,780 ======= ======= ======= Ratios of earnings to combined fixed charges and preferred stock dividends 2.07 2.20 2.14 ==== ==== ====
See notes on next page. 1 2 GENERAL MOTORS CORPORATION EXHIBIT 12 AND SUBSIDIARIES COMPUTATION OF RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS - Concluded
Years Ended December 31, ------------------------ 1993 1992 ---------- --------- (Dollars in Millions) Income (loss) from continuing operations before cumulative effect of accounting changes $ 1,777 $ (3,222) Income taxes (298) (1,078) Equity in income of associates 11 214 Cash dividends received from associates 5 5 Amortization of capitalized interest 55 43 ------- -------- Income (loss) from continuing operations before cumulative effect of accounting changes, income taxes, undistributed income of associates, and amortization of capitalized interest 1,550 (4,038) ------- ------- Fixed charges included in income (loss) from continuing operations Interest and related charges on debt 5,517 6,930 Portion of rentals deemed to be interest 270 255 ------- ------- Total fixed charges included in income (loss) from continuing operations 5,787 7,185 ------- ------- Earnings available for combined fixed charges and preferred stock dividends $ 7,337 $ 3,147 ======= ======= Combined fixed charges and preferred stock dividends Fixed charges included in income (loss) from continuing operations $ 5,787 $ 7,185 Interest capitalized in the period 39 26 Preferred stock dividend requirements (1) 253 446 ------- ------- Total combined fixed charges and preferred stock dividends $ 6,079 $ 7,657 ======= ======= Ratios of earnings to combined fixed charges and preferred stock dividends 1.21 - (2) ==== ====
(1) Represents the pretax earnings required to cover the requirements of preference and preferred stocks, as applicable. (2) Earnings were inadequate to cover combined fixed charges and preferred stock dividends by $4,510 million in 1992. 2 EX-23.(A) 12 EX-23(A) 1 EXHIBIT 23(A) CONSENT OF INDEPENDENT AUDITORS General Motors Corporation: We consent to the incorporation by reference in this Amendment No. 1 to this Registration Statement on Form S-4 of our reports dated January 28, 1997 appearing in the Annual Report on Form 10-K of General Motors Corporation for the year ended December 31, 1996 and to the reference to us under the headings "General Motors Selected Financial Data and Certain Per Share Data" and "Experts" in the Prospectus which is a part of such Registration Statement. Deloitte & Touche LLP Detroit, Michigan April 23, 1997 EX-99.(A)(I) 13 EX-99.(A)(I) 1 EXHIBIT 99(a)(i) LETTER OF TRANSMITTAL TO TENDER DEPOSITARY SHARES, EACH REPRESENTING ONE-FOURTH OF A SHARE OF SERIES D 7.92% PREFERENCE STOCK (THE "SERIES D 7.92% DEPOSITARY SHARES") (CUSIP 370442857) OF GENERAL MOTORS CORPORATION PURSUANT TO THE OFFER BY GENERAL MOTORS CORPORATION AND GENERAL MOTORS CAPITAL TRUST D TO EXCHANGE ITS % TRUST ORIGINATED PREFERRED SECURITIES(SM) ("TOPRS(SM)"), SERIES D, FOR UP TO 5,462,917 SERIES D 7.92% DEPOSITARY SHARES OF GENERAL MOTORS CORPORATION THE SERIES D OFFER (AND THE RELATED WITHDRAWAL RIGHTS) WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , , 1997, UNLESS THE SERIES D OFFER IS EXTENDED. THE EXCHANGE AGENT FOR THE SERIES D OFFER IS: THE FIRST NATIONAL BANK OF BOSTON If delivered by Facsimile, to: If delivered by Hand, If delivered by Mail, to: (For Eligible Institutions Only) to: The First National Bank of Boston The First National Bank of Boston (617) 575-2233 Securities Transfer & Shareholder Services Division (Confirm Receipt by Telephone Reporting Services P.O. Box 9360 (800) 331-9922) 55 Broadway, Third Floor Mail Stop 45-02-53 New York, New York 10006 Boston, Massachusetts 02205-9360
If delivered by Overnight Courier, to: The First National Bank of Boston Shareholder Services Division Mail Stop 45-02-53 150 Royall Street Canton, Massachusetts 02021 DELIVERY OF THIS LETTER OF TRANSMITTAL OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. Georgeson & Company Inc. has been retained as the Information Agent to assist in connection with the Series D Offer. Requests for assistance regarding completion of this Letter of Transmittal may be directed to the Information Agent as follows: Georgeson & Company Inc., Wall Street Plaza, New York, New York 10005, (800) 223-2064 (Toll-Free); Banks and Brokers call collect, (212) 440-9800. - --------------- (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 2 THE INSTRUCTIONS PERTAINING TO THIS LETTER OF TRANSMITTAL, WHICH BEGIN ON THE FOLLOWING PAGE, SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. Subject to the terms and conditions set forth in the Prospectus (as defined below) and herein, General Motors Capital Trust D (the "Series D Trust") will accept for exchange up to 5,462,917 Series D 7.92% Depositary Shares validly tendered and not withdrawn. This Letter of Transmittal is to be completed by holders of Series D 7.92% Depositary Shares, either if certificates for Series D 7.92% Depositary Shares are to be forwarded herewith or, unless an Agent's Message (as defined in the accompanying Prospectus of General Motors Corporation ("General Motors") and the Series D Trust (as amended or supplemented and including documents incorporated therein by reference, the "Prospectus")) is utilized, if tenders of Series D 7.92% Depositary Shares are to be made by book-entry transfer into the account of The First National Bank of Boston, as Exchange Agent (the "Exchange Agent"), at The Depository Trust Company ("DTC") or The Philadelphia Depository Trust Company ("PDTC") (each of DTC and PDTC are referred to herein as a "Book-Entry Facility"), as applicable, pursuant to the procedures described under "The Offers -- Procedures for Tendering" in the Prospectus. Holders of Series D 7.92% Depositary Shares who tender Series D 7.92% Depositary Shares by book-entry transfer are referred to herein as "Book-Entry Stockholders." THIS LETTER OF TRANSMITTAL RELATES ONLY TO THE SERIES D 7.92% DEPOSITARY SHARES AND THE SERIES D OFFER. THIS LETTER OF TRANSMITTAL MAY NOT BE USED FOR THE SERIES G 9.12% DEPOSITARY SHARES (AS DEFINED IN THE PROSPECTUS) TENDERED IN CONNECTION WITH THE SERIES G OFFER (AS DEFINED IN THE PROSPECTUS). COPIES OF THE LETTER OF TRANSMITTAL RELATING TO THE SERIES G 9.12% DEPOSITARY SHARES AND THE SERIES G OFFER MAY BE OBTAINED FROM THE INFORMATION AGENT OR THE EXCHANGE AGENT AT THEIR RESPECTIVE ADDRESSES OR TELEPHONE NUMBERS SET FORTH BELOW. Any holder of Series D 7.92% Depositary Shares who submits this Letter of Transmittal and tenders Series D 7.92% Depositary Shares in accordance with the instructions contained herein prior to the Series D Expiration Date (as defined in the Prospectus) will thereby have directed the Series D Trust to deliver its % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series D (the "Series D Preferred Securities") in exchange for such holder's Series D 7.92% Depositary Shares and in consideration of the deposit by General Motors of its % Junior Subordinated Deferrable Interest Debentures, Series D, due 2012 (the "Series D Junior Subordinated Debentures"), as trust assets, into the Series D Trust as set forth in the Prospectus. Tenders of Series D 7.92% Depositary Shares pursuant to this Letter of Transmittal are subject to withdrawal as described in the Prospectus under the caption "The Offers -- Withdrawal of Tenders" and are subject to proration as described in the Prospectus under "The Offers -- Terms Of the Offers." 2 3 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE SERIES D OFFER To complete this Letter of Transmittal, you must do the following: - Complete the box entitled "Description of Series D 7.92% Depositary Shares Being Tendered" and the two subsequent boxes, if applicable. - Sign, date and complete the box entitled "Holder(s) of Series D 7.92% Depositary Shares Sign Here." - Complete and sign the box entitled "Substitute Form W-9." In completing this Letter of Transmittal, you may (but are not required to) also do the following: - If you want certificates for Series D Preferred Securities, or certificates for Series D 7.92% Depositary Shares not tendered or not accepted for exchange, to be issued in the name of a third party, complete the box entitled "Special Exchange Instructions." - If you want certificates for Series D Preferred Securities, or certificates for Series D 7.92% Depositary Shares not tendered or not accepted for exchange, to be mailed to a third party, or to be delivered to an address other than that appearing under your signature, complete the box entitled "Special Delivery Instructions." If you complete the box entitled "Special Exchange Instructions" or "Special Delivery Instructions," you must have your signature guaranteed by an Eligible Institution (as defined in Instruction 1 below) unless this Letter of Transmittal is signed by an Eligible Institution. 1. Guarantee of Signatures. No signature guarantee is required on this Letter of Transmittal (i) if tendered Series D 7.92% Depositary Shares are registered in the name(s) of the undersigned and the Series D Preferred Securities to be issued in exchange therefor are to be issued (and any Series D 7.92% Depositary Shares not tendered or not accepted for exchange are to be returned) in the name of the registered holder(s) (which term, for the purposes described herein, shall include any participant in DTC or PDTC whose name appears on a security listing as the owner of Series D 7.92% Depositary Shares) and (ii) such holder(s) have not completed the box entitled "Special Exchange Instructions" or "Special Delivery Instructions" on this Letter of Transmittal. If the tendered Series D 7.92% Depositary Shares are registered in the name(s) of someone other than the undersigned or if the Series D Preferred Securities to be issued in exchange therefor are to be issued (or Series D 7.92% Depositary Shares not tendered or not accepted for exchange are to be returned) in the name of any other person, such tendered Series D 7.92% Depositary Shares must be endorsed or accompanied by written instruments of transfer in form satisfactory to the Series D Trust and duly signed by the registered holder, and the signature on the endorsement or instrument of transfer must be guaranteed by a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion Program or the Stock Exchange Medallion Program (any of the foregoing hereinafter referred to as an "Eligible Institution"). See Instruction 5. 2. Delivery of Letter of Transmittal and Series D 7.92% Depositary Shares. This Letter of Transmittal is to be completed by holders of Series D 7.92% Depositary Shares either if certificates are to be forwarded herewith or, unless an Agent's Message (as defined in the Prospectus) is utilized, if tenders are to be made pursuant to the procedure for tender by book-entry transfer set forth under "The Offers -- Procedures for Tendering" in the Prospectus. Certificates for Series D 7.92% Depositary Shares, or timely confirmation (a "Book-Entry Confirmation") of a book-entry transfer of such Series D 7.92% Depositary Shares into the Exchange Agent's account at the Book-Entry Facility designated above, as well as this Letter of Transmittal (or a facsimile hereof), properly completed and duly signed, with any required signature guarantees, or an Agent's Message in the case of a book-entry delivery, and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at one of its addresses set forth herein prior to the Series D Expiration Date (as defined in the Prospectus). 3 4 If a holder of Series D 7.92% Depositary Shares desires to participate in the Series D Offer and time will not permit this Letter of Transmittal or any tendered Series D 7.92% Depositary Shares to reach the Exchange Agent before the Series D Expiration Date, or the procedure for book-entry transfer cannot be completed on a timely basis, a tender may be effected if the Exchange Agent has received at one of the addresses set forth herein prior to the Series D Expiration Date, a signed letter, telegram or facsimile transmission from an Eligible Institution setting forth the name and address of the tendering holder, the name(s) in which the Series D 7.92% Depositary Shares are registered and, if the Series D 7.92% Depositary Shares are held in certificated form, the certificate numbers of the Series D 7.92% Depositary Shares to be tendered, and stating that the tender is being made thereby and guaranteeing that within three New York Stock Exchange ("NYSE") trading days after the date of signature of such letter, telegram or facsimile transmission by the Eligible Institution, the Series D 7.92% Depositary Shares in proper form for transfer together with this Letter of Transmittal, properly completed and duly signed, (and any other required documents) or a confirmation of book-entry transfer of such Series D 7.92% Depositary Shares into the Exchange Agent's account at the Book-Entry Facility designated above, will be delivered by such Eligible Institution. Unless the Series D 7.92% Depositary Shares being tendered by the above-described method are deposited with the Exchange Agent within the time period set forth above (accompanied or preceded by this Letter of Transmittal, properly completed and duly signed, and any other required documents) or a confirmation of book-entry transfer of such Series D 7.92% Depositary Shares into the Exchange Agent's account at the Book-Entry Facility designated above in accordance with such Book Entry Facility's Automated Tender Offer Program ("ATOP") procedures is received, the Series D Trust may, at its option, reject the tender. THE METHOD OF DELIVERY OF SERIES D 7.92% DEPOSITARY SHARES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY FACILITY DESIGNATED ABOVE, IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF CERTIFICATES FOR SERIES D 7.92% DEPOSITARY SHARES ARE SENT BY MAIL, REGISTERED OR CERTIFIED MAIL, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. No alternative, conditional or contingent tenders will be accepted, and no fractional Series D 7.92% Depositary Shares will be accepted for exchange. By signing this Letter of Transmittal (or facsimile hereof), the tendering holder waives any right to receive any notice of the acceptance of the Series D 7.92% Depositary Shares for exchange. Upon the terms and subject to the conditions of the Series D Offer, including the Minimum Distribution Condition, if 5,462,917 or fewer Series D 7.92% Depositary Shares have been validly tendered and not withdrawn prior to the Series D Expiration Date, the Series D Trust will accept for exchange all such Series D 7.92% Depositary Shares. Upon the terms and subject to the conditions of the Series D Offer, if more than 5,462,917 Series D 7.92% Depositary Shares (or, if decreased as described in the Prospectus, such lesser number as the Series D Trust may elect to purchase pursuant to the Series D Offer) have been validly tendered and not withdrawn prior to the Series D Expiration Date, the Series D Trust will accept for exchange Series D Depositary Shares from each tendering Holder on a pro rata basis, subject to adjustment to avoid the acceptance for exchange of fractional shares. If proration of tendered Series D 7.92% Depositary Shares is required, because of the difficulty in determining the number of Series D 7.92% Depositary Shares validly tendered (including shares tendered by the guaranteed delivery procedures described in the Prospectus under "The Offers -- Procedures for Tendering"), the Series D Trust does not expect that it would be able to announce the final proration factor or to commence the exchange for any Series D 7.92% Depositary Shares until approximately five Business Days (as defined in the Prospectus) after the Series D Expiration Date. Preliminary results of the proration will be announced by press release as promptly as practicable after the Series D Expiration Date. Holders of Series D 7.92% Depositary Shares may obtain such preliminary information from the Information Agent or the Exchange Agent and may also be able to obtain such information from their brokers. 3. Inadequate Space. If the space provided herein is inadequate, the certificate numbers and/or the amounts of Series D 7.92% Depositary Shares should be listed on a separate signed schedule and attached hereto. 4 5 4. Partial Tenders (Not Applicable to Book-Entry Stockholders). If fewer than all the Series D 7.92% Depositary Shares represented by any certificate delivered to the Exchange Agent are to be tendered, fill in the number of Series D 7.92% Depositary Shares which are to be tendered in the box entitled "Number of Shares Tendered." In such case, a new certificate for the remainder of the Series D 7.92% Depositary Shares represented by the old certificate will be sent to the person(s) signing this Letter of Transmittal, unless otherwise provided in the appropriate box on this Letter of Transmittal, as promptly as practicable following the Series D Expiration Date. All Series D 7.92% Depositary Shares represented by certificates delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated. 5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the Series D 7.92% Depositary Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the certificates without alteration, enlargement or any change whatsoever. If any of the Series D 7.92% Depositary Shares tendered hereby are held of record by two or more persons, all such persons must sign this Letter of Transmittal. If any of the Series D 7.92% Depositary Shares tendered hereby are registered in different names on different certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates. If this Letter of Transmittal is signed by the registered holder(s) of the Series D 7.92% Depositary Shares tendered hereby, no endorsements of certificates or separate stock powers are required unless Series D Preferred Securities issued in exchange therefor are to be issued, or Series D 7.92% Depositary Shares not tendered or not exchanged are to be returned, in the name of any person other than the registered holder(s). Signatures on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Series D 7.92% Depositary Shares tendered hereby, certificates must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name(s) of the registered holder(s) appear(s) on the certificates for such Series D 7.92% Depositary Shares. Signature(s) on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Series D Trust of the authority of such person so to act must be submitted. 6. Stock Transfer Taxes. General Motors will pay all stock transfer taxes, if any, applicable to the exchange of any Series D 7.92% Depositary Shares pursuant to the Series D Offer. If, however, certificates representing Series D Preferred Securities or Series D 7.92% Depositary Shares not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the Series D 7.92% Depositary Shares tendered or if a transfer tax is imposed for any reason other than the exchange of Series D 7.92% Depositary Shares pursuant to the Series D Offer, then the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with this Letter of Transmittal, the amount of such transfer taxes will be billed directly to such tendering holder. 7. Special Exchange and Delivery Instructions. If certificates representing Series D Preferred Securities are to be issued in the name of, or any Series D 7.92% Depositary Shares not tendered or not accepted for exchange are to be issued or to be returned to, a 5 6 person other than the person(s) signing this Letter of Transmittal, or any certificates for Series D Preferred Securities or certificates for Series D 7.92% Depositary Shares not tendered or not accepted for exchange are to be mailed to someone other than the person(s) signing this Letter of Transmittal or to the person(s) signing this Letter of Transmittal at an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. 8. Substitute Form W-9. Under the federal income tax laws, the Series D Trust may be required to withhold 31% of the amount of any payments made and/or the fair market value of any Series D Preferred Securities to be distributed to a holder of Series D Preferred Securities in exchange therefor pursuant to the Series D Offer or with respect to the amount of any payments made to certain holders of Series D Preferred Securities. In order to avoid such backup withholding, each tendering holder, and, if applicable, each other payee, must provide such holder's or payee's correct taxpayer identification number, and certify that such holder or payee is not subject to such backup withholding by completing and signing the box entitled "Substitute Form W-9" set forth at the end of this Letter of Transmittal. In general, if a holder of Series D Preferred Securities or payee is an individual, the taxpayer identification number is the Social Security Number of such individual. If the Series D Trust is not provided with the correct taxpayer identification number, the holder or payee providing such number may be subject to a $50 penalty imposed by the Internal Revenue Service. Certain holders of Series D Preferred Securities or payees (including, among others, all corporations and certain foreign individual(s)) are not subject to these backup withholding and reporting requirements. In order to satisfy the Series D Trust that a foreign individual qualifies as an exempt recipient, such holder of Series D Preferred Securities or payee must submit a statement, signed under penalties of perjury, attesting to that individual's exempt status. Such statements can be obtained from the Exchange Agent. For further information concerning backup withholding and instructions for completing the Substitute Form W-9 (including how to obtain a taxpayer identification number if you do not have one and/or how to complete the Substitute Form W-9 if the Series D 7.92% Depositary Shares being tendered are held in more than one name and/or the Series D Preferred Securities will be held in more than one name), consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. 9. Waiver of Conditions. The conditions of the Series D Offer may be waived by the Series D Trust from time to time in accordance with, and subject to the limitations described in, the Prospectus, provided that acceptance of Series D 7.92% Depositary Shares validly tendered in the Series D Offer is subject to the condition that as of the Series D Expiration Date there be at least 400 record or beneficial holders of at least 1,000,000 Series D Preferred Securities to be issued in exchange for such Series D 7.92% Depositary Shares, which condition may not be waived. 10. Requests for Assistance or Additional Copies. Requests for assistance or additional copies of the Prospectus and this Letter of Transmittal (or the Letter of Transmittal relating to the Series G 9.12% Depositary Shares and the Series G Offer) may be obtained from the Information Agent or the Exchange Agent at their respective addresses or telephone numbers set forth herein. 11. Solicited Tenders. General Motors will pay to a Soliciting Dealer (as defined herein) designated by the record or beneficial owner, as appropriate, a solicitation fee of $0.50 per Depositary Share (except that in the case of transactions equal to or exceeding 10,000 Series D 7.92% Depositary Shares, General Motors will pay $0.25 per Series D 7.92% Depositary Share) validly tendered and accepted for exchange pursuant to the Series D Offer. For purposes of this Instruction 11, "Soliciting Dealer" includes (i) any broker or dealer in securities, including each Dealer Manager in its capacity as dealer or broker, who is a member of any national securities exchange or of the National Association of Securities Dealers, Inc. (the "NASD"), (ii) any foreign broker or dealer not 6 7 eligible for membership in the NASD who agrees to conform to the NASD's Rules of Fair Practice in soliciting tenders outside the United States to the same extent as though it were an NASD member, or (iii) any bank or trust company, any one of whom has solicited and obtained a tender pursuant to the Series D Offer. No such fee shall be payable to a Soliciting Dealer in respect of Series D 7.92% Depositary Shares registered in the name of such Soliciting Dealer unless such Series D 7.92% Depositary Shares are held by such Soliciting Dealer as nominee and such Series D 7.92% Depositary Shares are being tendered for the benefit of one or more beneficial owners identified on this Letter of Transmittal or on the Notice of Solicited Tenders (included in the materials provided to brokers and dealers). No solicitation fee shall be payable to a Soliciting Dealer with respect to the tender of Series D 7.92% Depositary Shares unless this Letter of Transmittal accompanying such tender designates such Soliciting Dealer as such in the box captioned "Solicited Tenders." If tendered Series D 7.92% Depositary Shares are being delivered by book-entry transfer made to an account maintained by the Exchange Agent with the Book-Entry Facility designated above, the Soliciting Dealer must return a Notice of Solicited Tenders to the Exchange Agent within three NYSE trading days after the Series D Expiration Date in order to receive a solicitation fee. No solicitation fee shall be payable to a Soliciting Dealer in respect of Series D 7.92% Depositary Shares (i) beneficially owned by such Soliciting Dealer or (ii) registered in the name of such Soliciting Dealer unless such Series D 7.92% Depositary Shares are held by such Soliciting Dealer as nominee and such Series D 7.92% Depositary Shares are being tendered for the benefit of one or more beneficial owners identified on this Letter of Transmittal or the Notice of Solicited Tenders. No solicitation fee shall be payable to the Soliciting Dealer with respect to the tender of Series D 7.92% Depositary Shares by the holder of record, for the benefit of the beneficial owner, unless the beneficial owner has designated such Soliciting Dealer. 12. Lost, Stolen or Destroyed Certificates for Series D 7.92% Depositary Shares. Any holder of Series D 7.92% Depositary Shares whose certificate(s) for such shares have been lost, stolen or destroyed should contact either the Exchange Agent or the Information Agent at their respective addresses shown on the back page of this Letter of Transmittal for special instructions. 13. Irregularities. All questions as to the number of Series D 7.92% Depositary Shares to be accepted, the validity, form, eligibility (including time of receipt) and acceptance of any tender of Series D 7.92% Depositary Shares will be determined by General Motors, in its sole discretion, which determination shall be final and binding. General Motors reserves the absolute right to reject any or all tenders made pursuant to the Series D Offer determined by it not to be in appropriate form or the acceptance of or payment for any Series D 7.92% Depositary Shares which would, in the opinion of General Motors' counsel, be unlawful. General Motors also reserves the absolute right to waive any of the conditions set forth in the Series D Offer (other than the Minimum Distribution Condition, as described in the Prospectus) or any defect or irregularity in any tender with respect to any particular Series D 7.92% Depositary Shares or any particular stockholder, and General Motors' interpretation of the terms and conditions of the Series D Offer (including these instructions) will be final and binding. Tenders will not be deemed to have been made until all defects and irregularities have been cured or waived prior to the Series D Expiration Date or such times as General Motors shall determine. Neither General Motors, the Exchange Agent, the Information Agent, the Dealer Managers nor any other person will be obligated to give notice of defects or irregularities in tenders, nor shall any of them incur any liability for failure to give any such notice. IMPORTANT TAX INFORMATION Under United States federal income tax law, a tendering holder of Series D Preferred Securities is required to provide the Series D Trust (as payor) with such holder's correct taxpayer identification number ("TIN") on Substitute Form W-9 below. If the tendering holder is an individual, the TIN is his or her social 7 8 security number. If the Series D Trust is not provided with the correct TIN, payments that are made to such tendering holder or other payee with respect thereto may be subject to 31% backup withholding. Certain tendering holders of Series D Preferred Securities (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order for a foreign individual to qualify as an exempt recipient, the tendering holder of Series D Preferred Securities must submit a signed Form W-8 attesting to that individual's exempt status. A Form W-8 can be obtained from the Exchange Agent. See the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for more instructions. If backup withholding applies, the Series D Trust is required to withhold 31% of (i) the sum of (x) any payments made to the tendering holder of Series D Preferred Securities or other payee and (y) the fair market value of the Series D Preferred Securities that would be distributed to such tendering holder pursuant to the Series D Offer and (ii) any payments that are made in respect of the Series D Preferred Securities. Such withholding obligation may cause General Motors (or the Exchange Agent) to sell some portion of the Series D Preferred Securities that otherwise would have been distributed to a tendering holder. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld, provided that the required information is given to the Internal Revenue Service. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service. The box in Part 3 of the Substitute Form W-9 may be checked if the submitting holder of Series D Preferred Securities has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked, the holder of Series D Preferred Securities or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup withholding. Notwithstanding that the box in Part 3 is checked and the Certificate of Awaiting Taxpayer Identification Number is completed, the Series D Trust will withhold 31% (i) of all payments made prior to the time a properly certified TIN is provided to the Series D Trust and (ii) of the Series D Preferred Securities that otherwise would be distributed to such holder. However, such amounts and/or Series D Preferred Securities will be refunded to each such tendering holder of Series D Preferred Securities if a TIN is provided to the Series D Trust (or the Exchange Agent) within 60 days. The tendering holder of Series D Preferred Securities is required to give the Series D Trust the TIN of the record owner of the Series D Preferred Securities or of the last transferee appearing on the transfers attached to, or endorsed on, the Series D Preferred Securities. If the Series D Preferred Securities are in more than one name or are not in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional guidance on which number to report. 8 9 NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE PRECEDING INSTRUCTIONS CAREFULLY Ladies and Gentlemen: The undersigned hereby tenders to General Motors Capital Trust D, a Delaware statutory business trust (the "Series D Trust"), Series D 7.92% Depositary Shares (the "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 ("General Motors"), pursuant to the offer by the Series D Trust to exchange its % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series D (the "Series D Preferred Securities"), for up to 5,462,917 Series D 7.92% Depositary Shares, upon the terms and subject to the conditions set forth in the Prospectus, receipt of which is hereby acknowledged, and in this Letter of Transmittal (which, together with the Prospectus, constitute the "Series D Offer"). Subject to and effective upon acceptance for exchange of the Series D 7.92% Depositary Shares tendered herewith, the undersigned hereby exchanges, assigns and transfers to or upon the order of the Series D Trust all right, title and interest in and to all the Series D 7.92% Depositary Shares that are being tendered hereby and irrevocably constitutes and appoints the Exchange Agent the true and lawful agent and attorney-in-fact of the undersigned with respect to such Series D 7.92% Depositary Shares, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (a) deliver certificates for such Series D 7.92% Depositary Shares or transfer ownership of such Series D 7.92% Depositary Shares on the account books maintained by DTC or PDTC, as applicable, together, in any such case, with all accompanying evidences of transfer and authenticity, to the Exchange Agent for the account of the Series D Trust, (b) present such Series D 7.92% Depositary Shares for transfer on the books of General Motors and (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such Series D 7.92% Depositary Shares, all in accordance with the terms of the Series D Offer. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, exchange, assign and transfer the Series D 7.92% Depositary Shares and the underlying Series D 7.92% Preference Stock tendered hereby and to acquire Series D Preferred Securities issuable upon the exchange of such tendered Series D 7.92% Depositary Shares and that, when the undersigned's Series D 7.92% Depositary Shares are accepted for exchange, the Series D Trust will acquire good and unencumbered title to such tendered Series D 7.92% Depositary Shares and the underlying Series D 7.92% Preference Stock, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The undersigned will, upon request, sign and deliver any additional documents deemed by the Series D Trust to be necessary or desirable to complete the exchange, assignment and transfer of tendered Series D 7.92% Depositary Shares or to transfer ownership of such Series D 7.92% Depositary Shares. All authority herein conferred or agreed to be conferred shall survive the death, bankruptcy or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, legal representatives, successors, assigns, executors and administrators of the undersigned. Except as stated in the Series D Offer, this tender is irrevocable. The undersigned understands that tenders of Series D 7.92% Depositary Shares pursuant to the Series D Offer are subject to proration as described in the Prospectus under "The Offers -- Terms of the Offers." The undersigned also understands that tenders of Series D 7.92% Depositary Shares pursuant to any one of the procedures described in "The Offers -- Procedures for Tendering" in the Prospectus and in the instructions hereto will constitute agreements between the undersigned and the Series D Trust upon the terms and subject to the conditions of the Series D Offer. Unless otherwise indicated under "Special Exchange Instructions," please cause Series D Preferred Securities to be issued, and return any Series D 7.92% Depositary Shares not tendered or not accepted for exchange, in the name(s) of the undersigned (and, in the case of Series D 7.92% Depositary Shares tendered by book-entry transfer, by credit to the account at the Book-Entry Facility designated above). Similarly, unless otherwise indicated under "Special Delivery Instructions," please mail any certificates for Series D 7.92% Depositary Shares not tendered or not accepted for exchange (and accompanying documents, as 9 10 appropriate), and any certificates for Series D 7.92% Depositary Shares, to the undersigned at the address shown below the undersigned's signature(s). If both "Special Exchange Instructions" and "Special Delivery Instructions" are completed, please cause Series D Preferred Securities to be issued, and return any Series D 7.92% Depositary Shares not tendered or not accepted for exchange, in the name(s) of, and deliver any certificates for such Series D 7.92% Depositary Shares to, the person(s) so indicated (and in the case of Series D 7.92% Depositary Shares tendered by book-entry transfer, by credit to the account at the Book-Entry Facility designated above). The undersigned recognizes that the Series D Trust has no obligation, pursuant to the "Special Exchange Instructions," to transfer any Series D 7.92% Depositary Shares from the name of the registered holder(s) thereof if the Series D Trust does not accept for exchange any of the Series D 7.92% Depositary Shares so tendered. 10 11 PLEASE COMPLETE:
- --------------------------------------------------------------------------------------------------------------- DESCRIPTION OF SERIES D 7.92% DEPOSITARY SHARES BEING TENDERED - --------------------------------------------------------------------------------------------------------------- NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) (PLEASE FILL IN EXACTLY AS NAME(S) APPEAR(S) SERIES D 7.92% DEPOSITARY SHARES TENDERED ON CERTIFICATE(S).) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY) - --------------------------------------------------------------------------------------------------------------- TOTAL NUMBER OF SHARES REPRESENTED NUMBER OF CERTIFICATE BY SHARES NUMBER(S) CERTIFICATE(S)* TENDERED** ---------------- --------------- ---------- ---------------- -------------- ---------- ---------------- -------------- ---------- ---------------- -------------- ---------- ---------------- -------------- ---------- ----------------- -------------- ---------- ---------------- --------------- ---------- ---------------- --------------- ---------- TOTAL SHARES - ------------------------------------------------------------------------------------------------------------ * Need not be completed by stockholders tendering by book-entry transfer. ** Unless otherwise indicated, the holder will be deemed to have tendered the full number of Series D 7.92% Depositary Shares represented by the tendered certificates. See Instruction 4. - ------------------------------------------------------------------------------------------------------------
11 12 COMPLETE ONLY IF APPLICABLE: [ ] CHECK HERE IF TENDERED SERIES D 7.92% DEPOSITARY SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE ACCOUNT OF THE EXCHANGE AGENT, AND COMPLETE THE FOLLOWING: Name of Tendering Institution: ------------------------------------------------------------------------------- Check applicable box: [ ] DTC [ ] PDTC Account No.: ---------------------------------------------------------------------------- Transaction Code No.: ---------------------------------------------------------------------------- [ ] CHECK HERE IF TENDERED SERIES D 7.92% DEPOSITARY SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: Name(s) of Tendering Stockholder(s): ----------------------------------------------------------------------- Date of Execution of Notice of Guaranteed Delivery: -------------------------------------------------------- Name of Institution which Guaranteed Delivery: ------------------------------------------------------------- If delivery is by book-entry transfer: Name of Tendering Institution: ------------------------------------------------------------------------------- Check applicable box: [ ] DTC [ ] PDTC Account No.: ---------------------------------------------------------------------------- Transaction Code No.: ---------------------------------------------------------------------------- 12 13 COMPLETE ONLY IF APPLICABLE: SOLICITED TENDERS (SEE INSTRUCTION 11) General Motors will pay to any Soliciting Dealer, as defined in Instruction 11, a solicitation fee of $0.50 per Series D 7.92% Depositary Share (except that in the case of transactions equal to or exceeding 10,000 Series D 7.92% Depositary Shares, General Motors will pay $0.25 per Series D 7.92% Depositary Share) validly tendered and accepted for exchange pursuant to the Series D Offer. The undersigned represents that the Soliciting Dealer which solicited and obtained this tender is: Name of Firm: (Please print) Name of Individual Broker or Financial Consultant: Identification Number (if known): Address: (Include zip code) The acceptance of compensation by such Soliciting Dealer will constitute a representation by it that: (i) it has complied with the applicable requirements of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder in connection with such solicitations; (ii) it is entitled to such compensation for such solicitation under the terms and conditions of the Series D Offer (unless the undersigned is not being compensated for such solicitation); (iii) in soliciting tenders of Series D 7.92% Depositary Shares, it has used no soliciting materials other than those furnished by General Motors and the Series D Trust; and (iv) if it is a foreign broker or dealer not eligible for membership in the National Association of Securities Dealers, Inc. (the "NASD"), it has agreed to conform to the NASD's Rules of Fair Practice in making solicitations outside the United States to the same extent as though it were an NASD member. If tendered Series D 7.92% Depositary Shares are being delivered by book-entry transfer made to an account maintained by the Exchange Agent with DTC or PDTC, the Soliciting Dealer must return a Notice of Solicited Tenders to the Exchange Agent to receive a solicitation fee. SOLICITING DEALERS ARE NOT ENTITLED TO A FEE FOR SERIES D 7.92% DEPOSITARY SHARES BENEFICIALLY OWNED BY SUCH SOLICITING DEALER. 13 14 COMPLETE ONLY IF APPLICABLE: SPECIAL EXCHANGE INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) To be completed ONLY if certificates for Series D Preferred Securities, or certificates for Series D 7.92% Depositary Shares not tendered or not accepted for exchange, are to be issued in the name of someone other than the undersigned. Issue [ ] certificates for Series D Preferred Securities to: [ ] certificates for Series D 7.92% Depositary Shares to: Name (PLEASE PRINT) Address (INCLUDE ZIP CODE) Taxpayer Identification No.: SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 5 AND 7) To be completed ONLY if certificates for Series D Preferred Securities, or certificates for Series D 7.92% Depositary Shares not tendered or not accepted for exchange, are to be mailed to someone other than the undersigned, or to the undersigned at an address other than that shown below the undersigned's signature(s). Mail: [ ] certificates for Series D Preferred Securities to: [ ] certificates for Series D 7.92% Depositary Shares to: Name (PLEASE PRINT) Address (INCLUDE ZIP CODE) 14 15 PLEASE COMPLETE: - -------------------------------------------------------------------------------- HOLDER(S) OF SERIES D 7.92% DEPOSITARY SHARES SIGN HERE (PLEASE COMPLETE AND SIGN THE BOX ENTITLED "SUBSTITUTE FORM W-9" BELOW) (Must be signed by registered holder(s) exactly as name(s) appear(s) on certificate(s) for Series D 7.92% Depositary Shares or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5.) X X Signature(s) of owner(s) Dated: Name(s): (Please Print) Capacity (full title): Address: (Include zip code) Area Code and Telephone No.: GUARANTEE OF SIGNATURE(S) (IF APPLICABLE) (SEE INSTRUCTIONS 1 AND 5) Authorized Signature: Name: Title: Address: Name of Firm: Area Code and Telephone Number: Dated: - -------------------------------------------------------------------------------- DO NOT SIGN YOUR STOCK CERTIFICATES. 15 16 PLEASE COMPLETE: PAYOR'S NAME: GENERAL MOTORS CAPITAL TRUST D ------------------------------------------------------------------------------------------------------------------ SUBSTITUTE Part I -- PLEASE PROVIDE YOUR TIN IN THE BOX SOCIAL SECURITY NUMBER FORM W-9 AT RIGHT AND CERTIFY BY SIGNING AND DATING OR EMPLOYER BELOW. IDENTIFICATION NUMBER ---------------------------------------------------------------------------------- DEPARTMENT OF THE TREASURY, Part 2 -- Check the box if you are NOT subject to backup withholding under the INTERNAL REVENUE SERVICE provisions of Section 3406(a)(1)(C) of the Internal Revenue Code because (1) you are exempt from backup withholding (2) you have not been notified that you are subject to backup withholding as a result of failure to report all interest or dividends or (3) the Internal Revenue Service has notified you that you are no longer subject to backup withholding. [ ] ---------------------------------------------------------------------------------- PAYER'S REQUEST FOR TAXPAYER CERTIFICATION: UNDER PENALTIES OF PERJURY, I CERTIFY IDENTIFICATION (TIN) AND THAT THE INFORMATION PROVIDED ON THIS FORM IS TRUE, CERTIFICATION CORRECT AND COMPLETE. Part 3 Awaiting SIGNATURE ----------------------------------------- TIN [ ] (AND SEE NEXT BOX.) DATE ------------------------------------------------ ------------------------------------------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF THE ABOVE SUBSTITUTE FORM W-9. - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that 31% of all reportable payments made to me will be withheld until I provide a number and that if such number is provided to you within sixty (60) days, such withheld amounts will be refunded. SIGNATURE ----------------------------------------------------------- DATE ------------------------------------ - -------------------------------------------------------------------------------- NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. 16 17 THE INFORMATION AGENT FOR THE SERIES D OFFER AND THE SERIES G OFFER IS: (GEORGESON & COMPANY INC. LOGO) Wall Street Plaza New York, New York 10005 (800) 223-2064 (Toll-Free) Banks and Brokers Call Collect: (212) 440-9800 17 18 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYOR. -- Social Security numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payor.
- ----------------------------------------------------------- FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY NUMBER OF-- - ----------------------------------------------------------- 1. Individual The Individual 2. Two or more The actual owner of the individuals, account or, if combined including husband and funds, any one of the wife (joint account) individuals(1) 3. Custodian account of a The minor(1) minor (Uniform Gift to Minors Act) 4. Adult and minor (joint The adult or, if the minor account) is the only contributor, the minor(1) 5. Account in the name of The ward, minor, or guardian or committee incompetent person(1) for a designated ward, minor, or incompetent person 6. a. The usual revocable The grantor-trustee(1) savings trust account (grantor is also trustee) b. So-called trust The actual owner(1) account that is not a legal or valid trust under State law 7. Sole proprietorship The owner(2) account - -----------------------------------------------------------
- ----------------------------------------------------------- FOR THIS TYPE OF ACCOUNT: GIVE THE EMPLOYER IDENTIFICATION NUMBER OF-- - ----------------------------------------------------------- 8. Valid trust, estate, Legal entity (Do not or pension trust furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.)(3) 9. Corporate The corporation 10. Religious, charitable, The organization or educational organization 11. Partnership The partnership 12. Association, club, or The organization other tax-exempt organization 13. A broker or registered The broker or nominee nominee 14. Account with the The public entity Department of Agriculture in the name of a public entity (such as a State or local government, school district, or prison) that receives agricultural program payments - -----------------------------------------------------------
(1) List and identify all parties to account and mark the name of the person whose Social Security Number is furnished. (2) The individual's name must be shown. The business name may be shown as well. Use of Social Security Number permissible. (3) List and identify all parties to account and mark the name of the legal trust, estate, or pension trust whose Employer Identification Number is furnished. Note: If no name is specified when there is more than one listed, the number will be considered to be that of the first so listed. 18 19 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 PAGE 2 OBTAINING A NUMBER If you do not have a taxpayer identification number or you don't know your number, obtain Form SS-5, Application for a Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service (the "IRS") and apply for a number. PAYEES EXEMPT FROM BACKUP WITHHOLDING Payees specifically exempted from backup withholding on ALL payments include the following: - A corporation. - A financial institution. - An organization exempt from tax under section 501(a) of the Internal Revenue Code of 1986, as amended) (the "Code"), or an individual retirement plan. - The United States or any agency or instrumentality thereof. - A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. - An international organization or any agency, or instrumentality thereof. - A registered dealer in securities or commodities registered in the U.S. or a possession of the U.S. - A real estate investment trust. - A common trust fund operated by a bank under Section 584(a) of the Code. - An exempt charitable remainder trust, or a non-exempt trust described in Section 4947(a)(1) of the Code. - An entity registered at all times under the Investment Company Act of 1940. - A foreign central bank of issue. Payments of dividends and patronage dividends not generally subject to backup withholding include the following: - Payments to nonresident aliens subject to withholding under Section 1441 of the Code. - Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident partner. - Payments of patronage dividends where the amount received is not paid in money. - Payments made by certain foreign organizations. - Payments made to a nominee. Payments of interest not generally subject to backup withholding include the following: - Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not provided your correct taxpayer identification number to the payer. - Payments of tax-exempt interest (including exempt-interest dividends under Section 852 of the Code). - Payments described in Section 6049(b)(5) of the Code to nonresident aliens. - Payments on tax-free covenant bonds under Section 1451 of the Code. - Payments made by certain foreign organizations. - Payments made to a nominee. Exempt payees described above should nonetheless file Form W-9 to avoid possible erroneous backup withholding. ON SUCH FORM, FURNISH A TAXPAYER IDENTIFICATION NUMBER, CHECK THE BOX INDICATING THE PAYEE'S STATUS AS EXEMPT, SIGN AND DATE THE FORM, AND RETURN IT TO THE PAYOR. IF YOU ARE A NON-RESIDENT ALIEN OR A FOREIGN ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE A COMPLETED FORM W-8 (CERTIFICATE OF FOREIGN STATUS) WITH THE PAYOR. Certain payments other than interest, dividends, and patronage dividends, that are not subject to information reporting are also not subject to backup withholding. For details, see the regulations under Sections 6041, 6041A(a), 6045, 6050A and 6050N of the Code. PRIVACY ACT NOTICE.--Section 6109 of the Code requires most recipients of dividends, interest, or other payments to give taxpayer identification numbers to payors who must report the payments to IRS. IRS uses the numbers for identification purposes. Payors must be given the numbers whether or not recipients are required to file tax returns. Payors must generally withhold 31% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payor. Certain penalties may also apply. PENALTIES (1) PENALTIES FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--Penalty for Failure to Furnish Taxpayer Identification Number--If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING--If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500. (3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION--Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE 19 EX-99.(A)(II) 14 EX-99.(A)(II) 1 EXHIBIT 99(a)(ii) LETTER OF TRANSMITTAL TO TENDER DEPOSITARY SHARES, EACH REPRESENTING ONE-FOURTH OF A SHARE OF SERIES G 9.12% PREFERENCE STOCK (THE "SERIES G 9.12% DEPOSITARY SHARES") (CUSIP 370442790) OF GENERAL MOTORS CORPORATION PURSUANT TO THE OFFER BY GENERAL MOTORS CORPORATION AND GENERAL MOTORS CAPITAL TRUST G TO EXCHANGE ITS % TRUST ORIGINATED PREFERRED SECURITIES(SM) ("TOPRS(SM)"), SERIES G, FOR UP TO 9,071,910 SERIES G 9.12% DEPOSITARY SHARES OF GENERAL MOTORS CORPORATION THE SERIES G OFFER (AND THE RELATED WITHDRAWAL RIGHTS) WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , , 1997, UNLESS THE SERIES G OFFER IS EXTENDED. THE EXCHANGE AGENT FOR THE SERIES D OFFER IS: THE FIRST NATIONAL BANK OF BOSTON If delivered by Facsimile, to: If delivered by Hand, If delivered by Mail, to: (For Eligible Institutions Only) to: The First National Bank of Boston The First National Bank of Boston (617) 575-2233 Securities Transfer & Shareholder Services Division (Confirm Receipt by Telephone Reporting Services P.O. Box 9360 (800) 331-9922) 55 Broadway, Third Floor Mail Stop 45-02-53 New York, New York 10006 Boston, Massachusetts 02205-9360
If delivered by Overnight Courier, to: The First National Bank of Boston Shareholder Services Division Mail Stop 45-02-53 150 Royall Street Canton, Massachusetts 02021 DELIVERY OF THIS LETTER OF TRANSMITTAL OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. Georgeson & Company Inc. has been retained as the Information Agent to assist in connection with the Series D Offer. Requests for assistance regarding completion of this Letter of Transmittal may be directed to the Information Agent as follows: Georgeson & Company Inc., Wall Street Plaza, New York, New York 10005, (800) 223-2064 (Toll-Free); Banks and Brokers call collect, (212) 440-9800. - --------------- (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 2 THE INSTRUCTIONS PERTAINING TO THIS LETTER OF TRANSMITTAL, WHICH BEGIN ON THE FOLLOWING PAGE, SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. Subject to the terms and conditions set forth in the Prospectus (as defined below) and herein, General Motors Capital Trust G (the "Series G Trust") will accept for exchange up to 9,071,910 Series G 9.12% Depositary Shares validly tendered and not withdrawn. This Letter of Transmittal is to be completed by holders of Series G 9.12% Depositary Shares, either if certificates for Series G 9.12% Depositary Shares are to be forwarded herewith or, unless an Agent's Message (as defined in the accompanying Prospectus of General Motors Corporation ("General Motors") and the Series G Trust (as amended or supplemented and including documents incorporated therein by reference, the "Prospectus")) is utilized, if tenders of Series G 9.12% Depositary Shares are to be made by book-entry transfer into the account of The First National Bank of Boston, as Exchange Agent (the "Exchange Agent"), at The Depository Trust Company ("DTC") or The Philadelphia Depository Trust Company ("PDTC") (each of DTC and PDTC are referred to herein as a "Book-Entry Facility"), as applicable, pursuant to the procedures described under "The Offers -- Procedures for Tendering" in the Prospectus. Holders of Series G 9.12% Depositary Shares who tender Series G 9.12% Depositary Shares by book-entry transfer are referred to herein as "Book-Entry Stockholders." THIS LETTER OF TRANSMITTAL RELATES ONLY TO THE SERIES G 9.12% DEPOSITARY SHARES AND THE SERIES G OFFER. THIS LETTER OF TRANSMITTAL MAY NOT BE USED FOR THE SERIES D 7.92% DEPOSITARY SHARES (AS DEFINED IN THE PROSPECTUS) TENDERED IN CONNECTION WITH THE SERIES D OFFER (AS DEFINED IN THE PROSPECTUS). COPIES OF THE LETTER OF TRANSMITTAL RELATING TO THE SERIES D 7.92% DEPOSITARY SHARES AND THE SERIES D OFFER MAY BE OBTAINED FROM THE INFORMATION AGENT OR THE EXCHANGE AGENT AT THEIR RESPECTIVE ADDRESSES OR TELEPHONE NUMBERS SET FORTH BELOW. Any holder of Series G 9.12% Depositary Shares who submits this Letter of Transmittal and tenders Series G 9.12% Depositary Shares in accordance with the instructions contained herein prior to the Series G Expiration Date (as defined in the Prospectus) will thereby have directed the Series G Trust to deliver its % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series G (the "Series G Preferred Securities") in exchange for such holder's Series G 9.12% Depositary Shares and in consideration of the deposit by General Motors of its % Junior Subordinated Deferrable Interest Debentures, Series G, due 2012 (the "Series G Junior Subordinated Debentures"), as trust assets into the Series G Trust, as set forth in the Prospectus. Tenders of Series G 9.12% Depositary Shares pursuant to this Letter of Transmittal are subject to withdrawal as described in the Prospectus under the caption "The Offers -- Withdrawal of Tenders" and are subject to proration as described in the Prospectus under "The Offers -- Terms Of the Offers." 2 3 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE SERIES G OFFER To complete this Letter of Transmittal, you must do the following: - Complete the box entitled "Description of Series G 9.12% Depositary Shares Being Tendered" and the two subsequent boxes, if applicable. - Sign, date and complete the box entitled "Holder(s) of Series G 9.12% Depositary Shares Sign Here." - Complete and sign the box entitled "Substitute Form W-9." In completing this Letter of Transmittal, you may (but are not required to) also do the following: - If you want certificates for Series G Preferred Securities, or certificates for Series G 9.12% Depositary Shares not tendered or not accepted for exchange, to be issued in the name of a third party, complete the box entitled "Special Exchange Instructions." - If you want certificates for Series G Preferred Securities, or certificates for Series G 9.12% Depositary Shares not tendered or not accepted for exchange, to be mailed to a third party, or to be delivered to an address other than that appearing under your signature, complete the box entitled "Special Delivery Instructions." If you complete the box entitled "Special Exchange Instructions" or "Special Delivery Instructions," you must have your signature guaranteed by an Eligible Institution (as defined in Instruction 1 below) unless this Letter of Transmittal is signed by an Eligible Institution. 1. Guarantee of Signatures. No signature guarantee is required on this Letter of Transmittal (i) if tendered Series G 9.12% Depositary Shares are registered in the name(s) of the undersigned and the Series G Preferred Securities to be issued in exchange therefor are to be issued (and any Series G 9.12% Depositary Shares not tendered or not accepted for exchange are to be returned) in the name of the registered holder(s) (which term, for the purposes described herein, shall include any participant in DTC or PDTC whose name appears on a security listing as the owner of Series G 9.12% Depositary Shares) and (ii) such holder(s) have not completed the box entitled "Special Exchange Instructions" or "Special Delivery Instructions" on this Letter of Transmittal. If the tendered Series G 9.12% Depositary Shares are registered in the name(s) of someone other than the undersigned or if the Series G Preferred Securities to be issued in exchange therefor are to be issued (or Series G 9.12% Depositary Shares not tendered or not accepted for exchange are to be returned) in the name of any other person, such tendered Series G 9.12% Depositary Shares must be endorsed or accompanied by written instruments of transfer in form satisfactory to the Series G Trust and duly signed by the registered holder, and the signature on the endorsement or instrument of transfer must be guaranteed by a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion Program or the Stock Exchange Medallion Program (any of the foregoing hereinafter referred to as an "Eligible Institution"). See Instruction 5. 2. Delivery of Letter of Transmittal and Series G 9.12% Depositary Shares. This Letter of Transmittal is to be completed by holders of Series G 9.12% Depositary Shares either if certificates are to be forwarded herewith or, unless an Agent's Message (as defined in the Prospectus) is utilized, if tenders are to be made pursuant to the procedure for tender by book-entry transfer set forth under "The Offers -- Procedures for Tendering" in the Prospectus. Certificates for Series G 9.12% Depositary Shares, or timely confirmation (a "Book-Entry Confirmation") of a book-entry transfer of such Series G 9.12% Depositary Shares into the Exchange Agent's account at the Book-Entry Facility designated above, as well as this Letter of Transmittal (or a facsimile hereof), properly completed and duly signed, with any required signature guarantees, or an Agent's Message in the case of a book-entry delivery, and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at one of its addresses set forth herein prior to the Series G Expiration Date (as defined in the Prospectus). If a holder of Series G 9.12% Depositary Shares desires to participate in the Series G Offer and time will not permit this Letter of Transmittal or any tendered Series G 9.12% Depositary Shares to reach the Exchange Agent before the Series G Expiration Date, or the procedure for book-entry transfer cannot be completed on a timely basis, a tender may be effected if the Exchange Agent has received at one of the addresses set forth herein prior to the Series G Expiration Date, a signed letter, telegram or facsimile transmission from an 3 4 Eligible Institution setting forth the name and address of the tendering holder, the name(s) in which the Series G 9.12% Depositary Shares are registered and, if the Series G 9.12% Depositary Shares are held in certificated form, the certificate numbers of the Series G 9.12% Depositary Shares to be tendered, and stating that the tender is being made thereby and guaranteeing that within three New York Stock Exchange ("NYSE") trading days after the date of signature of such letter, telegram or facsimile transmission by the Eligible Institution, the Series G 9.12% Depositary Shares in proper form for transfer together with this Letter of Transmittal, properly completed and duly signed (and any other required documents), or a confirmation of book-entry transfer of such Series G 9.12% Depositary Shares into the Exchange Agent's account at the Book-Entry Facility designated above, will be delivered by such Eligible Institution. Unless the Series G 9.12% Depositary Shares being tendered by the above-described method are deposited with the Exchange Agent within the time period set forth above (accompanied or preceded by this Letter of Transmittal, properly completed and duly signed, and any other required documents) or a confirmation of book-entry transfer of such Series G 9.12% Depositary Shares into the Exchange Agent's account at the Book-Entry Facility designated above in accordance with such Book Entry Facility's Automated Tender Offer Program ("ATOP") procedures is received, the Series G Trust may, at its option, reject the tender. THE METHOD OF DELIVERY OF SERIES G 9.12% DEPOSITARY SHARES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY FACILITY DESIGNATED ABOVE, IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF CERTIFICATES FOR SERIES G 9.12% DEPOSITARY SHARES ARE SENT BY MAIL, REGISTERED OR CERTIFIED MAIL, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. No alternative, conditional or contingent tenders will be accepted, and no fractional Series G 9.12% Depositary Shares will be accepted for exchange. By signing this Letter of Transmittal (or facsimile hereof), the tendering holder waives any right to receive any notice of the acceptance of the Series G 9.12% Depositary Shares for exchange. Upon the terms and subject to the conditions of the Series G Offer, including the Minimum Distribution Condition, if 9,071,910 or fewer Series G 9.12% Depositary Shares have been validly tendered and not withdrawn prior to the Series G Expiration Date, the Series G Trust will accept for exchange all such Series G 9.12% Depositary Shares. Upon the terms and subject to the conditions of the Series G Offer, if more than 9,071,910 Series G 9.12% Depositary Shares (or, if decreased as described in the Prospectus, such lesser number as the Series G Trust may elect to purchase pursuant to the Series G Offer) have been validly tendered and not withdrawn prior to the Series G Expiration Date, the Series G Trust will accept for exchange Series G Depositary Shares from each tendering Holder on a pro rata basis, subject to adjustment to avoid the acceptance for exchange of fractional shares. If proration of tendered Series G 9.12% Depositary Shares is required, because of the difficulty in determining the number of Series G 9.12% Depositary Shares validly tendered (including shares tendered by the guaranteed delivery procedures described in the Prospectus under "The Offers -- Procedures for Tendering"), the Series G Trust does not expect that it would be able to announce the final proration factor or to commence the exchange for any Series G 9.12% Depositary Shares until approximately five Business Days (as defined in the Prospectus) after the Series G Expiration Date. Preliminary results of the proration will be announced by press release as promptly as practicable after the Series G Expiration Date. Holders of Series G 9.12% Depositary Shares may obtain such preliminary information from the Information Agent or the Exchange Agent and may also be able to obtain such information from their brokers. 3. Inadequate Space. If the space provided herein is inadequate, the certificate numbers and/or the amounts of Series G 9.12% Depositary Shares should be listed on a separate signed schedule and attached hereto. 4. Partial Tenders (Not Applicable to Book-Entry Stockholders). If fewer than all the Series G 9.12% Depositary Shares represented by any certificate delivered to the Exchange Agent are to be tendered, fill in the number of Series G 9.12% Depositary Shares which are to be tendered in the box entitled "Number of Shares Tendered." In such case, a new certificate for the remainder of the Series G 9.12% Depositary Shares represented by the old certificate will be sent to the person(s) signing this Letter of Transmittal, unless otherwise provided in the appropriate box on this Letter of Transmittal, as promptly as practicable following the Series G Expiration Date. All Series G 9.12% Depositary Shares 4 5 represented by certificates delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated. 5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the Series G 9.12% Depositary Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the certificates without alteration, enlargement or any change whatsoever. If any of the Series G 9.12% Depositary Shares tendered hereby are held of record by two or more persons, all such persons must sign this Letter of Transmittal. If any of the Series G 9.12% Depositary Shares tendered hereby are registered in different names on different certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates. If this Letter of Transmittal is signed by the registered holder(s) of the Series G 9.12% Depositary Shares tendered hereby, no endorsements of certificates or separate stock powers are required unless Series G Preferred Securities issued in exchange therefor are to be issued, or Series G 9.12% Depositary Shares not tendered or not exchanged are to be returned, in the name of any person other than the registered holder(s). Signatures on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Series G 9.12% Depositary Shares tendered hereby, certificates must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name(s) of the registered holder(s) appear(s) on the certificates for such Series G 9.12% Depositary Shares. Signature(s) on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Series G Trust of the authority of such person so to act must be submitted. 6. Stock Transfer Taxes. General Motors will pay all stock transfer taxes, if any, applicable to the exchange of any Series G 9.12% Depositary Shares pursuant to the Series G Offer. If, however, certificates representing Series G Preferred Securities or Series G 9.12% Depositary Shares not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the Series G 9.12% Depositary Shares tendered or if a transfer tax is imposed for any reason other than the exchange of Series G 9.12% Depositary Shares pursuant to the Series G Offer, then the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with this Letter of Transmittal, the amount of such transfer taxes will be billed directly to such tendering holder. 7. Special Exchange and Delivery Instructions. If certificates representing Series G Preferred Securities are to be issued in the name of, or any Series G 9.12% Depositary Shares not tendered or not accepted for exchange are to be issued or to be returned to, a person other than the person(s) signing this Letter of Transmittal, or any certificates for Series G Preferred Securities or certificates for Series G 9.12% Depositary Shares not tendered or not accepted for exchange are to be mailed to someone other than the person(s) signing this Letter of Transmittal or to the person(s) signing this Letter of Transmittal at an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. 8. Substitute Form W-9. Under the federal income tax laws, the Series G Trust may be required to withhold 31% of the amount of any payments made and/or the fair market value of any Series G Preferred Securities to be distributed to a holder of Series G Preferred Securities in exchange therefor pursuant to the Series G Offer or with respect to the amount of any payments made to certain holders of Series G Preferred Securities. In order to avoid such backup withholding, each tendering holder, and, if applicable, each other payee, must provide such holder's or payee's correct taxpayer identification number, and certify that such holder or payee is not subject to such 5 6 backup withholding by completing and signing the box entitled "Substitute Form W-9" set forth at the end of this Letter of Transmittal. In general, if a holder of Series G Preferred Securities or payee is an individual, the taxpayer identification number is the Social Security Number of such individual. If the Series G Trust is not provided with the correct taxpayer identification number, the holder or payee providing such number may be subject to a $50 penalty imposed by the Internal Revenue Service. Certain holders of Series G Preferred Securities or payees (including, among others, all corporations and certain foreign individual(s)) are not subject to these backup withholding and reporting requirements. In order to satisfy the Series G Trust that a foreign individual qualifies as an exempt recipient, such holder of Series G Preferred Securities or payee must submit a statement, signed under penalties of perjury, attesting to that individual's exempt status. Such statements can be obtained from the Exchange Agent. For further information concerning backup withholding and instructions for completing the Substitute Form W-9 (including how to obtain a taxpayer identification number if you do not have one and/or how to complete the Substitute Form W-9 if the Series G 9.12% Depositary Shares being tendered are held in more than one name and/or the Series G Preferred Securities will be held in more than one name), consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. 9. Waiver of Conditions. The conditions of the Series G Offer may be waived by the Series G Trust from time to time in accordance with, and subject to the limitations described in, the Prospectus, provided that acceptance of Series G 9.12% Depositary Shares validly tendered in the Series G Offer is subject to the condition that as of the Series G Expiration Date there be at least 400 record or beneficial holders of at least 1,000,000 Series G Preferred Securities to be issued in exchange for such Series G 9.12% Depositary Shares, which condition may not be waived. 10. Requests for Assistance or Additional Copies. Requests for assistance or additional copies of the Prospectus and this Letter of Transmittal (or the Letter of Transmittal relating to the Series D 7.92% Depositary Shares and the Series D Offer) may be obtained from the Information Agent or the Exchange Agent at their respective addresses or telephone numbers set forth herein. 11. Solicited Tenders. General Motors will pay to a Soliciting Dealer (as defined herein) designated by the record or beneficial owner, as appropriate, a solicitation fee of $0.50 per Depositary Share (except that in the case of transactions equal to or exceeding 10,000 Series G 9.12% Depositary Shares, General Motors will pay $0.25 per Series G 9.12% Depositary Share) validly tendered and accepted for exchange pursuant to the Series G Offer. For purposes of this Instruction 11, "Soliciting Dealer" includes (i) any broker or dealer in securities, including each Dealer Manager in its capacity as dealer or broker, who is a member of any national securities exchange or of the National Association of Securities Dealers, Inc. (the "NASD"), (ii) any foreign broker or dealer not eligible for membership in the NASD who agrees to conform to the NASD's Rules of Fair Practice in soliciting tenders outside the United States to the same extent as though it were an NASD member, or (iii) any bank or trust company, any one of whom has solicited and obtained a tender pursuant to the Series G Offer. No such fee shall be payable to a Soliciting Dealer in respect of Series G 9.12% Depositary Shares registered in the name of such Soliciting Dealer unless such Series G 9.12% Depositary Shares are held by such Soliciting Dealer as nominee and such Series G 9.12% Depositary Shares are being tendered for the benefit of one or more beneficial owners identified on this Letter of Transmittal or on the Notice of Solicited Tenders (included in the materials provided to brokers and dealers). No solicitation fee shall be payable to a Soliciting Dealer with respect to the tender of Series G 9.12% Depositary Shares unless this Letter of Transmittal accompanying such tender designates such Soliciting Dealer as such in the box captioned "Solicited Tenders." If tendered Series G 9.12% Depositary Shares are being delivered by book-entry transfer made to an account maintained by the Exchange Agent with the Book-Entry Facility designated above, the Soliciting Dealer must return a Notice of Solicited Tenders to the Exchange Agent within three NYSE trading days after the Series G Expiration Date in order to receive a solicitation fee. No solicitation fee shall be payable to a Soliciting Dealer in respect of Series G 9.12% Depositary Shares (i) beneficially owned by such Soliciting Dealer or (ii) registered in the name of such Soliciting Dealer unless such Series G 9.12% Depositary Shares 6 7 are held by such Soliciting Dealer as nominee and such Series G 9.12% Depositary Shares are being tendered for the benefit of one or more beneficial owners identified on this Letter of Transmittal or the Notice of Solicited Tenders. No solicitation fee shall be payable to the Soliciting Dealer with respect to the tender of Series G 9.12% Depositary Shares by the holder of record, for the benefit of the beneficial owner, unless the beneficial owner has designated such Soliciting Dealer. 12. Lost, Stolen or Destroyed Certificates for Series G 9.12% Depositary Shares. Any holder of Series G 9.12% Depositary Shares whose certificate(s) for such shares have been lost, stolen or destroyed should contact either the Exchange Agent or the Information Agent at their respective addresses shown on the back page of this Letter of Transmittal for special instructions. 13. Irregularities. All questions as to the number of Series G 9.12% Depositary Shares to be accepted, the validity, form, eligibility (including time of receipt) and acceptance of any tender of Series G 9.12% Depositary Shares will be determined by General Motors, in its sole discretion, which determination shall be final and binding. General Motors reserves the absolute right to reject any or all tenders made pursuant to the Series G Offer determined by it not to be in appropriate form or the acceptance of or payment for any Series G 9.12% Depositary Shares which would, in the opinion of General Motors' counsel, be unlawful. General Motors also reserves the absolute right to waive any of the conditions set forth in the Series G Offer (other than the Minimum Distribution Condition, as described in the Prospectus) or any defect or irregularity in any tender with respect to any particular Series G 9.12% Depositary Shares or any particular stockholder, and General Motors' interpretation of the terms and conditions of the Series G Offer (including these instructions) will be final and binding. Tenders will not be deemed to have been made until all defects and irregularities have been cured or waived prior to the Series G Expiration Date or such times as General Motors shall determine. Neither General Motors, the Exchange Agent, the Information Agent, the Dealer Managers nor any other person will be obligated to give notice of defects or irregularities in tenders, nor shall any of them incur any liability for failure to give any such notice. IMPORTANT TAX INFORMATION Under United States federal income tax law, a tendering holder of Series G Preferred Securities is required to provide the Series G Trust (as payor) with such holder's correct taxpayer identification number ("TIN") on Substitute Form W-9 below. If the tendering holder is an individual, the TIN is his or her social security number. If the Series G Trust is not provided with the correct TIN, payments that are made to such tendering holder or other payee with respect thereto may be subject to 31% backup withholding. Certain tendering holders of Series G Preferred Securities (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order for a foreign individual to qualify as an exempt recipient, the tendering holder of Series G Preferred Securities must submit a signed Form W-8 attesting to that individual's exempt status. A Form W-8 can be obtained from the Exchange Agent. See the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for more instructions. If backup withholding applies, the Series G Trust is required to withhold 31% of (i) the sum of (x) any payments made to the tendering holder of Series G Preferred Securities or other payee and (y) the fair market value of the Series G Preferred Securities that would be distributed to such tendering holder pursuant to the Series G Offer and (ii) any payments that are made in respect of the Series G Preferred Securities. Such withholding obligation may cause General Motors (or the Exchange Agent) to sell some portion of the Series G Preferred Securities that otherwise would have been distributed to a tendering holder. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld, provided that the required information is given to the Internal Revenue Service. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service. The box in Part 3 of the Substitute Form W-9 may be checked if the submitting holder of Series G Preferred Securities has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked, the holder of Series G Preferred Securities or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup 7 8 withholding. Notwithstanding that the box in Part 3 is checked and the Certificate of Awaiting Taxpayer Identification Number is completed, the Series G Trust will withhold 31% (i) of all payments made prior to the time a properly certified TIN is provided to the Series D Trust and (ii) of the Series G Preferred Securities that otherwise would be distributed to such holder. However, such amounts and/or Series G Preferred Securities will be refunded to each such tendering holder of Series G Preferred Securities if a TIN is provided to the Series G Trust (or the Exchange Agent) within 60 days. The tendering holder of Series G Preferred Securities is required to give the Series G Trust the TIN of the record owner of the Series G Preferred Securities or of the last transferee appearing on the transfers attached to, or endorsed on, the Series G Preferred Securities. If the Series G Preferred Securities are in more than one name or are not in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional guidance on which number to report. 8 9 NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE PRECEDING INSTRUCTIONS CAREFULLY Ladies and Gentlemen: The undersigned hereby tenders to General Motors Capital Trust G, a Delaware statutory business trust (the "Series G Trust"), Series G 9.12% Depositary Shares (the "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 ("General Motors"), pursuant to the offer by the Series G Trust to exchange its % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series G (the "Series G Preferred Securities"), for up to 9,071,910 Series G 9.12% Depositary Shares, upon the terms and subject to the conditions set forth in the Prospectus, receipt of which is hereby acknowledged, and in this Letter of Transmittal (which, together with the Prospectus, constitute the "Series G Offer"). Subject to and effective upon acceptance for exchange of the Series G 9.12% Depositary Shares tendered herewith, the undersigned hereby exchanges, assigns and transfers to or upon the order of the Series G Trust all right, title and interest in and to all the Series G 9.12% Depositary Shares that are being tendered hereby and irrevocably constitutes and appoints the Exchange Agent the true and lawful agent and attorney-in-fact of the undersigned with respect to such Series G 9.12% Depositary Shares, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (a) deliver certificates for such Series G 9.12% Depositary Shares or transfer ownership of such Series G 9.12% Depositary Shares on the account books maintained by DTC or PDTC, as applicable, together, in any such case, with all accompanying evidences of transfer and authenticity, to the Exchange Agent for the account of the Series G Trust, (b) present such Series G 9.12% Depositary Shares for transfer on the books of General Motors and (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such Series G 9.12% Depositary Shares, all in accordance with the terms of the Series G Offer. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, exchange, assign and transfer the Series G 9.12% Depositary Shares and the underlying Series G 9.12% Preference Stock tendered hereby and to acquire Series G Preferred Securities issuable upon the exchange of such tendered Series G 9.12% Depositary Shares and that, when the undersigned's Series G 9.12% Depositary Shares are accepted for exchange, the Series G Trust will acquire good and unencumbered title to such tendered Series G 9.12% Depositary Shares and the underlying Series G 9.12% Preference Stock, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The undersigned will, upon request, sign and deliver any additional documents deemed by the Series G Trust to be necessary or desirable to complete the exchange, assignment and transfer of tendered Series G 9.12% Depositary Shares or to transfer ownership of such Series G 9.12% Depositary Shares. All authority herein conferred or agreed to be conferred shall survive the death, bankruptcy or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, legal representatives, successors, assigns, executors and administrators of the undersigned. Except as stated in the Series G Offer, this tender is irrevocable. The undersigned understands that tenders of Series G 9.12% Depositary Shares pursuant to the Series G Offer are subject to proration as described in the Prospectus under "The Offers -- Terms of the Offers." The undersigned also understands that tenders of Series G 9.12% Depositary Shares pursuant to any one of the procedures described in "The Offers -- Procedures for Tendering" in the Prospectus and in the instructions hereto will constitute agreements between the undersigned and the Series G Trust upon the terms and subject to the conditions of the Series G Offer. Unless otherwise indicated under "Special Exchange Instructions," please cause Series G Preferred Securities to be issued, and return any Series G 9.12% Depositary Shares not tendered or not accepted for exchange, in the name(s) of the undersigned (and, in the case of Series G 9.12% Depositary Shares tendered by book-entry transfer, by credit to the account at the Book-Entry Facility designated above). Similarly, unless otherwise indicated under "Special Delivery Instructions," please mail any certificates for Series G 9.12% Depositary Shares not tendered or not accepted for exchange (and accompanying documents, as appropriate), and any certificates for Series G 9.12% Depositary Shares, to the undersigned at the address shown below the undersigned's signature(s). If both "Special Exchange Instructions" and "Special Delivery Instructions" are completed, please cause Series G Preferred Securities to be issued, and return any Series G 9.12% Depositary Shares not tendered or not accepted for exchange, in the name(s) of, and deliver any 9 10 certificates for such Series G 9.12% Depositary Shares to, the person(s) so indicated (and in the case of Series G 9.12% Depositary Shares tendered by book-entry transfer, by credit to the account at the Book-Entry Facility designated above). The undersigned recognizes that the Series G Trust has no obligation, pursuant to the "Special Exchange Instructions," to transfer any Series G 9.12% Depositary Shares from the name of the registered holder(s) thereof if the Series G Trust does not accept for exchange any of the Series G 9.12% Depositary Shares so tendered. 10 11 PLEASE COMPLETE: - ------------------------------------------------------------ DESCRIPTION OF SERIES G 9.12% DEPOSITARY SHARES BEING TENDERED - ------------------------------------------------------------ NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) (PLEASE FILL IN EXACTLY AS NAME(S) APPEAR(S) SERIES G 9.12% DEPOSITARY SHARES TENDERED ON CERTIFICATE(S) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY) - --------------------------------------------------------------------------------------------------------------- TOTAL NUMBER OF SHARES REPRESENTED NUMBER OF CERTIFICATE BY SHARES NUMBER(S) CERTIFICATE(S)* TENDERED** ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- ---------------- TOTAL SHARES - ------------------------------------------------------------ * Need not be completed by stockholders tendering by book-entry transfer. ** Unless otherwise indicated, the holder will be deemed to have tendered the full number of Series G 9.12% Depositary Shares represented by the tendered certificates. See Instruction 4. - ------------------------------------------------------------
11 12 COMPLETE ONLY IF APPLICABLE: [ ] CHECK HERE IF TENDERED SERIES G 9.12% DEPOSITARY SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE ACCOUNT OF THE EXCHANGE AGENT, AND COMPLETE THE FOLLOWING: Name of Tendering Institution: ------------------------------------------------------------------------------- Check applicable box: [ ] DTC [ ] PDTC Account No.: ---------------------------------------------------------------------------- Transaction Code No.: ---------------------------------------------------------------------------- [ ] CHECK HERE IF TENDERED SERIES G 9.12% DEPOSITARY SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: Name(s) of Tendering Stockholder(s): ----------------------------------------------------------------------- Date of Execution of Notice of Guaranteed Delivery: -------------------------------------------------------- Name of Institution which Guaranteed Delivery: ------------------------------------------------------------- If delivery is by book-entry transfer: Name of Tendering Institution: ------------------------------------------------------------------------------- Check applicable box: [ ] DTC [ ] PDTC Account No.: ---------------------------------------------------------------------------- Transaction Code No.: ---------------------------------------------------------------------------- 12 13 COMPLETE ONLY IF APPLICABLE: SOLICITED TENDERS (SEE INSTRUCTION 11) General Motors will pay to any Soliciting Dealer, as defined in Instruction 11, a solicitation fee of $0.50 per Series G 9.12% Depositary Share (except that in the case of transactions equal to or exceeding 10,000 Series G 9.12% Depositary Shares, General Motors will pay $0.25 per Series G 9.12% Depositary Share) validly tendered and accepted for exchange pursuant to the Series G Offer. The undersigned represents that the Soliciting Dealer which solicited and obtained this tender is: Name of Firm: (Please print) Name of Individual Broker or Financial Consultant: Identification Number (if known): Address: (Include zip code) The acceptance of compensation by such Soliciting Dealer will constitute a representation by it that: (i) it has complied with the applicable requirements of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder in connection with such solicitations; (ii) it is entitled to such compensation for such solicitation under the terms and conditions of the Series G Offer (unless the undersigned is not being compensated for such solicitation); (iii) in soliciting tenders of Series G 9.12% Depositary Shares, it has used no soliciting materials other than those furnished by General Motors and the Series G Trust; and (iv) if it is a foreign broker or dealer not eligible for membership in the National Association of Securities Dealers, Inc. (the "NASD"), it has agreed to conform to the NASD's Rules of Fair Practice in making solicitations outside the United States to the same extent as though it were an NASD member. If tendered Series G 9.12% Depositary Shares are being delivered by book-entry transfer made to an account maintained by the Exchange Agent with DTC or PDTC, the Soliciting Dealer must return a Notice of Solicited Tenders to the Exchange Agent to receive a solicitation fee. SOLICITING DEALERS ARE NOT ENTITLED TO A FEE FOR SERIES G 9.12% DEPOSITARY SHARES BENEFICIALLY OWNED BY SUCH SOLICITING DEALER. 13 14 COMPLETE ONLY IF APPLICABLE: SPECIAL EXCHANGE INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) To be completed ONLY if certificates for Series G Preferred Securities, or certificates for Series G 9.12% Depositary Shares not tendered or not accepted for exchange, are to be issued in the name of someone other than the undersigned. Issue [ ] certificates for Series G Preferred Securities to: [ ] certificates for Series G 9.12% Depositary Shares to: Name (PLEASE PRINT) Address (INCLUDE ZIP CODE) Taxpayer Identification No.: SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 5 AND 7) To be completed ONLY if certificates for Series G Preferred Securities, or certificates for Series G 9.12% Depositary Shares not tendered or not accepted for exchange, are to be mailed to someone other than the undersigned, or to the undersigned at an address other than that shown below the undersigned's signature(s). Mail: [ ] certificates for Series G Preferred Securities to: [ ] certificates for Series G 9.12% Depositary Shares to: Name (PLEASE PRINT) Address (INCLUDE ZIP CODE) 14 15 PLEASE COMPLETE: - -------------------------------------------------------------------------------- HOLDER(S) OF SERIES G 9.12% DEPOSITARY SHARES SIGN HERE (PLEASE COMPLETE AND SIGN THE BOX ENTITLED SUBSTITUTE FORM W-9 BELOW) (Must be signed by registered holder(s) exactly as name(s) appear(s) on certificate(s) for Series G 9.12% Depositary Shares or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5.) X X Signature(s) of owner(s) Dated: Name(s): (Please Print) Capacity (full title): Address: (Include zip code) Area Code and Telephone No.: GUARANTEE OF SIGNATURE(S) (IF APPLICABLE) (SEE INSTRUCTIONS 1 AND 5) Authorized Signature: Name: Title: Address: Name of Firm: Area Code and Telephone Number: Dated: - -------------------------------------------------------------------------------- DO NOT SIGN YOUR STOCK CERTIFICATES. 15 16 PLEASE COMPLETE: PAYOR'S NAME: GENERAL MOTORS CAPITAL TRUST G ------------------------------------------------------------------------------------------------------------------ Part 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX SOCIAL SECURITY NUMBER SUBSTITUTE AT RIGHT AND CERTIFY BY SIGNING AND DATING OR EMPLOYER FORM W-9 BELOW. IDENTIFICATION NUMBER ---------------------------------------------------------------------------------- Part 2 -- Check the box if you are NOT subject to backup withholding under the provisions of Section 3406(a)(1)(C) of the Internal Revenue Code because (1) you are exempt from backup withholding (2) you have not been notified that you are subject to backup withholding as a result of failure to report all interest or DEPARTMENT OF THE TREASURY, dividends or (3) the Internal Revenue Service has notified you that you are no INTERNAL REVENUE SERVICE longer subject to backup withholding. [ ] ---------------------------------------------------------------------------------- CERTIFICATION: UNDER PENALTIES OF PERJURY, I CERTIFY THAT THE INFORMATION PROVIDED ON THIS FORM IS TRUE, CORRECT AND COMPLETE. PAYER'S REQUEST FOR TAXPAYER SIGNATURE ----------------------------------------- Part 3 IDENTIFICATION (TIN) AND Awaiting CERTIFICATION DATE ------------------------------------------------ TIN [ ] (AND SEE NEXT BOX.) ------------------------------------------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF THE ABOVE SUBSTITUTE FORM W-9. - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that 31% of all reportable payments made to me will be withheld until I provide a number and that if such number is provided to you within sixty (60) days, such withheld amounts will be refunded. SIGNATURE ----------------------------------------------------------- DATE ------------------------------------ - -------------------------------------------------------------------------------- NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. 16 17 THE INFORMATION AGENT FOR THE SERIES G OFFER AND THE SERIES D OFFER IS: (GEORGESON & COMPANY INC. LOGO) Wall Street Plaza New York, New York 10005 (800) 223-2064 (Toll-Free) Banks and Brokers Call Collect: (212) 440-9800 17 18 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYOR. -- Social Security numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payor.
- -------------------------------------------------------- FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY NUMBER OF-- - -------------------------------------------------------- 1. Individual The Individual 2. Two or more The actual owner of the individuals, account or, if combined including husband and funds, any one of the wife (joint account) individuals(1) 3. Custodian account of a The minor(1) minor (Uniform Gift to Minors Act) 4. Adult and minor (joint The adult or, if the minor account) is the only contributor, the minor(1) 5. Account in the name of The ward, minor, or guardian or committee incompetent person(1) for a designated ward, minor, or incompetent person 6. a. The usual revocable The grantor-trustee(1) savings trust account (grantor is also trustee) b. So-called trust The actual owner(1) account that is not a legal or valid trust under State law 7. Sole proprietorship The owner(2) account - -------------------------------------------------------- - -------------------------------------------------------- GIVE THE EMPLOYER IDENTIFICATION FOR THIS TYPE OF ACCOUNT: NUMBER OF-- - -------------------------------------------------------- 8. Valid trust, estate, Legal entity (Do not or pension trust furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.)(3) 9. Corporate The corporation 10. Religious, charitable, The organization or educational organization 11. Partnership The partnership 12. Association, club, or The organization other tax-exempt organization 13. A broker or registered The broker or nominee nominee 14. Account with the The public entity Department of Agriculture in the name of a public entity (such as a State or local government, school district, or prison) that receives agricultural program payments - --------------------------------------------------------
(1) List and identify all parties to account and mark the name of the person whose Social Security Number is furnished. (2) The individual's name must be shown. The business name may be shown as well. Use of Social Security Number permissible. (3) List and identify all parties to account and mark the name of the legal trust, estate, or pension trust whose Employer Identification Number is furnished. Note: If no name is specified when there is more than one listed, the number will be considered to be that of the first so listed. 18 19 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 PAGE 2 OBTAINING A NUMBER If you do not have a taxpayer identification number or you don't know your number, obtain Form SS-5, Application for a Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service (the "IRS") and apply for a number. PAYEES EXEMPT FROM BACKUP WITHHOLDING Payees specifically exempted from backup withholding on ALL payments include the following: - A corporation. - A financial institution. - An organization exempt from tax under section 501(a) of the Internal Revenue Code of 1986, as amended) (the "Code"), or an individual retirement plan. - The United States or any agency or instrumentality thereof. - A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. - An international organization or any agency, or instrumentality thereof. - A registered dealer in securities or commodities registered in the U.S. or a possession of the U.S. - A real estate investment trust. - A common trust fund operated by a bank under Section 584(a) of the Code. - An exempt charitable remainder trust, or a non-exempt trust described in Section 4947(a)(1) of the Code. - An entity registered at all times under the Investment Company Act of 1940. - A foreign central bank of issue. Payments of dividends and patronage dividends not generally subject to backup withholding include the following: - Payments to nonresident aliens subject to withholding under Section 1441 of the Code. - Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident partner. - Payments of patronage dividends where the amount received is not paid in money. - Payments made by certain foreign organizations. - Payments made to a nominee. Payments of interest not generally subject to backup withholding include the following: - Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not provided your correct taxpayer identification number to the payer. - Payments of tax-exempt interest (including exempt-interest dividends under Section 852 of the Code). - Payments described in Section 6049(b)(5) of the Code to nonresident aliens. - Payments on tax-free covenant bonds under Section 1451 of the Code. - Payments made by certain foreign organizations. - Payments made to a nominee. Exempt payees described above should nonetheless file Form W-9 to avoid possible erroneous backup withholding. ON SUCH FORM, FURNISH A TAXPAYER IDENTIFICATION NUMBER, CHECK THE BOX INDICATING THE PAYEE'S STATUS AS EXEMPT, SIGN AND DATE THE FORM, AND RETURN IT TO THE PAYOR. IF YOU ARE A NON-RESIDENT ALIEN OR A FOREIGN ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE A COMPLETED FORM W-8 (CERTIFICATE OF FOREIGN STATUS) WITH THE PAYOR. Certain payments other than interest, dividends, and patronage dividends, that are not subject to information reporting are also not subject to backup withholding. For details, see the regulations under Sections 6041, 6041A(a), 6045, 6050A and 6050N of the Code. PRIVACY ACT NOTICE.--Section 6109 of the Code requires most recipients of dividends, interest, or other payments to give taxpayer identification numbers to payors who must report the payments to IRS. IRS uses the numbers for identification purposes. Payors must be given the numbers whether or not recipients are required to file tax returns. Payors must generally withhold 31% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payor. Certain penalties may also apply. PENALTIES (1) PENALTIES FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--Penalty for Failure to Furnish Taxpayer Identification Number--If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING--If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500. (3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION--Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE 19 EX-99.(B)(I) 15 EX-99.(B)(I) 1 EXHIBIT 99(b)(i) Notice of Guaranteed Delivery Depositary Shares, Each Representing One-fourth of a Share of Series D 7.92% Preference Stock (The "Series D 7.92% Depositary Shares") (CUSIP 370442857) GENERAL MOTORS CORPORATION This form, or a substantial equivalent, must be used to accept the Series D Offer (as defined below) if (i) certificates for 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 General Motors Corporation ("General Motors"), cannot be delivered to the Exchange Agent by the Series D Expiration Date (as defined in the Prospectus dated , 1997 (as amended or supplemented and including documents incorporated therein by reference, the "Prospectus")), (ii) the procedure for book-entry transfer of Series D 7.92% Depositary Shares (as set forth in the Prospectus) cannot be completed by the Series D Expiration Date or (iii) the Letter of Transmittal (or a facsimile thereof) and all other required documents cannot be delivered to the Exchange Agent prior to the Series D Expiration Date. This form, properly completed and duly executed, may be delivered by facsimile transmission, hand or overnight courier to the Exchange Agent. See the Prospectus. THE SERIES D OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , 1997, UNLESS EXTENDED. THE EXCHANGE AGENT FOR THE SERIES D OFFER IS: THE FIRST NATIONAL BANK OF BOSTON If delivered by Facsimile, to: If delivered by Hand, If delivered by overnight The First National Bank of Boston to: courier, to: (617) 575-2233 Securities Transfer & The First National Bank of Boston (Confirm Receipt by Telephone: Reporting Services Shareholder Services Division (800) 331-9922) 55 Broadway, Third Floor Mail Stop 45-02-53 New York, New York 10006 150 Royall Street Canton, Massachusetts 02021
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THIS NOTICE OF GUARANTEED DELIVERY RELATES ONLY TO THE SERIES D 7.92% DEPOSITARY SHARES AND THE SERIES D OFFER. THIS NOTICE OF GUARANTEED DELIVERY MAY NOT BE USED FOR SERIES G 9.12% DEPOSITARY SHARES TENDERED IN CONNECTION WITH THE SERIES G OFFER. COPIES OF THE NOTICE OF GUARANTEED DELIVERY RELATING TO THE SERIES G OFFER MAY BE OBTAINED FROM THE EXCHANGE AGENT AT THE ADDRESS OR TELEPHONE NUMBER SET FORTH ABOVE OR FROM THE INFORMATION AGENT AT THE ADDRESS OR TELEPHONE NUMBER SET FORTH BELOW. THE INFORMATION AGENT FOR THE SERIES D OFFER AND THE SERIES G OFFER IS: [GEORGESON & COMPANY INC. LOGO] Wall Street Plaza New York, New York 10005 (800) 223-2064 (Toll Free) Banks and Brokers Call Collect: (212) 440-9800 2 Ladies and Gentlemen: The undersigned hereby tenders to General Motors Capital Trust D (the "Series D Trust"), upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal relating to the Series D 7.92% Depositary Shares (which together constitute the "Series D Offer"), receipt of which is hereby acknowledged, the number of Series D 7.92% Depositary Shares set forth below, pursuant to the guaranteed delivery procedure set forth in the Prospectus. Number of Series D 7.92% Depositary Shares Tendered: ............................................................................... Certificate Nos. (if available): ............................................................................... Check if Series D 7.92% Depositary Shares will be tendered by book-entry transfer: Name(s) of Record Holder(s): ............................................................................... ............................................................................... (Please Print) Address(es): ............................................................................... ............................................................................... (ZIP Code) Check applicable box: The Depository Trust Company The Philadelphia Depository Trust Company Name of Tendering Institution:.......................................................... Account Number:................................................................. Dated:.......................................................................... Area Code and Tel. No.:......................................................... Signature(s):................................................................... [PLEASE SEE REVERSE SIDE] 2 3 THE FOLLOWING GUARANTEE MUST BE COMPLETED GUARANTEE OF DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a firm that is a member of a registered national securities exchange or the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office, branch or agency in the United States, guarantees (a) that the above named person(s) "own(s)" the Series D 7.92% Depositary Shares tendered hereby within the meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended, (b) that such tender of Series D 7.92% Depositary Shares complies with Rule 14e-4 and (c) to deliver to the Exchange Agent either the Series D 7.92% Depositary Shares tendered hereby, in proper form or transfer, or confirmation of the book-entry transfer of the Series D 7.92% Depositary Shares tendered hereby into the account of the Exchange Agent at The Depository Trust Company or The Philadelphia Depository Trust Company, together with a properly completed and duly executed Letter(s) of Transmittal (or facsimile(s) thereof), with any required signature guarantees (or an Agent's Message (as defined in the Prospectus)) and any other required documents within three New York Stock Exchange trading days after the date of execution of this Notice. Name of Firm: Address: Telephone Number: Authorized Signature Name: Title: (Please Type or Print) Dated: DO NOT SEND CERTIFICATES FOR SERIES D 7.92% DEPOSITARY SHARES WITH THIS NOTICE OF GUARANTEED DELIVERY. CERTIFICATES FOR SERIES D 7.92% DEPOSITARY SHARES SHOULD BE SENT WITH THE LETTER OF TRANSMITTAL RELATING TO THE SERIES D 7.92% DEPOSITARY SHARES. 3 EX-99.(B)(II) 16 EX-99.(B)(II) 1 EXHIBIT 99(b)(ii) NOTICE OF GUARANTEED DELIVERY DEPOSITARY SHARES, EACH REPRESENTING ONE-FOURTH OF A SHARE OF SERIES G 9.12% PREFERENCE STOCK (THE "SERIES G 9.12% DEPOSITARY SHARES") (CUSIP 370442790) GENERAL MOTORS CORPORATION This form, or a substantial equivalent, must be used to accept the Series G Offer (as defined below) if (i) certificates for 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 General Motors Corporation ("General Motors"), cannot be delivered to the Exchange Agent by the Series G Expiration Date (as defined in the Prospectus dated , 1997 (as amended or supplemented and including documents incorporated therein by reference, the "Prospectus")), (ii) the procedure for book-entry transfer of Series G 9.12% Depositary Shares (as set forth in the Prospectus) cannot be completed by the Series G Expiration Date or (iii) the Letter of Transmittal (or a facsimile thereof) and all other required documents cannot be delivered to the Exchange Agent prior to the Series G Expiration Date. This form, properly completed and duly executed, may be delivered by facsimile transmission, hand or overnight courier to the Exchange Agent. See the Prospectus. THE SERIES G OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , , 1997, UNLESS EXTENDED. THE EXCHANGE AGENT FOR THE SERIES G OFFER IS: THE FIRST NATIONAL BANK OF BOSTON If delivered by Facsimile, to: If delivered by Hand, to: If delivered by Overnight (For Eligible Institutions Courier, to: Only) Securities Transfer & The First National Bank of The First National Bank of Reporting Services Boston Boston 55 Broadway, Third Floor Shareholder Services Division (617) 575-2233 New York, New York 10006 Mail Stop 45-02-53 (Confirm Receipt by 150 Royall Street Telephone: (800) 331-9922) Canton, Massachusetts 02021
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THIS NOTICE OF GUARANTEED DELIVERY RELATES ONLY TO THE SERIES G 9.12% DEPOSITARY SHARES AND THE SERIES G OFFER. THIS NOTICE OF GUARANTEED DELIVERY MAY NOT BE USED FOR SERIES D 7.92% DEPOSITARY SHARES TENDERED IN CONNECTION WITH THE SERIES D OFFER. COPIES OF THE NOTICE OF GUARANTEED DELIVERY RELATING TO THE SERIES D OFFER MAY BE OBTAINED FROM THE EXCHANGE AGENT AT THE ADDRESS OR TELEPHONE NUMBER SET FORTH ABOVE OR FROM THE INFORMATION AGENT AT THE ADDRESS OR TELEPHONE NUMBER SET FORTH BELOW. THE INFORMATION AGENT FOR THE SERIES G OFFER AND THE SERIES D OFFER IS: [GEORGESON & COMPANY INC. LOGO] Wall Street Plaza New York, New York 10005 (800) 223-2064 (Toll-Free) Banks and Brokers Call Collect: (212) 440-9800 2 LADIES AND GENTLEMEN: The undersigned hereby tenders to General Motors Capital Trust G (the "Series G Trust"), upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal relating to the Series G 9.12% Depositary Shares (which together constitute the "Series G Offer"), receipt of which is hereby acknowledged, the number of Series G 9.12% Depositary Shares set forth below, pursuant to the guaranteed delivery procedure set forth in the Prospectus. Number of Series G 9.12% Depositary Shares Tendered: ............................................................................... Certificate Nos. (if available): ............................................................................... Check if Series G 9.12% Depositary Shares will be tendered by book-entry transfer: Name(s) of Record Holder(s): ............................................................................... ............................................................................... (Please Print) Address(es): ............................................................................... ............................................................................... (ZIP Code) Check applicable box: The Depository Trust Company The Philadelphia Depository Trust Company Name of Tendering Institution:.......................................................... Account Number:................................................................. Dated:.......................................................................... Area Code and Tel. No.:......................................................... Signature(s):................................................................... [PLEASE SEE REVERSE SIDE] 2 3 THE FOLLOWING GUARANTEE MUST BE COMPLETED GUARANTEE OF DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a firm that is a member of a registered national securities exchange or the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office, branch or agency in the United States, guarantees (a) that the above named person(s) "own(s)" the Series G 9.12% Depositary Shares tendered hereby within the meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended, (b) that such tender of Series G 9.12% Depositary Shares complies with Rule 14e-4 and (c) to deliver to the Exchange Agent either the Series G 9.12% Depositary Shares tendered hereby, in proper form or transfer, or confirmation of the book-entry transfer of the Series G 9.12% Depositary Shares tendered hereby into the account of the Exchange Agent at The Depository Trust Company or The Philadelphia Depository Trust Company, together with a properly completed and duly executed Letter(s) of Transmittal (or facsimile(s) thereof), with any required signature guarantees (or an Agent's Message (as defined in the Prospectus)) and any other required documents within three New York Stock Exchange trading days after the date of execution of this Notice. Name of Firm: Address: Telephone Number: Authorized Signature Name: Title: (Please Type or Print) Dated: DO NOT SEND CERTIFICATES FOR SERIES G 9.12% DEPOSITARY SHARES WITH THIS NOTICE OF GUARANTEED DELIVERY. CERTIFICATES FOR SERIES G 9.12% DEPOSITARY SHARES SHOULD BE SENT WITH THE LETTER OF TRANSMITTAL RELATING TO THE SERIES G 9.12% DEPOSITARY SHARES. 3 EX-99.(C) 17 EX-99.(C) 1 EXHIBIT 99(c) GENERAL MOTORS CORPORATION GENERAL MOTORS CAPITAL TRUST D GENERAL MOTORS CAPITAL TRUST G General Motors Capital Trust D General Motors Capital Trust G Offer to Exchange its Offer to Exchange its % Trust Originated Preferred % Trust Originated Preferred Securities(SM) Securities(SM) ("TOPrS(SM)"), Series G ("TOPrS(SM)"), Series D for up to 9,071,910 for up to 5,462,917 Depositary Shares, Each Representing Depositary Shares, Each Representing One-Fourth of a Share of One-Fourth of a Share of Series G 9.12% Preference Stock Series D 7.92% Preference Stock of General Motors Corporation of General Motors Corporation CUSIP 370442790 CUSIP 370442857
EACH OF THE OFFERS (AND THE RELATED WITHDRAWAL RIGHTS) WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , 1997, UNLESS EITHER OR BOTH OF THE OFFERS IS EXTENDED. , 1997 To: Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees We have been appointed by General Motors Corporation, a Delaware corporation ("General Motors"), General Motors Capital Trust D, a Delaware statutory business trust (the "Series D Trust"), and General Motors Capital Trust G, a Delaware statutory business trust (the "Series G Trust"), to act as Dealer Managers in connection with the Series D Offer and the Series G Offer, each as defined below. The Series D Trust has offered to exchange, upon the terms and subject to the conditions set forth in the Prospectus referred to below and the Letter of Transmittal relating to the Series D 7.92% Depositary Shares (which, together with the Prospectus, constitutes the "Series D Offer"), its % Trust Originated Preferred Securities(SM1) ("TOPrS(SM)"), Series D (the "Series D Preferred Securities"), for up to 5,462,917 Depositary Shares (the "Series D 7.92% Depositary Shares"), each representing one-fourth of a share of Series D 7.92% Preference Stock of General Motors, not owned by General Motors, that are validly tendered and accepted for exchange pursuant to the Series D Offer. In connection with the Series D Offer, General Motors will deposit into the Series D Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series D, due 2012, as set forth in the Prospectus. The Series G Trust has offered to exchange, upon the terms and subject to the conditions set forth in the Prospectus referred to below and the Letter of Transmittal relating to the Series G 9.12% Depositary Shares (which, together with the Prospectus, constitutes the "Series G Offer"), its % Trust Originated Preferred Securities ("TOPrS(SM)"), Series G (the "Series G Preferred Securities"), for up to 9,071,910 Depositary Shares (the "Series G 9.12% Depositary Shares"), each representing one-fourth of a share of Series G 9.12% Preference Stock of General Motors, not owned by General Motors, that are validly tendered and accepted for exchange pursuant to the Series G Offer. In connection with the Series G Offer, General Motors will deposit into the Series G Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series G, due 2012, as set forth in the Prospectus. - --------------- (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 2 Pursuant to the terms and conditions of the Offers, exchanges will be made on the basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange in the Series D Offer and one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange in the Series G Offer. The Series D Trust will accept for exchange up to 5,462,917 Series D 7.92% Depositary Shares validly tendered and not withdrawn, upon the terms and subject to the conditions of the Series D Offer described in the Prospectus dated , 1997 (as amended or supplemented and including all documents incorporated therein by reference, the "Prospectus"), and the Series G Trust will accept for exchange up to 9,071,910 Series G 9.12% Depositary Shares validly tendered and not withdrawn, upon the terms and subject to the conditions of the Series G Offer described in the Prospectus. For your information and for forwarding to your clients, for whom you hold either Series D 7.92% Depositary Shares or Series G 9.12% Depositary Shares (or both) registered in your name or in the name of your nominee, we are enclosing the following documents: 1. Prospectus; 2. A Letter of Transmittal relating to the Series D 7.92% Depositary Shares and the Series D Offer for your use and for the information of your clients, for whom you hold Series D 7.92% Depositary Shares, together with Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 providing information relating to backup federal income tax withholding; 3. A Letter of Transmittal relating to the Series G 9.12% Depositary Shares and the Series G Offer for your use and for the information of your clients, for whom you hold Series G 9.12% Depositary Shares, together with Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 providing information relating to backup federal income tax withholding; 4. Notice of Guaranteed Delivery relating to the Series D 7.92% Depositary Shares and the Series D Offer, to be used to accept the Series D Offer if the Series D 7.92% Depositary Shares and all other required documents cannot be delivered to the Exchange Agent by the Series D Expiration Date (as defined in the Prospectus), or the book-entry transfer of the Series D 7.92% Depositary Shares cannot be completed by the Series D Expiration Date; 5. Notice of Guaranteed Delivery relating to the Series G 9.12% Depositary Shares and the Series G Offer, to be used to accept the Series G Offer if the Series G 9.12% Depositary Shares and all other required documents cannot be delivered to the Exchange Agent by the Series G Expiration Date (as defined in the Prospectus), or the book-entry transfer of the Series G 9.12% Depositary Shares cannot be completed by the Series G Expiration Date; 6. A form of letter that may be sent to your clients, for whom you hold Series D 7.92% Depositary Shares, with space provided for obtaining such clients' instructions and their designation of Soliciting Dealer with regard to the Series D Offer; 7. A form of letter that may be sent to your clients, for whom you hold Series G 9.12% Depositary Shares, with space provided for obtaining such clients' instructions and their designation of Soliciting Dealer with regard to the Series G Offer; 8. A letter from John F. Smith, Jr., Chairman, Chief Executive Officer and President of General Motors relating to both of the Offers that may be sent to your clients; 9. A Question and Answer pamphlet relating to both of the Offers that may be sent to your clients; 10. A return envelope addressed to The First National Bank of Boston, the Exchange Agent for the Series D Offer; and 11. A return envelope addressed to The First National Bank of Boston, the Exchange Agent for the Series G Offer. WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. 2 3 EACH OF THE OFFERS (AND THE RELATED WITHDRAWAL RIGHTS) WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , , 1997 UNLESS EITHER OR BOTH OF THE OFFERS IS EXTENDED. NONE OF GENERAL MOTORS, THE BOARD OF DIRECTORS OF GENERAL MOTORS, THE TRUSTEES OF THE SERIES D TRUST, THE SERIES D TRUST, THE TRUSTEES OF THE SERIES G TRUST OR THE SERIES G TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF DEPOSITARY SHARES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING IN EITHER OR BOTH OF THE OFFERS. HOLDERS OF DEPOSITARY SHARES ARE URGED TO CONSULT THEIR FINANCIAL AND TAX ADVISORS IN MAKING THEIR DECISIONS ON WHAT ACTION TO TAKE IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES. General Motors will pay a solicitation fee of $0.50 per Depositary Share (except that in the case of transactions equal to or exceeding 10,000 Depositary Shares of any given series, General Motors will pay $0.25 per Depositary Share) for any Depositary Shares validly tendered and accepted for exchange and exchanged pursuant to the Offers, provided that such Depositary Shares are covered by a Letter of Transmittal which properly designates as having solicited and obtained the tender, (i) any broker or dealer in securities, including each Dealer Manager in its capacity as a broker or dealer, which is a member of any national securities exchange or of the National Association of Securities Dealers, Inc. (the "NASD"), (ii) any foreign broker or dealer not eligible for membership in the NASD which agrees to conform to the NASD's Rules of Fair Practice in soliciting tenders outside the United States to the same extent as though it were an NASD member, or (iii) any bank or trust company (each of which is referred to herein as a "Soliciting Dealer"). No solicitation fee shall be payable to a Soliciting Dealer with respect to the tender of Depositary Shares by a holder unless the applicable Letter of Transmittal accompanying such tender designates such Soliciting Dealer as such in the box captioned "Solicited Tenders." Soliciting Dealers will include any of the organizations described in clauses (i), (ii) and (iii) above even when the activities of such organizations in connection with either Offer consist solely of forwarding to clients material relating to such Offer, including the Prospectus and the related Letter of Transmittal, and tendering Depositary Shares as directed by beneficial owners thereof; provided that under no circumstances shall any fee be paid to Soliciting Dealers more than once with respect to any Depositary Share. No Soliciting Dealer is required to make any recommendation to holders of Depositary Shares as to whether to tender or refrain from tendering in the applicable Offer. No assumption is made, in making payment to any Soliciting Dealer, that its activities in connection with an Offer included any activities other than those described above, and for all purposes noted in all materials relating to the Offers, the term "solicit" shall be deemed to mean no more than processing shares tendered or forwarding to customers materials regarding the Offers. If tendered Depositary Shares are being delivered by book-entry transfer made to an account maintained by the Exchange Agent with The Depository Trust Company or The Philadelphia Depository Trust Company, the Soliciting Dealer must return a Notice of Solicited Tenders to the Exchange Agent within three business days after the applicable Expiration Date (as defined in the Prospectus) in order to receive a solicitation fee. Such Notice of Solicited Tenders for the Series D 7.92% Depositary Shares is attached hereto on page 5, and such Notice of Solicited Tenders for the Series G 9.12% Depositary Shares is attached hereto on page 7. No solicitation fee shall be payable to a Soliciting Dealer in respect of Depositary Shares (i) beneficially owned by such Soliciting Dealer or (ii) registered in the name of such Soliciting Dealer unless such Depositary Shares are held by such Soliciting Dealer as nominee and such Depositary Shares are being tendered for the benefit of one or more beneficial owners identified on the applicable Letter of Transmittal or the applicable Notice of Solicited Tenders. No solicitation fee shall be payable to the Soliciting Dealer with respect to the tender of Depositary Shares by the holder of record, for the benefit of the beneficial owner, unless the beneficial owner has designated such Soliciting Dealer. No solicitation fee shall be payable to a Soliciting Dealer if such Soliciting Dealer is required for any reason to transfer any portion of such fee to a tendering holder (other than itself). No broker, dealer, bank, trust company or fiduciary shall be deemed to be the agent of General Motors, the Series D Trust, the 3 4 Trustees of the Series D Trust, the Series G Trust, the Trustees of the Series G Trust, the Exchange Agent, the Information Agent or the Dealer Managers for purposes of the Offers. General Motors will, upon request, reimburse brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in forwarding materials to their customers. General Motors will pay all stock transfer taxes applicable to the acceptance of Depositary Shares pursuant to the Offers, in each case, subject to Instruction 6 of the applicable Letter of Transmittal. Soliciting Dealers should take care to ensure proper record-keeping to document their entitlement to any solicitation fee. Any inquiries you may have with respect to the Series D Offer or the Series G Offer should be addressed to, and additional copies of the enclosed materials may be obtained from, the Information Agent at the address and telephone number set forth on the back cover of the Prospectus. Very truly yours, MERRILL LYNCH & CO. SMITH BARNEY INC. NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU AS THE AGENT OF GENERAL MOTORS, THE SERIES D TRUST, THE TRUSTEES OF THE SERIES D TRUST, THE SERIES G TRUST, THE TRUSTEES OF THE SERIES G TRUST, THE DEALER MANAGERS, THE INFORMATION AGENT OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH EITHER OR BOTH OF THE OFFERS OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN. 4 5 NOTICE OF SOLICITED TENDERS GENERAL MOTORS CAPITAL TRUST D SERIES D 7.92% DEPOSITARY SHARES List below the number of Series D 7.92% Depositary Shares whose tender you have solicited. All Series D 7.92% Depositary Shares solicited in a single transaction must be aggregated for purposes of completing the tables below. Any questions as to what constitutes a transaction should be directed to the Exchange Agent. If the space below is inadequate, list the Series D 7.92% Depositary Shares on a separate signed schedule and affix the list to this Notice of Solicited Tenders. PLEASE DO NOT COMPLETE THE SECTIONS OF THE TABLES HEADED "TO BE COMPLETED ONLY BY EXCHANGE AGENT." ALL NOTICES OF SOLICITED TENDERS SHOULD BE RETURNED TO THE EXCHANGE AGENT WITHIN THREE BUSINESS DAYS AFTER THE SERIES D EXPIRATION DATE AT THE ADDRESS OR FACSIMILE NUMBER SET FORTH ON THE BACK COVER OF THE PROSPECTUS. ALL QUESTIONS CONCERNING THE NOTICES OF SOLICITED TENDERS SHOULD BE DIRECTED TO THE INFORMATION AGENT AT THE TELEPHONE NUMBER SET FORTH ON THE BACK COVER OF THE PROSPECTUS. TRANSACTIONS FEWER THAN 10,000 SERIES D 7.92% DEPOSITARY SHARES
TO BE COMPLETED BY TO BE COMPLETED ONLY SOLICITING DEALER BY EXCHANGE AGENT ----------------------------- ---------------------------- NUMBER OF VOI TICKET NUMBER OF FEE $0.50 TRANSACTIONS SHARES TENDERED NUMBER(2) SHARES ACCEPTED PER SHARE ------------ --------------- ---------- --------------- --------- Transaction No. 1........................... Transaction No. 2........................... Transaction No. 3........................... Transaction No. 4........................... Transaction No. 5........................... Total..................................
TRANSACTIONS EQUAL TO OR EXCEEDING 10,000 SERIES D 7.92% DEPOSITARY SHARES
TO BE COMPLETED BY TO BE COMPLETED ONLY SOLICITING DEALER BY EXCHANGE AGENT ----------------------------- ---------------------------- NUMBER OF VOI TICKET NUMBER OF FEE $0.25 TRANSACTIONS SHARES TENDERED NUMBER SHARES ACCEPTED PER SHARE ------------ --------------- ---------- --------------- --------- Transaction No. 1........................... Transaction No. 2........................... Transaction No. 3........................... Transaction No. 4........................... Transaction No. 5........................... Total
- ------------------------- (2) Complete if Series D 7.92% Depositary Shares are being delivered by book-entry transfer. Please submit a separate VOI ticket for Series D 7.92% Depositary Shares tendered when the solicitation fee is to be directed to another Soliciting Dealer. At the time of tendering Series D 7.92% Depositary Shares in Book-Entry form, please indicate your request in the comments field. All questions as to the validity, form and eligibility (including time of receipt) of Notices of Solicited Tenders will be determined by the Exchange Agent, in its sole discretion, which determination will be final and binding. Neither the Exchange Agent nor any other person will be under any duty to give notification of 5 6 any defects or irregularities in any Notice of Solicited Tender or incur any liability for failure to give such notification. The undersigned hereby confirms that: (i) it has complied with the applicable requirements of the Securities Exchange Act of 1934, and the applicable rules and regulations thereunder, in connection with such solicitation; (ii) it is entitled to such compensation for such solicitation under the terms and conditions of the Prospectus (unless the undersigned is not being compensated for such solicitation); (iii) in soliciting tenders of Series D 7.92% Depositary Shares, it has used no soliciting materials other than those furnished by General Motors and the Series D Trust; and (iv) if it is a foreign broker or dealer not eligible for membership in the NASD, it has agreed to conform to the NASD's Rules of Fair Practice in making solicitations outside the United States to the same extent as though it were an NASD member. Print Firm Name ____________________ Address ______________________ Authorized Signature________________ City, State, Zip Code ________ Area Code and Telephone Number______ Attention ____________________ DO NOT SEND STOCK CERTIFICATES WITH THIS FORM. YOUR STOCK CERTIFICATES MUST BE SENT WITH THE APPLICABLE LETTER OF TRANSMITTAL. 6 7 NOTICE OF SOLICITED TENDERS GENERAL MOTORS CAPITAL TRUST G SERIES G 9.12% DEPOSITARY SHARES List below the number of Series G 9.12% Depositary Shares whose tender you have solicited. All Series G 9.12% Depositary Shares solicited in a single transaction must be aggregated for purposes of completing the tables below. Any questions as to what constitutes a transaction should be directed to the Exchange Agent. If the space below is inadequate, list the Series G 9.12% Depositary Shares on a separate signed schedule and affix the list to this Notice of Solicited Tenders. PLEASE DO NOT COMPLETE THE SECTIONS OF THE TABLES HEADED "TO BE COMPLETED ONLY BY EXCHANGE AGENT." ALL NOTICES OF SOLICITED TENDERS SHOULD BE RETURNED TO THE EXCHANGE AGENT WITHIN THREE BUSINESS DAYS AFTER THE SERIES D EXPIRATION DATE AT THE ADDRESS OR FACSIMILE NUMBER SET FORTH ON THE BACK COVER OF THE PROSPECTUS. ALL QUESTIONS CONCERNING THE NOTICES OF SOLICITED TENDERS SHOULD BE DIRECTED TO THE INFORMATION AGENT AT THE TELEPHONE NUMBER SET FORTH ON THE BACK COVER OF THE PROSPECTUS. TRANSACTIONS FEWER THAN 10,000 SERIES G 9.12% DEPOSITARY SHARES
TO BE COMPLETED BY TO BE COMPLETED ONLY SOLICITING DEALER BY EXCHANGE AGENT ----------------------------- ---------------------------- NUMBER OF VOI TICKET NUMBER OF FEE $0.50 TRANSACTIONS SHARES TENDERED NUMBER(3) SHARES ACCEPTED PER SHARE ------------ --------------- ---------- --------------- --------- Transaction No. 1........................... Transaction No. 2........................... Transaction No. 3........................... Transaction No. 4........................... Transaction No. 5........................... Total..................................
TRANSACTIONS EQUAL TO OR EXCEEDING 10,000 SERIES G 9.12% DEPOSITARY SHARES
TO BE COMPLETED BY TO BE COMPLETED ONLY SOLICITING DEALER BY EXCHANGE AGENT ----------------------------- ---------------------------- NUMBER OF VOI TICKET NUMBER OF FEE $0.25 TRANSACTIONS SHARES TENDERED NUMBER SHARES ACCEPTED PER SHARE ------------ --------------- ---------- --------------- --------- Transaction No. 1........................... Transaction No. 2........................... Transaction No. 3........................... Transaction No. 4........................... Transaction No. 5........................... Total..................................
- ------------------------- (3) Complete if Series G 9.12% Depositary Shares are being delivered by book-entry transfer. Please submit a separate VOI ticket for Series G 9.12% Depositary Shares tendered when the solicitation fee is to be directed to another Soliciting Dealer. At the time of tendering Series G 9.12% Depositary Shares in Book-Entry form, please indicate your request in the comments field. All questions as to the validity, form and eligibility (including time of receipt) of Notices of Solicited Tenders will be determined by the Exchange Agent, in its sole discretion, which determination will be final and binding. Neither the Exchange Agent nor any other person will be under any duty to give notification of 7 8 any defects or irregularities in any Notice of Solicited Tender or incur any liability for failure to give such notification. The undersigned hereby confirms that: (i) it has complied with the applicable requirements of the Securities Exchange Act of 1934, and the applicable rules and regulations thereunder, in connection with such solicitation; (ii) it is entitled to such compensation for such solicitation under the terms and conditions of the Prospectus (unless the undersigned is not being compensated for such solicitation); (iii) in soliciting tenders of Series G 9.12% Depositary Shares, it has used no soliciting materials other than those furnished by General Motors and the Series G Trust; and (iv) if it is a foreign broker or dealer not eligible for membership in the NASD, it has agreed to conform to the NASD's Rules of Fair Practice in making solicitations outside the United States to the same extent as though it were an NASD member. Print Firm Name ____________________ Address ______________________ Authorized Signature________________ City, State, Zip Code ________ Area Code and Telephone Number______ Attention ____________________ DO NOT SEND STOCK CERTIFICATES WITH THIS FORM. YOUR STOCK CERTIFICATES MUST BE SENT WITH THE APPLICABLE LETTER OF TRANSMITTAL. 8 EX-99.(D)(I) 18 EX-99.(D)(I) 1 EXHIBIT 99(d)(i) GENERAL MOTORS CAPITAL TRUST D OFFER TO EXCHANGE ITS % TRUST ORIGINATED PREFERRED SECURITIES(SM) ("TOPRS(SM)"), SERIES D (LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY AND GUARANTEED TO THE EXTENT SET FORTH IN THE PROSPECTUS BY GENERAL MOTORS CORPORATION) FOR UP TO 5,462,917 DEPOSITARY SHARES, EACH REPRESENTING ONE-FOURTH OF A SHARE OF SERIES D 7.92% PREFERENCE STOCK (CUSIP 370442857) OF GENERAL MOTORS CORPORATION THE SERIES D OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , , 1997, UNLESS EXTENDED. To Our Clients: Enclosed for your consideration are the Prospectus dated , 1997 (as amended or supplemented and including all documents incorporated therein by reference, the "Prospectus") and the Letter of Transmittal relating to the Series D 7.92% Depositary Shares (which, together with the Prospectus, constitutes the "Series D Offer") in connection with the offer by General Motors Capital Trust D, a Delaware statutory business trust (the "Series D Trust"), to exchange its % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series D (the "Series D Preferred Securities"), for up to 5,462,917 depositary shares (the "Series D 7.92% Depositary Shares"), each representing one-fourth of a share of Series D 7.92% Preference Stock of General Motors Corporation, a Delaware corporation ("General Motors"), not owned by General Motors, that are validly tendered and accepted for exchange pursuant to the Series D Offer. In connection with the Series D Offer, General Motors will deposit into the Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series D, due 2012, as set forth in the Prospectus. Pursuant to the Series D Offer, exchanges will be made on the basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered (and not withdrawn) and accepted for exchange in the Series D Offer. The Series D Trust will accept for exchange Series D 7.92% Depositary Shares validly tendered and not withdrawn, up to the maximum number of shares set forth above, upon the terms and subject to the conditions of the Series D Offer. We are the holder of record of Series D 7.92% Depositary Shares held for your account. A tender of such Series D 7.92% Depositary Shares can be made only by us as the holder of record and pursuant to your instructions. The Letter of Transmittal relating to the Series D 7.92% Depositary Shares is furnished to you for your information only and cannot be used by you to tender Series D 7.92% Depositary Shares held by us for your account. We request instructions as to whether you wish us to tender any or all of the Series D 7.92% Depositary Shares held by us for your account, upon the terms and subject to the conditions set forth in the Prospectus and the applicable Letter of Transmittal. We also request that you designate, in the box captioned "Soliciting Tenders," any Soliciting Dealer who solicited your tender of Series D 7.92% Depositary Shares. - --------------- (SM)"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 2 Your attention is called to the following: 1. The Series D Offer and the related withdrawal rights expire at 12:00 Midnight, Eastern time, on , , 1997, unless extended. 2. Consummation of the Series D Offer is conditioned on, among other things, tenders by a sufficient number of holders of Series D 7.92% Depositary Shares such that there be at least 400 record or beneficial holders of at least 1,000,000 Series D Preferred Securities to be issued in exchange for such Series D 7.92% Depositary Shares (the "Minimum Distribution Condition"), which condition may not be waived. 3. The Series D Trust expressly reserves the right, in its sole discretion, subject to applicable law, to (i) terminate the Series D Offer and not accept for exchange any Series D 7.92% Depositary Shares and promptly return all Series D 7.92% Depositary Shares upon the failure of any of the conditions specified above and in "The Offers -- Conditions To The Offers" in the Prospectus, (ii) waive any condition to the Series D Offer (other than the Minimum Distribution Condition) and accept all Series D 7.92% Depositary Shares previously tendered, subject to the maximum number of shares set forth above, pursuant to the Series D Offer, (iii) extend the Expiration Date of the Series D Offer (the "Series D Expiration Date") and retain all Series D 7.92% Depositary Shares tendered pursuant to such Series D Offer until the Series D Expiration Date, subject, however, to all withdrawal rights of holders (see "The Offers -- Withdrawal of Tenders" in the Prospectus), (iv) amend the terms of the Series D Offer, (v) modify the form of the consideration to be paid pursuant to the Series D Offer, or (vi) not accept for exchange Series D 7.92% Depositary Shares at any time on or prior to the Series D Expiration Date, for any reason, including, without limitation, if fewer than 100,000 Series D 7.92% Depositary Shares would remain outstanding upon acceptance of those tendered (which condition may be waived by the Trust). Any amendment applicable to the Series D Offer will apply to all Series D 7.92% Depositary Shares tendered pursuant to the Series D Offer. The minimum period during which the Series D Offer must remain open following material changes in the terms of the Series D Offer or the information concerning the Series D Offer, other than a change in the amount of Series D 7.92% Depositary Shares sought for exchange or an increase or decrease in the consideration offered to holders of Series D 7.92% Depositary Shares, depends upon the facts and circumstances, including the relative materiality of such terms or information. See "The Offers -- Expiration Dates; Extensions; Amendments; Termination" in the Prospectus. 4. Tendering stockholders will not pay brokerage fees or commissions, solicitation fees or, subject to Instruction 6 of the Letter of Transmittal relating to the Series D 7.92% Depositary Shares, any stock transfer taxes applicable to the exchange of Series D 7.92% Depositary Shares pursuant to the Series D Offer. Please note that a Question and Answer pamphlet regarding the Series D Preferred Securities is enclosed for your information. If you wish to have us tender any or all of your Series D 7.92% Depositary Shares, please instruct us by completing, executing, detaching and returning to us the detachable portion hereof captioned "Instructions With Respect to the Series D Offer." An envelope to return your instructions to us is enclosed. If you authorize the tender of your Series D 7.92% Depositary Shares, all such Series D 7.92% Depositary Shares will be tendered unless otherwise specified on such instructions. Your instructions should be forwarded to us in ample time to permit us to submit a tender on your behalf before the Series D Expiration Date. THE SERIES D OFFER IS NOT BEING MADE TO, NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF, HOLDERS OF SERIES D 7.92% DEPOSITARY SHARES IN ANY JURISDICTION IN WHICH THE MAKING OF THE SERIES D OFFER OR ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. IN THOSE JURISDICTIONS THE LAWS OF WHICH REQUIRE THAT THE SERIES D OFFER BE MADE BY A LICENSED BROKER OR DEALER, THE SERIES D OFFER SHALL BE DEEMED TO BE MADE ON BEHALF OF THE SERIES D TRUST BY MERRILL LYNCH & CO., SMITH BARNEY INC. OR ONE OR MORE REGISTERED BROKERS OR DEALERS LICENSED UNDER THE LAWS OF SUCH JURISDICTION. 2 3 INSTRUCTIONS WITH RESPECT TO THE SERIES D OFFER The undersigned acknowledge(s) receipt of your letter and the enclosed Prospectus dated , 1997 and the Letter of Transmittal relating to the Series D 7.92% Depositary Shares in connection with the Series D Offer by the Series D Trust to exchange its Series D Preferred Securities for up to 5,462,917 Series D 7.92% Depositary Shares of General Motors that are validly tendered and accepted for exchange. Pursuant to the Series D Offer, exchanges will be made on the basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange in the Series D Offer. This will instruct you to tender the number of Series D 7.92% Depositary Shares indicated below held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal relating to the Series D 7.92% Depositary Shares. By checking this box, all Series D 7.92% Depositary Shares held by you for our account, including fractional shares, will be tendered in the Series D Offer. If fewer than all Series D 7.92% Depositary Shares are to be tendered, we have checked the box below and indicated the aggregate number of Series D 7.92% Depositary Shares to be tendered by you. - ------------------------------ shares(2) SIGN HERE Signature(s): Name(s): Address(es): Social Security or Taxpayer ID No(s).: Dated: (SEE OTHER SIDE) - --------------- 2 Unless otherwise indicated, it will be assumed that all such Series D 7.92% Depositary Shares are to be tendered. 3 4 PLEASE DESIGNATE IN THE BOX BELOW ANY SOLICITING DEALER WHO SOLICITED YOUR TENDER. - -------------------------------------------------------------------------------- SOLICITED TENDERS The undersigned represents that the Soliciting Dealer who solicited and obtained this tender is: Name of Firm: (PLEASE PRINT) Name of Individual Broker or Financial Consultant: Identification Number (if known): Address: (INCLUDE ZIP CODE) SIGN HERE X ----------------------------------------- - ----------------------------------------- ----------------------------------------- X PRINT NAME(S) AND ADDRESS(ES) HERE - ----------------------------------------- SIGNATURE(S)
Dated: ------------------------------------------ - -------------------------------------------------------------------------------- 4 EX-99.(D)(II) 19 EX-99.(D)(II) 1 EXHIBIT 99(d)(ii) GENERAL MOTORS CAPITAL TRUST G OFFER TO EXCHANGE ITS % TRUST ORIGINATED PREFERRED SECURITIES(SM) ("TOPRS(SM)"), SERIES G (LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY AND GUARANTEED TO THE EXTENT SET FORTH IN THE PROSPECTUS BY GENERAL MOTORS CORPORATION) FOR UP TO 9,071,910 DEPOSITARY SHARES EACH REPRESENTING ONE-FOURTH OF A SHARE OF SERIES G 9.12% PREFERENCE STOCK (CUSIP 370442790) OF GENERAL MOTORS CORPORATION THE SERIES G OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME ON , , 1997, UNLESS EXTENDED. To Our Clients: Enclosed for your consideration are the Prospectus dated , 1997 (as amended or supplemented and including all documents incorporated therein by reference, the "Prospectus") and the Letter of Transmittal relating to the Series G 9.12% Depositary Shares (which, together with the Prospectus, constitutes the "Series G Offer") in connection with the offer by General Motors Capital Trust G, a Delaware statutory business trust (the "Series G Trust"), to exchange its % Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series G (the "Series G Preferred Securities"), for up to 9,071,910 depositary shares (the "Series G 9.12% Depositary Shares"), each representing one-fourth of a share of Series G 9.12% Preference Stock of General Motors Corporation, a Delaware corporation ("General Motors"), not owned by General Motors, that are validly tendered and accepted for exchange pursuant to the Series G Offer. In connection with the Series G Offer, General Motors will deposit into the Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series G, due 2012, as set forth in the Prospectus. Pursuant to the Series G Offer, exchanges will be made on the basis of one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered (and not withdrawn) and accepted for exchange in the Series G Offer. The Series G Trust will accept for exchange Series G 9.12% Depositary Shares validly tendered and not withdrawn, up to the maximum number of shares set forth above, upon the terms and subject to the conditions of the Series G Offer. We are the holder of record of Series G 9.12% Depositary Shares held for your account. A tender of such Series G 9.12% Depositary Shares can be made only by us as the holder of record and pursuant to your instructions. The Letter of Transmittal relating to the Series G 9.12% Depositary Shares is furnished to you for your information only and cannot be used by you to tender Series G 9.12% Depositary Shares held by us for your account. We request instructions as to whether you wish us to tender any or all of the Series G 9.12% Depositary Shares held by us for your account, upon the terms and subject to the conditions set forth in the Prospectus and the applicable Letter of Transmittal. We also request that you designate, in the box captioned "Soliciting Tenders," any Soliciting Dealer who solicited your tender of Series G 9.12% Depositary Shares. - --------------- (SM)"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 2 Your attention is called to the following: 1. The Series G Offer and the related withdrawal rights expire at 12:00 Midnight, Eastern time, on , , 1997, unless extended. 2. Consummation of the Series G Offer is conditioned on, among other things, tenders by a sufficient number of holders of Series G 9.12% Depositary Shares such that there be at least 400 record or beneficial holders of at least 1,000,000 Series G Preferred Securities to be issued in exchange for such Series G 9.12% Depositary Shares (the "Minimum Distribution Condition"), which condition may not be waived. 3. The Series G Trust expressly reserves the right, in its sole discretion, subject to applicable law, to (i) terminate the Series G Offer and not accept for exchange any Series G 9.12% Depositary Shares and promptly return all Series G 9.12% Depositary Shares upon the failure of any of the conditions specified above and in "The Offers -- Conditions To The Offers" in the Prospectus, (ii) waive any condition to the Series G Offer (other than the Minimum Distribution Condition) and accept all Series G 9.12% Depositary Shares previously tendered, subject to the maximum number of shares set forth above, pursuant to the Series G Offer, (iii) extend the Expiration Date of the Series G Offer (the "Series G Expiration Date") and retain all Series G 9.12% Depositary Shares tendered pursuant to such Series G Offer until the Series G Expiration Date, subject, however, to all withdrawal rights of holders (see "The Offers -- Withdrawal of Tenders" in the Prospectus), (iv) amend the terms of the Series G Offer, (v) modify the form of the consideration to be paid pursuant to the Series G Offer, or (vi) not accept for exchange Series G 9.12% Depositary Shares at any time on or prior to the Series G Expiration Date, for any reason, including, without limitation, if fewer than 100,000 Series G 9.12% Depositary Shares would remain outstanding upon acceptance of those tendered (which condition may be waived by the Trust). Any amendment applicable to the Series G Offer will apply to all Series G 9.12% Depositary Shares tendered pursuant to the Series G Offer. The minimum period during which the Series G Offer must remain open following material changes in the terms of the Series G Offer or the information concerning the Series G Offer, other than a change in the amount of Series G 9.12% Depositary Shares sought for exchange or an increase or decrease in the consideration offered to holders of Series G 9.12% Depositary Shares, depends upon the facts and circumstances, including the relative materiality of such terms or information. See "The Offers -- Expiration Dates; Extensions; Amendments; Termination" in the Prospectus. 4. Tendering stockholders will not pay brokerage fees or commissions, solicitation fees or, subject to Instruction 6 of the Letter of Transmittal relating to the Series G 9.12% Depositary Shares, any stock transfer taxes applicable to the exchange of Series G 9.12% Depositary Shares pursuant to the Series G Offer. Please note that a Question and Answer pamphlet regarding the Series G Preferred Securities is enclosed for your information. If you wish to have us tender any or all of your Series G 9.12% Depositary Shares, please instruct us by completing, executing, detaching and returning to us the detachable portion hereof captioned "Instructions With Respect to the Series G Offer." An envelope to return your instructions to us is enclosed. If you authorize tender of your Series G 9.12% Depositary Shares, all such Series G 9.12% Depositary Shares will be tendered unless otherwise specified on such instructions. Your instructions should be forwarded to us in ample time to permit us to submit a tender on your behalf before the Series G Expiration Date. THE SERIES G OFFER IS NOT BEING MADE TO, NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF OF, HOLDERS OF SERIES G 9.12% DEPOSITARY SHARES IN ANY JURISDICTION IN WHICH THE MAKING OF THE SERIES G OFFER OR ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION. IN THOSE JURISDICTIONS THE LAWS OF WHICH REQUIRE THAT THE SERIES G OFFER BE MADE BY A LICENSED BROKER OR DEALER, THE SERIES G OFFER SHALL BE DEEMED TO BE MADE ON BEHALF OF THE SERIES G TRUST BY MERRILL LYNCH & CO., SMITH BARNEY INC. OR ONE OR MORE REGISTERED BROKERS OR DEALERS LICENSED UNDER THE LAWS OF SUCH JURISDICTION. 2 3 INSTRUCTIONS WITH RESPECT TO THE SERIES G OFFER The undersigned acknowledge(s) receipt of your letter and the enclosed Prospectus dated , 1997 and the Letter of Transmittal relating to the Series G 9.12% Depositary Shares in connection with the Series G Offer by the Series G Trust to exchange its Series G Preferred Securities for up to 9,071,910 Series G 9.12% Depositary Shares of General Motors that are validly tendered and accepted for exchange. Pursuant to the Series G Offer, exchanges will be made on the basis of one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange in the Series G Offer. This will instruct you to tender the number of Series G 9.12% Depositary Shares indicated below held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal relating to the Series G 9.12% Depositary Shares. By checking this box, all Series G 9.12% Depositary Shares held by you for our account, including fractional shares, will be tendered in the Series G Offer. If fewer than all Series G 9.12% Depositary Shares are to be tendered, we have checked the box below and indicated the aggregate number of Series G 9.12% Depositary Shares to be tendered by you. - ------------------------------ shares* SIGN HERE Signature(s): Name(s): Address(es): Social Security or Taxpayer ID No(s).: Dated: (SEE OTHER SIDE) - --------------- * Unless otherwise indicated, it will be assumed that all such Series G 9.12% Depositary Shares are to be tendered. 3 4 PLEASE DESIGNATE IN THE BOX BELOW ANY SOLICITING DEALER WHO SOLICITED YOUR TENDER. - -------------------------------------------------------------------------------- SOLICITED TENDERS The undersigned represents that the Soliciting Dealer who solicited and obtained this tender is: Name of Firm: (PLEASE PRINT) Name of Individual Broker or Financial Consultant: Identification Number (if known): Address: (INCLUDE ZIP CODE) SIGN HERE X ----------------------------------------- - ----------------------------------------- ----------------------------------------- X PRINT NAME(S) AND ADDRESS(ES) HERE - ----------------------------------------- SIGNATURE(S)
Dated: ------------------------------------------ - -------------------------------------------------------------------------------- 4 EX-99.(E) 20 EX-99.(E) 1 EXHIBIT 99(e) EXCHANGE AGENT AGREEMENT Dated: _______________________ The First National Bank of Boston Shareholder Services Division P. O. Box 1889 Mail Stop: 45-02-53 Boston, Massachusetts 02105 Gentlemen: _____________________, a ________________ corporation (the "Company"), is making exchange offers (hereinafter collectively referred to, together with any amendment or extensions thereof, as the "Exchange Offers") to exchange on the basis of one Series D Preferred Securities for each Series D 7.92% Depositary Shares, and on the basis of one Series G Preferred Security for each Series G 9.12% Depositary Shares validly tendered and accepted in the Exchange Offers, upon the terms and subject to the conditions set forth in the Prospectus, dated _________________ , and in the related Letters of Transmittal ("Letters of Transmittal"), including the instructions set forth therein. Definitive copies of each document being distributed by the Company to its stockholders in connection with the Exchange Offer have been or will be delivered to you. All terms used herein shall use definitions contained in the Letter of Transmital. The Exchange Offer is being made on ______________, and will expire at 5:00 p.m., New York City time, on ______________, unless extended by the Company as provided in the Exchange Offer (the last date to which the Exchange Offer is extended and on which it expires is herein referred to as the "Expiration Date"). This will confirm our agreement with you to act as the Exchange Agent in connection with the Exchange Offer. In such capacity you will receive and exchange, on behalf of the Company, Depositary Shares delivered pursuant to the terms of the Exchange Offer. In carrying out your duties as the Exchange Agent in connection with the Exchange Offer, you are to act in accordance with the following instructions: 1. Mail, by first class mail, postage prepaid, within five business days after ____________ (the "Effective Date"), to each holder of record of Series D 7.92% Depositary Shares and Series G 9.12% Depositary Shares as of the effective time, the following material: (a) a copy of the applicable Letter of Transmital (including the Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9) relating to those shares of Series D 7.92% Depositary Shares and Series G 9.12% Depositary Shares having hereon the name and address of such record date holders and (b) a non postage paid envelope addressed to the Exchange Agent 2 for use by such holder in exchanging his or her Series D 7.92% Depositary Share for Series D Preferred and his or her Series G 9.12% Depositary Share for Series G Preferred Security. 2. You shall examine the Letters of Transmittal, the certificates for Shares and the other documents delivered or mailed to you in connection with exchanges of Depositary Shares to ascertain whether they are completed and executed in accordance with the instructions set forth in the Letters of Transmittal. In the event any Letter of Transmittal has been improperly completed or executed, or the certificates for Depositary Shares accompanying such Letter of Transmittal are not in proper form for transfer (as required by the aforesaid instructions), or if some other irregularity in connection with any exchange of Depositary Shares exists, you shall endeavor to cause such action to be taken as is necessary to correct such irregularity. Determination of all questions as to the validity, form, eligibility (including timeliness of receipt) and acceptance of any Depositary Shares exchanged or delivered shall be determined by you on behalf of the Company in the first instance, but final decisions on all such matters shall be made by the Company. The Company will reserve in the Exchange Offer the absolute right to reject any or all exchanges of any particular Shares not in appropriate form or the acceptance of which would, in the opinion of the Company's counsel, be unlawful and to waive any of the conditions of the Exchange Offer or any defect or irregularity in the exchange of any Depositary Shares, and the Company's interpretation of the terms and conditions of the Exchange Offer will be final. 3. All Depositary Shares must be exchanged in accordance with the terms and conditions set forth in the Exchange Offer. 4. An exchanging stockholder may withdraw Shares as set forth in of the Prospectus, in which event you shall, as promptly as possible after notification of such withdrawal, return such Depositary Shares to, or in accordance with the instruction of, such stockholder and such Depositary Shares shall no longer be considered properly exchanged. All questions as to the form and validity of notices of withdrawal, including timeliness of receipt, shall be determined by the Company, whose determination shall be final and binding. 5. On each business day up to and including the Expiration Date (as defined in the Prospectus), you shall advise by facsimile transmission, not later than 5:00 p.m., Boston time, _____________ __________________ and such other persons as either of them may direct, of the number of Depositary Shares which have been duly delivered on such day, stating separately the number of Shares delivered by Guaranty of Delivery pursuant to the Prospectus, the number of Depositary Shares delivered about which you have questions concerning validity and the cumulative number of Depositary Shares delivered through time of such facsimile transmission. You shall also inform the aforementioned persons, and such other persons as may be designated by either of them, upon request made from time to time, of such other information as either of them may 3 request, including, without limitation, the names and addresses of registered holders of exchanged Depositary Shares. 6. Letters of Transmittal or facsimile transmissions submitted in lieu thereof pursuant to the Prospectus shall be stamped by you as of the date and time of receipt thereof and preserved by you as permanent records until you are otherwise instructed by the Company. You are to match Guarantees of Delivery submitted pursuant to the Prospectus with the Depositary Share(s) exchanged pursuant thereto. If so instructed by the Company, you shall telephone Eligible Institutions (as defined in the Prospectus) which have exchanged a significant number of shares by means of the aforementioned procedures to ascertain information in connection therewith. 7. The Company will notify you of, and confirm in writing (if requested), any extension or amendment of the Exchange Offer. 8. You shall follow and act upon any amendments, modifications or supplements to these instructions, and upon any further instructions in connection with the Exchange Offer, any of which may be given to you by the Company or such other persons as it may authorize. 9. If, pursuant to the provisions of the Instructions set forth in the Letter of Transmittal, fewer than all the Depositary Shares evidenced by any certificate submitted to you are to be exchanged, you shall, promptly after the Expiration Date, return or cause to be returned a new certificate for the remainder of Depositary Shares not being exchanged to, or in accordance with the instruction of, each of such stockholders who has made a partial exchange of Depositary Shares deposited with you. 10. If, pursuant to the Exchange Offer, the Company does not accept the receipt of instructions from an exchanging stockholder, you shall return the certificates for such Depositary Shares to, or in accordance with the instructions of, the persons who deposited the same, together with a letter of notice, in form satisfactory to the Company, explaining why the deposited Depositary Shares are being returned. 11. As Exchange Agent you: (a) shall have no duties or obligations other than those specifically set forth herein or as may subsequently be requested of you by the Company with respect to the Exchange Offer; (b) will be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of any stock certificates or the Depositary Shares represented thereby deposited with you pursuant to the Exchange Offer and will not be required and will make no representations as to the validity, value or genuineness of the Exchange Offer; (c) shall not initiate any legal action hereunder about written approval of the Company and then only upon such reasonable indemnity as you may request; 4 (d) may rely on and shall be protected in acting upon any certificate, instrument, opinion, notice, letter, facsimile transmission, telegram or other document, or any security delivered to you, and reasonably believed by you to be genuine and to have been signed by the proper party or parties; (e) may rely on and shall be protected in acting upon written or oral instructions with respect to any matter relating to your acting as Exchange Agent specifically covered by this Agreement, or supplementing or qualifying any such action, of __________________________ or _______________ ___________________; (f) may consult with counsel satisfactory to you (including counsel for the Company) and the written advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by you hereunder in good faith and in accordance with such advice or opinion of such counsel; (g) shall arrange for insurance protecting the Company and yourself against any liability arising out of the loss, destruction or non-delivery of certificates for any cause; and (h) shall not at any time advise any person as to the wisdom of making any exchange pursuant to the Exchange Offer, the value of the Depositary Shares or as to any other financial or legal aspect of the Exchange Offer or any transaction related thereto. 12. It is understood and agreed that the securities, money, assets or property (the "Property") to be deposited with or received by you as Exchange Agent from the Company constitute a special, segregated account, held solely for the benefit of the Company and stockholders exchanging Depositary Shares, as their interests may appear, and the Property shall not be commingled with the securities, money, assets or properties of you or any other person, firm or corporation. You hereby waive any and all rights of lien, attachment or set-off whatsoever, if any, against the Property so to be deposited, whether such rights arise by reason of statutory or common law, by contract or otherwise. 13. For services rendered as Exchange Agent hereunder, you shall be entitled to payment as set forth on Exhibit A hereto. 14. The Company covenants and agrees to indemnify and to hold you harmless against any costs, expenses (including reasonable fees of your legal counsel), losses or damages, which may be paid, incurred or suffered by or to which you may become subject, arising from or out of, directly or indirectly, any claims or liability resulting from your actions as Exchange Agent pursuant hereto; provided, that such covenant and agreement does not extend to, and you shall not be indemnified with respect to, such costs, expenses, losses and damages incurred or suffered by you as a result of, or arising out of, your negligence, bad faith, or willful failure to perform any of your obligations hereunder. In no case will the Company be liable under this indemnity with 5 respect to any claim against you unless, promptly after you have received any written assertion of a claim or have been served with summons or other first legal process giving information as to the nature and basis of the claim, you notify the Company, by letter or by cable or telex confirmed by letter, of the written assertion of such claim against you or of any action commenced against you or of the service of any summons on you, or other first legal process giving information as to nature and basis of the claim. The Company will be entitled at any time to assume or to participate at its own expense in the defense of any such claim. If the Company so elects at any time after receipt of such notices and agrees in writing that such claim is a claim for which you are entitled to be indemnified and held harmless hereunder or if you in such notice request and the Company agrees, the Company will assume the defense of any suit brought to enforce any such claim. In the event the Company assumes the defense of any such suit, the Company may select counsel of its own choosing for such purpose and the Company will not be liable for the fees and expenses of any additional counsel thereafter retained by you. 15. This Exchange Agent Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts and shall inure to the benefit of and the obligations created hereby shall be binding upon the successors and assigns of the parties hereto. 16. This Exchange Agent Agreement may be executed in separate counterparts, each of which when executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. If the foregoing is acceptable to you, please acknowledge receipt of this letter and confirm the arrangements herein provided by signing and returning the enclosed copy. Very truly yours, By:_____________________ _________ ACCEPTANCE AS OF THE DATE HEREOF: By:____________________________________ Title: EX-99.(F) 21 EX-99.(F) 1 EXHIBIT 99(f) _____, 1997 General Motors Corporation 767 Fifth Avenue New York, NY 10153 LETTER OF AGREEMENT This Letter of Agreement (the "Agreement") sets forth the terms and conditions under which Georgeson & Company Inc. ("Georgeson") has been retained by General Motors Corporation ("General Motors") as Information Agent for its exchange offers relating to its Series D and G Preference securities (together, the "Offer"). The term of the Agreement shall be the term of the Offer, including any extensions thereof. 1. During the term of the Agreement, Georgeson will: provide advice and consultation with respect to the planning and execution of the Offer; assist in the preparation and placement of newspaper ads; assist in the distribution of Offer documents to brokers, banks, nominees, institutional investors, and other shareholders and investment community accounts; answer collect telephone inquiries from shareholders and their representatives; and, if requested, call individuals who are registered holders. 2. General Motors will pay Georgeson a fee of $20,000.00, of which half is payable in advance per the enclosed invoice and the balance is payable at the expiration of the Offer, plus an additional fee to be mutually agreed upon if the Offer is extended more than fifteen days beyond the initial expiration date. If Georgeson is requested to call less than 15,000 individuals who are holders of the securities of General Motors, General Motors Corporation will pay Georgeson an additional sum computed on the basis of $3.75 per call. If the number of calls made exceeds 15,000, the fee will be $3.50 per call. 3. In connection with our services under this agreement, you agree to reimburse us, or pay directly, or, where requested by us, advance sufficient funds to us for payment for the following costs and expenses: --reasonable expenses incidental to the Offer, including typesetting, printing, distribution, mailing, postage and freight charges incurred by us on your behalf; --reasonable expenses we incur in working with your agents or other parties, including bank threshold lists, data processing, charges for facsimile 25 2 General Motors Corporation ________, 1997 Page 2 transmissions or other forms of electronic communications, charges of courier, and other such services, in each case authorized by you; --reasonable expenses we incur at your request or for your convenience, including printing additional and/or supplemental material, copying, and travel expenses incurred at your request of our executives; --reasonable fees and expenses authorized by you resulting from extraordinary contingencies during the solicitation, including advertising, media relations, stock watch and analytical services. 4. If requested, we will check, itemize and pay, on your behalf, from funds provided by you, the charges of brokers and banks, with the exception of ADP Proxy Services which will bill you directly, for forwarding Offer material to beneficial owners. To ensure that we have sufficient funds in your account to pay these bills promptly, you agree to provide us, at the time we complete the initial delivery of this material, with a preliminary payment equal to 75% of the anticipated broker and bank charges for distributing this material. For this service, you will pay us five dollars and fifty cents ($5.50) for each broker and bank invoice paid by us. If you prefer to pay these bills directly, please strike out and initial this clause before returning the Agreement to us. 5. Georgeson hereby agrees not to make any representations not included in the Offer documents. 6. General Motors agrees to indemnify and hold Georgeson harmless against any loss, damage, reasonable expense (including, without limitation, reasonable legal and other related fees and expenses), liability or claim arising out of Georgeson's fulfillment of the Agreement (except for any loss, damage, expense, liability or claim arising out of Georgeson's own negligence or misconduct). At its election, General Motors may at any time assume or participate in the defense of any such action. Georgeson hereby agrees to advise General Motors of any such liability or claim promptly after receipt of any notice thereof. The indemnification contained in this paragraph will survive the term of the Agreement. 7. Georgeson agrees to indemnify and hold General Motors harmless against any loss, damage, reasonable expense (including, without limitation, reasonable legal and other related fees and expenses), liability or claim arising out of General Motors' fulfillment of the Agreement (except for any loss, damage, expense, liability or claim arising out of General Motors' own negligence or misconduct). At its election, Georgeson may assume the defense of any such 3 General Motors Corporation _________, 1997 Page 3 action. General Motors hereby agrees to advise Georgeson of any such liability or claim promptly after receipt of any notice thereof. The indemnification contained in this paragraph will survive the term of the Agreement. 8. Georgeson agrees to preserve the confidentiality of all non-public information provided by General Motors or its agents for our use in providing services under this Agreement, or information developed by Georgeson based upon such non-public information. IF THE ABOVE IS AGREED TO BY YOU, PLEASE SIGN AND RETURN THE ENCLOSED DUPLICATE OF THIS AGREEMENT TO GEORGESON & COMPANY INC., WALL STREET PLAZA, NEW YORK, NEW YORK 10005, ATTENTION: MARCY ROTH, CONTRACT ADMINISTRATOR. ACCEPTED: Sincerely, GENERAL MOTORS CORPORATION GEORGESON & COMPANY INC. By:_______________________________________By:_______________________________ Kay DeAngelis Title:____________________________________ Senior Managing Director Date:_____________________________________ EX-99.(G) 22 EX-99.(G) 1 EXHIBIT 99(g) [LETTERHEAD OF GENERAL MOTORS CORPORATION] April , 1997 Dear Stockholder: A special purpose trust (the "Series D Trust") formed by General Motors Corporation ("General Motors") is offering to exchange its % Trust Originated Preferred Securities-(SM) ("TOPrS"), Series D (the "Series D Preferred Securities"), for up to 5,462,917 (i.e., approximately 90%) of General Motors' depositary shares (the "Series D 7.92% Depositary Shares"), each representing one-fourth of a share of General Motors' Series D 7.92% Preference Stock. Similarly, a special purpose trust (the "Series G Trust") formed by General Motors is offering to exchange its % Trust Originated Preferred Securities ("TOPrS"), Series G (the "Series G Preferred Securities"), for up to 9,071,910 (i.e., approximately 90%) of General Motors' depositary shares (the "Series G 9.12% Depositary Shares"), each representing one-fourth of a share of General Motors' Series G 9.12% Preference Stock. Such exchanges are to be made on the basis of one Series D Preferred Security for one Series D 7.92% Depositary Share, and one Series G Preferred Security for one Series G 9.12% Depositary Share. Enclosed for your consideration are a Prospectus dated , 1997 (as amended or supplemented, the "Prospectus") and a Letter of Transmittal relating to each Offer to which your Depositary Shares (as defined in the Prospectus) are subject (the Letter of Transmittal relating to the Series D 7.92% Depositary Shares, together with the Prospectus, constitutes the "Series D Offer" and the Letter of Transmittal relating to the Series G 9.12% Depositary Shares, together with the Prospectus, constitutes the "Series G Offer"). These enclosures contain detailed information concerning the Offers, including the terms and conditions of the Offers, the purpose of the Offers and the procedures for tendering Depositary Shares in exchange for Preferred Securities pursuant to either or both of the Offers. These enclosures also contain detailed information relating to certain tax consequences of exchanging Depositary Shares for Preferred Securities pursuant to either or both of the Offers. Please read the enclosed information carefully before deciding whether or not you wish to tender your Depositary Shares for exchange in the applicable Offer(s). In reviewing the enclosed material, please bear in mind the following: - Each of the Offers and the related withdrawal rights will expire at 12:00 Midnight, Eastern time, on , 1997, unless either or both is extended. The First National Bank of Boston, as exchange agent for each of the Offers (the "Exchange Agent"), must receive the certificates representing your Depositary Shares and the related Letter(s) of Transmittal (or the related Notice(s) of Guaranteed Delivery, if applicable) by that time. THERE IS A SEPARATE LETTER OF TRANSMITTAL AND NOTICE OF GUARANTEED DELIVERY FOR EACH OFFER. - The exchange of Depositary Shares for Preferred Securities pursuant to either of the Offers is a taxable transaction under present United States federal income tax laws. In addition, your ownership and disposition of Preferred Securities may have different tax consequences than your ownership and disposition of Depositary Shares. You should consult your own tax advisor regarding the tax consequences to you of the exchange and the ownership and disposition of Preferred Securities, including the application and effect of United States federal, state, local and, where applicable, foreign tax laws. - Consummation of each of the Offers is conditioned on, among other things, tenders by a sufficient number of holders of Depositary Shares subject to each Offer such that there be at least 400 record or beneficial holders of at least 1,000,000 Preferred Securities of the series to be issued in exchange for the Depositary Shares tendered in such Offer, which condition may not be waived with respect to either Offer. - --------------- (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 2 Although the Board of Directors of General Motors (the "General Motors Board") has authorized the Series D Offer and the Series G Offer, neither the General Motors Board nor General Motors makes any recommendation as to whether you should tender all or any of your Depositary Shares for exchange in either or both of the Offers. You should make your own decision as to whether to tender Depositary Shares in either or both of the Offers and, if so, how many Depositary Shares to tender. The Offers make good economic sense for General Motors. The purpose of the Offers is to refinance the Depositary Shares with the Preferred Securities to restructure a portion of General Motors' outstanding equity while achieving competitive financing and certain tax efficiencies and preserving General Motors' flexibility with respect to future financings. The refinancings effected pursuant to the Offers will permit General Motors to deduct interest payable to the Trusts for United States federal income tax purposes. I encourage you to read the enclosed materials carefully. If, after reviewing the information set forth in the Prospectus and related Letter(s) of Transmittal, you wish to tender Depositary Shares, please either follow the instructions contained in the Prospectus and applicable Letter of Transmittal or contact your broker, dealer, commercial bank, trust company or other nominee to effect the tender for you. If you need additional information or assistance in connection with either of the Offers, please contact the Information Agent, Georgeson & Company Inc., whose toll-free telephone number is (800) 223-2064. Very truly yours, John F. Smith, Jr. Chairman of the Board, Chief Executive Officer and President 2 EX-99.(H) 23 EX-99.(H) 1 EXHIBIT 99(h) THE SERIES D AND SERIES G EXCHANGE OFFERS QUESTIONS & ANSWERS [GENERAL MOTORS LOGO] 2 Questions and Answers relating to the Offer by General Motors Capital Trust D to exchange its -% Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series D (the "Series D Preferred Securities"), for up to 5,462,917 Depositary Shares (the "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 ("General Motors") and the Offer by General Motors Capital Trust G to exchange its -% Trust Originated Preferred Securities(SM) ("TOPrS(SM)"), Series G (the "Series G Preferred Securities" and, together with the Series D Preferred Securities, the "Preferred Securities"), for up to 9,071,910 Depositary Shares (the "Series G 9.12% Depositary Shares" and, together with the Series D 7.92% Depositary Shares, the "Depositary Shares"), each representing one-fourth of a share of Series G 9.12% Preference Stock (the "Series G 9.12% Preference Stock" and, together with the Series D 7.92% Preference Stock, the "Preference Stock") of General Motors THE OFFERS (AND THE RELATED WITHDRAWAL RIGHTS) WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON -, -, 1997, UNLESS EXTENDED. __________________________________ (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. 2 3 Please note that the following information does not purport to be complete and is subject in all respects to the provisions of, and is qualified in its entirety by reference to the Prospectus dated -, 1997 (the "Prospectus") and the accompanying Letter of Transmittal for the Series D 7.92% Depositary Shares (which, together with the Prospectus, constitutes the "Series D Offer") and/or the accompanying Letter of Transmittal for the Series G 9.12% Depositary Shares (which, together with the Prospectus, constitutes the "Series G Offer" and, together with the Series D Offer, the "Offers"), as applicable. Please refer to the Prospectus for details of the Offers and the defined terms used herein. Q: WHAT ARE THE TERMS OF THE OFFERS? A: Series D. In the Series D Offer, the Series D Trust will exchange one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange, up to a maximum of 5,462,917 (i.e., approximately 90%) of the outstanding Series D 7.92% Depositary Shares not owned by General Motors. Series G. In the Series G Offer, the Series G Trust will exchange one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange, up to a maximum of 9,071,910 (i.e., approximately 90%) of the outstanding Series G 9.12% Depositary Shares not owned by General Motors. See "The Offers" in the Prospectus. Q: WHAT ARE SERIES D PREFERRED SECURITIES AND SERIES G PREFERRED SECURITIES? A: Series D. Series D Preferred Securities represent undivided beneficial ownership interests in the Series D Trust's assets, which assets consist solely of -% Junior Subordinated Deferrable Interest 3 4 Debentures, Series D, due ______ __, 2012 (the "Series D Junior Subordinated Debentures") issued by General Motors to the Series D Trust. The Series D Preferred Securities pay quarterly distributions corresponding to the interest rate and the payment dates on the Series D Junior Subordinated Debentures. Series G. Series G Preferred Securities represent undivided beneficial ownership interests in the Series G Trust's assets, which assets consist solely of -% Junior Subordinated Deferrable Interest Debentures, Series G, due ______ __, 2012 (the "Series G Junior Subordinated Debentures") issued by General Motors to the Series G Trust. The Series G Preferred Securities pay quarterly distributions corresponding to the interest rate and the payment dates on the Series G Junior Subordinated Debentures. See "Description of the Preferred Securities" and "Description of the Junior Subordinated Debentures" in the Prospectus. Q: WHAT IS THE PURPOSE OF THE OFFERS? A: The principal purpose of the Offers is to refinance the Depositary Shares with the Preferred Securities to restructure a portion of General Motors' outstanding equity while achieving competitive financing and certain tax efficiencies and preserving General Motors' flexibility with respect to future financings. The refinancings effected pursuant to the Offers will permit General Motors to deduct interest payable on the Junior Subordinated Debentures for United States federal income tax purposes (in contrast to the dividends payable on the Depositary Shares, which are not deductible). 4 5 Q: WILL THE PREFERRED SECURITIES BE LISTED ON THE NEW YORK STOCK EXCHANGE? A: General Motors will apply to list the Series D Preferred Securities on the New York Stock Exchange under the ticker symbol "-" and to list the Series G Preferred Securities on the New York Stock Exchange under the ticker symbol "-." Q: ARE THE PREFERRED SECURITIES RATED? A: As of the date of the Prospectus, the Series D and Series G Preferred Securities have each been rated by [Moody's and Standard & Poor's], and [each series has the same ratings as the corresponding series of Depositary Shares]. Q: HOW ARE THE PREFERRED SECURITIES GUARANTEED? A: Payments of distributions on the Series D and Series G Preferred Securities and on liquidation or redemption are guaranteed on a subordinated basis by General Motors, but only if and to the extent payments have been made on the corresponding series of Junior Subordinated Debentures. See "Description of the Preferred Securities Guarantees" in the Prospectus. Q: ARE THE REDEMPTION PROVISIONS OF THE PREFERRED SECURITIES DIFFERENT FROM THOSE OF THE DEPOSITARY SHARES? A: The Preferred Securities contain the optional redemption provisions generally equivalent to the optional redemption provisions of the Depositary Shares (i.e., the Series D Preferred Securities may be redeemed at face value on and after August 1, 1999 and the Series G Preferred Securities may be redeemed at face value on and after January 1, 2001). In contrast to the Depositary Shares, Preferred Securities may be redeemed at any time upon 5 6 the occurrence of a Tax Event (as defined in the Prospectus); any such redemption occurring prior to the respective dates set forth in the preceding sentence would be at a premium, as described in more detail in the Prospectus. Finally, again in contrast to the Depositary Shares, the Preferred Securities must be redeemed upon the maturity of the related Junior Subordinated Debentures, which will occur not later than in the year 2012. The Depositary Shares do not have a stated maturity and are not mandatorily redeemable. See "Risk Factors and Special Considerations Relating to the Offers," "Comparison of Preferred Securities and Depositary Shares," "Description of the Preferred Securities," and "Description of the Junior Subordinated Debentures" in the Prospectus. DISTRIBUTION AND DIVIDEND MATTERS Q: HOW DO THE DISTRIBUTION RATES ON THE PREFERRED SECURITIES COMPARE TO THE DIVIDEND RATES ON THE DEPOSITARY SHARES? A: Series D. The distribution rate on the Series D Preferred Securities is -% per annum, while the dividend rate for Series D 7.92% Depositary Shares is 7.92% per annum. Series G. The distribution rate on the Series G Preferred Securities is -% per annum, while the dividend rate for Series G 9.12% Depositary Shares is 9.12% per annum. Q: WILL DISTRIBUTIONS ON THE PREFERRED SECURITIES BE PAID ON THE SAME SCHEDULE AS DIVIDENDS ON THE DEPOSITARY SHARES? A: Yes, subject to General Motors' right to defer such distributions, as explained below. 6 7 Q: A DIVIDEND WAS PAID ON THE DEPOSITARY SHARES ON - 1, 1997, AND THE NEXT SCHEDULED DIVIDEND PAYMENT DATE ON THE DEPOSITARY SHARES IS - 1, 1997. WILL TENDERING HOLDERS BE COMPENSATED FOR THE AMOUNT OF DIVIDENDS ON ANY DEPOSITARY SHARES THAT ARE EXCHANGED IN THE OFFERS ACCRUED THROUGH THE DATE OF EXCHANGE? A: Yes. Series D. If the Series D Offer is consummated, holders of Series D Depositary Shares tendered for exchange pursuant to the Series D Offer who hold Series D Preferred Securities on the applicable record date will be entitled to a cash distribution on August 1, 1997 at the rate of 7.92% per annum from - 1, 1997 through and including the Expiration Date of the Series D Offer. Series G. If the Series G Offer is consummated, holders of Series G Depositary Shares tendered for exchange pursuant to the Series G Offer who hold Series G Preferred Securities on the applicable record date will be entitled to a cash distribution on August 1, 1997 at the rate of 9.12% per annum from - 1, 1997 through and including the Expiration Date of the Series G Offer. See "Description of the Preferred Securities--Distributions" in the Prospectus. Q: EXPLAIN THE 20 QUARTER DISTRIBUTION DEFERRAL PROVISIONS OF THE PREFERRED SECURITIES. A: Quarterly interest payments on the Series D and/or Series G Junior Subordinated Debentures may be deferred, at the option of General Motors, for one or more periods of up to 20 consecutive quarters each (each, an "Extension Period"), provided that any such Extension Period may not extend beyond the applicable Stated Maturity. In the case of any 7 8 such deferral, distributions on the Preferred Securities of such Series will be similarly deferred. See "Description of the Preferred Securities--Distributions" in the Prospectus. In contrast, quarterly dividend payments on the Depositary Shares are payable only if declared by General Motor's Board of Directors, and thus such dividends may in effect be deferred indefinitely. To date, General Motors has made each quarterly dividend payment with respect to the Series D 7.92% and Series G 9.12% Depositary Shares on the respective scheduled payment dates. The Depositary Shares have no maturity date. Deferred distributions on Preferred Securities continue to accrue and, if in arrears, are compounded quarterly, at a rate of -% per annum in the case of the Series D Preferred Securities and at a rate of -% per annum in the case of the Series G Preferred Securities. However, while dividends on Depositary Shares continue to accrue if such dividends are suspended, there is no such compounding feature. During such a deferral, the applicable Trust will continue to accrue interest income (as original issue discount) in respect of the applicable Junior Subordinated Debentures which will be taxable to beneficial owners of the Preferred Securities of such Trust. As a result, beneficial owners of such Preferred Securities during such a deferral would be required to include their pro rata share of the interest in their gross income, despite not having received such income in cash. See "Risk Factors and Special Considerations Relating to the Offers--Options to Extend Interest Payment Periods" and "Description of the Preferred Securities--Distributions" in the Prospectus. 8 9 TAX ISSUES Q: WILL THE EXCHANGE OF PREFERRED SECURITIES FOR DEPOSITARY SHARES CONSTITUTE A TAXABLE EVENT? A: Yes. General Motors recommends that each holder read the section entitled "United States Federal Income Taxation" in the Prospectus and consult their own tax advisor. Q: WHAT WILL BE THE INITIAL TAX BASIS FOR THE PREFERRED SECURITIES? A: The initial tax basis of Preferred Securities acquired in either of the Offers generally will be equal to the fair market value of such Preferred Securities on the Exchange Date of the applicable Offer. Thereafter, adjusted tax basis will be determined as described in "United States Federal Income Taxation" in the Prospectus. Q: HOW WILL DISTRIBUTIONS ON PREFERRED SECURITIES BE REPORTED TO THE IRS? A: Distributions on Preferred Securities will be reported on Forms 1099. Q: CORPORATE HOLDERS CAN CLAIM A DIVIDENDS RECEIVED DEDUCTION WITH RESPECT TO DIVIDENDS RECEIVED ON DEPOSITARY SHARES. ARE DISTRIBUTIONS ON PREFERRED SECURITIES ELIGIBLE FOR THAT DEDUCTION? A: No. 9 10 PROCEDURES FOR EXCHANGING DEPOSITARY SHARES Q: IF DEPOSITARY SHARES ARE REGISTERED IN MY NAME, HOW DO I PARTICIPATE IN THE APPLICABLE OFFER(S)? A: With respect to each Offer, as applicable, you should have received a package consisting of this Question and Answer pamphlet and the following documents: - Letter from John F. Smith, Jr., Chairman of the Board, Chief Executive Officer and President of General Motors. - Prospectus dated -, 1997. - Letter of Transmittal relating to the applicable series of Depositary Shares (printed on o paper for the Series D Offer and - paper for the Series G Offer) bearing a pre-printed label with your account name and address. - Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. - Notice of Guaranteed Delivery relating to the applicable series of Depositary Shares (printed on - paper for the Series D Offer and - paper for the Series G Offer). - Return envelope addressed to The First National Bank of Boston, the Exchange Agent in connection with the Offers. 10 11 If, after reviewing these materials carefully, you decide to participate in either or both of the Offers, as applicable, please do the following: - Complete the applicable Letter(s) of Transmittal: - Read the instructions carefully. - Complete all applicable sections. - Sign the Letter(s) of Transmittal in the boxes entitled "Holder(s) of Series __ Depositary Shares Sign Here" and "Substitute Form W-9" and, if applicable, the box entitled "Certificate of Awaiting Taxpayer Identification Number." - Do not sign your certificate(s) representing the applicable Depositary Shares. - Send the applicable Letter(s) of Transmittal together with your certificate(s) representing the applicable Depositary Shares to The First National Bank of Boston, as Exchange Agent, at the address shown on the Letter(s) of Transmittal. It is recommended that you use registered or certified mail. IF YOU HAVE ANY QUESTIONS, HAVE NOT RECEIVED THE APPLICABLE LETTER(S) OF TRANSMITTAL OR OTHER DOCUMENTS PERTAINING TO THE APPLICABLE OFFER(S), OR NEED OTHER ASSISTANCE IN COMPLETING THE APPLICABLE LETTER(S) OF TRANSMITTAL, PLEASE CONTACT THE INFORMATION AGENT, GEORGESON & COMPANY, INC., AT THE TELEPHONE NUMBER LISTED AT THE END OF THIS PAMPHLET. A holder of record may also contact his or her broker to tender the Depositary Shares owned by such holder on such holder's behalf. If you cannot 11 12 deliver your certificate(s) to the Exchange Agent before the applicable Expiration Date, then you must arrange for your broker to guarantee delivery of your Depositary Shares. See "The Offers--Procedures for Tendering" in the Prospectus. Q: IF MY DEPOSITARY SHARES ARE HELD BY A BROKER OR BANK FOR MY ACCOUNT, HOW DO I PARTICIPATE IN THE APPLICABLE OFFER(S)? A: With respect to each Offer, as applicable, if your Depositary Shares are held by a broker or bank for your account, you should have received a package from them as holder of record containing, along with this Question and Answer pamphlet, the following: # Letter from John F. Smith, Jr., Chairman of the Board, Chief Executive Officer and President of General Motors. # Prospectus dated -, 1997. # Letter of Transmittal relating to the applicable series of Depositary Shares (for information only). # Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. # Notice of Guaranteed Delivery relating to the applicable series of Depositary Shares (for information only). # Cover letter or notice from your broker or bank. If you decide to participate in either or both Offers, as applicable, you must contact your broker or bank to tender your Depositary Shares on your behalf. See "The Offers--Procedures for Tendering--Spe- 12 13 cial Procedure for Beneficial Owners" in the Prospectus. Q: ONCE I HAVE TENDERED MY DEPOSITARY SHARES, OR INSTRUCTED MY BROKER OR BANK TO TENDER THEM ON MY BEHALF, MAY I WITHDRAW THEM FROM THE APPLICABLE OFFER(S)? A: Yes. Tenders of Depositary Shares may be withdrawn at any time prior to the applicable Expiration Date(s) and, unless accepted for exchange by the applicable Trust, may be withdrawn at any time after 40 business days from the date of the Prospectus. See "The Offers--Withdrawal of Tenders" in the Prospectus. Q: WHEN DO THE OFFERS EXPIRE? A: Each Offer expires at 12:00 midnight, Eastern time, on -, -, 1997, unless extended by the applicable Trust. Either Trust may also amend or terminate its respective Offer as described in the Prospectus. 13 14 For additional details, or if you have any questions, please call the Information Agent: [GEORGESON & COMPANY, INC. LOGO] (800) 223-2064 or Banks and Brokers Call Collect: (212) 440-9800 [GENERAL MOTORS CORPORATION LOGO] [END] 14 EX-99.(I) 24 EX-99.(I) 1 EXHIBIT 99(i) This announcement is neither an offer to exchange or sell nor a solicitation of an offer to exchange or buy any of these securities. Each of the Offers is made only by the Prospectus and the applicable Letter of Transmittal and no Offer is being made to, nor will tenders be accepted from or on behalf of, holders of the securities in any jurisdiction in which the making or acceptance thereof would not be in compliance with the securities or blue sky laws of such jurisdiction. In any jurisdiction where the securities or blue sky laws require an offer to be made by a licensed broker or dealer, each Offer is being made on behalf of the applicable Trust by Merrill Lynch & Co., Smith Barney Inc. or one or more other brokers or dealers which are licensed under the laws of such jurisdiction. NOTICE OF EXCHANGE OFFERS TO HOLDERS OF GENERAL MOTORS CORPORATION DEPOSITARY SHARES, DEPOSITARY SHARES, EACH REPRESENTING EACH REPRESENTING ONE-FOURTH OF A SHARE OF ONE-FOURTH OF A SHARE OF SERIES D 7.92% PREFERENCE STOCK SERIES G 9.12% PREFERENCE STOCK
General Motors Corporation, a Delaware corporation ("General Motors") and General Motors Capital Trust D, a Delaware statutory business trust (the "Series D Trust"), are offering, upon the terms and subject to the conditions set forth in a Prospectus dated , 1997 (as amended or supplemented and including all documents incorporated therein by reference, the "Prospectus") and the Letter of Transmittal relating to the Series D 7.92% Depositary Shares (which, together with the Prospectus, constitutes the "Series D Offer"), to exchange % Trust Originated Preferred Securities ("TOPrS(SM)"), Series D (the "Series D Preferred Securities"), for up to 5,462,917 (i.e., approximately 90%) of the outstanding depositary shares (the "Series D 7.92% Depositary Shares"), each representing one-fourth of a share of General Motors' Series D 7.92% Preference Stock, $0.10 par value per share (the "Series D 7.92% Preference Stock"), not owned by General Motors. General Motors and General Motors Capital Trust G, a Delaware statutory business trust (the "Series G Trust"), are offering, upon the terms and subject to the conditions set forth in the Prospectus and the accompanying Letter of Transmittal relating to the Series G 9.12% Depositary Shares (which, together with the Prospectus, constitutes the "Series G Offer"), to exchange % Trust Originated Preferred Securities ("TOPrS(SM)"), Series G (the "Series G Preferred Securities"), for up to 9,071,910 (i.e., approximately 90%) of the outstanding depositary shares (the "Series G 9.12% Depositary Shares"), each representing one-fourth of a share of General Motors' Series G 9.12% Preference Stock, $0.10 par value per share (the "Series G 9.12% Preference Stock"), not owned by General Motors. The Series D Offer and the Series G Offer are each an "Offer" and together constitute the "Offers." The Series D 7.92% Depositary Shares and the Series G 9.12% Depositary Shares together constitute the "Depositary Shares." Each of the Series D Preferred Securities and the Series G Preferred Securities is a "Preferred Security" and together constitute the "Preferred Securities." Exchanges will be made on the basis of one Series D Preferred Security for each Series D 7.92% Depositary Share validly tendered and accepted for exchange in the Series D Offer and one Series G Preferred Security for each Series G 9.12% Depositary Share validly tendered and accepted for exchange in the Series G Offer. If more than the maximum number of Depositary Shares of either series is validly tendered and not withdrawn on or prior to the Expiration Date for the applicable Offer, the applicable Trust will accept such related Depositary Shares for exchange on a pro rata basis as described in the Prospectus. As of the date of this Notice, there are Series D 7.92% Depositary Shares outstanding and not owned by General Motors and Series G 9.12% Depositary Shares outstanding and not owned by General Motors. In connection with the Series D Offer, General Motors will deposit into the Series D Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series D, due 2012 (the "Series D Junior Subordinated 2 Debentures"), as set forth in the Prospectus. In connection with the Series G Offer, General Motors will deposit into the Series G Trust as trust assets its % Junior Subordinated Deferrable Interest Debentures, Series G, due 2012 (the "Series G Junior Subordinated Debentures"), as set forth in the Prospectus. EACH OF THE OFFERS (AND THE RELATED WITHDRAWAL RIGHTS) WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON , 1997, UNLESS EITHER OR BOTH OF THE OFFERS IS EXTENDED. None of General Motors, the Board of Directors of General Motors, the Trustees of the Series D Trust, the Series D Trust, the Trustees of the Series G Trust or the Series G Trust makes any recommendation to holders of Depositary Shares as to whether to tender or refrain from tendering in either or both of the Offers. Holders of Depositary Shares are urged to contact their financial and tax advisors in making their decision on what action to take in light of their own particular circumstances. Upon the terms and subject to the conditions of the Series D Offer described in the Prospectus and the Letter of Transmittal relating to the Series D 7.92% Depositary Shares, the Series D Trust will accept for exchange up to 5,462,917 (i.e., approximately 90%) of the outstanding Series D 7.92% Depositary Shares validly tendered and not withdrawn prior to 12:00 midnight, Eastern time, on , 1997, or if the Series D Offer is extended by the Series D Trust, in its sole discretion, the latest date and time to which the Series D Offer has been extended (the "Series D Expiration Date"). Tenders of Series D 7.92% Depositary Shares pursuant to the Series D Offer may be withdrawn at any time prior to the Series D Expiration Date and, unless accepted for exchange by the Series D Trust, may be withdrawn at any time after 40 business days after the date of the Prospectus. Upon the terms and subject to the conditions of the Series G Offer described in the Prospectus and the Letter of Transmittal relating to the Series G 9.12% Depositary Shares, the Series G Trust will accept for exchange up to 9,071,910 (i.e., approximately 90%) of the outstanding Series G 9.12% Depositary Shares validly tendered and not withdrawn prior to 12:00 midnight, Eastern time, on , 1997, or if the Series G Offer is extended by the Series G Trust, in its sole discretion, the latest date and time to which the Series G Offer has been extended (the "Series G Expiration Date"). Tenders of Series G 9.12% Depositary Shares pursuant to the Series G Offer may be withdrawn at any time prior to the Series G Expiration Date and, unless accepted for exchange by the Series G Trust, may be withdrawn at any time after 40 business days after the date of the Prospectus. The Series D Expiration Date and the Series G Expiration Date are each an "Expiration Date" and together constitute the "Expiration Dates." EACH OFFER IS INDEPENDENT FROM THE OTHER OFFER. FURTHERMORE, EACH OFFER IS SUBJECT TO CERTAIN CONDITIONS, AS DESCRIBED HEREIN AND IN THE PROSPECTUS. Consummation of each Offer is conditioned on, among other things, tenders by a sufficient number of holders of Depositary Shares subject to each Offer such that, as of the applicable Expiration Date, there shall be at least 400 record or beneficial owners of at least 1,000,000 Preferred Securities of the series to be issued in exchange for the Depositary Shares tendered in such Offer (with respect to each Offer, the "Minimum Distribution Condition"), which condition may not be waived with respect to either Offer. Each of the Trusts expressly reserves the right with respect to its Offer, in its sole discretion, subject to applicable law, to (i) terminate its Offer, not accept for exchange the Depositary Shares tendered in its Offer and promptly return such Depositary Shares upon the failure of any condition specified above or in "The Offers -- Conditions to the Offers" in the Prospectus, (ii) waive any condition to its Offer (other than the Minimum Distribution Condition) and accept all Depositary Shares previously tendered pursuant to its Offer, (iii) extend the Expiration Date of its Offer and retain all Depositary Shares tendered pursuant to its Offer until such Expiration Date, subject, however, to all withdrawal rights of holders tendering Depositary Shares in its Offer (see "The Offers -- Withdrawal of Tenders" in the Prospectus), (iv) amend the terms of its Offer, (v) modify the form of the consideration to be paid pursuant to its Offer or (vi) not accept for exchange the Depositary Shares tendered in its Offer at any time on or prior to the Expiration Date for its Offer, for any reason. Any amendment applicable to an Offer will apply to all Depositary Shares tendered pursuant to such Offer. The minimum period during which an Offer must remain open following material changes in the terms of such Offer or the information concerning such Offer, other than a change in the percentage of securities sought or the price, depends upon the facts and circumstances, including the relative materiality of such terms 3 or information. See "The Offers -- Expiration Dates; Extensions; Amendments; Termination" in the Prospectus. The purpose of the Offers is to refinance the Depositary Shares with the Preferred Securities in order to restructure a portion of General Motors' outstanding equity while achieving certain tax efficiencies and preserving General Motors' flexibility with respect to future financings. The Prospectus and applicable Letter of Transmittal contain important information which should be read before any action is taken by holders of Depositary Shares with respect to either or both of the Offers. Tenders may be made only by a properly completed and executed Letter of Transmittal relating to the applicable series of Depositary Shares and in conformance with the terms thereof and as set forth in the Prospectus. The information contained in the Prospectus, the Letters of Transmittal and the other offering documents is hereby incorporated in this Notice by reference. General Motors will pay to Soliciting Dealers (as defined in the Prospectus) designated by the record or beneficial owner, as appropriate, of Depositary Shares validly tendered and accepted pursuant to the Offers a solicitation fee of $0.50 per Series D 7.92% Depositary Share (except that in the case of transactions equal to or exceeding 10,000 Depositary Shares of any given series, General Motors will pay $0.25 per Depositary Share), in each case subject to certain conditions. Soliciting Dealers are not entitled to a solicitation fee for any Depositary Shares beneficially owned by such Soliciting Dealer. The information required to be disclosed by paragraph (d)(1) of Rule 13e-4 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, is contained in the Prospectus and is incorporated herein by reference. The Prospectus and the applicable Letter of Transmittal are first being sent to holders of Depositary Shares on , 1997, and are being furnished to brokers, dealers, banks and similar persons whose names, or names of whose nominees, appear on the lists of holders of the Depositary Shares or, if applicable, who are listed as participants in a clearing agency's security position listing for subsequent transmittal to beneficial owners of Depositary Shares. Any questions or requests for assistance may be directed to the Information Agent and the Dealer Managers at the addresses and telephone numbers set forth below. Requests for copies of the Prospectus, the Letters of Transmittal or the Notices of Guaranteed Delivery may be directed to the Information Agent and copies will be forwarded promptly at General Motors' expense. Stockholders may also contact their broker, dealer, commercial bank or trust company for assistance concerning the Offers. THE INFORMATION AGENT FOR THE OFFERS IS: [GEORGESON & COMPANY INC. LOGO] Wall Street Plaza New York, New York 10005 Banks and Brokers Call Collect: (212) 440-9800 or All Others Call Toll-Free: (800) 223-2064 THE DEALER MANAGERS FOR THE OFFERS ARE: MERRILL LYNCH & CO. SMITH BARNEY INC. World Financial Center 388 Greenwich Street North Tower-Seventh Floor New York, New York 10013 New York, New York 10281 (800) 655-4811 (Toll-Free) (888) ML4-TNDR (Toll-Free) Attn: Paul S. Galant (888) 654-8637 (Toll-Free) Attn: Susan L. Weinberg
April , 1997 - --------------- (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill Lynch & Co. -----END PRIVACY-ENHANCED MESSAGE-----