Exhibit 1.1
Execution Version
GMAC Capital Trust I
8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2
UNDERWRITING AGREEMENT
March 2, 2011
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To:
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Citigroup Global Markets Inc.
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Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Morgan Stanley & Co. Incorporated
as Representatives of the several Underwriters
named in Schedule III hereto
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
GMAC
Capital Trust I (the “Trust”), a statutory trust organized under the Statutory Trust Act (the “Delaware Act”) of the State of Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C. § 3801 et seq.) has
issued to the United States Department of the Treasury (“Treasury”) 106,680,000 8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2 with an aggregate liquidation amount equal to $2,667,000,000 (the “Series 2 Trust
Preferred Securities”). Treasury (the “Selling Securityholder”) proposes, upon the terms and conditions set forth herein, to sell the Series 2 Trust Preferred Securities to the several underwriters named in Schedule III hereto (the
“Underwriters”), for whom you (the “Representatives”) are acting as representatives.
The Series 2 Trust
Preferred Securities were issued pursuant to the terms of the Second Amended and Restated Declaration of Trust, dated as of March 1, 2011 (the “Base Declaration”), as supplemented by the Series 2 Supplement to the Second Amended and
Restated Declaration (the “Series 2 Supplement” and, together with the Base Declaration, the “Declaration”), among Ally Financial Inc. (f/k/a GMAC Inc.), a Delaware corporation (the “Company”), as sponsor, the Delaware
Trustee (as defined below) and the trustees of each series named therein (the “GMAC Capital Trustees”) and the holders from time to time of undivided beneficial interests in the relevant series of the Trust. The Declaration is qualified as
an indenture under the Trust Indenture Act. Pursuant to the Declaration, the number of GMAC Capital Trustees for Series 2 of the Trust is initially four. Two of the GMAC Capital Trustees (the “Administrative Trustees”) are persons who are
employees or officers of, or are affiliated with, the Company. The third GMAC Capital Trustee for Series 2 of the Trust is a financial institution unaffiliated with the Company that serves as institutional trustee under the Declaration (the
“Institutional Trustee”). The fourth GMAC Capital Trustee for Series 2 of the Trust is a financial institution or an affiliate thereof which maintains a principal place of business in the State of Delaware, meeting the requirements of a
Delaware trustee under the Delaware Act (the “Delaware Trustee”). Initially, The Bank of New York Mellon, a New York banking association (“BNYM”), is the Institutional Trustee for Series 2 of the Trust and BNY Mellon Trust of
Delaware, a Delaware banking corporation with its principal place of business in the State of Delaware, is the Delaware Trustee. The Series 2 Trust Preferred Securities are guaranteed by the Company on a subordinated basis with respect to
distributions and payments upon liquidation, redemption or otherwise (the “Guarantee”) pursuant to the Series 2 Trust Preferred Securities Guarantee Agreement dated as of March 1, 2011 (the “Series 2 Guarantee Agreement”)
between the Company and BNYM, as Trustee (the “Guarantee Trustee”).
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The assets of Series 2 of the Trust consist of $2,747,010,000 aggregate principal amount of
8.125% Fixed Rate/Floating Rate Junior Subordinated Deferrable Interest Debentures due February 15, 2040 (the “Subordinated Series 2 Debentures”) of the Company which have been issued under an amended and restated indenture, dated as
of March 1, 2011 (the “Indenture”), between the Company and BNYM, as trustee (the “Indenture Trustee”). Under certain circumstances, the Subordinated Series 2 Debentures are distributable to the holders of undivided
beneficial interests in the assets of the Trust. The Series 2 Trust Preferred Securities, the Guarantee and the Subordinated Series 2 Debentures are referred to herein as the “Securities.”
The Company and the Trust have filed with the Securities and Exchange Commission (the “Commission”) a registration statement
(File No. 333-165608 and 333-165608-01, respectively), including a related form of prospectus, on Form S-3, relating to the securities (the “Shelf Securities”), including the Securities, to be offered and sold from time to time. The
registration statement as of its most recent effective date, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as
amended (the “Securities Act”), together with any amendments or supplements thereto as of its most recent effective date is hereinafter referred to as the “Registration Statement.” “Preliminary Prospectus” means any
preliminary prospectus related to the Securities filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act prior to filing of the Final Prospectus (as defined below). “Final Prospectus” means the final
prospectus, relating to the Securities, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act on or before the second business day after the date hereof. For purposes of this Agreement, “free writing
prospectus” has the meaning set forth in Rule 405 under the Securities Act, and “Permitted Free Writing Prospectuses” means the documents listed on Schedule I hereto. As used herein, the terms “Registration Statement,”
“Preliminary Prospectus” and “Final Prospectus” shall include the documents, if any, incorporated by reference therein. The terms “supplement,” “amendment” and “amend” as used herein with respect to
the Registration Statement, the Preliminary Prospectus, the Final Prospectus or any free writing prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), that are deemed to be incorporated by reference therein (the “Incorporated Documents”).
The Selling Securityholder and the Company wish to confirm as follows their agreement with you and the other several Underwriters listed on Schedule III on whose behalf you are acting, in connection with
the several purchases of the Series 2 Trust Preferred Securities by the Underwriters. To the extent there are no additional Underwriters listed on Schedule III other than you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires.
1.
Representations and Warranties
.
(a) The Company and the Trust jointly and severally represent and warrant to and agree
with each Underwriter and the Selling Securityholder that:
(i) The Registration Statement has become effective
upon filing; no stop order suspending the effectiveness of the Registration Statement is in effect; and no proceedings for such purpose are pending before or threatened by the Commission. The Registration Statement is an automatic shelf registration
statement as defined in Rule 405 under the Securities Act, and the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement for
the offering and sale of the Securities, and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(ii) (A) (1) At the respective times the Registration Statement and each amendment thereto became effective,
(2) at each deemed effective date with respect to the Underwriters relating to the offering of the Series 2 Trust Preferred Securities contemplated by this Agreement pursuant to Rule 430B(f)(2) under the Securities Act (each, a “Deemed
Effective Time”), (3) as of the time the Series 2 Trust Preferred
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Securities are sold to the Underwriters pursuant to this Agreement (the “Time of Sale”) and (4) at the Settlement Date (as defined below), the Registration Statement complied and
will comply in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) and the rules and regulations under the Securities Act and under the Trust
Indenture Act; (B) the Preliminary Prospectus complied, at the time it was filed with the Commission and as of the Time of Sale, in all material respects with the Securities Act and the rules and regulations under the Securities Act;
(C) the Final Prospectus will comply, as of the date that such document is filed with the Commission and as of the Settlement Date, in all material respects with the Securities Act and the rules and regulations under the Securities Act; and
(D) the Indenture and the Declaration at each Deemed Effective Time and at the Settlement Date did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules and regulations under the Trust
Indenture Act; (E) the Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any further
Incorporated Documents so filed and incorporated by reference, when they are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(iii) (A) As of the date hereof, at the respective times the Registration Statement and each amendment
thereto became effective and at each Deemed Effective Time, the Registration Statement did not and will not contain an 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; (B) as of the Time of Sale, the Preliminary Prospectus (as amended and supplemented at such Time of Sale) and any Permitted Free Writing Prospectus then in use, considered together (collectively, the
“General Disclosure Package”), did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading; (C) as of its date, the Final Prospectus did not contain an 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 which they
were made, not misleading; (D) at the Settlement Date, the Final Prospectus (as amended and supplemented at such Settlement Date) will not contain an 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 which they were made, not misleading; and (E) the electronic road show listed on Schedule II hereto, when taken together as a whole with the General Disclosure Package, does
not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the
representations and warranties in each of clauses (A), (B), (C), (D) and (E) shall not apply to (1) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the GMAC Capital Trustees or (2) any statement or omission made in reliance upon and in conformity with information furnished in writing to the Company by the Representatives on behalf of themselves or any other
Underwriter expressly for use in the Registration Statement, Final Prospectus or in the General Disclosure Package.
(iv) Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements
of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or
on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus, as
of its issue date, did not include any material information that conflicted, conflicts or will conflict with the information contained or incorporated by reference in the Registration Statement, the Preliminary Prospectus or the Final Prospectus.
Except for the Permitted Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not prepare, use or refer to, any free writing prospectus other than in accordance with Sections 5(a) and 5(j).
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(v) (A)(1) At the time of filing of the Registration Statement and
(2) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus), the Company was not an “ineligible issuer” as defined in Rule 405 of the Securities Act; and (B)(1) at the time of filing of the Registration Statement, (2) at the earliest time
thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Series 2 Trust Preferred Securities and (3) at the date hereof, the Company was not and is
not an “ineligible issuer” as defined in Rule 405 under the Securities Act.
(vi) This Agreement has
been duly authorized, executed and delivered by both the Company and the Trust.
(vii) The Series 2 Trust
Preferred Securities have been duly and validly authorized by the Trust and are validly issued, (subject to Sections 9.8 and 3.11(a)(vi) of the Series 2 Supplement) fully paid and non-assessable undivided beneficial interests in the assets of Series
2 of the Trust, are entitled to the benefits of the Declaration and conform in all material respects to all descriptions thereof contained in the Registration Statement, the General Disclosure Package and the Final Prospectus, and any amendment or
supplement thereto; the issuance of the Series 2 Trust Preferred Securities was not subject to preemptive or other similar rights; and holders of Series 2 Trust Preferred Securities are entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit under the General Corporation Law of the State of Delaware.
(viii) The Base Declaration has been duly and validly authorized by the Company and has been duly executed and delivered
by the Company. The Series 2 Supplement has been duly executed and delivered by the Company and the Administrative Trustees. The Base Declaration is a valid and legally binding obligation of the Company and the Series 2 Supplement is a valid and
legally binding obligation of the Company and the Administrative Trustees, in each case enforceable in accordance with its terms, except as may be limited by the effects of bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights or remedies generally, the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing (the “
Enforceability Exceptions
”); and the Declaration has been duly qualified under the Trust Indenture Act and conforms in all material respects to the description thereof in the
Registration Statement, the General Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(ix) The Series 2 Guarantee Agreement has been duly and validly authorized by the Company and has been duly executed and delivered by the Company, and is a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, except as may be limited by Enforceability Exceptions; and the Series 2 Guarantee Agreement has been duly qualified under the Trust Indenture Act and conforms in all material respects to the
description thereof in the Registration Statement, the General Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(x) The Indenture has been duly and validly authorized by the Company, has been duly executed and delivered by the Company, and is a valid and legally binding obligation of the Company, enforceable in
accordance with its terms, except as may be limited by Enforceability Exceptions; and the Indenture has been duly qualified under the Trust Indenture Act and conforms in all material respects to the description thereof in the Registration Statement,
the General Disclosure Package and the Final Prospectus, and any amendment or supplement thereto.
(xi) The
Subordinated Series 2 Debentures have been duly and validly authorized, executed and delivered by the Company, are valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as may be limited by
Enforceability Exceptions; and are in the form contemplated by, and entitled to the benefits of, the Indenture and conform in all material respects to the description thereof in the Registration Statement, the General Disclosure Package and the
Final Prospectus, and any amendment or supplement thereto.
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(xii) The Trust has been duly formed and is validly existing and in good
standing as a statutory trust under the Delaware Act with the power and authority to own property and to conduct its business as described in the Registration Statement, the General Disclosure Package and Final Prospectus, and any amendment or
supplement thereto; the Trust is not required to be authorized to do business in any other jurisdiction; the Trust is not a party to or otherwise bound by any agreement other than those described in the General Disclosure Package or Final
Prospectus, and any amendment or supplement thereto; the Trust will not be classified as a corporation or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally accepted accounting principles.
(xiii) The
Company has been duly formed and is validly existing as a corporation in good standing in the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration
Statement, the General Disclosure Package and Final Prospectus. The Company is duly qualified as a foreign corporation to transact business and is in good standing (or equivalent status) in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse
Effect. As used herein, “
Material Adverse Effect
” shall mean, with respect to the Company, a material adverse effect on the properties, business, results of operations, financial condition and stockholders’ equity of the
Company and its subsidiaries, including the Trust, taken as a whole.
(xiv) The offer and sale of the Series 2
Trust Preferred Securities and the execution, delivery of, and the performance of the Company’s and the Trust’s obligations under this Agreement, the Series 2 Trust Preferred Securities, the Subordinated Series 2 Debentures, the Indenture,
the Declaration and the Series 2 Guarantee Agreement, (x) did not and will not require any consent, approval, authorization or filing with or other order of any court, regulatory body, administrative agency or other governmental body, except
such as may have already been obtained, taken or made and except for such consents, approvals, authorizations or filings with or other order of any court, regulatory body, administrative agency or other governmental body as are set forth in the
General Disclosure Package and the Final Prospectus and; and (y) did not and will not conflict with, result in a breach or violation or imposition of any material lien, charge or encumbrance upon, any property or assets of the Company and
Series 2 of the Trust pursuant to (i) the Certificate of Incorporation or Bylaws of the Company, (ii) Declaration of the Trust, (iii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement
or other agreement, obligation, condition, covenant or instrument to which the Company is a party or to which its property is subject, or (iv) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or the Trust
of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties, which in the case of either (iii) or (iv) would reasonably be expected to
have a Material Adverse Effect.
(xv) To the knowledge of the Company and the Trust, there has not been
threatened or instituted and there is not pending before any court, agency, authority or other tribunal any action, suit or proceeding by any government or governmental, regulatory or administrative agency or authority or by any other person,
domestic or foreign, or any judgment, order or injunction entered, enforced or deemed applicable by any such court, authority, agency or tribunal which challenges or seeks to make illegal, directly or indirectly restrains or prohibits, the offer and
sale of the Series 2 Trust Preferred Securities or the other transactions contemplated by this Agreement.
(xvi) The Company and its subsidiaries and their respective officers and directors are in compliance in all material
respects with the applicable provisions of the Sarbanes-Oxley Act of 2002, including the rules and regulations of the Commission promulgated thereunder.
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(xvii) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority,
except for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(xviii) Deloitte & Touche LLP, which expressed its opinion with respect to the financial statements (which term as used in this Agreement includes the notes thereto) as of December 31, 2009
and 2010 and for each of the years in the three-year period ending December 31, 2010 incorporated by reference in the General Disclosure Package and the Final Prospectus, are independent public or certified accountants within the meaning of
Regulation S-X under the Securities Act and the Exchange Act and the rules of The Public Company Accounting Oversight Board, and any non-audit services provided by Deloitte & Touche LLP have been approved by the appropriate audit committee
of the Company.
(xix) The financial statements, together with the related schedules and notes, included or
incorporated by reference in the General Disclosure Package and the Final Prospectus present fairly the consolidated financial position of the entities to which they relate as of and at the dates indicated and the results of their operations for the
periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. The financial data included or incorporated by reference from the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010 fairly presents the information set forth therein on a
basis consistent with that of the audited financial statements included or incorporated by reference in the General Disclosure Package and the Final Prospectus.
(xx) The Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply in all material respects with
the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and (ii) the Company’s internal control over financial reporting includes
policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company; (2) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of the consolidated financial statements in conformity with accounting principles generally accepted in the United States of America, and that receipts and expenditures of the Company are
being made only in accordance with authorizations of management and directors of the Company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s
assets that could have a material effect on the consolidated financial statements; the Company’s auditors and the appropriate audit committee of the Company have been advised of: (i) any significant deficiencies or material weaknesses in
the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other
employees who have a role in the Company’s internal controls.
(xxi) The Company has established and
maintains “disclosure controls and procedures” (as such term is defined in Rules 13a-15 and 15d-14 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company
and its subsidiaries is made known to the chief executive officer and chief financial officer of the Company by others within the Company or any of its subsidiaries, and such disclosure controls and procedures are reasonably effective to perform the
functions for which they were established subject to the limitations of any such control system;
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and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
(xxii) The Company is a duly registered bank holding company under the Bank Holding Company Act of 1956, as amended, and the regulations of the Board of Governors of the Federal Reserve System, and the
deposit accounts of the Company’s subsidiary depository institutions are insured by the Federal Deposit Insurance Corporation (the “FDIC”) to the fullest extent permitted by law and the rules and regulations of the FDIC.
(xxiii) Neither the Trust nor the Company is now, nor after giving effect to the transactions contemplated hereby will be,
an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(xxiv)
The Administrative Trustees of Series 2 of the Trust are employees or officers of, or are affiliated with, the Company and have been duly authorized by the Company to execute and deliver the Series 2 Supplement.
(xxv) [Reserved].
(xxvi) Except as otherwise disclosed in the General Disclosure Package or the Final Prospectus, subsequent to the respective dates as of which information is given in the General Disclosure Package or the
Final Prospectus, there has been no Material Adverse Effect or any development involving a prospective Material Adverse Effect.
(xxvii) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate (other than, if applicable, the Selling Securityholder) of
the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates (other than, if applicable, the Selling Securityholder) have conducted their businesses in compliance in all
material respects with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith in all material respects.
(xxviii) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all
material respects with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xxix) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate (other than, if applicable, the Selling Securityholder) of the
Company or any of its subsidiaries is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury.
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(xxx) No events exist which would constitute an event of default under the
Series 2 Trust Preferred Securities, the Subordinated Series 2 Debentures, the Indenture or the Series 2 Trust Preferred Securities Guarantee Agreement.
(b) The Selling Securityholder represents and warrants to and agrees with each Underwriter:
(i) The Selling Securityholder now has and at the Settlement Date will have good and marketable title to the Series 2 Trust Preferred Securities to be sold by it, free and clear of any liens,
encumbrances, equities and claims, and full right, power and authority to effect the sale and delivery of the Series 2 Trust Preferred Securities; and upon the delivery of, against payment for, the Series 2 Trust Preferred Securities pursuant to
this Agreement, and assuming a purchaser or the Underwriters, as applicable, does not have notice of any adverse claim (within the meaning of the Uniform Commercial Code as in effect in the State of New York), such purchaser or the Underwriters, as
applicable, will acquire good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims.
(ii) The Selling Securityholder has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and this Agreement has been duly authorized, executed
and delivered by or on behalf of the Selling Securityholder.
(iii) No consent, approval or waiver is required
under any instrument or agreement to which the Selling Securityholder is a party or by which the Selling Securityholder is bound in connection with the offering, sale or purchase by the Underwriters of any of the Series 2 Trust Preferred Securities
which may be sold by the Selling Securityholder under this Agreement or the consummation by the Selling Securityholder of any of the other transactions contemplated hereby.
2.
Agreements to Sell and Purchase
.
(a) The Selling Securityholder hereby
agrees, subject to all the terms and conditions set forth herein, to sell to each Underwriter, and, upon the basis of the representations, warranties and agreements of the Company, the Trust and the Selling Securityholder herein contained and
subject to all the terms and conditions set forth herein, each Underwriter agrees, severally and not jointly, to purchase from the Selling Securityholder the number of Series 2 Trust Preferred Securities set forth opposite the name of such
Underwriter in Schedule III hereto at a purchase price of (x) $24.75 per Series 2 Trust Preferred Security with respect to Series 2 Trust Preferred Securities reserved for sale to certain institutions or (y) $24.60 per Series 2 Trust
Preferred Security with respect to the remaining Series 2 Trust Preferred Securities.
(b) At the Time of Sale and the
Settlement Date, the Company and the Trust shall be deemed to have affirmed each of its representations and warranties contained in this Agreement; provided that if a representation or warranty is by its terms made as of a specific date, such
representation or warranty shall be deemed affirmed only on and as of such date. At the Time of Sale and the Settlement Date, the Selling Securityholder shall be deemed to have affirmed in all material respects its representations and warranties
contained in this Agreement; provided that if a representation or warranty is by its terms made as of a specific date, such representation or warranty shall be deemed affirmed only on and as of such date. Any obligation of an Underwriter to purchase
the Series 2 Trust Preferred Securities from the Selling Securityholder shall be subject (x)(i) to the accuracy of the representations and warranties of the Company and the Trust herein as of the Time of Sale and the Settlement Date and
(ii) the accuracy of the representations and warranties in all material respects of the Selling Securityholder herein as of the Time of Sale and the Settlement Date, (y) to the performance by the Company, the Trust and the Selling
Securityholder of their respective obligations hereunder and (z) to the continuing satisfaction of the additional conditions specified in Section 4 of this Agreement.
3.
Payment, Delivery and Other Obligations
.
(a) Delivery to the Underwriters of, and payment for, the Series 2 Trust Preferred Securities shall be made at the office of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017
at 9:30 A.M., New York City time, on March 7, 2011 (the “Settlement Date”). The place of closing for the Series 2 Trust Preferred Securities and the Settlement Date may be varied by agreement among the Representatives, the Company and
the Selling Securityholder.
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(b) Delivery of the Series 2 Trust Preferred Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the several Underwriters directly or through the Representatives of the gross purchase price thereof to or upon the order of the Selling Securityholder by wire transfer
payable in same-day funds to an account specified by the Selling Securityholder. Delivery of the Series 2 Trust Preferred Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise
instruct.
(c) It is understood that the Representatives, acting individually and not in a representative capacity, may (but
shall not be obligated to) make payment to the Selling Securityholder on behalf of any other Underwriter for Series 2 Trust Preferred Securities to be purchased by such Underwriter. Any such payment by the Representatives shall not relieve any such
Underwriter of any of its obligations hereunder.
4.
Conditions to the Underwriters’ Obligations
. The obligations
of the several Underwriters are subject to the following conditions:
(a) The Representatives shall have
received on the Settlement Date a certificate of the Company and the Trust, dated such date and signed, in the case of the Company, by the Chairman, any Vice Chairman, the President, any Vice President, the Chief Financial Officer, the Chief
Accounting Officer, the General Counsel, the Controller or any Deputy Controller and by the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and, in the case of the Trust, signed by one of the
Administrative Trustees, to the effect that the signers of such certificate have carefully examined the Registration Statement, the General Disclosure Package, the Final Prospectus and this Agreement and that (i) the representations and
warranties of each of the Company and the Trust in this Agreement are true and correct as if made on and as of the Settlement Date and each of the Company and the Trust has complied in all material respects with all the agreements and satisfied in
all material respects all the conditions on its part to be performed or satisfied at or prior to the Settlement Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been
issued and no proceedings for that purpose have been instituted or, to their knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the General Disclosure Package and the
Final Prospectus, there has not been any change or development that, individually or in the aggregate, has or would have a Material Adverse Effect, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus.
(b) The Representatives and the Selling Securityholder shall have received on the Settlement Date, opinions of
In-House Counsels to the Company, dated such date and addressed to the Representatives and the Selling Securityholder, substantially in the form set forth in Exhibit 1 and Exhibit 2.
(c) The Representatives shall have received on the Settlement Date, such opinion or opinions of Cahill Gordon &
Reindel
LLP
, counsel for the Underwriters, dated such date and addressed to the Representatives, with respect to the sale of the Series 2 Trust Preferred Securities, the Subordinated Series 2 Debentures, the Indenture, the
Declaration, the Registration Statement, the Final Prospectus, the General Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Representatives and the
Selling Securityholder shall have received on the Settlement Date, an opinion and negative assurance letter of Davis Polk & Wardwell LLP, special counsel to the Company, dated such date and addressed to the Representatives and the Selling
Securityholder, substantially in the forms set forth in Exhibit 3 and Exhibit 4. Insofar as such opinion(s) involves factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its
subsidiaries and the Trust and certificates of public officials.
-10-
(e) The Representatives and the Selling Securityholder shall have received
on the Settlement Date, such opinion of Davis Polk & Wardwell LLP, special tax counsel to the Company, dated such date and addressed to the Representatives and the Selling Securityholder, substantially in the form set forth in Exhibit 5,
and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Representatives and the Selling Securityholder shall have received on the Settlement Date, such opinion of Emmet, Marvin & Martin, LLP, counsel to BNYM, dated such date and addressed to
the Representatives and the Selling Securityholder, with respect to with respect to the Institutional Trustee, substantially in the form as set forth in Exhibit 6, and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Representatives and the
Selling Securityholder shall have received on the Settlement Date: (i) such opinion of Richards, Layton & Finger, P.A., counsel to BNY Mellon Trust of Delaware, dated such date and addressed to the Representatives and the Selling
Securityholder, with respect to the Delaware Trustee, substantially in the form as set forth in Exhibit 7, and (ii) such opinion of Richards, Layton & Finger, P.A., counsel to the Trust, dated such date and addressed to the
Representatives, with respect to the Trust, substantially in the form as set forth in Exhibit 8, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such
matters.
(h) The Representatives and the Selling Securityholder shall have received as of the Time of Sale and
at the Settlement Date, customary “comfort letters” from Deloitte & Touche LLP that are satisfactory in content and form to the Representatives and the Selling Securityholder.
(i) All filings with the Commission required by Rule 424 under the Securities Act and relating to the Series 2 Trust
Preferred Securities to have been filed by the Settlement Date and shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)); any other material required to be filed by the
Company pursuant to Rule 433(d) under the Securities Act and relating to the Series 2 Trust Preferred Securities shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order
suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(j) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof after the date of this Agreement, provided that the Representatives shall be given reasonable notice of any amendment before the date of this Agreement prior to the Time of Sale), the Preliminary Prospectus and
the Final Prospectus (exclusive of any supplement thereto after the date of this Agreement, provided that the Representatives shall be given reasonable notice of any supplement before the date of this Agreement prior to the Time of Sale), there
shall not have been any change, or any development that, individually or in the aggregate, has or would be expected to have a Material Adverse Effect, except as set forth in or contemplated in the General Disclosure Package and the Final Prospectus,
the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives after consultation with the Company, so material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Series 2 Trust Preferred Securities as contemplated by the Registration Statement (exclusive of any amendment thereof after the date of this Agreement, provided that the Representatives shall be given reasonable
notice of any amendment before the date of this Agreement prior to the Time of Sale), the General Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) and any “issuer free writing prospectus” (as defined in
Rule 433 under the Securities Act).
(k) Subsequent to the date hereof, there shall not have been any decrease
in the rating of the Series 2 Trust Preferred Securities or any of the Company’s senior or subordinated debt securities by any nationally recognized statistical rating organization or any notice given of any intended or potential decrease in
any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
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(l) The Series 2 Trust Preferred Securities shall have been registered under
the Exchange Act.
(m) The Company shall have made application to the list the Series 2 Trust Preferred
Securities on the New York Stock Exchange.
(n) Prior to the Settlement Date, the Company shall have furnished
to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If
any of the conditions specified in this Section 4 shall not have been fulfilled when and as provided in this Agreement with respect to the sale of the Series 2 Trust Preferred Securities, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled with respect to
such offering at, or at any time prior to, the Settlement Date by the Representatives. Notice of such cancellation shall be given to the Company and the Selling Securityholder in writing or by telephone or facsimile confirmed in writing.
5.
Covenants of the Company and the Trust
. Each of the Company and the Trust jointly and severally covenant with the several
Underwriters and the Selling Securityholder as follows:
(a) Before amending or supplementing the Registration
Statement or the Final Prospectus, to furnish to the Representatives and the Selling Securityholder a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives or the
Selling Securityholder reasonably object (other than any Exchange Act filings or any prospectus or prospectus supplement relating to the offering of Shelf Securities other than the Series 2 Trust Preferred Securities). To furnish to the
Representatives and the Selling Securityholder a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the
Representative reasonably objects. Not to take any action that would result in the Underwriters, the Selling Securityholder or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriters or the Selling Securityholder that the Underwriters or the Selling Securityholder otherwise would not have been required to file thereunder.
(b) To prepare and file a final term sheet, containing solely a description of the final terms of the Series 2 Trust
Preferred Securities and the offering thereof, in a form acceptable to the Representatives and the Selling Securityholder (the “Final Term Sheet”) and to file the Final Term Sheet and any other Permitted Free Writing Prospectus to the
extent required by Rule 433 under the Securities Act, and to provide copies of the Final Prospectus and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering,
Analysis and Retrieval system or any successor system thereto) to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by the Representatives
or the Selling Securityholder and, at any Representative’s request, to also furnish copies of the Final Prospectus to the New York Stock Exchange, as may be required by the rules or regulation of such exchange.
(c) Prior to the termination of the offering of the Series 2 Trust Preferred Securities, to promptly advise the
Representatives and the Selling Securityholder (i) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any
proceeding for that purpose and (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Series 2 Trust Preferred Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance,
occurrence
-12-
or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(d) If, at any time prior to the filing of the Final Prospectus with respect to the General Disclosure Package, or at any
time when a prospectus relating to the Series 2 Trust Preferred Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) with respect to
the Final Prospectus, any event occurs as a result of which the Final Prospectus or the General Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in
the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Selling Securityholder and the Representatives so that any use of the Final Prospectus or the General Disclosure
Package may cease until it is amended or supplemented; (ii) amend or supplement the Final Prospectus or the General Disclosure Package, subject to Section 5(a) above, to correct such statement or omission; and (iii) supply any
amendment or supplement to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format.
(e) To arrange, if necessary, for the qualification of the Series 2 Trust Preferred Securities for sale under the laws of such jurisdictions within the United States as the Representatives reasonably may
designate, will maintain such qualifications in effect so long as required for the distribution of the Series 2 Trust Preferred Securities and will pay any fee of the Financial Industry Regulatory Authority (“FINRA”), if any, in connection
with its review of the offering; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where they would not otherwise be required to so
qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject themselves to taxation in any such jurisdiction if they are not otherwise so subject.
(f) As soon as practicable, to make generally available to its security holders and to the Representatives a consolidated
earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158.
(g) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations
under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Series 2 Trust Preferred Securities under the Securities Act and all other fees
or expenses in connection with the preparation and filing of the Registration Statement, the Final Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of
the foregoing, including the filing fees payable to the Commission relating to the Series 2 Trust Preferred Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Representatives and the Selling Securityholder, in the quantities hereinabove specified, (ii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and
sale of the Series 2 Trust Preferred Securities under state securities laws and all expenses in connection with the qualification of the Series 2 Trust Preferred Securities for offer and sale under state securities laws as provided in
Section 5(e) above, including filing fees in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iii) all filing fees in connection with the offering contemplated by this Agreement,
including, without limitation, FINRA filing fees, if any, (iv) all advertising charges incurred with the prior consent of the Company, (v) all fees and expenses of the GMAC Capital Trustees and Guarantee Trustee and the Indenture Trustee,
including the fees and disbursements of counsel for such trustees in connection with the transaction contemplated by this Agreement, (vi) any fees and expenses in connection with the rating of the Series 2 Trust Preferred Securities with the
rating agencies, (vii) the costs and charges of any transfer agent, registrar or depositary and (viii) all other costs and expenses incident to the performance of the obligations of the Company under this Agreement for which provision is
not otherwise made in this Section 5. It is understood, however, that except as provided in this Section 5 and Section 8, the Underwriters will pay all of their costs and expenses, including any advertising expenses connected with any
offers the Underwriters may make.
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(h) During the period beginning on the date hereof and ending on the
Settlement Date, not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of or agree to dispose of, directly or indirectly, or permit the registration under the Securities Act of, any
securities of the Company that are substantially similar to the Series 2 Trust Preferred Securities, except for the registration of the Series 2 Trust Preferred Securities and the sales through or to the Underwriters pursuant to this Agreement or
with the consent of the Representatives.
(i) Not to take, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company or the Trust to facilitate the sale or resale of the
Series 2 Trust Preferred Securities, except that no agreement is made as to the activities of any Underwriter.
(j) Not to make any offer relating to the Series 2 Trust Preferred Securities that would constitute an “issuer free
writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a free writing prospectus required to be filed by the Company and the Trust with the Commission or retained by the Company and the Trust
under Rule 433 of the Securities Act, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto, to which the Representatives reasonably objected to
after being furnished such issuer free writing prospectus or free writing prospectus for review; provided the Representatives shall be deemed not to have objected to any Permitted Free Writing Prospectus. In connection with this Section 5(j),
each Underwriter, severally and not jointly, covenants and agrees with the Company and the Trust, not to make any offer relating to the Series 2 Trust Preferred Securities that would constitute an issuer free writing prospectus or that would
otherwise constitute a free writing prospectus required to be filed by the Company and the Trust with the Commission or retained by the Company and the Trust under Rule 433 of the Securities Act, other than a free writing prospectus containing the
information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto and other related customary Bloomberg communications, without the consent of the Company and the Trust, which consent shall not be unreasonably
withheld; provided the Company and the Trust shall be deemed to have consented to any Permitted Free Writing Prospectus and the electronic road show listed on Schedule II hereto. The Company agrees that (x) it has treated and will treat, as the
case may be, each Permitted Free Writing Prospectus as an issuer free writing prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted
Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
6.
Covenants of the Selling Securityholder
. The Selling Securityholder covenants and agrees with the several Underwriters and the Company that it will not prepare or have prepared on its behalf or use, distribute or refer to any free writing
prospectus without the prior approval of the Representatives and the Company.
7.
[Reserved]
.
8.
Indemnity and Contribution
.
(a) Each of the Trust and the Company jointly and severally agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, agents of each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any
and all losses, liabilities, costs or claims (or actions in respect thereof) to which any of them may become subject (including all reasonable costs of investigating, disputing or defending any such claim or action), insofar as such losses,
liabilities, costs or claims (or actions in respect thereof) arise out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Final Prospectus, the General Disclosure
Package, the electronic road show listed on Schedule II hereto used in connection with the offer and sale of the Series 2 Trust Preferred Securities, any free writing prospectus that the Company has filed, or is required
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to file, pursuant to Rule 433(d) under the Securities Act, or any amendment or supplement thereto (collectively, the “Indemnity Documents”), or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the Company shall not be liable for any such loss, liability, cost, action or claim arising from any statements or
omissions made in reliance on and in conformity with written information provided by an Underwriter to the Company expressly for use in the General Disclosure Package or Final Prospectus or any amendment or supplement thereto; provided, however,
that the foregoing indemnity agreement with respect to the General Disclosure Package shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Series 2 Trust Preferred
Securities, or any person controlling such Underwriter where (i) a reasonable period of time prior to the Time of Sale the Company shall have notified such Underwriter that the General Disclosure Package contains an untrue statement of material
fact or omits to state therein a material fact required to be stated therein in order to make the statements therein not misleading, (ii) such untrue statement or omission of a material fact was subsequently corrected in the General Disclosure
Package or, where permitted by law, an amendment or supplement and such corrected General Disclosure Package or amendment or supplement was provided to such Underwriter a reasonable amount of time in advance of the Time of Sale such that the
corrected General Disclosure Package or amendment or supplement could have been provided to such person prior to such Time of Sale, (iii) such corrected General Disclosure Package or amendment or supplement (excluding any document then
incorporated or deemed incorporated therein by reference) was not conveyed to such person at or prior to the Time of Sale, and (iv) such loss, claim, damage or liability would not have occurred had the corrected General Disclosure Package or
amendment or supplement (excluding any document then incorporated or deemed incorporated therein by reference) been conveyed to such person as provided for in clause (iii) above.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless each of the Company, the Trust, the Administrative
Trustees who sign the Registration Statement, the directors, the officers, employees, agents of the Company and each person, if any, who controls the Company or the Trust (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and such person’s directors and officers) from and against any and all losses, liabilities, costs or claims (or actions in respect thereof) to which any of them may become subject (including all reasonable
costs of investigating, disputing or defending any such claim or action), insofar as such losses, liabilities, costs or claims (or actions in respect thereof) arise out of or in connection with any untrue statement or alleged untrue statement of a
material fact contained in the Indemnity Documents, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case as to the Indemnity
Documents, only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance on and in conformity with written information furnished to the Company by an Underwriter expressly for use in
the Indemnity Documents. The Company and the Trust acknowledge that the marketing names of the Underwriters appearing on the front cover page of the Preliminary Prospectus and the Final Prospectus, the names of the Underwriters appearing under the
heading “Underwriting” in the Preliminary Prospectus and the Final Prospectus and the statements made in the seventh, tenth and eleventh paragraphs under the heading “Underwriting” in the Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Indemnity Documents.
(c) If any claim, demand, action or proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a)
or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing, and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to
such proceeding; provided, however, that in the event the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of any such
proceeding, the indemnified party shall then be entitled to retain counsel reasonably satisfactory to itself and the indemnifying party shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to such indemnified
-15-
party pursuant to the preceding sentence or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party 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 agreed that the indemnifying party 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 law firm (in addition to any local counsel where necessary) for all such indemnified parties. Such firm shall be designated in writing by such
Underwriter, in the case of a party indemnified pursuant to Section 8(a), and by the Company, in the case of a party indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party is entitled to indemnification hereunder, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceeding and does not include any statement as to, or any finding of fault, culpability or failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Trust, on the one hand, and such Underwriter, on the other hand, from the offering of the Series 2 Trust Preferred Securities
or (ii) if the allocation provided by Section 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in Section 8(d)(i) above but also the relative
fault of the Company and the Trust, on the one hand, and of the relevant Underwriter, on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the Trust, on the one hand, and such Underwriter, on the other hand, in connection with the offering of the Series 2 Trust Preferred Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the Series 2 Trust Preferred Securities (before deducting expenses) received by the Selling Securityholder bear to the total commissions received by such Underwriter. The relative
fault of the Company and the Trust, on the one hand, and such Underwriter, on the other hand, 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 the Company or the Trust or by such Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company, the Trust and the Underwriters agree that it would not be just or equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purposes) or by any other method of allocation that does not take account of the equitable considerations referred
to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, in no event shall an Underwriter be required to contribute
any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Series 2 Trust Preferred Securities exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 8 are several in proportion to their respective purchase obligations
hereunder and not joint.
(f) The indemnity agreements contained in this Section 8 and the representations, warranties
and other statements of the Company, the Trust and the Underwriters contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on
-16-
behalf of any indemnified party or on such party’s behalf, any person controlling such indemnified party or any affiliate of such indemnified party or by or on behalf of the indemnified
party’s officers or directors and (iii) acceptance of and payment for any of the Series 2 Trust Preferred Securities.
(g) The provisions of this Section 8 shall not be deemed to supersede or otherwise affect provisions of Section 4.5(g) of the
Securities Purchase and Exchange Agreement dated December 30, 2009 by and among the Company, the Trust and the Selling Securityholder with respect to the rights (including the rights of their respective agents) and obligations of each of them
to the other pursuant thereto.
9.
Effectiveness
. This Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
10.
Termination
.
(a) This Agreement shall remain in full force and effect until the earliest to occur of the following: (i) this Agreement is
terminated pursuant to Section 10(c) below, (ii) such time as all Series 2 Trust Preferred Securities have been sold pursuant to the terms of this Agreement, or (iii) this Agreement is otherwise terminated by mutual agreement of the
Selling Securityholder and the Representatives; provided that any such termination by mutual agreement or pursuant to this clause (a) shall in all cases be deemed to provide that Section 1 and Section 8 of this Agreement shall remain
in full force and effect.
(b) Any termination of this Agreement shall be effective on the date specified in such notice of
termination; provided that such termination shall not be effective until the close of business on the date of receipt of such notice by the relevant parties.
(c) The Representatives may terminate this Agreement by notice given to the Company and the Selling Securityholder, if on or after the date hereof and prior to the Settlement Date:
(A) trading generally shall have been suspended or materially limited on, or by, as the case may be, the New York Stock
Exchange or the Nasdaq National Market, if minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, FINRA or any other
governmental entity, or trading in any securities of the Company has been suspended or limited by the Commission, the New York Stock Exchange or the Nasdaq National Market, (B) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (C) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities, (D) there shall have occurred any outbreak or escalation of
hostilities, or any material adverse change in financial markets in the United States or any calamity or crisis that, in the Representatives’ judgment after consultation with the Company and the Selling Securityholder, is likely to have a
Material Adverse Effect, in each case, the effect of which is to make it, in the Representatives’ judgment after consultation with the Company, impracticable or inadvisable to proceed with the offer, sale or delivery of the Series 2 Trust
Preferred Securities on the terms and in the manner contemplated in the Final Prospectus, or (E) any condition specified in Section 4 hereof shall not have been fulfilled when and as required to be fulfilled.
If this Agreement is terminated pursuant this Section 10(c), then each of the Underwriters and the Selling Securityholder shall be released from any
of its obligations under Section 3 with respect to the Series 2 Trust Preferred Securities. The Company shall hold the Underwriters and the Selling Securityholder harmless against any loss, claim, damage or expense (including reasonable legal
fees and expenses), as incurred, arising out of or in connection with the cancellation of any purchase pursuant to this Section 10(c).
11.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase and pay for any of the Series 2 Trust Preferred Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective
proportions which the principal amount of Series 2 Trust Preferred Securities set forth opposite their names in Schedule III hereto bears
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to the aggregate principal amount of Series 2 Trust Preferred Securities set forth opposite the names of all the remaining Underwriters) the Series 2 Trust Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Series 2 Trust Preferred Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Series 2 Trust Preferred Securities set forth in Schedule III hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Series 2 Trust Preferred Securities, and if such nondefaulting Underwriters do not purchase all the Series 2 Trust Preferred Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the
Company or the Trust. In the event of a default by any Underwriter as set forth in this Section 11, the Settlement Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the
Selling Shareholder, the Company, the Trust or any nondefaulting Underwriter for damages occasioned by its default hereunder.
12.
Entire Agreement
.
(a) This Agreement, including the schedules attached hereto, represents the entire agreement among the Company, the Trust and the Underwriters with respect to the preparation of any Registration
Statement, the Preliminary Prospectus or the Final Prospectus, the conduct of the offering and the sale and distribution of the Series 2 Trust Preferred Securities.
(b) Each of the Company and the Trust acknowledges that in connection with the offering of the Series 2 Trust Preferred Securities: (i) each Underwriter has acted and will act at arm’s length
and owes no fiduciary duties to the Company or the Trust, (ii) each Underwriter owes the Company and the Trust only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this
Agreement), if any, and (iii) each Underwriter may have interests that differ from those of the Company and the Trust. Each of the Company and the Trust waives to the full extent permitted by applicable law any claims they may have against the
Underwriters arising from an alleged breach of fiduciary duty in connection with the sale and distribution of the Series 2 Trust Preferred Securities.
13.
Counterparts
. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
14.
Applicable Law
. This Agreement shall be governed by and construed in accordance with the internal laws
of the State of New York; provided that all rights and obligations of the Selling Securityholder under this Agreement shall be governed by and construed in accordance with the federal law of the United States of America.
15.
Headings
. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
16.
Notices
. All communications hereunder shall be in writing and effective only upon
receipt and if to the Representatives shall be delivered, mailed, telefaxed or sent to Citigroup Global Markets Inc., 388 Greenwich Street, New York, NY 10013, facsimile number: (212) 816-7912 (Attn: General Counsel), Deutsche Bank Securities
Inc., 60 Wall Street, 3rd Floor, New York, NY 10005, facsimile number: (212) 797-2201 (Attn: Investment Grade Syndicate), J.P. Morgan Securities LLC, 383 Madison Avenue, New York, NY 10179 facsimile number: (212) 834-6081 (Attn: High-Grade
Syndicate Desk-3rd floor) and Morgan Stanley & Co. Incorporated, 1585 Broadway, 29th Floor, New York, NY 10036, facsimile number: (212) 507-8999 (Attn: Investment Banking Division, with a copy to Cahill Gordon & Reindel
LLP
, 80 Pine Street, New York, NY 10005, facsimile number: (212) 269-5420 (Attn: James J. Clark, Esq., Noah B. Newitz, Esq. and Brian Kelleher, Esq.); if to the Selling Securityholder shall be delivered, mailed, telefaxed or sent
to United States Department of the Treasury, 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, with a copy to Chief Counsel, Office of Financial Stability, OFSChiefCounselNotice@do.treas.gov, facsimile number: 202-927-9225 and a copy to Paul,
Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019, facsimile number: (212) 757-3990 (Attn: David K. Lakhdhir); and if to the Company or the Trust shall be delivered, mailed, telefaxed or sent
to Ally Financial Inc.,
-18-
200 Renaissance Center, Detroit, Michigan 48235, Attn: General Counsel, Facsimile: (313) 656-6189, with a copy to: Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New
York 10017, Attention: Richard A. Drucker, Esq., Facsimile: (212) 701-5745.
17.
Authority of the Representatives
.
Each of the Representatives represents and warrants that it has the power and authority to enter into this Agreement for and on behalf of each of the Underwriters not a direct signatory hereto. Any action by the Underwriters hereunder may be taken
by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
18.
Successors and Assigns
. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents,
affiliates and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
19.
Series
. The parties hereto acknowledge and agree that the Trust is a Delaware statutory trust organized in series (each a “Series”) and Series 2 is one such Series. Any debts,
liabilities, obligations and expenses incurred, contracted for or otherwise existing hereunder shall be enforceable against the assets of Series 2 only, and not against the assets of the Trust generally or of any other Series.
20.
Miscellaneous
. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company and the Trust, which information may include the name and address of their respective
clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
[Signature page follows]
-19-
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Very truly yours,
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ALLY FINANCIAL INC.
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By:
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/s/ Cathy L. Quenneville
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Name: Cathy L. Quenneville
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Title: Secretary
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GMAC CAPITAL TRUST I with respect to Series 2
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By:
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/s/ Matthew M. Brennan
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Name: Matthew M. Brennan
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As Administrative Trustee
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UNITED STATES DEPARTMENT OF THE TREASURY
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By:
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/s/ Timothy G. Massad
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Name: Timothy G. Massad
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Title: Acting Assistant Secretary for
Financial Stability
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Confirmed as of the date first above mentioned on behalf of themselves and the other several
Underwriters named in Schedule III hereto.
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CITIGROUP GLOBAL MARKETS INC.
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By:
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/s/ Jack D. McSpadden Jr.
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Name: Jack D. McSpadden Jr.
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Title: Managing Director
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DEUTSCHE BANK SECURITIES INC.
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By:
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/s/ Anguel Zaprianov
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Name: Anguel Zaprianov
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Title: Managing Director
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By:
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/s/ Mary Hardgrove
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Name: Mary Hardgrove
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Title: Director
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J.P. MORGAN SECURITIES LLC
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By:
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/s/ Robert Bottamedi
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Name: Robert Bottamedi
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Title: Vice President
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MORGAN STANLEY & CO. INCORPORATED
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By:
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/s/ Yurij Slyz
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Name: Yurij Slyz
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Title: Executive Director
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SCHEDULE I
Permitted Free Writing Prospectuses
Final Term Sheet dated March 2, 2011
106,680,000 Trust Preferred Securities
GMAC Capital Trust I
8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2
Liquidation Amount $25 Per Trust Preferred Security
Guaranteed by Ally Financial Inc. To The Extent Set Forth In The Prospectus
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Issuer:
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GMAC Capital Trust I, a Delaware statutory trust, the sole assets of which are fixed rate/floating rate junior subordinated deferrable interest debentures (“Series 2
Debentures”) issued by Ally Financial Inc. (“Ally”)
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Selling Securityholder:
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United States Department of the Treasury
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Guarant
ee
:
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$25 liquidation amount per fixed rate/floating rate trust preferred securities, Series 2 (the “Series 2 Trust Preferred Securities”), guaranteed by Ally to the
extent set forth in the Prospectus
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Amount:
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106,680,000 Series 2 Trust Preferred Securities. This represents the United States Department of the Treasury’s full
investment in Ally’s Trust Preferred Securities. After the settlement date, the United States Department of the Treasury will not hold any Ally Trust Preferred Securities.
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Trade Date:
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March 2, 2011
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Settlement Date:
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March 7, 2011 (T + 3 days)
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Final Maturity Date:
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February 15, 2040
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Liquidation Amount:
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$25 per Series 2 Trust Preferred Securities
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Aggregate Principal Amount:
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$2,667,000,000
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Public Offering Price:
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100% per Series 2 Trust Preferred Securities
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Gross Proceeds to Selling Securityholder:
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$2,638,830,000
1
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Coupon and Interest Payment Dates:
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From March 7, 2011 to but excluding February 15, 2016, at an annual rate of 8.125% payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each
year, beginning August 15, 2011; from and including February 15, 2016 to but excluding February 15, 2040, at an annual rate equal to three month LIBOR plus 5.785% payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each
year, beginning May 15, 2016
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1
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As part of the amendment to the GMAC Capital Trust I, which resulted in the Series 2 Trust Preferred Securities, Ally paid United States Department of
the Treasury a $28.17 million one-time, non-refundable distribution fee, which was calculated to equal all discounts, underwriting commissions, transfer taxes and transaction fees applicable to the sale of Series 2 Trust Preferred Securities
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Interest Determination Date:
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Second London banking day immediately preceding the first day of the quarterly floating rate interest period from and including February 15, 2016
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Day Count:
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From March 7, 2011 to but excluding February 15, 2016, 30/360; from and including February 15, 2016 to but excluding February 15, 2040, Actual/360
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Deferral of Interest:
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Payments on the Series 2 Trust Preferred Securities will be deferred to the extent Ally elects to defer interest on Series 2 Debentures held by the Issuer; Ally may so defer
interest for up to 20 consecutive quarters but not beyond the maturity of the Series 2 Debentures
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Redemption at Issuer’s Option:
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Subject to the approval of the Board of Governors of the Federal Reserve or the governmental agency with primary oversight of regulatory capital for Ally (the “Capital
Regulator”), if then required, Ally may redeem the underlying Series 2 Debentures, and thus redeem the underlying Series 2 Trust Preferred Securities, at any time on or after February 16, 2016, in whole or in part, at a price equal to 100% of
the principal amount, plus accrued and unpaid interest to the redemption date
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Special Event Redemption:
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In addition to the Redemption at Issuer’s Option described above and subject to the approval of the Capital Regulator, if then required, Ally may redeem the underlying
Series 2 Debentures, and thus redeem the underlying Series 2 Trust Preferred Securities, in whole or in part, at any time after the occurrence of an Investment Company Event or a Tax Event at a price equal to 100% of the principal amount, plus
accrued and unpaid interest to the redemption date
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Defeasance:
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Applicable to the Series 2 Debentures; provisions of Article 4 of the Indenture apply
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Sinking Fund:
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Not applicable
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Listing:
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The Series 2 Trust Preferred Securities have been approved for listing on the New York Stock Exchange (“NYSE”) under the trading symbol “ALLY PRA”,
subject to notice of issuance. The Series 2 Trust Preferred Securities are expected to begin trading on the NYSE within 30 days after they are first issued.
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CUSIP/ISIN Numbers:
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CUSIP: 361860 208
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ISIN: US3618602086
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Joint Book-Running Managers:
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Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Morgan Stanley & Co. Incorporated
Barclays
Capital Inc.
Goldman, Sachs & Co.
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Co-Managers:
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Aladdin Capital LLC
CastleOak Securities, L.P.
Blaylock Robert Van, LLC
C.L. King & Associates, Inc.
Loop Capital Markets LLC
MFR Securities,
Inc.
Muriel Siebert & Co., Inc.
Samuel A. Ramirez & Company, Inc.
The
Williams Capital Group, L.P.
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The Issuer has filed a registration statement (including a prospectus and
related preliminary
prospectus
supplement for the offering) with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the preliminary prospectus supplement, the
accompanying prospectus in that registration statement and the other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the
SEC’s website at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Citigroup Global Markets Inc. toll-free at 1-
877-858-5407; Deutsche Bank Securities Inc. toll-free at 1-800-503-4611; J.P. Morgan Securities LLC at 1-212-834-4533; or Morgan Stanley & Co. Incorporated toll-free at 1-866-718-1649.
This communication should be read in conjunction with the preliminary prospectus supplement and the accompanying prospectus. The information in this
communication supersedes the information in the preliminary prospectus supplement and the accompanying prospectus to the extent it is inconsistent with the information in such preliminary prospectus supplement or the accompanying prospectus.
SCHEDULE II
Electronic Road Show
None
SCHEDULE III
GMAC CAPITAL TRUST I
8.125% Fixed Rate/Floating Rate Trust Preferred Securities,
Series 2
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Underwriters
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Number of
Series 2 Trust Preferred
Securities
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Citigroup Global Markets Inc.
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19,202,400
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Deutsche Bank Securities Inc.
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19,202,400
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J.P. Morgan Securities LLC
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19,202,400
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Morgan Stanley & Co. Incorporated
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19,202,400
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Barclays Capital Inc.
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10,668,000
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Goldman, Sachs & Co.
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10,668,000
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Aladdin Capital LLC
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1,280,160
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CastleOak Securities, L.P.
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1,280,160
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Blaylock Robert Van, LLC
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853,440
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C.L. King & Associates, Inc.
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853,440
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Loop Capital Markets LLC
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853,440
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MFR Securities, Inc.
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853,440
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Muriel Siebert & Co., Inc.
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853,440
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Samuel A. Ramirez & Company, Inc.
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853,440
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The Williams Capital Group, L.P.
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853,440
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Total
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106,680,000
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EXHIBIT 1
Opinion of In-House Counsel to the Company
[See Attached]
March 7, 2011
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Morgan
Stanley & Co. Incorporated
as Representatives of the several Underwriters named in
Schedule III to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank
Securities Inc.
60 Wall Street
New
York, New York 10005
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
United States Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220
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Re:
|
Ally Financial Inc. and GMAC Capital Trust I
|
8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2
Ladies and
Gentlemen:
This letter is addressed to you pursuant to Section 4(b) of the Underwriting Agreement (the “Underwriting
Agreement”), dated March 2, 2011, among the United States Department of the Treasury, Ally Financial Inc., a Delaware corporation (the “Company”), GMAC Capital Trust I, a statutory trust formed under the Statutory Trust Act of
the State of Delaware (the “Trust”), and Citigroup Global Markets Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. Incorporated, as representatives of the several underwriters named in
Schedule III thereto. The terms defined in the Underwriting Agreement are used herein as defined therein.
I am Counsel to the
Company. I have examined, or have caused persons under my supervision to examine, originals or copies, certified or otherwise identified to my satisfaction, of such documents, corporate records, certificates of public officials and other instruments
and have conducted such other investigations of fact and law as I have deemed necessary or advisable for the purposes of this opinion. In such examination, I have assumed
the legal capacity of all natural persons, the genuineness of all signatures (other than those of the Company), the authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic copies and the authenticity of the original of such copies.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company has
been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the General Disclosure Package
and the Final Prospectus.
2. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
3. The Indenture has been duly authorized, executed and delivered by the Company.
4. The Declaration has been duly authorized, executed and delivered by the Company.
5. The execution, delivery and performance of the Underwriting Agreement and the Indenture by the Company, and the sale of the Series 2
Trust Preferred Securities in compliance with the terms and provisions thereof, will not result in a breach of any of the terms and provisions of, or constitute a default under, any of the agreements or instruments of the Company filed by the
Company with the Commission as exhibits to the Registration Statement (Registration No. 333-165608) and to its (i) Annual Report on Form 10-K for the fiscal year ended December 31, 2010 and (ii) Current Reports on Form 8-K filed
from January 14, 2011 to the date hereof.
My opinion is limited to matters governed by the Federal laws of the United
States of America and the Delaware General Corporation Law (including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting the Delaware General Corporation Law and such applicable provisions of the
Delaware Constitution). I am not admitted to practice law in the State of Delaware.
This opinion is solely for your benefit
in connection with the offer and sale of the Series 2 Trust Preferred Securities, and is not to be used, circulated, quoted or otherwise referred to for any other purpose without my express written permission, except that The Bank of New York Mellon
may rely on this opinion as if it were addressed to them.
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Very truly yours,
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Hu Benton
|
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Counsel
|
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Ally Financial Inc.
|
EXHIBIT 2
Opinion of In-House Counsel to the Company
[See Attached]
March 7, 2011
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES LLC
MORGAN
STANLEY & CO. INCORPORATED
as Representatives of the several Underwriters named in
Schedule III to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank
Securities Inc.
60 Wall Street
New
York, New York 10005
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
United States Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220
|
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Re:
|
Opinion of Counsel Pursuant to Underwriting Agreement
:
|
Ladies and Gentlemen:
As Counsel to Ally Financial Inc. (the “Company”), I am
delivering this opinion to you pursuant to Section 4(b) of the Underwriting Agreement, dated March 2, 2011, among the United States Department of the Treasury, All Financial Inc., a Delaware corporation (the “Company”), GMAC
Capital Trust I, a statutory trust formed under the Statutory Trust Act of the State of Delaware (the “Trust”), and Citigroup Global Markets Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co.
Incorporated, as representatives of the several underwriters named in Schedule III thereto. Terms defined in the Underwriting Agreement and not defined herein are used herein as defined in the Underwriting Agreement.
In arriving at the opinions expressed below, I have reviewed, or have caused persons under my supervision to
review, the originals or copies certified or otherwise identified to my satisfaction of all such corporate records of the Company and such other instruments and documents and other certificates of public officials, officers and representatives of
the Company and such other persons, and I have made, or have caused persons under my supervision to make, such investigations of law, as I have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, I have assumed: (i) the genuineness of all signatures, (ii) the legal capacity of all natural
persons, and (iii) the authenticity of all documents submitted to me as originals and the conformity to the originals of all documents submitted to me as copies. In addition, I have assumed and have not verified the accuracy as to factual
matters of each document I have reviewed.
In making my examination of agreements, I have assumed that the parties thereto had the power,
corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and
binding effect of such documents on such parties, other than the Company. As to any facts material to the opinion expressed herein which were not independently established or verified, I have relied upon oral and written statements and
representations of officers and other representatives of the Company and others.
I am admitted to practice in the State of New York and I
express no opinion with respect to the laws of any jurisdiction other than the laws of the State of New York, the Delaware General Corporation Law and the federal law of the United States of America.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is my opinion that:
1. The Indenture constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms.
The opinion expressed herein are subject to the following qualifications and comments: the Indenture is subject to the effect of (1) bankruptcy,
insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors generally (2) the application of general principles of equity (including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether enforcement is considered in proceedings at law or in equity); and (3) applicable law and public policy with respect to rights to indemnity
and contribution.
This opinion letter is delivered to you pursuant to the Underwriting Agreement and is not to be relied on by or furnished
to any other person or used, circulated, quoted or otherwise referred to for any other purpose, except that The Bank of New York Mellon may rely on this opinion as if it were addressed to them. I assume no obligation to advise you, or to make any
investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
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Very truly yours,
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Stephen VanDolsen
|
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Counsel
|
EXHIBIT 3
Opinion of Davis Polk & Wardwell LLP, special counsel to the Company
[See Attached]
March 7, 2011
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Morgan
Stanley & Co. Incorporated
as Representatives of the several Underwriters named in
Schedule III to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank
Securities Inc.
60 Wall Street
New
York, New York 10005
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
United States Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220
Ladies and Gentlemen:
We have acted as special
counsel for Ally Financial Inc., a Delaware corporation (the “Company”), in connection with the Underwriting Agreement dated March 2, 2011 (the “Underwriting Agreement”) with Citigroup Global Markets Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. Incorporated, as representatives of the several Underwriters named in Schedule III thereto, the United States Department of the Treasury (the “Treasury”) and
GMAC Capital Trust I, a Delaware statutory trust (the “Trust”), under which the Underwriters have severally agreed to purchase from the Treasury an aggregate of 106,680,000 of the Trust’s 8.125% Fixed Rate/Floating Rate Trust
Preferred Securities, Series 2, liquidation amount $25 per security (the “Series 2 Trust Preferred Securities”). The Series 2 Trust Preferred Securities were issued pursuant to the Second Amended and Restated Declaration of the Trust dated
March 1, 2011 (the “Declaration”) among the Company, administrative trustees of the series of the Trust, BNY Mellon Trust of Delaware, as Delaware trustee and The Bank of New York Mellon, as institutional trustee.
The Series 2 Trust Preferred Securities will be guaranteed by the Company on a subordinated basis to the extent set forth in the Series 2 Trust Preferred
Securities Guarantee Agreement dated as of March 1, 2011 (the “Series 2 Guarantee Agreement”) between the Company and The Bank of New York Mellon, as trustee.
The assets of Series 2 of the Trust consist of $2,747,010,000 aggregate principal amount of the Company’s 8.125% Fixed Rate/Floating Rate Junior Subordinated Deferrable Interest Debentures due
February 15, 2040 (the “Subordinated
Series 2 Debentures”). The Subordinated Series 2 Debentures were issued pursuant to the provisions of the Amended and Restated Indenture dated as of March 1, 2011 (the
“Indenture”) between the Company and The Bank of New York Mellon, as trustee.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
We have also participated in the preparation of Post-Effective Amendment No. 1 to the Company’s and the Trust’s registration statement on
Form S-3 (File No. 333-165608) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of
the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated March 1, 2011
relating to the Series 2 Trust Preferred Securities, the final term sheet dated March 2, 2011 and the prospectus supplement dated March [ ], 2011 relating to the Series 2 Trust Preferred Securities (the “Prospectus Supplement”), and
have reviewed the Incorporated Documents. Amendment No. 1 to the registration statement became effective under the Act and the Indenture and the Series 2 Guarantee Agreement qualified under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), upon the filing of Amendment No. 1 to the registration statement with the Commission on March 1, 2011 pursuant to Rule 462(e). The registration statement as amended at the date of the Underwriting
Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration
Statement,” and the related prospectus (including the Incorporated Documents) dated March [ ], 2011 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the
Prospectus Supplement, in the form first used to confirm sales of the Series 2 Trust Preferred Securities (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Securities under Rule 173 under
the Act), is hereinafter referred to as the “Prospectus.”
We have assumed the conformity of the documents filed with the Commission
via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies of the documents submitted for our examination.
Based upon the foregoing, we are of the opinion that:
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1.
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The Company is validly existing as a corporation in good standing under the laws of the State of Delaware, and the Company has corporate power and authority to enter
into the Underwriting Agreement and to perform its obligations thereunder.
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2.
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The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
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3.
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The Indenture has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to the
enforceability of any waiver of rights under any usury or stay law.
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4.
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The Series 2 Guarantee Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability.
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5.
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The Series 2 Subordinated Debentures have been duly authorized, executed and delivered by the Company and are valid and binding obligations of the Company, enforceable
in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and are entitled to the benefits
of the Indenture, provided that we express no opinion as to the enforceability of any waiver of rights under any usury or stay law.
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6.
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The Trust is not, and after giving effect to the offering and sale of the Series 2 Trust Preferred Securities and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
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7.
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The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Indenture, the Guarantee Agreement, the Series 2
Subordinated Debentures, the Declaration and the Underwriting Agreement (collectively, the “Documents”) will not contravene (i) any provision of the laws of the State of New York or any federal law of the United States of America that
in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, or the General Corporation Law of the State of Delaware provided that we express no opinion as to
federal or state securities laws or (ii) the certificate of incorporation or by-laws of the Company.
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8.
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No consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of
the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, or the General Corporation Law of the State of Delaware is required
for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion.
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We have considered the statements included in the Prospectus under the captions “Description of the Series 2 Trust Preferred Securities,”
“Description of the Series 2 Debentures,” “Description of the Guarantees” and “Effect of Obligations under the Debentures and the Guarantees” insofar as they summarize provisions of the agreements referred to therein.
In our opinion, such statements fairly summarize these provisions in all material respects.
In rendering the opinions in paragraphs
(2) through (5) above, we have assumed that, (i) each party to the Documents has been duly incorporated and is validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) the execution,
delivery and performance by each party thereto of each Document to which it is a party, (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other
constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or
regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption, under (i) and (ii) above to the extent that we have specifically opined as to
such matters with respect to the Company and (iii) each Document (other than the Underwriting Agreement) is a valid, binding and enforceable agreement of each party thereto (other than as expressly covered above in respect of the Company)).
We express no opinion as to whether a New York State or United States federal court would enforce the exclusivity of the jurisdiction of any
New York State or United States federal court provided for in any Document.
We are members of the Bar of the State of New York, and the
foregoing opinion is limited to the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware,
except that we express no opinion as to any law, rule or regulation that is applicable to the Company, the Documents or such transactions solely because such law, rule or regulation is part of a
regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.
This opinion is rendered solely to you and the several Underwriters in connection with the Underwriting Agreement. This opinion may not be relied upon by you for any other purpose or relied upon by any
other person (including any person acquiring Series 2 Trust Preferred Securities from the several Underwriters) or furnished to any other person without our prior written consent.
Very truly yours,
EXHIBIT 4
Negative Assurance Letter of Davis Polk & Wardwell LLP, special counsel to the Company
[See Attached]
March 7, 2011
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Morgan
Stanley & Co. Incorporated
as Representatives of the several Underwriters named in
Schedule III to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank
Securities Inc.
60 Wall Street
New
York, New York 10005
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
United States Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220
Ladies and Gentlemen:
We have acted as special
counsel for Ally Financial Inc., a Delaware corporation (the “Company”), in connection with the Underwriting Agreement dated March 2, 2011 (the “Underwriting Agreement”) with Citigroup Global Markets Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. Incorporated, as representatives of the several Underwriters named in Schedule III thereto, the United States Department of Treasury (the “Treasury”) and GMAC
Capital Trust I, a Delaware statutory trust (the “Trust”), under which the Underwriters have severally agreed to purchase from the Treasury an aggregate of $2,667,000,000 of the Trust’s 8.125% Series 2 Fixed Rate/Floating Rate Trust
Preferred Securities, liquidation amount $25 per security (the “Series 2 Trust Preferred Securities”).
We have participated in the
preparation of the Post-Effective Amendment No. 1 to the Company’s and the Trust’s registration statement on Form S-3 (File No. 333-165608) (other than the documents incorporated by reference therein (the “Incorporated
Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf
Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated March 1, 2011 (the “Preliminary Prospectus Supplement”) relating to the Series 2 Trust Preferred Securities, the final term
sheet dated March 2, 2011 and the prospectus supplement dated March [ ], 2011 relating to the Series 2 Trust Preferred Securities (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The
registration statement as amended at the date of the Underwriting Agreement, including the Incorporated Documents
and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration
Statement,” and the related prospectus (including the Incorporated Documents) dated March 1, 2011 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the
Preliminary Prospectus Supplement, together with the free writing prospectus set forth in Schedule I to the Underwriting Agreement for the Series 2 Trust Preferred Securities are hereinafter called the “Disclosure Package.” The Basic
Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Series 2 Trust Preferred Securities (or in the form first made available by the Company and the Trust to the Underwriters to meet requests of
purchasers of the Series 2 Trust Preferred Securities under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.”
We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System
(“EDGAR”), except for required EDGAR formatting changes, to physical copies of the documents submitted for our examination.
The
primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or quantitative information. Furthermore, many determinations involved in the preparation of the Registration Statement, the
Disclosure Package and the Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the scope of our opinion separately delivered to you today in respect of certain matters under the laws of the State of New
York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware. As a result, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Disclosure Package and the Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished in such documents (except to the extent
expressly set forth in our opinion letter separately delivered to you today as to statements included in the Prospectus under the captions “Description of the Series 2 Trust Preferred Securities,” “Description of the Series 2
Debentures,” “Description of the Guarantees,” “Effect of Obligations under the Debentures and the Guarantees” and “United States Federal Income Tax Considerations”). However, in the course of our acting as counsel
to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus, we have generally reviewed and discussed with your representatives and your counsel and with certain officers and employees
of, and independent public accountants for, the Company the information furnished, whether or not subject to our check and verification. We have also reviewed and relied upon certain corporate records and documents, letters from counsel and
accountants and oral and written statements of officers and other representatives of the Company and others as to the existence and consequence of certain factual and other matters.
On the basis of the information gained in the course of the performance of the services rendered above, but without independent check or verification except as stated above:
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(i)
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the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the
applicable rules and regulations of the Commission thereunder; and
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(ii)
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nothing has come to our attention that causes us to believe that, insofar as relevant to the offering of the Series 2 Trust Preferred Securities:
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(a)
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on the date of the Underwriting Agreement, the Registration Statement contained any 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,
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(b)
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at [ ] P.M. New York City time on March 2, 2011, the Disclosure Package contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
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(c)
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the Prospectus as of the date of the Underwriting Agreement or as of the date hereof contained or contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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In providing this letter to you and the several Underwriters, we have not been called to pass upon, and we express no view regarding, the financial statements or financial schedules or other financial or
accounting data included in the Registration Statement, the Disclosure Package or the Prospectus. It is understood, for the purpose of this letter, that any data furnished in accordance with “Guide 3. Statistical Disclosure by Bank Holding
Companies” under the Act is financial data. In addition, we express no view as to the conveyance of the Disclosure Package or the information contained therein to investors.
This letter is delivered solely to you and the several Underwriters in connection with the Underwriting Agreement. This letter may not be relied upon by you for any other purpose or relied upon by any
other person (including any person acquiring Series 2 Trust Preferred Securities from the several Underwriters) or furnished to any other person without our prior written consent.
Very truly yours,
EXHIBIT 5
Opinion of Davis Polk & Wardwell LLP, special tax counsel to the Company
[See Attached]
March 7, 2011
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Morgan
Stanley & Co. Incorporated
as Representatives of the several Underwriters named in
Schedule III to the Underwriting Agreement referred to below
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank
Securities Inc.
60 Wall Street
New
York, New York 10005
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
United States Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220
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Re:
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GMAC Capital Trust I — 8.125% Series 2 Fixed Rate/Floating Rate Trust
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Preferred Securities
Ladies and Gentlemen:
We have acted as special counsel for Ally Financial Inc., a Delaware corporation (the “Company”), in connection with the
Underwriting Agreement dated March 2, 2011 (the “Underwriting Agreement”) with Citigroup Global Markets Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. Incorporated, as representatives
of the several Underwriters named in Schedule III thereto (the “Underwriters”), the United States Department of Treasury (the “Treasury”) and GMAC Capital Trust I, a Delaware statutory trust (the “Trust”) under which
the Underwriters have severally agreed to purchase from the Treasury an aggregate of $2,667,000,000 of the Trust’s 8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2, liquidation amount $25 per security (the “Series 2
Trust Preferred Securities”).
The assets of the Trust consist of $2,747,010,000 aggregate principal amount of 8.125%
Fixed Rate/Floating Rate Junior Subordinated Deferrable Interest Debentures due 2040 (the “Series 2 Debentures”) of the Company. The Series 2 Debentures are the only assets designated to series 2 of the Trust (“Series 2”).
This opinion is being furnished to you pursuant to Section 4(e) of the Underwriting Agreement.
In rendering the opinions set forth herein, we have examined and relied on originals or copies of the following:
(a) the registration statement on Form S-3 of the Company and the Trust relating to the Series 2 Trust Preferred Securities filed with
the Securities and Exchange Commission (the “Commission”);
(b) the final prospectus, dated March [
—
],
2011, relating to the Series 2 Trust Preferred Securities and the Series 2 Debentures in the form filed with the Commission (the “Prospectus”);
(c) the Underwriting Agreement; and
(d) such other documents, certificates and
records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
Our opinion is conditioned
upon the initial and continuing accuracy of the documents, certificates and records referred to above. We have also assumed that the transactions related to the offering and sale by the Treasury of the Series 2 Trust Preferred Securities will be
consummated in the manner contemplated by the Prospectus.
For purposes of our opinion, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, electronic, or photostatic copies,
and the authenticity of the originals of such latter documents. In making our examination of documents executed, or to be executed, by the parties indicated therein, we have assumed that each party has, or will have, the power, corporate or other,
to enter into and perform all obligations thereunder, and we have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by each party indicated in the documents, and that such documents
constitute, or will constitute, valid and binding obligations of each party.
Our opinion is based on the Internal Revenue
Code of 1986, as amended, Treasury regulations promulgated thereunder, pertinent judicial authorities, interpretive rulings of the Internal Revenue Service and such other authorities as we have considered relevant, all as in effect as of the date of
this opinion and all of which are subject to differing interpretations or change at any time, possibly with retroactive effect. A change in the authorities or the accuracy or completeness of any of the information, documents, certificates, records
or assumptions on which our opinion is based could affect the conclusions expressed herein. There can be no assurance, moreover, that the opinions expressed herein will be accepted by the Internal Revenue Service or, if challenged, by a court.
Based upon the foregoing and in reliance thereon, and subject to the qualifications, exceptions, assumptions and limitations
contained herein, we are of the opinion that under current United States federal income tax law:
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1.
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while there is no authority directly on point and the issue is not free from doubt, the Series 2 Debentures designated to Series 2 will be classified for United States
federal income tax purposes as indebtedness of the Company;
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2.
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the Trust or Series 2 (as applicable) will be classified, for United States federal income tax purposes, as either a grantor trust or a partnership, and not as an
entity taxable as a corporation; and
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3.
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although the discussion set forth in the Prospectus under the heading “United States Federal Income Tax Considerations” does not purport to discuss all
possible United States federal income tax consequences of the ownership and disposition of the Series 2 Trust Preferred Securities, subject to the qualifications, exceptions, assumptions and limitations set forth therein, that discussion
constitutes, in all material respects, a fair and accurate summary of the United States federal income tax consequences described therein.
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Except as set forth above, we express no other opinion. These opinions are furnished to you solely for your benefit in connection with the execution of the Underwriting Agreement and are not to be relied
on by anyone else without our prior written consent. These opinions are expressed as of the date hereof, and we are under no obligation to supplement or revise our opinions to reflect any legal developments or factual matters arising subsequent to
the date hereof or the impact of any information, document, certificate, record or assumption relied upon herein becoming incorrect or untrue.
Very truly yours,
EXHIBIT 6
Opinion of Emmet, Marvin & Martin, LLP, counsel to BNYM
[See Attached]
March 7, 2011
To the Addressees
on the Attached Schedule A
Ladies and Gentlemen:
We have acted as counsel for The Bank of New York Mellon (“BNYM”), a New York banking corporation, in connection
with (a) the execution of (i) the Amended and Restated Indenture, dated as of March 1, 2011 (the “Amended and Restated Indenture”), between Ally Financial Inc. (the “Company”) and BNYM, as trustee (the
“Indenture Trustee”) and amending and restating the Indenture, dated as of December 30, 2009, between the Company (known at such time, as GMAC Inc.) and the Indenture Trustee, (ii) the Second Amended and Restated Declaration of
Trust, dated as of March 1, 2011 (the “Second Amended and Restated Declaration”), among the Company, as sponsor (the “Sponsor”), BNY Mellon Trust of Delaware, as Delaware trustee (the “Delaware Trustee”), the
Administrative Trustees parties thereto, BNYM, as Institutional Trustee (the “Institutional Trustee”), with respect to Series 1 and Series 2 (as defined and established pursuant to the Series 1 Supplement to the Second Amended and Restated
Declaration of Trust (the “Series 1 Supplement”) and the Series 2 Supplement to the Second Amended and Restated Declaration of Trust (the “Series 2 Supplement” and, together with the Series 1 Supplement, the “Series
Supplements” and, together with the Base Declaration, as defined below, the “Declaration”) of GMAC Capital Trust I (the “Trust”), and the holders from time to time, of undivided beneficial interests in the relevant series of
the Trust that have been previously issued or are being re-designated, and further amending the Declaration of Trust, dated as of December 22, 2009 (the “Original Declaration”), among the Administrative Trustees named therein, the
Delaware Trustee, the Institutional Trustee and the Sponsor, as amended by the Amended and Restated Declaration of Trust, dated as of December 30, 2009 (the “First Amended and Restated Declaration” and, together with the Original
Declaration and the Second Amended and Restated Declaration, the “Base Declaration”), among the Administrative Trustees named therein, the Delaware Trustee, the Institutional Trustee and the Sponsor, (iii) the Series 1 Trust Preferred
Securities Guarantee Agreement, dated as of March 1, 2011 (the “Series 1 Guarantee Agreement”), between the Company, as guarantor and BNYM, as trustee (the “Guarantee Trustee”), for the benefit of the Holders (as defined
therein) from time to time of the Trust Preferred Securities (as defined therein) of the Trust with respect to Series 1 thereof and which amends and restates the Guarantee Agreement, dated as of December 30, 2009 (the “Original Guarantee
Agreement”) and (iv) the Series 2 Trust Preferred Securities Guarantee Agreement, dated as of March 1, 2011 (the “Series 2 Guarantee Agreement” and, together with the Series 1 Guarantee Agreement and the Original Guarantee
Agreement, the “Guarantee Agreements” and, together with the Amended and Restated Indenture and the Declaration, the “Agreements”), between the Company, as guarantor and BNYM, as trustee (the “Guarantee Trustee”), for
the benefit of the Holders (as defined therein) from time to time of the Trust Preferred Securities (as defined therein) of the Trust with respect to Series 2 thereof and which also amends and restates the Original Guarantee Agreement; (b) the
issuance by the Company of its 8.125% Fixed Rate/Floating Rate Junior Subordinated Deferrable Interest Debentures due February 15, 2040 (which are to be known as the “Series 2 Debentures”), pursuant to the Amended and Restated
Indenture; and (c) the sale by the United States Department of the Treasury (“Treasury”), as securityholder of the Trust’s 8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2, which are to be sold to the several
underwriters named in the Underwriting Agreement, dated March 2, 2011 (the “Underwriting Agreement”), among the Company, the Trust, Treasury and the several underwriters named therein. Terms not defined herein shall have the meaning
assigned to them in the Agreements.
In rendering the opinions set forth below, we have examined the originals, or copies
certified to our satisfaction, of such agreements, documents, certificates and other statements of government officials and corporate officers of BNYM and other papers as we deemed relevant and necessary as a basis for such opinion and have relied
as to factual matters on representations, warranties and other statements therein. In such examination we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity with the
originals of all documents submitted to us as copies. We have also assumed the due authorization, execution and delivery of instruments and agreements by the parties (other than BNYM) thereto, and the authority and existence of such parties other
than BNYM.
Based upon and subject to the foregoing, we are of the opinion that as of this date:
1. BNYM is a banking corporation duly incorporated, validly existing and in good standing under the laws of the State of New York.
2. The execution, delivery and performance by the Institutional Trustee of the Declaration, the execution,
delivery and performance by the Guarantee Trustee of the Guarantee Agreements and the execution, delivery and performance by the Indenture Trustee of the Amended and Restated Indenture have been duly authorized by all necessary corporate action on
the part of the Institutional Trustee, the Guarantee Trustee and the Indenture Trustee, respectively, and the Institutional Trustee, the Guarantee Trustee and the Indenture Trustee have full corporate trust power and authority to enter into and
perform their respective obligations under the Declaration, the Guarantee Agreements and the Amended and Restated Indenture. The Declaration, the Guarantee Agreements and the Amended and Restated Indenture have been duly executed and delivered by
the Institutional Trustee, the Guarantee Trustee and the Indenture Trustee, respectively. Each of the Guarantee Agreements and the Amended and Restated Indenture constitute the legal, valid and binding obligations of the Guarantee Trustee and the
Indenture Trustee, respectively, enforceable against the Guarantee Trustee and the Indenture Trustee, respectively, in accordance with their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
3. The execution, delivery and performance of the Declaration, the Guarantee Agreements and the Amended and Restated Indenture by the Institutional
Trustee, the Guarantee Trustee and the Indenture Trustee, respectively, do not conflict with or constitute a breach of the Organization Certificate or By-laws of the Institutional Trustee, the Guarantee Trustee and the Indenture Trustee,
respectively, or any Federal or State of New York law, rule or regulation governing BNYM’s banking or trust powers or, to our knowledge, without independent investigation, the terms of any indenture or other agreement or instrument known to us
and to which the Institutional Trustee, the Guarantee Trustee or the Indenture Trustee, respectively, is a party or is bound or any judgment, order or decree known to us to be applicable to the Institutional Trustee, the Guarantee Trustee or the
Indenture Trustee, respectively, of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Institutional Trustee, the Guarantee Trustee or the Indenture Trustee, respectively.
4. No consent, approval or authorization of, or registration with or notice to any Federal or New York State governmental authority having jurisdiction
over the trust powers of BNYM is required for the execution, delivery or performance by the Institutional Trustee, the Guarantee Trustee and the Indenture Trustee of the Declaration, the Guarantee Agreements and the Amended and Restated Indenture,
respectively.
We are members of the New York Bar and do not hold ourselves out as experts on, nor do we express any opinion
as to, the laws of any jurisdiction other than the laws of the State of New York and the Federal laws of the United States. This opinion is for your benefit and may not be disclosed to or relied upon by any other person without our prior written
consent.
Very truly yours,
EXHIBIT 7
Opinion of Richards, Layton & Finger, P.A., counsel to BNY Mellon Trust of Delaware
[See Attached]
March
, 2011
To the Persons Listed on
Schedule I Attached Hereto
Ladies and
Gentlemen:
We have acted as special Delaware counsel for GMAC Capital Trust I, a Delaware statutory trust (the
“Trust”) in connection with the matters set forth herein. This opinion is being furnished to you pursuant to Section 4 (g) of the Underwriting Agreement referred to below.
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:
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(a)
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The Certificate of Trust, as filed with the office of the Secretary of State of the State of Delaware (the “Secretary of State”) on December 22, 2009, as
amended and restated by a Restated Certificate of Trust filed with the Secretary of State on March
, 2011 (the “Certificate of Trust”);
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(b)
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The Declaration of Trust dated as of December 22, 2009, as amended and restated by the Amended and Restated Declaration of Trust, dated as of December 30,
2009 (the “Original Declaration of Trust”), among Ally Financial Inc., a Delaware corporation (the “Company”), as sponsor, and the trustees named therein and the holders, from time to time, of undivided beneficial interests in
the assets of the Trust relating to among other things the Trust Preferred Securities of the Trust (as defined in the Original Declaration of Trust);
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(c)
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The Second Amended and Restated Declaration Trust, dated as of March
, 2011 (the “Base Declaration”), among the Company and the
Trustee named therein which amended and restated the Original Declaration of Trust;
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(d)
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The Series 2 Supplement to the Second Amended and Restated Declaration Trust, dated as of March
, 2011 (together with the Base
Declaration, the “Declaration of Trust”), among the Company and the Series 2 Trustees named therein relating to, among other things the Trust Preferred Securities of Series 2 (the “Series Trust Preferred Securities”), including
the form of Trust Preferred Security Certificate attached thereto as Exhibit A-1;
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(e)
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The Trust Preferred Facility Amendment Agreement, dated as of March
, 2011, among the Company, the Trustees named therein and the United
States Department of the Treasury;
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(f)
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The Securities Purchase and Exchange Agreement, dated as of December 30, 2009 (the “Securities Purchase Agreement”), among the Trust, the Company and the
United States Department of the Treasury;
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(g)
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The Underwriting Agreement, dated March
, 2011, among the Company, the Trust and Citigroup Global Markets Inc., Deutsche Bank Securities
Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. Incorporated, as Representative of the several Underwriters named in Schedule III thereto (the “Underwriting Agreement”);
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(h)
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The preliminary prospectus dated March
, 2011 and the prospectus dated March
, 2011, relating to the
Series Trust Preferred Securities (collectively, the “Prospectus”); and
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(i)
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A Certificate of Good Standing for the Trust, dated March
, 2011, obtained from the Secretary of State.
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Initially capitalized terms used herein and not otherwise defined are used as defined in the Declaration of Trust or the Underwriting
Agreement, as applicable.
For purposes of this opinion, we have not reviewed any documents other than the documents listed in
paragraphs (a) through (i) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (i) above) that is referred to in or incorporated by reference into the documents
reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that 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 the Declaration of Trust constitutes the entire agreement among the parties thereto with respect to the subject matter thereof, including with
respect to the formation, operation and termination of the Trust, and that the Declaration of Trust and the Certificate 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, due formation or due organization, 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, formation or organization,
(iii) the legal capacity of each natural person who is a party to the documents examined by us, (iv) except to the extent provided in paragraph 2 below, 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) except to the extent provided in paragraphs 4 and 5 below, that each of the parties to the documents examined by us has duly authorized, executed and delivered
such documents, (vi) the receipt by each Person to whom a Trust Preferred Security was issued by the Trust of a Trust Preferred Securities Certificate for such Trust Preferred Security and the payment for the Trust Preferred Security acquired
by it, in accordance with the Original Declaration of Trust and as contemplated by the Securities Purchase Agreement, (vii) that the Trust Preferred Securities were issued and sold in accordance with the Original Declaration of Trust and as
contemplated by the Securities Purchase Agreement, (viii) the receipt by each Person to whom a Series Trust Preferred Security is to be issued by the Trust of a Series Trust Preferred Securities Certificate for such Series Trust Preferred
Security in accordance with the Declaration of Trust and (ix) that the Trust derives no income from or connected with sources within the State of Delaware and has no assets, activities (other than having a Delaware trustee as required by the
Delaware Statutory Trust Act and the filing of documents with the Secretary of State), or employees in the State of Delaware. We have not participated in the preparation of any offering materials with respect to the Trust and assume no
responsibility for their contents.
This opinion is limited to the laws of the State of Delaware (excluding the tax,
insurance, and 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 that 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:
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1.
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The Trust has been duly formed and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act.
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2.
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Under the Delaware Statutory Trust Act and the Declaration of Trust, the Trust has the trust power and authority to (a) execute, deliver and perform its
obligations under the Underwriting Agreement and (b) to own its properties and conduct its business, all as described in the Declaration of Trust and the Prospectus.
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3.
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The Declaration of Trust constitutes a legal, valid and binding obligation of the Company and the Trustees named therein, enforceable against the Company and the
Trustees named therein, in accordance with its terms.
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4.
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Under the Delaware Statutory Trust Act and the Declaration of Trust, (a) the execution and delivery by the Trust of the Underwriting Agreement, and the performance
by the Trust of its obligations thereunder, have been duly authorized by all necessary statutory trust action on the part of the Trust and (b) and any Administrative Trustee for Series 2 of the Trust has the authority to execute and deliver the
Underwriting Agreement on behalf of the Trust. When duly executed and delivered by an Administrative Trustee, the Underwriting Agreement will be duly executed and delivered by the Trust.
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5.
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The Series Trust Preferred Securities have been duly authorized by the Trust and are validly issued, fully paid and, subject to the qualifications set forth herein
paragraph 6 below, nonassessable undivided beneficial interests in the assets of the applicable series of the Trust and will entitle the holders of the Series Trust Preferred Securities to the benefits of the Declaration of Trust.
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6.
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The holders of Series Trust Preferred Securities, as beneficial owners of the 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 Delaware. We note that each holder of Series Trust Preferred Securities may be obligated, pursuant to the Declaration of Trust, (i) to
provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers or exchanges of Series Trust Preferred Securities Certificates and the issuance of replacement Series Trust Preferred Securities
Certificates, and (ii) to provide security or indemnity in connection with requests of or directions to the Series 2 Institutional Trustee to exercise its rights and powers under the Declaration of Trust.
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7.
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Under the Delaware Statutory Trust Act and the Declaration of Trust, the issuance of the Series Trust Preferred Securities is not subject to preemptive rights.
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8.
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No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory agency of the State of Delaware is required for
the execution or delivery of the Underwriting Agreement by the Trust or the consummation by the Trust of the transactions contemplated by the Underwriting Agreement other than the filing of the Certificate of Trust, which Certificate of Trust has
been duly filed.
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9.
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The execution, delivery and performance by the Trust of the Underwriting Agreement and the consummation by the Trust of the transactions contemplated thereby, do not
violate (i) any of the provisions of the Certificate of Trust or the Declaration of Trust, or (ii) any law, rule or regulation of the State of Delaware applicable to the Trust.
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The foregoing opinions as to enforceability are subject to (i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent transfer 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 proceeding in equity or at law), and (iii) the effect of applicable public policy on the enforceability of provisions relating to indemnification or contribution.
We consent to your relying as to matters of Delaware law upon this opinion in connection with the Underwriting Agreement. 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,
SCHEDULE I
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Morgan
Stanley & Co. Incorporated,
as Representatives of the several Underwriters
named in Schedule III to the underwriting agreement
related to the offering of GMAC Capital Trust I’s
Fixed Rate/Floating Rate
Trust Preferred Securities, Series 2,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank Securities Inc.
60 Wall
Street
New York, New York 10005
c/o J.P. Morgan Securities LLC
383 Madison
Avenue
New York, New York 10179
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
The Bank of New York Mellon
United States Department of the Treasury
EXHIBIT 8
Opinion of Richards, Layton & Finger, P.A., counsel to the Trust
[See
Attached]
March
, 2011
To Each of the Persons Listed
on Schedule I
Attached Hereto
Ladies and
Gentlemen:
We have acted as special Delaware counsel to BNY Mellon Trust of Delaware (“BNY”), in connection with
GMAC Capital Trust I, a Delaware statutory trust (the “Trust”), existing pursuant to the Second Amended and Restated Declaration Trust, dated as of March
, 2011 (the “Declaration of Trust”), among
Ally Financial Inc. and the trustees named therein and the holders, from time to time, of undivided beneficial interests in the assets of the Trust. This opinion is being delivered to you pursuant to your request. Capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the Declaration of Trust, except that reference herein to any document shall mean such document as in effect on the date hereof.
We have examined a copy of the Declaration of Trust. We have also examined originals or copies of such other documents and such corporate
records, certificates and other statements of governmental officials and corporate officers and other representatives of BNY as we have deemed necessary or appropriate for the purposes of the opinions expressed herein. Moreover, as to certain facts
material to the opinions expressed herein, we have relied upon the representations and warranties contained in the documents referred to in this paragraph.
Based upon the foregoing and upon an examination of such questions of law as we have deemed necessary or appropriate, and subject to the assumptions, exceptions and qualifications set forth below, we
advise you that, in our opinion:
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1.
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BNY is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware.
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2.
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BNY has the corporate power and authority to execute, deliver and perform its obligations under the Declaration of Trust (including to act as Delaware Trustee
thereunder).
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3.
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The Declaration of Trust has been duly authorized, executed and delivered by BNY.
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4.
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Neither the execution and delivery by BNY of the Declaration of Trust, nor the consumation by BNY of any of the transactions contemplated thereby, (i) conflicts
with or constitutes a breach of the articles of association or by-laws of BNY or (ii) violates any existing law, governmental rule or regulation of the State of Delaware or the United States of America governing the trust powers of BNY.
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5.
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Neither the execution and delivery by BNY of the Declaration of Trust, nor the compliance by BNY with the terms thereof, nor the consummation by BNY of
any of the transactions contemplated thereby, requires the consent, authorization or approval of, the giving of notice to, or the
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registration with, or the taking of any other action with respect to any governmental or regulatory authority or agency under the laws of the State of Delaware or any law of the United States of
America governing the trust powers of BNY, other than the filing of the Certificate of Trust with the Secretary of State.
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The foregoing opinions are subject to the following assumptions, exceptions and qualifications:
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A.
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We are admitted to practice law in the State of Delaware and we do not hold ourselves out as being experts on the law of any other jurisdiction. The foregoing opinions
are limited to the laws of the State of Delaware and the federal laws of the United States of America governing the trust powers of BNY, except that we express no opinion with respect to (i) other federal laws, including, without limitation,
the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as amended, the Investment Company Act of 1940, as amended, and laws, rules and regulations relating to money laundering and
terrorist groups (including any requirements imposed under the USA Patriot Act of 2001, as amended), (ii) state securities or blue sky laws or (iii) laws, rules and regulations relating to the particular nature of the Trust assets.
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B.
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We have assumed that all signatures on documents submitted to us are genuine, that all documents submitted to us as originals are authentic and that all documents
submitted to us as copies or specimens conform with the originals, which facts we have not independently verified.
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C.
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We have not participated in the preparation of any offering materials with respect to the Trust and assume no responsibility for their contents.
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This opinion may be relied upon by you in connection with the matters set forth herein. Otherwise, without our
prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other person or entity for any purpose.
Very truly yours,
SCHEDULE I
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Morgan
Stanley & Co. Incorporated,
as Representatives of the several Underwriters
named in Schedule III to the underwriting agreement
related to the offering of GMAC Capital Trust I’s
Fixed Rate/Floating Rate
Trust Preferred Securities, Series 2,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Deutsche Bank Securities Inc.
60 Wall
Street
New York, New York 10005
c/o J.P. Morgan Securities LLC
383 Madison
Avenue
New York, New York 10179
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
The Bank of New York Mellon
United States Department of the Treasury
Exhibit 4.1
SECOND AMENDED AND RESTATED DECLARATION
OF TRUST
GMAC CAPITAL TRUST I
Dated as of March 1, 2011
SECOND AMENDED AND RESTATED DECLARATION OF TRUST
(“
Second Amended and Restated Declaration
”), dated and effective as of March 1, 2011 (the “
Effective Date
”), by the Trustees of each Series (as defined herein), the Sponsor and by the holders, from time to time, of
undivided beneficial interests in the relevant series of the Trust that have been issued or re-designated, as the case may be, pursuant to the Amended and Restated Declaration of Trust dated December 30, 2009 (the “
First Amended and
Restated Declaration
”) or this Second Amended and Restated Declaration, as the case may be (the portion of this Second Amended Declaration other than any Series Supplements (as defined herein), is referred to as the “
Base
Declaration
” and capitalized terms used, but not defined in this Base Declaration shall have the meaning ascribed to such terms in the applicable Series Supplement);
WHEREAS, the GMAC Capital Trust I (the “
Trust
”) was established as a trust under the Statutory Trust Act (as defined herein) pursuant to a Declaration of Trust dated as of
December 22, 2009 (the “
Original Declaration
”) and a Certificate of Trust filed with the Secretary of State of the State of Delaware on December 22, 2009 for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and acquiring certain Debentures of the Debenture Issuer;
WHEREAS, on December 30, 2009 (the “
Original Closing Date
”) the Trust was continued as a statutory trust under the Statutory Trust Act for which the First and Amended Restated
Declaration constituted the governing instrument of such statutory trust;
WHEREAS, pursuant to the First Amended and Restated
Declaration the Trust has issued Common Securities and Trust Preferred Securities representing undivided beneficial interests in the assets of the Trust, which consisted solely of certain Debentures issued by the Debenture Issuer;
WHEREAS, each of the Sponsor and 100% of the holders of the Common Securities and 100% of the holders of the Trust Preferred Securities
(each as defined in the First Amended and Restated Declaration) wish to amend and restate the First Amended and Restated Declaration, and have so directed the Trustees under the First Amended and Restated Declaration, for the Trust to avail itself
of the provisions in the Statutory Trust Act relating to series trusts;
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WHEREAS, all conditions precedent contained in the First Amended and Restated Declaration to
its amendment have been satisfied or waived;
WHEREAS, immediately upon the effectiveness of this Second Amended and Restated
Declaration all of the outstanding Common Securities shall be designated as Common Securities of Series 1 of the Trust and all of the outstanding Trust Preferred Securities shall be designated Trust Preferred Securities of Series 1 of the Trust and
all of the assets of the Trust existing immediately prior to such effectiveness (
i.e.
, the Debentures held by the Trust) shall be designated to be assets with respect to Series 1 of the Trust and all of the claims and obligations of the Trust
existing immediately prior to such effectiveness shall be claims and obligations with respect to Series 1 of the Trust;
WHEREAS, immediately following such designation of all assets, claims, securities and obligations of the Trust to be assets, claims,
securities and obligations with respect to Series 1 of the Trust, in accordance with the terms of the governing instrument for the Trust with respect to Series 1, the holders of 100% of the outstanding Common Securities and the Trust Preferred
Securities of Series 1 of the Trust wish to designate a portion of the Trust Preferred Securities and a proportionate portion of the Common Securities that are outstanding with respect to Series 1 of the Trust, together with a corresponding portion
of the Debentures held with respect to such Series 1 of the Trust, to be Common Securities, Trust Preferred Securities of, and Debentures held with respect to, Series 2 of the Trust;
NOW, THEREFORE, it being the intention and the agreement of the parties hereto (i) to continue the Trust, as a statutory trust
organized in series under the Statutory Trust Act and (ii) that the Trust continued hereby shall be governed by the terms of this Base Declaration and each Series created within the Trust shall be governed by the respective Series Supplement
and this Base Declaration.
Section 1
. Trust Indenture Act
.
(a) This Second Amended and Restated Declaration is subject to the provisions of the Trust Indenture Act that are required to be part of
this Second Amended and Restated Declaration and shall, to the extent applicable, be governed by such provisions.
Section 2
. Name
.
(a) The Trust continued hereby shall be known as “GMAC Capital Trust I,” as such name may be modified from time to time by the unanimous written consent of the Administrative Trustee of each
series of the Trust that at
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such time has outstanding securities, following written notice to each Institutional Trustee as well as each Holder of any securities of any series.
Section 3.
Authorization of Letter Agreement and Ratification of S-3 Filing
.
(a) The Letter Agreement by and among Ally Financial Inc., the Trust and the United States Department of the Treasury (the “Letter
Agreement”) to be dated on or about March 1, 2011 is hereby authorized. Ally, as Sponsor of the Trust, is hereby authorized and directed to execute in such capacity the Letter Agreement.
(b) Any action taken by the Administrative Trustees or Ally Financial Inc. as Sponsor prior to the execution and delivery of this Second
Amended and Restated Declaration of Trust in connection with the preparation and filing of Post-Effective Amendment No. 1 to Ally Financial Inc.’s and the Trust’s registration statement on Form S-3 (File No. 333-165608) is hereby fully
ratified in all respects.
Section 4.
Series
.
(a) Pursuant to Sections 3806(b)(2) and 3804(a) of the Delaware Statutory Trust Act, the Trust may designate one or more series of
beneficial interests having the rights and preferences set forth in the Series Supplement of the Trust, as the same may be amended from time to time, in a segregated pool of assets of the Trust consisting of a specified principal amount of the
Debentures (each such segregated pool of assets and related series of beneficial interests a “
Series
”).
(b)
The securities of each Series will represent undivided beneficial interests in only the specified assets of the Trust with respect to such Series and the profits and losses derived from those assets. As such, separate and distinct records shall be
maintained by the Trust for each Series and the assets of the Trust associated with each Series shall be held and accounted for in the manner provided for in Section 3804(a) of the Delaware Statutory Trust Act by the Trust separately from the
assets of any other Series. It is intended by the parties hereto that there shall be no general assets of the Trust.
(c) Each
Series will have the right to such separate trustees from other Series as set forth in the relevant Series Supplement for such Series, each of which will have powers and duties only with respect to the assets, liabilities and interests of any other
Series.
(d) Dissolution, liquidation or distribution of the assets with respect to one Series will not affect the status of
the Trust or any other Series.
(e) The terms and conditions for each Series will be set forth in a supplement to this Base
Declaration (together with all exhibits, annexes, supplements and other attachments thereto, each a “
Series Supplement
”).
(f) As of the date hereof, the Trust consists of two Series, designated Series 1 and Series 2
; provided
that, with the consent required by Section 7.01(f) of the Series 1 Supplement to this
Base Declaration, the holders for Series 1 may, from time to time without the consent of any other Series, designate a portion of
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the Securities and Debentures of Series 1 (and the related portion of the Guarantee Agreement) to become a new series in accordance with the Series 1 Supplement.
Section 5.
Limitation of Liabilities of each Series; Allocation of Liabilities
.
(a) Pursuant to Section 3804(a) of the Delaware Statutory Trust Act, there shall be a limitation on liabilities of each Series such
that (a) the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular Series shall be enforceable against the assets of such Series only, and not against the assets of any other
Series and (b) none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the Trust generally or any other Series hereof shall be enforceable against the assets of such Series. Notice
of this limitation on interseries liabilities shall be set forth in the certificate of trust of the Trust pursuant to a restated certificate of trust in the form of Exhibit 1 hereto filed in the Office of the Secretary of State of the State of
Delaware (the “
Restated Certificate
”) and upon the giving of such notice in the certificate of trust, the statutory provisions of Section 3804(a) of the Delaware Statutory Trust Act relating to limitations on interseries
liabilities (and the statutory effect under Section 3804(a) of setting forth such notice in the certificate of trust) shall become applicable to the Trust and each Series. The Delaware Trustee is hereby authorized and directed, at the expense
of the Sponsor, to execute and file the Restated Certificate with the Office of the Secretary of State of the State of Delaware, and any such action taken prior to the execution and delivery of this Second Amended and Restated Declaration of Trust
is hereby fully satisfied in all respects.
(b) Notwithstanding any other provision of this Second Amended and Restated
Declaration, to the extent that a claim or obligation of the Trust was incurred, suffered or is attributable to a period of time prior to the date hereof such claim or obligation shall be allocated automatically to each Series of the Trust on a pro
rata basis in accordance with the currently outstanding principal amount of the Debentures held by each Series.
Section 6.
Delaware Trustee.
The Delaware Trustee for the Trust shall continue to be:
BNY Mellon Trust of
Delaware
100 White Clay Center
Suite 102
Newark, DE 19711
Attn: Corporate Trust Department
(a) BNY Mellon Trust of Delaware shall continue to serve as the trustee of the Trust in the State of Delaware for the sole purpose of satisfying the requirement of Section 3807(a) of the Delaware
Statutory Trust Act that the Trust
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have at least one trustee with a principal place of business in the State (the “
Delaware Trustee
”). It is understood and agreed by the parties hereto that the Delaware Trustee
shall have none of the duties or liabilities of any other Trustee.
(b) The duties of the Delaware Trustee shall be limited to
(i) accepting legal process served on the Trust in the State of Delaware and (ii) the execution of any certificates required to be filed with the Delaware Secretary of State which the Delaware Trustee is required to execute under
Section 3811 of the Act. To the extent that, at law or in equity, the Delaware Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or the Holders of any Securities, it is hereby understood and agreed by
the other parties hereto that such duties and liabilities are replaced by the duties and liabilities of the Delaware Trustee expressly set forth in this Base Declaration. The Delaware Trustee shall have no liability for the acts or omissions of any
other Trustee.
(c) The Delaware Trustee may be removed by the Sponsor upon 30 days, prior written notice to the Delaware
Trustee. The Delaware Trustee may resign upon 30 days, prior written notice to the Sponsor. No resignation or removal of the Delaware Trustee shall be effective except upon the appointment of a successor Delaware Trustee (the “
Successor
Delaware Trustee
”). If no Successor Delaware Trustee has been appointed within such 30 day period, the Delaware Trustee or the Sponsor may, at the expense of the Trust (allocated pro rata among the Series), petition a court to appoint a
Successor Delaware Trustee.
(d) Any Person into which the Delaware Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger or consolidation to which the Delaware Trustee shall be a party, or any Person which succeeds to all or substantially all of the corporate trust business of the Delaware Trustee, shall be the
Successor Delaware Trustee under this Base Declaration without the execution, delivery or filing of any paper or instrument or further act to be done on the part of the parties hereto, except as may be required by applicable law.
(e) The Delaware Trustee shall be entitled to all of the same rights, protections, indemnities and immunities under this Second Amended
and Restated Declaration with respect to the Trust as the Institutional Trustee.
(f) The Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Second Amended and Restated Declaration, and each Successor Delaware Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Delaware Trustee’s
acceptance of its appointment as Delaware Trustee that:
(i) The Delaware Trustee is a banking corporation or
association with trust powers, duly organized, validly existing and in good
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standing under the laws of its jurisdiction of incorporation or formation, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of,
the Declaration.
(ii) The Delaware Trustee has been authorized to perform its obligations under the
Certificate of Trust and the Declaration. The 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).
(iii) 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 the Declaration.
(iv) The Delaware Trustee is an entity which maintains its principal place of business in the State of Delaware.
Section 7.
[Reserved]
.
Section 8
. Amendments
.
(a) This Base Declaration may be amended in accordance with the requirements set forth in each then existing Series
Supplement (or if none, by the Delaware Trustee and the Sponsor and, if applicable, any Indenture Trustee or Administrative Trustee with any surviving rights that would be adversely affected by such amendment).
Section 9
. Dissolution of Trust.
(a) The Trust shall dissolve and wind up its affairs in accordance with Section 3808 of the Delaware Statutory Trust Act on the date following the date upon which the last Series has terminated
pursuant to the Series Supplements. Upon the completion of winding up of the Trust, including the payment or the making reasonable provision for payment of all obligations of the Trust in accordance with Section 3808 of the Delaware Statutory
Trust Act, the Delaware Trustee shall file a certificate of cancellation with the Delaware Secretary of State in accordance with Section 3810 of the Delaware Statutory Trust Act, at which time the Trust and this Second and Amended and Restated
Declaration shall terminate, other than provisions of this Second and Amended and Restated Declaration that by their terms survive.
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Section 10
. Mergers.
(a) The 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 10(b).
(b) The
Trust may, with the unanimous consent of the Administrative Trustees for each series of the Trust and without the consent of the Delaware Trustee for the Trust, any Holders (as defined in each series) of the Securities (as defined in each series) of
any series, or the Institutional Trustee (as defined in each Series) for any series, consolidate, amalgamate, merge with or into, or be replaced by a trust organized as such under the laws of any State;
provided
that each of the requirements
relating to the Successor Entity set forth with respect to any affected Series has been met:
(i) such
successor entity (the “
Successor Entity
”) either:
(A) expressly assumes all of the
obligations of the Trust with respect to each series under the Securities of each such series; or
(B)
substitutes for the Securities of each series of the Trust other securities having substantially the same terms as the Trust Preferred Securities of each such series (the “
Successor Securities
”) so long as the Successor Securities
of each series rank the same as the Trust Preferred Securities of such series rank with respect to Distributions with respect to such series and payments upon liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges with respect to each series of the Trust a trustee of the Successor
Entity for each such series that possesses the same powers and duties as the Institutional Trustee of such series in its capacity as the Holder of the Debentures with respect to each such series;
(iii) the Trust Preferred Securities of each series or any Successor Securities of such series are listed, or any
Successor Securities of such series will be listed upon notification of issuance, on any national securities exchange or with any other organization on which the Trust Preferred Securities of such series are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does not cause the Trust Preferred Securities of any series
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(including any Successor Securities of any such series) 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 of the Securities of any series of the Trust (including any Successor Securities with respect to such series) set forth in this Base Declaration or the relevant Series Supplement in any material respect (other than with
respect to any dilution of such Holders’ interests in the new entity as a result of such merger, consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose substantially identical to that of the Trust with respect to each series of the Trust;
(vii) prior to such merger, consolidation, amalgamation or replacement, each series of the Trust has received an opinion
of a nationally recognized independent counsel to the Trust acting for each such series and 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 the Securities of any series of the Trust (including any
Successor Securities of any such series) 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 the Trust, any Successor Entity nor any Series will be required to register as an Investment Company; and
(C) (x) following such merger, consolidation, amalgamation or replacement, the Trust or any series (or any successor
thereto), as applicable, will be classified, for United States federal income tax purposes, as either a grantor trust or a partnership, and not as an entity taxable as a corporation, and (y) such merger, consolidation, amalgamation or
replacement will not materially reduce the likelihood of the Trust or any series (or any successor thereto), as applicable, being classified as a grantor trust for United States federal income tax purposes; and
(viii) the Sponsor guarantees the obligations of such Successor Entity with respect to each series of the Trust under the
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Successor Securities with respect to each such series at least to the extent provided by the Guarantee Agreements.
(c) [Reserved]
Section 11.
Governing Law
.
This Base Declaration shall be governed
by and construed in accordance with the laws of the State of Delaware, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
Section 12.
Duration.
The Trust shall continue perpetually unless terminated pursuant to Section 1.09 hereof.
Section 13.
Joinder of Parties to Series Supplements
.
By its
execution of a Series Supplement, each such Person shall, without any further action by such Person, be deemed to be a party to, and bound by, this Base Declaration.
Section 14.
Notices
.
Any notice, request, instruction or other
document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if delivered personally, or by facsimile, upon confirmation of receipt, or (b) on the second
business day following the date of dispatch if delivered by a recognized next day courier service. All notices shall be delivered, telecopied or sent by a recognized next day courier service, as set forth below, or pursuant to such other
instructions as may be designated by the Trust, the Trustees or the Holders:
(a) if given to the Trust with respect to a
particular Series, in care of the Administrative Trustees for such Series at the Trust’s mailing address set forth below (or such other address as the Trust may give notice of to the Holders of the Securities with respect to each Series and the
Institutional Trustee for each Series):
GMAC Capital Trust I
c/o Ally Financial Inc.
200 Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Attention: General Counsel
- 9 -
(b) if given to the Delaware Trustee, at the mailing address set forth below (or such other
address as Delaware Trustee may give notice of to the Holders of the Securities with respect to each Series):
BNY Mellon
Trust of Delaware
100 White Clay Center
Suite 102
Newark, DE 19711
Attention: Corporate Trust Department
(c) if given to the Institutional Trustee, at the mailing address set forth in the Series Supplement for such Series.
(d) if given to the Holder of the Common Securities with respect to any Series, at the mailing address set forth in the Series Supplement for such Series.
(e) if given to any other Holder with respect to any Series, at the address set forth on the books and records of such Series.
Section 15.
Voting
.
The Sponsor, in its sole discretion, shall have the authority to request the vote or approval of the Holders of each Series voting separately (with the approval thereof being obtained in the manner as may
be set forth in each Series Supplement) on any matter which affects the Trust generally.
- 10 -
IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day
and year first above written.
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BNY MELLON BANK TRUST OF
DELAWARE, as Delaware Trustee
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By:
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/s/ Kristine K. Gullo
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Name: Kristine K. Gullo
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Title: Vice President
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ALLY FINANCIAL INC., as sponsor
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By:
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/s/ Cathy L. Quenneville
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Name: Cathy L. Quenneville
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Title: Secretary
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- 11 -
RESTATED
CERTIFICATE OF TRUST
OF
GMAC CAPITAL TRUST I
THIS Restated Certificate of Trust of GMAC Capital Trust I (the “Trust”) is being duly filed by the undersigned, as trustee, to amend and restate the currently effective Certificate of Trust of
the Trust (the “Certificate of Trust”) under the Delaware Statutory Trust Act (12 Del. Code, § 3801 et seq.) (the “Act”). The original certificate of trust of the Trust was filed with the Secretary of State of the State of
Delaware on December 22, 2009 (the “Original Certificate of Trust”).
The Original Certificate of Trust shall
be amended and restated in its entirety to read as follows:
1.
Name
. The name of the statutory trust is GMAC Capital
Trust I.
2.
Delaware Trustee
. The name and business address of the trustee of the Trust which has its principal place
of business in the State of Delaware are as follows BNY Mellon Trust of Delaware, 100 White Clay Center, Suite 102, Newark, DE 19711.
3.
Series
. Pursuant to Section 3806(b)(2) of the Act, the Trust may issue one or more series of beneficial interests having the rights and preferences set forth in the governing instrument of
the Trust, as the same may be amended from time to time (each a “Series”).
4.
Notice of Limitation of
Liabilities of each Series
. Pursuant to Section 3804(a) of the Act, there shall be a limitation on liabilities of each Series such that (a) the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing
with respect to a particular Series shall be enforceable against the assets of such Series only, and not against the assets of the Trust generally or the assets of any other Series thereof and (b) none of the debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to the Trust generally or any other Series thereof shall be enforceable against the assets of such Series.
5.
Effective Date
. This Restated Certificate of Trust shall be effective upon filing.
[SIGNATURE PAGE FOLLOWS]
Exhibit 1-1
IN WITNESS WHEREOF, the undersigned has duly executed this Restated Certificate of Trust in
accordance with Section 3811(a)(2) of the Act.
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BNY MELLON TRUST OF
DELAWARE, not in its individual
capacity but
solely as Delaware
Trustee
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By:
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Name:
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Title:
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Exhibit 1-2
SERIES 1 SUPPLEMENT TO THE SECOND
AMENDED AND RESTATED DECLARATION OF TRUST
TABLE OF CONTENTS
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Page
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ARTICLE 1
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INTERPRETATION AND DEFINITIONS
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Section 1.01
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Definitions
.
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1
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ARTICLE 2
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TRUST INDENTURE ACT
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Section 2.01
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Trust Indenture Act; Application.
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8
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Section 2.02
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Lists of Holders of Securities.
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9
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Section 2.03
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Reports by the Institutional Trustee.
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9
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Section 2.04
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Reports to Institutional Trustee.
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10
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Section 2.05
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Evidence of Compliance with Conditions Precedent.
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10
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Section 2.06
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Defaults; Waiver.
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10
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Section 2.07
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Default; Notice.
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12
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ARTICLE 3
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ORGANIZATION
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Section 3.01
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Name.
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13
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Section 3.02
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Office.
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13
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Section 3.03
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Duration of Series 1.
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13
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Section 3.04
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Purpose.
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13
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Section 3.05
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Authority.
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14
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Section 3.06
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Title to Property of the Trust.
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14
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Section 3.07
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Powers and Duties of the Administrative Trustees.
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14
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Section 3.08
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Prohibition of Actions by the Trust and the Trustees.
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18
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Section 3.09
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Powers and Duties of the Institutional Trustee.
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19
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Section 3.10
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Certain Duties and Responsibilities of the Institutional Trustee.
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21
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Section 3.11
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Certain Rights of Institutional Trustee.
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23
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Section 3.12
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[Reserved].
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26
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Section 3.13
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Execution of Documents.
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26
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Section 3.14
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Not Responsible for Recitals or Issuance of Securities.
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26
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Section 3.15
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[Reserved].
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26
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Section 3.16
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[Reserved].
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26
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SS1-i
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ARTICLE 4
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SPONSOR
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Section 4.01
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Sponsor’s Purchase of Common Securities.
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26
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Section 4.02
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Responsibilities of the Sponsor.
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26
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ARTICLE 5
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TRUSTEES
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Section 5.01
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Number of Trustees; U.S. Person.
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27
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Section 5.02
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[Reserved].
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28
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Section 5.03
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Institutional Trustee; Eligibility.
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28
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Section 5.04
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Qualifications of Administrative Trustees Generally.
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29
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Section 5.05
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Initial Trustees; Additional Powers of Administrative Trustees.
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29
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Section 5.06
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Appointment, Removal and Resignation of Trustees.
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30
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Section 5.07
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Vacancies Among Trustees.
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31
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Section 5.08
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Effect of Vacancies.
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31
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Section 5.09
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Meetings.
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32
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Section 5.10
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Delegation of Power.
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32
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Section 5.11
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Merger, Conversion, Consolidation or Succession to Business.
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33
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ARTICLE 6
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DISTRIBUTIONS; EXCHANGES
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Section 6.01
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Distributions.
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33
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Section 6.02
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Exchanges.
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33
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ARTICLE 7
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SECURITIES
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Section 7.01
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General Provisions Regarding Securities.
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35
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ARTICLE 8
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DISSOLUTION; TERMINATION OF SERIES
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Section 8.01
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Dissolution of Series 1.
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37
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ARTICLE 9
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TRANSFER OF INTERESTS
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Section 9.01
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Transfer of Securities.
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38
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Section 9.02
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Transfer of Certificates.
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40
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Section 9.03
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Deemed Security Holders.
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42
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Section 9.04
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Book Entry Interests.
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42
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Section 9.05
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Notices to Clearing Agency.
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43
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SS1-ii
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Section 9.06
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Appointment of Successor Clearing Agency.
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43
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Section 9.07
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Definitive Trust Preferred Security Certificates.
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44
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Section 9.08
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Mutilated, Destroyed, Lost or Stolen Certificates.
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44
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ARTICLE 10
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LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES
OR OTHERS
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Section 10.01
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Liability.
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45
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Section 10.02
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Exculpation.
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45
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Section 10.03
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Fiduciary Duty.
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46
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Section 10.04
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Indemnification.
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47
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Section 10.05
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Outside Businesses.
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51
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ARTICLE 11
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ACCOUNTING
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Section 11.01
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Fiscal Year.
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51
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Section 11.02
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Certain Accounting Matters.
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51
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Section 11.03
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Banking.
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52
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Section 11.04
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Withholding.
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52
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Section 11.05
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Tax Treatment.
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53
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ARTICLE 12
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AMENDMENTS AND MEETINGS
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Section 12.01
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Amendments.
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53
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Section 12.02
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Meetings of the Holders of Securities; Action by Written Consent.
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56
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ARTICLE 13
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REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
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Section 13.01
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Representations and Warranties of Institutional Trustee.
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58
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Section 13.02
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[Reserved].
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59
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ARTICLE 14
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MISCELLANEOUS
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Section 14.01
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Notices.
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59
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Section 14.02
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Governing Law; Waiver of Trial by Jury.
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60
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Section 14.03
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Intention of the Parties.
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60
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Section 14.04
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Headings.
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61
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Section 14.05
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Successors and Assigns.
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61
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Section 14.06
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Partial Enforceability.
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61
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SS1-iii
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Section 14.07
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Counterparts.
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61
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ANNEX I
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TERMS OF SECURITIES
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SS1-I-1
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EXHIBIT A-1
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FORM OF TRUST PREFERRED SECURITY CERTIFICATE
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SS1-A1-1
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EXHIBIT A-2
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FORM OF COMMON SECURITY CERTIFICATE
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SS1-A2-1
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EXHIBIT B
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SPECIMEN OF DEBENTURE
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SS1-B-1
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EXHIBIT C
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[RESERVED]
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SS1-C-1
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EXHIBIT D
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FORM OF TRANSFER CERTIFICATE
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SS1-D-1
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EXHIBIT E
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FORM OF RULE 144A TRANSFER CERTIFICATE
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SS1-E-1
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SS1-iv
CROSS REFERENCE TABLE*
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Section of Trust Indenture Act of 1939, as amended
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Section of Series 1 Supplement
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§310
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2.01(c)
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(a)
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5.03(a)
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(b)
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5.03(c), 5.03(d)
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§311 (a)
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2.02(b)
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(b)
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2.02(b)
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§312 (a)
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2.02(a)
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(b)
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2.02(b)
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§313
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2.03
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§314 (a)
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2.04; 3.07(j)
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(c)
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2.05
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§315 (a)
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3.10(b)
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(c)
|
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3.10(a)
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(d)
|
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3.10(a)
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§316 (a)
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2.01(a)
|
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(a)(1)(A)
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2.06(b)(ii)
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(a)(1)(B)
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2.06(a)(ii), 2.06(b)(ii), 2.06(c)
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(c)
|
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3.07(e)
|
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§317
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2.01(c)
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(b)
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2.01(c)
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*
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This Cross-Reference Table does not constitute part of the Series 1 Supplement and shall not affect the interpretation of any of its terms or provisions.
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SS1-v
SERIES 1 SUPPLEMENT TO THE SECOND
AMENDED AND RESTATED DECLARATION OF TRUST
OF
GMAC Capital Trust I
This Series 1 Supplement, together with the Base Declaration, as defined in the Second Amended and Restated Declaration of Trust dated
March 1, 2011 of which this Series 1 Supplement forms an integral part, establishes the terms applicable to Series 1 of GMAC Capital Trust I (the “
Trust
”) including the Securities issued in respect of such series and the related
assets. This Series 1 Supplement, together with the Base Declaration as it applies to this Series 1, is at times referred to as the “
Declaration
.”
ARTICLE 1
I
NTERPRETATION
AND
D
EFINITIONS
Section 1.01
. Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Series 1 Supplement but not defined in the preamble above or in the Base Declaration have the respective meanings assigned to them in this Section 1.01;
(b) a term defined anywhere in this Declaration has the same meaning throughout this Declaration;
(c) all references to “the Declaration” or “this Declaration” are to the Base Declaration, together with this Series
1 Supplement (and not any other Series Supplement), as modified, supplemented or amended from time to time;
(d) all
references in this Series 1 Supplement to Articles and Sections and Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to this Series 1 Supplement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when used in this Declaration unless otherwise defined in this Series
1 Supplement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
SS1-1
(g) terms defined in, and provisions set forth in, any Series Supplement other than this
Series 1 Supplement shall have no effect with respect to this Series 1 Supplement.
“
10% in liquidation amount of the
Securities
” means, except as provided in the terms of the Trust Preferred Securities or (subject to Section 2.01(a)) by the Trust Indenture Act, Holders of outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Trust Preferred Securities or Holders of outstanding Common Securities voting separately as a class, who are the record owners of an aggregate liquidation amount representing 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 Securities of the relevant class.
“
Administrative Trustee
” has the meaning specified in Section 5.01(a).
“
Affiliate
” means, with respect to any Person, any other Person that, directly or indirectly, whether through one of
more intermediaries, Controls, is Controlled by or is under common Control with such Person, excluding any employee benefit plan or related trust; provided that (i) the Trust shall not be deemed to be an Affiliate of the Sponsor and
(ii) the United States Department of the Treasury shall not be deemed to be an Affiliate of the Sponsor for purposes hereof, in each case except to the extent required by the Trust Indenture Act.
“
Ally
” means Ally Financial Inc., a Delaware corporation.
“
Authorized Officer
” of a Person means any Person that is authorized to bind such Person.
“
Book Entry Interest
” means a beneficial interest in a Global Certificate, ownership and transfers of which shall be
maintained and made through book entries by a Clearing Agency as described in Section 9.04.
“
Business
Day
” means any day other than a Saturday, Sunday or any other day on which banking institutions in the State of New York generally are authorized or required by law or other governmental action to close.
“
Certificate
” means a Common Security Certificate or a Trust Preferred Security Certificate.
“
Change in 1940 Act Law
” has the meaning set forth in Annex I hereto.
“
Clearing Agency
” means an organization registered as a “Clearing Agency” pursuant to Section 17A of the
Exchange Act that is acting as depositary for the Trust Preferred Securities and in whose name or in the name of a nominee
SS1-2
of that organization shall be registered one or more Global Certificates and which shall undertake to effect book entry transfers and pledges of the Trust Preferred Securities.
“
Clearing Agency Participant
” means a broker, dealer, bank, other financial institution or other Person for whom from
time to time the Clearing Agency effects book entry transfers and pledges of securities deposited with the Clearing Agency.
“
Closing Date
” means March 1, 2011.
“
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.
“
Common Securities
” has the meaning specified in Section 7.01.
“
Common Security Certificate
” means a definitive certificate in fully registered form representing a Common Security
substantially in the form of
Exhibit A-2
.
“
Company Indemnified Person
” means (a) any
Administrative Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Administrative Trustee; or (d) any officer, employee or
agent of the Trust or its Affiliates, in each case acting with respect to this Series 1 or, if applicable, with respect to the Trust as a whole.
“
Corporate Trust Office
” means the office of the Institutional Trustee at which the corporate trust business of the Institutional Trustee shall, at any particular time, be principally
administered, which office at the Closing Date is located at 101 Barclay Street-8W, New York, New York 10286.
“
Covered Person
” means (a) any officer, director, shareholder, partner, member, representative, employee or agent
of (i) the Trust or (ii) the Trust’s Affiliates, in each case acting with respect to this Series 1 or, if applicable, with respect to the Trust as a whole, and (b) any Holder of Securities.
“
Debenture Issuer
” means Ally Financial Inc. in its capacity as issuer of the Debentures under the Indenture.
“
Debenture Trustee
” means The Bank of New York Mellon, acting as trustee under the Indenture with respect to
the relevant series supplement of the Indenture for the Debentures until a successor is appointed thereunder, and thereafter means such successor trustee.
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“
Debentures
” or “
Series 1 Debentures
” means the series of
Debentures to be issued by the Debenture Issuer under the Indenture to be held by the Institutional Trustee with respect to this Series 1, a specimen certificate for such series of Debentures being
Exhibit B
.
“
Default
” in respect of the Securities means a Default (as defined in the Indenture) has occurred and is continuing in
respect of the Debentures.
“
Definitive Trust Preferred Security Certificates
” has the meaning set forth in
Section 9.04.
“
Distribution
” has the meaning set forth in Section 6.01.
“
DTC
” means The Depository Trust Company, the initial Clearing Agency.
“
ERISA
” has the meaning specified in Section 9.02(c).
“
Exchange
” has the meaning set forth in Section 6.02(a).
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation.
“
Fiduciary Indemnified Person
” has the meaning set forth in Section 10.04(b).
“
Fiscal Year
” has the meaning set forth in Section 11.01.
“
Global Certificate
” has the meaning set forth in Section 9.04.
“
Guarantee Agreement
” means the Series 1 Trust Preferred Securities Guarantee Agreement dated March 1, 2011, of Ally, as
Guarantor in respect of the Trust Preferred Securities.
“
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 Statutory Trust Act.
“
Indemnified Person
” means a Company Indemnified Person or a Fiduciary Indemnified Person.
“
Indenture
” means the Amended and Restated Indenture dated as of March 1, 2011, as further amended or supplemented from
time to time, between the Debenture Issuer and the Debenture Trustee, governing the Debentures held with respect to this Series 1 of the Trust.
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“
Institutional Trustee
” means the Trustee with respect to this Series 1 of
the Trust meeting the eligibility requirements set forth in Section 5.03.
“
Institutional Trustee
Account
” has the meaning set forth in Section 3.09(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.
“
Investment Company Event
”
has the meaning set forth in Annex I hereto.
“
Legal Action
” has the meaning set forth in
Section 3.07(g).
“
Liquidation Amount
” means, with respect to Trust Preferred Securities or Common
Securities, the liquidation amount per Trust Preferred Security or Common Security, respectively, as set forth in Annex I hereto.
“
Majority in liquidation amount of the Securities
” means, except as provided in the terms of the Trust Preferred Securities or (subject to Section 2.01(a) by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the context may require, Holders of outstanding Trust Preferred Securities or Holders of outstanding Common Securities voting separately as a class, who are the record
owners of an aggregate liquidation amount representing 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 Securities of the relevant class.
“
Ministerial
Action
” has the meaning set forth in Annex I hereto.
“
Officers’ Certificate
” means, with
respect to any Person, a certificate signed by two Authorized Officers of such Person,
provided
that only one Administrative Trustee is required to sign on behalf of the Trust, acting with respect to this Series 1, any Officers’
Certificate delivered pursuant to Section 2.05 of this Series 1 Supplement. Any Officers’ Certificate delivered with respect to compliance with a condition or covenant provided for in this Series 1 Supplement shall include:
(a) a statement that each officer signing the Officers’ Certificate has read the covenant or condition and the definitions relating
thereto;
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(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.
“
Paying Agent
” has the meaning specified in Section 3.09(h).
“
Payment Amount
” has the meaning specified in Section 6.01.
“
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.
“
Private Placement Legend
” has the meaning specified in Section 9.01(b).
“
Purchase Agreement
” means the Securities Purchase and Exchange Agreement dated December 30, 2009, as amended from
time to time, by and among the United States Department of the Treasury, Ally and the Trust.
“
Quorum
” means
any one Administrative Trustee or, if there is only one Administrative Trustee, such Administrative Trustee.
“
Regulatory Capital Event
” has the meaning set forth in Annex I hereto.
“
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.
“
Responsible Officer
” means, with respect to the Institutional Trustee, any officer within the Corporate Trust Office of
the Institutional Trustee with direct responsibility for the administration of this Declaration 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-7
” means Rule 3a-7 under the Investment
Company Act.
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“
Securities
” means the Common Securities and the Trust Preferred
Securities.
“
Securities Act
” means the Securities Act of 1933, as amended from time to time, or any
successor legislation.
“
Security Registrar
” has the meaning set forth in Section 9.02(a).
“
Special Event
” has the meaning set forth in Annex I hereto.
“
Special New Series
” means any portion of Series 1 Trust Preferred Securities that is designated as a new series of
Trust Preferred Securities pursuant to the terms of this Declaration with same economic terms and otherwise substantially identical terms to the Series 1 Trust Preferred Securities (except for the provisions set forth in Articles 3, 4 and 7 which
shall have terms substantially identical to those set forth in the corresponding provisions in effect for Series 2 of the Trust in effect as of the date of this Declaration) in connection with any sale of such new series of Trust Preferred
Securities in a transaction exempt from registration under the Securities Act.
“
Sponsor
” means Ally or any
successor entity in a merger, consolidation or amalgamation, in its capacity as sponsor of the Trust.
“
Sponsor
Affiliated Holder
” has the meaning set forth in Section 6.02(a).
“
Statutory Trust Act
” means
Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code §§ 3801 et seq., as it may be amended from time to time, or any successor legislation.
“
Successor Institutional Trustee
” has the meaning set forth in Section 5.06(b).
“
Super Majority
” has the meaning set forth in Section 2.06(a)(ii).
“
Similar Laws
” has the meaning specified in Section 9.02(c).
“
Tax Event
” has the meaning set forth in Annex I hereto.
“
Transfer Certification
” has the meaning set forth in Section 9.02(b).
“
Transfer Opinion
” has the meaning set forth in Section 9.02(b).
“
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).
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“
Trust Preferred Securities
” has the meaning specified in
Section 7.01.
“
Trust 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 Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing Agency).
“
Trust Preferred Security
Certificate
” means a certificate representing a Trust Preferred Security substantially in the form of
Exhibit A-1
.
“
Trustee
” or “
Trustees
” means each Person who acts as an Administrative Trustee, Institutional Trustee, or Delaware 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.
“
Trust Indenture Act
” means the
Trust Indenture Act of 1939, as amended from time to time, or any successor legislation.
“
U.S. Government
”
means any of (i) the federal government of the United States of America, (ii) any instrumentality or agency of the federal government of the United States of America and (iii) any Person wholly-owned by, or the sole beneficiary of
which is, the federal government of the United States of America or any instrumentality or agency thereof.
“United
States Person
” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
ARTICLE 2
T
RUST
I
NDENTURE
A
CT
Section 2.01
. Trust Indenture Act; Application.
(a) This
Declaration shall be subject to the provisions of the Trust Indenture Act that are required to be part of this Declaration and shall, to the extent applicable, be governed by such provisions, subject to any applicable exemptive order issued by the
Commission, including any such order addressing the final paragraph of § 316(a) of the Trust Indenture Act.
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(b) The Institutional Trustee shall be the only Trustee that is a Trustee with respect to
this Series 1 for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties required to be imposed by §§ 310 to 317, inclusive, of the Trust Indenture Act, and such duties are not expressly excluded by this Declaration as permitted by the Trust Indenture Act, such
imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration shall not affect the nature
of the Securities as equity securities representing undivided beneficial interests in the assets of the Trust held with respect to this Series 1, the payments received therefrom and the profits and losses derived therefrom.
Section 2.02
. Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrative Trustees on behalf of this Series 1 of the 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 of the Securities (“
List of Holders
”) as of such record date, provided that neither the Sponsor nor
the Administrative Trustees on behalf of this Series 1 of the 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 Administrative Trustees on behalf of this Series 1 of the Trust and (ii) at any other time, within 30 days of receipt by the Trust, acting with respect to this Series 1 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 Lists of Holders given to it or which it
receives in the 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 §§ 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.03
. Reports by the Institutional Trustee.
Within 60 days after May 15 of each year (commencing with the year of the first anniversary of the Closing Date), the Institutional
Trustee shall provide to the Holders of the Trust Preferred Securities such reports as are required by § 313(a) of the Trust Indenture Act, if any, in the form and in the manner provided by § 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the other requirements of § 313 of the Trust Indenture Act.
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Section 2.04
. Reports to Institutional Trustee.
Each of the Sponsor and the Administrative Trustees on behalf of this Series 1 of the Trust shall provide to the Institutional Trustee
such documents, reports and information as required by § 314(a) of the Trust Indenture Act (if any) and the compliance certificate required by § 314(a)(4) of the Trust Indenture Act in the form, in the manner and at the times required by
§ 314 of the Trust Indenture Act, but, with respect to the compliance certificate, no later than 120 days after each calendar year. The Sponsor shall notify the Institutional Trustee when any Trust Preferred Securities are listed on any stock
exchange.
Section 2.05
. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrative Trustees on behalf of this Series 1 of the Trust shall provide to the Institutional Trustee
such evidence of compliance with any conditions precedent provided for in this Declaration that relate to any of the matters set forth in § 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to § 314(c)(1) of the Trust Indenture Act may be given in the form of an Officers’ Certificate.
Section 2.06
. Defaults; Waiver.
(a) The Holders of a Majority in liquidation amount of Trust Preferred Securities may, by vote, on behalf of the Holders of all of the Trust Preferred Securities, waive any past Default in respect of the
Trust Preferred Securities and its consequences, provided that if the underlying Default under the Indenture:
(i) is not waivable under the Indenture, the Default under this Declaration shall also not be waivable; or
(ii) is waivable only with the consent of holders of more than a majority in principal amount of the Debentures (a
“
Super Majority
”) affected thereby, only the Holders of at least the proportion in aggregate liquidation amount of the Trust Preferred Securities that the relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding may waive such Default in respect of the Trust Preferred Securities under this Declaration.
The foregoing provisions
of this Section 2.06(a) shall be in lieu of § 316(a)(1)(B) of the Trust Indenture Act and such § 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration and the Securities to the extent permitted by
the Trust Indenture Act. Upon such waiver, any such default shall cease to exist, and any Default with respect to the Trust Preferred Securities arising therefrom shall be deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or
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a Default with respect to the Trust Preferred Securities or impair any right consequent thereon. Any waiver by the Holders of the Trust Preferred Securities of a Default with respect to the Trust
Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Default with respect to the Common Securities for all purposes of this Declaration without any further act, vote, or consent of the
Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common Securities may, by vote
on behalf of the Holders of all of the Common Securities, waive any past Default with respect to the Common Securities and its consequences, provided that if the underlying Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of the Common Securities are deemed to have waived such
Default under this Declaration as provided in this Section 2.06(b), the Default under this Declaration shall also not be waivable; or
(ii) is waivable only with the consent of a Super Majority, except where the Holders of the Common Securities are deemed to have waived such Default under this Declaration as provided in this
Section 2.06(b), only the Holders of at least the proportion in aggregate liquidation amount of the Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding may waive such
Default in respect of the Common Securities under this Declaration;
provided
,
further
each Holder of Common Securities will be
deemed to have waived any such Default and all Defaults with respect to the Common Securities and its consequences until all Defaults with respect to the Trust Preferred Securities have been cured, waived or otherwise eliminated, and until such
Defaults with respect to the Trust Preferred Securities 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 Trust Preferred Securities and only the Holders
of the Trust Preferred Securities will have the right to direct the Institutional Trustee in accordance with the terms of the Securities. The foregoing provisions of this Section 2.06(b) shall be in lieu of §§ 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such §§ 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Declaration and the Securities, in each case, to the extent permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section 2.06(b), upon the waiver of a Default by the Holders of a Majority in liquidation amount of the Common Securities, any such default shall cease to exist and any Default with
respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Declaration, but no such waiver shall extend to any
SS1-11
subsequent or other default or Default with respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of a Default under the Indenture by (i) the Institutional Trustee at the direction of the Holders of the Trust Preferred Securities or (ii) for so long as the U.S. Government is a
holder of 100% of the Trust Preferred Securities of this Series 1, the U.S. Government acting directly in accordance with the Indenture, constitutes a waiver of the corresponding Default under this Declaration. The foregoing provisions of this
Section 2.06(c) shall be in lieu of §316(a)(1)(B) of the Trust Indenture Act and such §316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Series 2 Supplement and the Securities to the extent permitted by
the Trust Indenture Act.
(d) Notwithstanding anything to the contrary in this Declaration, for so long as the U.S. Government
is a holder of 100% of the Trust Preferred Securities of this Series 1, the U.S. Government shall on its own behalf as the holder of the Trust Preferred Securities of this Series 1 have the right to waive any Default or Event of Default with respect
to this Series 1 or the Debentures (to the extent provided in the Indenture).
Section 2.07
. Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the occurrence of a Default, transmit by mail, first class postage
prepaid, (or such other means of communication as may be acceptable to the Clearing Agency) to the Holders of the Securities, notices of (i) all defaults with respect to the Securities actually known to a Responsible Officer of the
Institutional Trustee, unless such defaults have been cured before the giving of such notice (the term “defaults” for the purposes of this Section 2.07(a) being hereby defined to be a 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) and (ii) any notice of default received from the Indenture Trustee with respect to the Debentures, which notice from the Institutional
Trustee to the Holders shall state that a Default under the Indenture also constitutes a Default with respect to the Securities;
provided
that, except for a default in the payment of principal of (or premium, if any) or interest on any of the
Debentures or in the payment of any sinking fund installment established for the Debentures, the Institutional Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the interests of the Holders of the Securities.
(b) The Institutional
Trustee shall not be deemed to have knowledge of any default except:
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(i) a default under Sections 5.07(b) and 5.07(c) of the Indenture; or
(ii) any default as to which the Institutional Trustee shall have received written notice or of which a
Responsible Officer of the Institutional Trustee charged with the administration of this Declaration shall have actual knowledge.
ARTICLE 3
O
RGANIZATION
Section 3.01
. Name.
The Series governed by this Declaration shall be designated Series 1 of the Trust (“
Series 1
”), as such name may be modified from time to time by the Administrative Trustees following
written notice to the Institutional Trustee, the Delaware Trustee and the Holders of Securities. The Trust’s activities with respect to this Series 1 may be conducted under the name of the Trust with respect to this Series 1 or any other name
deemed advisable by the Administrative Trustees.
Section 3.02.
Office
The principal address of the Trust for matters relating to this Series 1 is c/o Ally Financial Inc., 200 Renaissance Center, P.O. Box
200, Detroit, Michigan 48265-2000. On ten Business Days written notice to the Institutional Trustee, the Delaware Trustee and the Holders of Securities, the Administrative Trustees may designate another principal address for matters relating to this
Series 1.
Section 3.03
. Duration of Series 1
This Series 1, unless dissolved and terminated pursuant to the provisions of this Declaration, shall have existence for fifty-five
(55) years from the Original Closing Date.
Section 3.04
. Purpose.
The exclusive purposes and functions of this Series 1 of the Trust are (a) to act in accordance with this Declaration with respect
to the Trust Preferred Securities, (b) to act in accordance with this Declaration with respect to the Common Securities, (c) to acquire the Debentures from the Debenture Issuer, (d) to take certain steps in accordance with this
Declaration with respect to amending a portion of the Series 1 Securities and related assets to be designated Securities of and assets with respect to a new Series, and (e) except as otherwise limited
SS1-13
herein, to engage in only those other activities necessary or incidental thereto. The Trust, acting with respect to this Series 1, shall not borrow money, issue debt or reinvest proceeds derived
from investments, pledge any of its assets, or otherwise take any action or undertake (or permit to be undertaken) any activity that would cause the Trust or Series 1 (as applicable) to be classified (i) as other than either a grantor trust or
a partnership or (ii) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or materially reduce the likelihood of the Trust or Series 1 (as applicable) being classified as a grantor trust for
United States federal income tax purposes;
provided
, that the foregoing shall not limit amendments to all or a portion of this Series 1 to designate one or more new series with such terms as specified with respect to such new series in
accordance with this Declaration. The Trust and this Series 1 shall be administered exclusively in the United States, and a court within the United States shall be able to exercise primary supervision over the administration of the Trust and each
series thereof within the meaning of Treasury Regulation Sections 301.7701-7(a) and (c).
Section 3.05
. Authority.
Subject to the limitations provided in this Declaration and to the specific duties of the Institutional Trustee, the
Administrative Trustees shall have exclusive and complete authority to carry out the purposes of the Trust with respect to this Series 1. An action taken by the Administrative Trustees in accordance with their powers shall constitute the act of and
serve to bind the Trust with respect to this Series 1 and an action taken by the Institutional Trustee on behalf of the Trust with respect to this Series 1 in accordance with its powers shall constitute the act of and serve to bind the Trust with
respect to this Series 1. In dealing with the Trustees acting on behalf of the Trust with respect to this Series 1, no person shall be required to inquire into the authority of the Trustees to bind the Trust with respect to this Series 1. Persons
dealing with the Trust acting with respect to this Series 1 are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Declaration.
Section 3.06
. Title to Property of the Trust.
Except as provided in
Section 3.09 with respect to the Debentures and the Institutional Trustee Account or as otherwise provided in this Declaration, legal title to all assets of the Trust with respect to this Series 1 shall be vested in the Trust acting with
respect to this Series 1. The Holders shall not have legal title to any part of the assets of the Trust or any series of the Trust, but shall have an undivided beneficial interest in the assets of the Trust held with respect to this Series 1, the
payments received therefrom and the profits and losses derived therefrom.
Section 3.07
. Powers and Duties of the
Administrative Trustees.
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Except to the extent provided otherwise in Annex 1, the Administrative Trustees shall have
the exclusive power, duty and authority to cause the Trust to engage in the following activities, if and as applicable (and subject, as applicable, to the terms and conditions of the Purchase Agreement), with respect to this Series 1:
(a) to amend and redesignate a portion of such Trust Preferred Securities, in each case in accordance with this Declaration and to amend
and redesignate a portion of its Common Securities and Debentures in accordance with this Declaration;
(b) in connection with
the Trust Preferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission
on behalf of the Trust with respect to this Series 1 a registration statement on Form S-3 or on another appropriate form, or a registration statement under Rule 462(b) of the Securities Act, in each case prepared by the Sponsor, including any
pre-effective or post-effective amendments thereto, relating to the registration under the Securities Act of the Trust 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 Trust Preferred Securities in
any State in which the Sponsor has determined to qualify or register such Trust Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor, to the New York Stock Exchange or any other national stock
exchange for listing upon notice of issuance of any Trust Preferred Securities; and
(iv) execute and file with
the Commission on behalf of the Trust with respect to this Series 1 a registration statement on Form 8-A, prepared by the Sponsor, including any pre-effective or post-effective amendments thereto, relating to the registration of the Trust Preferred
Securities under Section 12(b) of the Exchange Act;
(c) to acquire the Debentures as described in the Purchase Agreement
and to hold the Debentures, as such Debentures may be re-designated from time to time in series pursuant to the Indenture;
provided
,
however
, that the Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Institutional Trustee for the benefit of the Holders of the Trust Preferred Securities and the Holders of Common Securities;
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(d) to give the Sponsor and the Institutional Trustee prompt written notice of the
occurrence of a Special Event, provided that the Administrative Trustees shall consult with the Sponsor and the Institutional Trustee before taking or refraining from taking any Ministerial Action in relation to a Special 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 § 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Trust Preferred Securities and Holders of Common Securities as to
such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Administrative Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the Trust with respect to this Series 1 (“
Legal Action
”), unless pursuant to Section 3.09(g), the Institutional Trustee has the 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 Trust
with respect to this Series 1 to comply with the Trust’s obligations under the Trust Indenture Act;
(j) to give the
certificate required by § 314(a)(4) of the Trust Indenture Act to the Institutional Trustee, which certificate may be executed by any Administrative Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of the purposes of the Trust with respect to this Series 1;
(l) to act as, or appoint another Person to act as, registrar and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment period under the Indenture;
(n) to take all
action with respect to this Series 1 that may be necessary or appropriate for the preservation and the continuation of the Trust’s valid existence, rights, franchises and privileges as a statutory trust under the laws of the State of Delaware
and of each other jurisdiction in which such existence is
SS1-16
necessary to protect the limited liability of the Holders of the Trust Preferred Securities or to enable the Trust, acting with respect to this Series 1, to effect the purposes with respect to
this Series 1 for which the Trust was created;
(o) to take any action, not inconsistent with this Declaration or with
applicable law, that the Administrative Trustees determine in their discretion to be necessary or desirable in carrying out the activities of the Trust with respect to this Series 1 as set out in this Section 3.07, including, but not limited
to:
(i) causing the Trust and this Series 1 not to be deemed to be an Investment Company required to be
registered under the Investment Company Act;
(x) ensure that the Trust or Series 1 (as applicable) will be
classified, for United States federal income tax purposes, as either a grantor trust or a partnership, and not as an entity taxable as a corporation, or (y) increase the likelihood of the Trust or Series 1 (as applicable) being classified as a
grantor trust for United States federal income tax purposes;
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as indebtedness of the Debenture Issuer for United States federal income tax purposes;
provided
that any such action does not adversely affect the interests of Holders;
(p) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to this Series 1 of the Trust to be duly prepared and filed by
the Administrative Trustees, on behalf of the Trust with respect to this Series 1;
(q) to take all action necessary to comply
with its obligations under the Purchase Agreement; and
(r) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust with respect to this Series 1 in all matters necessary or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth in this Section 3.07 in a manner that is consistent with the purposes and functions of the Trust with respect to this Series 1 set out
in Section 3.04, and the Administrative Trustees shall not take any action that is inconsistent with the purposes and functions of the Trust with respect to this Series 1 set forth in Section 3.04.
Subject to this Section 3.07, the Administrative Trustees shall have none of the powers or the authority of the Institutional
Trustee set forth in Section 3.09.
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Any expenses incurred by the Administrative Trustees pursuant to this Section 3.07
shall be reimbursed by the Debenture Issuer.
Section 3.08
. Prohibition of Actions by the Trust and the Trustees.
(a) The Trust acting with respect to this Series 1 shall not, and the Trustees (including the Institutional Trustee) shall
not cause the Trust with respect to this Series 1 to, engage in any activity other than as required or authorized by this Declaration. In particular, the Trust acting with respect to this Series 1 shall not:
(i) invest any proceeds received by the Trust with respect to this Series 1 from holding the Debentures, but shall
promptly distribute all such proceeds to Holders of Securities pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property with respect to this Series 1 for other than a Trust purpose with respect to this Series 1;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary the Trust assets with respect to this Series 1 or the
terms of the Securities in any way whatsoever;
provided
that this clause (v) shall not prohibit any amendment of the terms of this Series 1 or the Securities in accordance with this Declaration;
(vi) issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust with respect
to this Series 1 other than the Securities;
provided
that this clause (vi) shall not prohibit any amendment of the terms of this Series 1 or the Securities in accordance with this Declaration;
(vii) other than as provided in this Declaration, (A) direct the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect to the Debentures, (B) waive any past default that is waivable under the Indenture with respect to the Debentures, (C) exercise any right to rescind or annul any declaration that the
principal of all the Debentures shall be due and payable or (D) consent to any amendment, modification or termination of the Indenture or the Debentures where such consent shall be required, unless the Trust acting with respect to this Series 1
shall have obtained an opinion of nationally recognized independent tax counsel experienced in such matters to the
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effect that such action will not (x) cause the Trust or Series 1 (as applicable) to be classified (a) as other than either a grantor trust or a partnership or (b) as an entity
taxable as a corporation, in either case, for United States federal income tax purposes, or (y) materially reduce the likelihood of the Trust or Series 1 (as applicable) being classified as a grantor trust for United States federal income tax
purposes.
Section 3.09
. Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and held of record in the name of the Institutional Trustee in trust for the
benefit of the Holders of the Securities. The right, title and interest of the Institutional Trustee to the Debentures shall vest automatically in each Person who may hereafter be appointed as Institutional Trustee in accordance with
Section 5.06. Such vesting and cessation of title shall be effective whether or not conveying documents with regard to the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and interest in the Debentures to the Administrative 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 of the Securities and, upon the receipt of payments of funds made in respect of the Debentures held by the Institutional Trustee,
deposit such funds into the Institutional Trustee Account and make payments to the Holders of the Trust Preferred Securities and Holders of the Common Securities from the Institutional Trustee Account in accordance with Section 6.01. Funds in
the Institutional Trustee Account shall be held uninvested until disbursed in accordance with this Declaration. The Institutional Trustee Account shall be an account that is maintained with a banking institution the rating on whose long-term
unsecured indebtedness assigned by a “nationally recognized statistical rating organization,” as that term is used by the Commission in Rule 15c3-1(c)(2)(vi)(F) under the Securities Act, is at least equal to the rating assigned to the
Trust Preferred Securities by a nationally recognized statistical rating organization;
(ii) engage in such
ministerial activities as shall be necessary or appropriate to effect the redemption of the Trust Preferred Securities and the Common Securities to the extent the Debentures are redeemed or mature and to effect the Exchange of Trust Preferred
Securities and Common Securities for Debentures to the extent the Sponsor or a Sponsor
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Affiliated Holder elects to effect such Exchange pursuant to Section 6.02 hereof; and
(iii) upon written notice of distribution issued by the Administrative Trustees in accordance with the terms of the Securities, engage in such ministerial activities as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders of Securities pursuant to the terms of the Securities.
(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 Securities.
(e) Subject to Section 2.06, the Institutional Trustee shall take any Legal Action which arises out of or in connection with a Default of which a Responsible Officer of the Institutional Trustee has
actual knowledge or the Institutional Trustee’s duties and obligations under this Declaration or the Trust Indenture Act.
(f) The Institutional Trustee shall not resign as a Trustee unless either:
(i) this Series 1 of the Trust has been completely liquidated and the proceeds of the liquidation distributed to the
Holders of Securities, pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee has
been appointed and has accepted that appointment in accordance with Section 5.06.
(g) The Institutional Trustee shall
have the legal power to exercise all of the rights, powers and privileges of a holder of Debentures under the Indenture and, if a Default actually known to a Responsible Officer of the Institutional Trustee occurs and is continuing, the
Institutional Trustee shall (except as otherwise provided in Annex 1), for the benefit of Holders of the Securities, enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of such Securities, this
Declaration, the Statutory Trust Act and the Trust Indenture Act.
(h) The Institutional Trustee may authorize one or more
Persons (each, a “
Paying Agent
”) to pay Distributions, redemption payments or liquidation payments on behalf of this Series 1 of the Trust with respect to all Securities and any such Paying Agent shall comply with § 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.
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(i) Subject to this Section 3.09, the Institutional Trustee shall have none of the
duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 3.07.
The Institutional
Trustee must exercise the powers set forth in this Section 3.09 in a manner that is consistent with the purposes and functions of the Trust with respect to this Series 1 set out in Section 3.04, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust with respect to this Series 1 set out in Section 3.04.
Section 3.10
. Certain Duties and Responsibilities of the Institutional Trustee.
(a) The Institutional Trustee, before the occurrence of any Default and after the curing of all Defaults that may have occurred, shall undertake to perform only such duties as are specifically set forth
in this Declaration and no implied covenants shall be read into this Declaration against the Institutional Trustee. In case a Default has occurred (that has not been cured or waived pursuant to Section 2.06) of which a Responsible Officer of
the Institutional Trustee has actual knowledge, the Institutional Trustee shall exercise such of the rights and powers vested in it by this Declaration, and use the same degree of care and skill in the exercise of such rights and powers, 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 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 a Default and after the curing or waiving of all such Defaults that may have occurred:
(A) the duties and obligations of the Institutional Trustee shall be determined solely by the express
provisions of this 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 Declaration, and no implied covenants or obligations shall be read into
this Declaration against the Institutional Trustee; and
(B) in the absence of willful misconduct 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 Declaration; but in the case
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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 Declaration (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
(ii) the Institutional Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer
of the Institutional Trustee, 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 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
Declaration;
(iv) no provision of this Declaration shall require the Institutional Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Declaration or indemnity reasonably satisfactory to the Institutional Trustee against such risk or liability 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
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 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 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
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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 3.09(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 Administrative Trustees or the Sponsor with their respective duties under this Declaration, nor shall the Institutional Trustee be liable for any default or
misconduct of the Administrative Trustees or the Sponsor.
Section 3.11
. Certain Rights of Institutional Trustee.
(a) Subject to the provisions of Section 3.10:
(i) the Institutional 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 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
Administrative Trustees contemplated by this Declaration shall be sufficiently evidenced by an Officers’ Certificate;
(iii) whenever in the administration of this 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 Administrative 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 of its selection and the advice or opinion of such
counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and
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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 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 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
Declaration at the request or direction of any Holder, unless such Holder shall have provided to the Institutional Trustee security and indemnity, reasonably satisfactory to the Institutional Trustee, 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 3.11(a)(vi) shall be taken to relieve the Institutional Trustee, upon the occurrence of a Default, of its obligation to exercise the rights
and powers vested in it by this 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, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but
the Institutional Trustee, in its discretion and after prior consultation with the Sponsor, may make such further inquiry or investigation into such facts or matters as it may see fit at the expense of the Sponsor and shall incur no liability of any
kind by reason of such inquiry or investigation;
(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) the rights, privileges, protections, immunities and
benefits given to the Institutional Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Institutional Trustee in each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder by the Institutional Trustee and appointed with due care by it;
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(x) any action taken by the Institutional Trustee or its agents hereunder
shall bind the Trust with respect to this Series 1 and the Holders of the Securities, 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 Declaration, both of which shall be conclusively evidenced by the Institutional Trustee’s or its
agent’s taking such action;
(xi) whenever in the administration of this 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 of the Securities which
instructions may only be given by the Holders of the same proportion in liquidation amount of the Securities as would be entitled to direct the Institutional Trustee under the terms of the 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;
(xii) except as otherwise expressly provided by this Declaration, the Institutional Trustee shall not be under any
obligation to take any action that is discretionary under the provisions of this Declaration;
(xiii) in no
event shall the Institutional Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Institutional Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action; and
(xiv) in no event shall the Institutional Trustee be
responsible or liable for any failure or delay in the performance of its obligations under this Declaration arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of third-party utilities, communications or computer (software or hardware)
services.
(b) No provision of this 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
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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 3.12
. [Reserved]
Section 3.13
. Execution of Documents.
Unless otherwise determined by the Administrative Trustees, and except as otherwise required by the Statutory Trust Act, any Administrative Trustee is authorized to execute on behalf of the Trust with
respect to this Series 1 any documents that the Administrative Trustees have the power and authority to execute pursuant to Section 3.07;
provided
that the registration statement referred to in Section 3.07(b)(i), including any
amendments thereto, shall be signed by all of the Administrative Trustees.
Section 3.14
. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained in this Declaration and the 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 Trust with respect to this Series 1 or any part thereof. The Trustees
make no representations as to the validity or sufficiency of this Declaration or the Securities.
Section 3.15
.
[Reserved]
Section 3.16.
[Reserved].
ARTICLE 4
S
PONSOR
Section 4.01
. Sponsor’s Purchase of Common Securities.
On the Closing Date, the Sponsor will own all of the Common Securities with respect to this Series 1 of the Trust.
Section 4.02
. Responsibilities of the Sponsor.
In connection with any resale of the Trust Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities with respect to this Series 1 of the
Trust, if and as applicable (and subject, as applicable, to the terms and conditions of the Purchase Agreement):
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(a) to maintain an effective registration statement on Form S-3 or on another appropriate
form, or a registration statement under Rule 462(b) of the Securities Act, including any pre-effective or post-effective amendments thereto, relating to the registration under the Securities Act of the Trust Preferred Securities;
(b) to determine the States in which to take appropriate action to qualify or register for sale all or part of the Trust Preferred
Securities and to do any and all such acts, other than actions which must be taken by the Trust with respect to this Series 1, and advise the Trust with respect to this Series 1 of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust with respect to this Series 1, 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 Trust with respect to this Series 1 an application to the New York Stock Exchange or any other national
stock exchange for listing upon notice of issuance of any Trust Preferred Securities;
(d) to negotiate, along with the other
parties thereto, including the United States Department of the Treasury (or such other then–existing investor in the Series 1 Securities) and the Underwriters, the terms of any agreements providing for the resale of the Trust Preferred
Securities. The Sponsor shall have the authority to execute and deliver the Purchase Agreement on behalf of the Trust with respect to Series 1;
(e) to prepare for filing with the Commission by the Trust with respect to this Series 1 a registration statement on Form 8-A, including any pre-effective or post-effective amendments thereto, relating to
the registration of the Trust Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto;
(f) otherwise to carry out and perform the provisions of the Purchase Agreement relating to the obligations of the Trust with respect to this Series 1; and
(g) to make such amendments and redesignations of Securities and assets of Series 1 of the Trust as specified in Article 7 of this
Declaration.
ARTICLE 5
T
RUSTEES
Section 5.01
. Number of Trustees; U.S.
Person.
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The number of Trustees with respect to this Series 1 initially shall be three (3) exclusive
of the Delaware Trustee, and:
(a) the number of Trustees with respect to this Series 1 may be increased or decreased by vote
of the Holders of a Majority in liquidation amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities or by written consent,
provided
,
however
, that the number of Trustees shall in no event
be less than two (2);
provided further
that (1) there shall be at least one Trustee acting for the Trust with respect to this Series 1 who is an employee or officer of, or is affiliated with the Sponsor (an “Administrative
Trustee
”); and (2) one Trustee shall be the Institutional Trustee; and
(b) no Person shall serve as a Trustee
unless such Person is a United States Person.
Section 5.02
. [Reserved]
Section 5.03
. Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee that shall act as Institutional Trustee with respect to Series 1 of the Trust which shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the laws of the United States of America or any State 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 million U.S. dollars ($50,000,000), and subject to supervision or examination by Federal, State 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 5.03(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; and
(iii) if the Trust or this Series 1 is
excluded from the definition of an Investment Company solely by means of Rule 3a-7 and to the extent Rule 3a-7 requires a trustee having certain qualifications to hold title to the “eligible assets” with respect to this Series 1 of the
Trust, the Institutional Trustee shall possess those qualifications.
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(b) If at any time the Institutional Trustee shall cease to be eligible to so act under
Section 5.03(a), the Institutional Trustee shall immediately resign in the manner and with the effect set forth in Section 5.06(c).
(c) If the Institutional Trustee has or shall acquire any “conflicting interest” within the meaning of § 310(b) of the Trust Indenture Act, the Institutional Trustee and the Holders of the
Common Securities (as if such Holders were the obligor referred to in § 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of § 310(b) of the Trust Indenture Act, subject to the penultimate paragraph
thereof.
(d) The Guarantee Agreement shall be deemed to be specifically described in this Declaration for purposes of clause
(i) of the first proviso contained in § 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee
shall be as set forth in Section 5.05 hereof.
Section 5.04
. Qualifications of Administrative Trustees
Generally.
Each Administrative 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 and shall be a United States Person.
Section 5.05
. Initial
Trustees; Additional Powers of Administrative Trustees.
(a) The initial Administrative Trustees shall be:
Christopher Halmy
Sean Leary
The initial Institutional Trustee shall be:
The Bank of New York Mellon
101 Barclay Street-8W
New York, New York 10286
(b) Except as expressly set forth in this Declaration and except if a meeting of the Administrative Trustees is called with respect to
any matter over which the Administrative Trustees have power to act, any power of the Administrative Trustees may be exercised by, or with the consent of, any one such Administrative Trustee.
(c) Unless otherwise determined by the Administrative Trustees, and except as otherwise required by the Statutory Trust Act or applicable
law, any
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Administrative Trustee is authorized to execute on behalf of the Trust with respect to this Series 1 any documents which the Administrative Trustees have the power and authority to cause the
Trust with respect to this Series 1 to execute pursuant to Section 3.07, provided that any registration statement referred to in Section 3.07(b)(i), including any amendments thereto, shall be signed by all of the Administrative Trustees;
and
(d) an Administrative 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 Administrative Trustees have power and authority to cause the Trust with respect to this Series 1 to execute pursuant to Section 3.07.
Section 5.06
. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.06(b), Trustees may be appointed or removed without cause at any time:
(i) in the case of the Administrative Trustees by vote of the Holders of a Majority in liquidation amount of the Common
Securities voting as a class by written consent or at a meeting of the Holders of the Common Securities;
(ii)
in the case of the Institutional Trustee and the Delaware Trustee, unless a Default shall have occurred and be continuing, by a vote of the Holders of a Majority in liquidation amount of the Common Securities voting as a class by written consent or
at a meeting of the Holders of the Common Securities; and
(iii) in the case of the Institutional Trustee and
the Delaware Trustee, if a Default shall have occurred and be continuing, by a vote of the Holders of a Majority in liquidation amount of the Trust Preferred Securities voting as a class by written consent or at a meeting of the Holders of the Trust
Preferred Securities.
(b) The Trustee that acts as Institutional Trustee shall not be removed in accordance with
Section 5.06(a) until a successor Trustee possessing the qualifications to act as Institutional Trustee under Section 5.03 (a “
Successor Institutional Trustee
”) has been appointed and has accepted such appointment by
written instrument executed by such Successor Institutional Trustee and delivered to the Administrative Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his successor shall have been appointed or until his death, removal or resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an
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instrument in writing signed by the Trustee and delivered to the Sponsor and the Trust with respect to this Series 1, 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 Trust with respect to this Series 1, the Sponsor and the resigning Institutional Trustee; or
(B) until the assets of the Trust with respect to this Series 1 have been completely liquidated and the proceeds thereof
distributed to the holders of the Securities.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Institutional Trustee as the case may be if the Institutional Trustee delivers an instrument of resignation in accordance with this Section 5.06.
(e) If no Successor Institutional Trustee shall have been appointed and accepted appointment as provided in this Section 5.06 within
60 days after delivery to the Sponsor and the Trust with respect to this Series 1 of an instrument of resignation, the resigning Institutional Trustee may petition any court of competent jurisdiction at the expense of the Sponsor for appointment of
a Successor Institutional Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper and prescribe, appoint a Successor Institutional Trustee.
(f) No Institutional Trustee shall be liable for the acts or omissions to act of any Successor Institutional Trustee.
Section 5.07
. Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 5.01, or if the number of Trustees is increased pursuant to Section 5.01, a
vacancy shall occur. A resolution certifying the existence of such vacancy by the Administrative Trustees or, if there are more than two, a majority of the Administrative Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 5.06.
Section 5.08
. Effect of
Vacancies.
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The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not operate to annul the Trust with respect to this Series 1. Whenever a vacancy in the number of Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 5.06, the Administrative Trustees in office, regardless of their number, shall have all the powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Declaration.
Section 5.09
. Meetings.
If there is more than one Administrative Trustee, meetings of the Administrative Trustees shall be held from time to time upon the call
of any Administrative Trustee. Regular meetings of the Administrative Trustees may be held at a time and place fixed by resolution of the Administrative Trustees. Notice of any in-person meetings of the Administrative 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 Administrative 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 an Administrative Trustee at a meeting shall constitute a waiver of notice of such meeting except where an Administrative 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 Declaration, any action of the Administrative Trustees may be taken at a meeting by vote of a majority of the
Administrative 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 Administrative Trustees. In the
event there is only one Administrative Trustee, any and all action of such Administrative Trustee shall be evidenced by a written consent of such Administrative Trustee.
Section 5.10
. Delegation of Power.
(a) Any Administrative 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 purpose of executing any documents contemplated in Section 3.07, including any registration statement or
amendment thereto filed with the Commission, or making any other governmental filing;
(b) the Administrative Trustees shall
have power to delegate from time to time to such of their number or to officers of the Trust with respect to this
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Series 1 the doing of such things and the execution of such instruments either in the name of the Trust with respect to this Series 1 or the names of the Administrative Trustees or otherwise as
the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Trust with respect to this Series 1, as set forth herein; and
(c) any delegation of power by an Administrative Trustee under Section 3.07(g) (and Section 3.07(o) insofar as it applies to
Section 3.07(g)) or by the Institutional Trustee under Section 3.09(e) shall be to a United States Person.
Section 5.11
. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Institutional Trustee or the Delaware Trustee, as the case may be, may be merged or converted or with
which either may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Institutional Trustee or the Delaware Trustee, as the case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or the Delaware Trustee, as the case may be, shall be the successor of the Institutional Trustee or the Delaware Trustee, as the case may be, hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE 6
D
ISTRIBUTIONS
; E
XCHANGES
Section 6.01
. Distributions.
Holders shall receive Distributions (as
defined herein) in accordance with the applicable terms of the relevant Holder’s Securities. Distributions shall be made on the Trust Preferred Securities and the Common Securities in accordance with the preferences set forth in their
respective terms. If and to the extent that the Debenture Issuer makes a payment of interest (including Compounded Interest (as defined in the Indenture)), premium and/or principal on the Debentures held by the Institutional Trustee (the amount of
any such payment being a “Payment Amount”), the Institutional Trustee shall and is directed to make a distribution (a “Distribution”) of the Payment Amount to Holders.
Section 6.02
. Exchanges.
(a) If at any time the Sponsor or any of its Affiliates (the Sponsor or any such Affiliate, a “
Sponsor Affiliated Holder
”) is the Holder of any Trust
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Preferred Securities or is a Trust Preferred Security Beneficial Owner, such Sponsor Affiliated Holder shall have the right to deliver to the Institutional Trustee all or such portion of its
Trust Preferred Securities as it elects and, subject to the terms of the Indenture, receive, in exchange therefor, Debentures having an aggregate principal amount equal to the aggregate Liquidation Amount of the Trust Preferred Securities exchanged
therefor (such an exchange being referred to herein as an “
Exchange
”). Such election (i) shall be exercisable, and shall be effective on any Business Day,
provided
that such Business Day is not a record date or any date
falling between a record date and a date on which the related Distribution is payable, by such Sponsor Affiliated Holder delivering to the Institutional Trustee a written notice of such election specifying the aggregate Liquidation Amount of Trust
Preferred Securities with respect to which such election is being made and the date on which such Exchange shall occur, which date shall be not less than three (3) Business Days after the date of receipt by the Institutional Trustee of such
election notice and (ii) shall be conditioned upon such Sponsor Affiliated Holder having delivered or caused to be delivered to the Institutional Trustee or its designee the Trust Preferred Securities which are the subject of such election by
10:00 a.m. New York City time, on the date on which such Exchange is to occur. After the Exchange, such Trust Preferred Securities shall be cancelled and shall no longer be deemed to be outstanding and all rights of the Sponsor Affiliated Holder
with respect to such Trust Preferred Securities shall cease. So long as the Trust Preferred Securities are in book-entry-only form, the delivery and the cancellation of the Trust Preferred Securities pursuant to this Section 6.02 shall be made
in accordance with the customary procedures of the Clearing Agency for the Trust Preferred Securities.
(b) In the case of an
Exchange described in Section 6.02(a), the Trust shall, acting with respect to this Series 1, at the written request of the Sponsor, on the date of such Exchange, exchange Debentures having a principal amount equal to a proportional amount of
the aggregate Liquidation Amount of the outstanding Common Securities, such proportional amount determined by multiplying the aggregate Liquidation Amount of the outstanding Common Securities by the ratio of the aggregate Liquidation Amount of the
Trust Preferred Securities exchanged pursuant to Section 6.02(a) to the aggregate Liquidation Amount of the Trust Preferred Securities outstanding immediately prior to such Exchange, for such proportional amount of Common Securities held by the
Sponsor (which contemporaneously shall be cancelled and no longer be deemed to be outstanding);
provided
, that the Sponsor delivers or causes to be delivered to the Institutional Trustee or its designee the required amount of Common
Securities to be exchanged by 10:00 a.m., New York City time, on the date on which such Exchange is to occur.
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ARTICLE 7
S
ECURITIES
Section 7.01
. General Provisions Regarding
Securities.
(a) As of the Closing Date, this Series 1 of the Trust has outstanding one class of preferred securities
representing undivided beneficial interests in the assets of the Trust with respect to this Series 1 having such terms as are set forth in Annex I (the “
Trust Preferred Securities
”) and one class of common securities representing
undivided beneficial interests in the assets of the Trust with respect to this Series 1 having such terms as are set forth in Annex I (the “
Common Securities
”). The Trust shall issue no securities or other interests in the assets of
the Trust with respect to this Series 1 other than the Trust Preferred Securities and the Common Securities.
(b) The
Certificates shall be signed on behalf of the Trust with respect to this Series 1 by an Administrative Trustee. Such signature shall be the manual or facsimile signature of any present or any future Administrative Trustee. In case any Administrative
Trustee of the Trust with respect to this Series 1 who shall have signed any of the Securities shall cease to be such Administrative Trustee before the Certificates so signed shall be delivered by the Trust with respect to this Series 1, such
Certificates nevertheless may be delivered as though the person who signed such Certificates had not ceased to be such Administrative Trustee; and any Certificate may be signed on behalf of the Trust with respect to this Series 1 by such persons
who, at the actual date of execution of such Security, shall be the Administrative Trustees of the Trust with respect to this Series 1, although at the date of the execution and delivery of the Declaration any such person was not such an
Administrative Trustee. Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrative 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 Administrative 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
Securities may be listed, or to conform to usage.
(c) Any cash consideration received by the Trust with respect to this
Series 1 for the issuance of the Securities shall constitute a contribution to the capital of the Trust and shall not constitute a loan to the Trust with respect to this Series 1.
(d) The Securities are deemed to be validly issued, fully paid and non-assessable.
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(e) Every Person, by virtue of having become a Holder or a Trust Preferred Security
Beneficial Owner in accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration.
(f) Upon consent by 100% of the Holders of the Securities of this Series 1 of the Trust (or if the relevant new series is a Special New
Series, solely upon consent by 100% of the Holders of the Trust Preferred Securities of this Series 1 of the Trust), the Trust with respect to this Series 1 may:
(i) subject to any consent of the Debenture Issuer required by the Indenture, cause the terms of the Debenture underlying
the portion of Series 1 Trust Preferred Securities and Series 1 Common Securities to be amended to reflect the designation of a new series of debentures (with the first new series being designated Series 2) and the terms applicable to such new
series;
(ii) amend the designation and terms of the portion of the Series 1 Trust Preferred Securities with a
series number and terms that correspond to the designation of the portion of the Debentures that has been amended and designated for such new series pursuant to clause (i) (with the first new such series being designated Series 2) with
corresponding changes made to a proportionate portion of the Series 1 Common Securities; and
(iii) the actions
described in clauses (i) and (ii) will be deemed to have occurred as follows:
(A) the Trust acting
with respect to Series 1 distributed the portion of Debentures to be amended to the Holders of Trust Preferred Securities and Common Securities and the liquidation amount of the Trust Preferred Securities and the Common Securities was
correspondingly reduced;
(B) the holders of the Trust Preferred Securities, the Common Securities and the
Debenture Issuer amended the relevant portions of such Debentures to reflect the specified new terms and designation; and
(C) the holders of the Trust Preferred Securities and the Common Securities deposited such amended debenture with the Trust for the relevant newly designated series of trust preferred securities and
common securities with an aggregate liquidation amount equal to the amount by which the Trust
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Preferred Securities and Common Securities, respectively, were reduced pursuant to clause (A).
provided
that, the amended designation of such portion of Trust Preferred Securities cannot correspond to the designation of another series that at the time of such amendment has securities
outstanding;
provided further
, that a corresponding proportion of the Common Securities must be redesignated as part of the same series as the newly designated series of Trust Preferred Securities,
and provided further
, that in
connection with any redesignation of a series of Securities, the Trust, acting with respect to Series 1, shall agree with the Guarantor to amend the Guarantee Agreement to provide for the relevant portion of the guarantee to be redesignated for the
new series.
(g) Holders of the Common Securities of this Series 1 of the Trust hereby agree for the benefit of the Holders of
the Trust Preferred Securities of this Series 1 of the Trust to use commercially reasonable efforts to effectuate the designation of a Special New Series in accordance with the terms of this Declaration and to cause the Debenture Issuer to provide
any consent required by subparagraph (f)(i) of this Section 7.01 if notified in writing of the intent to designate such Special New Series by Holders of 100% of the Trust Preferred Securities of this Series 1.
ARTICLE 8
D
ISSOLUTION
; T
ERMINATION
OF
S
ERIES
Section 8.01
. Dissolution of Series 1.
(a) This Series 1 of the Trust shall dissolve:
(i) upon the
bankruptcy of any Holder of the Common Securities or the Sponsor;
(ii) upon the filing of a certificate of
dissolution or its equivalent with respect to the Sponsor or the revocation of the Sponsor’s charter and the expiration of 90 days after the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of any Holder of the Common Securities, the Sponsor, the Trust or
this Series 1;
(iv) subject to obtaining any required regulatory approval, when all of the Securities have
been called for redemption;
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(v) subject to obtaining any required regulatory approval, upon Exchange of
all of the then-outstanding Trust Preferred Securities pursuant to Section 6.02; or
(vi) subject to
obtaining any required regulatory approval, when this Series 1 shall have been dissolved in accordance with the terms of the Securities upon election by the Sponsor of its right to terminate this Series 1 and distribute all of the Debentures to the
Holders of Securities in exchange for all of the Securities.
(vii) upon the expiration of the term of this
Series 1 set forth in Section 3.03.
(b) As soon as is practicable after the occurrence of an event referred to in
Section 8.01(a), and after satisfaction of the claims and obligations of the Trust with respect to this Series 1 as required by applicable law, including Section 3808 of the Statutory Trust Act, and subject to the terms set forth in Annex
I, the Administrative Trustees, when notified in writing of the completion of the winding up of this Series 1 of the Trust in accordance with the Statutory Trust Act, shall terminate this Series 1 of the Trust by recording such termination on the
books and records of the Trust.
(c) The provisions of Section 3.10, Section 3.11 and Article 10 shall survive the
termination of this Series 1 of the Trust.
ARTICLE 9
T
RANSFER
O
F
I
NTERESTS
Section 9.01
. Transfer of Securities.
(a) Securities may be transferred, in whole or in part, only in accordance with the terms and conditions set forth in this Declaration and in the terms of the Securities. Any transfer or purported
transfer of any Security not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article 9,
all Certificates or other instruments representing the Trust Preferred Securities will bear a legend substantially to the following effect (the “
Private Placement Legend
”):
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT
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RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES
REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT IT IS (X) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (Y) AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT WHICH IS THEN
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE DEBENTURE ISSUER OR
(D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
All Certificates or other instruments representing the Trust Preferred Securities
will also bear a legend substantially to the following effect:
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (I) NO PORTION OF THE ASSETS USED BY IT TO ACQUIRE AND HOLD THE SECURITY CONSTITUTES ASSETS OF ANY “EMPLOYEE BENEFIT PLAN”
SUBJECT TO SECTION 406 OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), ANY PLAN, ACCOUNT OR OTHER ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”), OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR
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OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR ANY ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE
“PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER PLAN, ACCOUNT OR ARRANGEMENT OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAW.
(c) Subject to this Article 9, the Sponsor and any Related Party
may transfer Common Securities only to the Sponsor or a Related Party of the Sponsor that is a United States Person;
provided
that any such transfer is subject to the condition precedent that the transferor obtain the written opinion of
nationally recognized independent counsel experienced in such matters that such transfer would not cause more than an insubstantial risk that:
(i) (x) the Trust or Series 1 (as applicable) would be classified (a) as other than either a grantor trust or a partnership or (b) as an entity taxable as a corporation, in either case, for
United States federal income tax purposes, or (y) there would be a material reduction in the likelihood that the Trust or Series 1 (as applicable) would be classified as a grantor trust for United States federal income tax purposes; and
(ii) the Trust or this Series 1 would be an Investment Company or the transferee would become an Investment
Company.
Section 9.02
. Transfer of Certificates.
(a) The Trust acting with respect to this Series 1 shall cause to be kept at the Corporate Trust Office of the Institutional Trustee a
register in which, subject to such reasonable regulations as it may prescribe, the Trust acting with respect to this Series 1 shall provide for the registration of Trust Preferred Securities and of transfers of Trust Preferred Securities. The
Institutional Trustee is hereby appointed “Security Registrar” for the purpose of registering Trust Preferred Securities and transfers of Trust Preferred Securities as herein provided. The Security Registrar 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 Security Registrar 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 Security Registrar shall cause one or more new Certificates to be issued 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 Security Registrar duly executed by the Holder or such Holder’s attorney duly
SS1-40
authorized in writing. Each Certificate surrendered for registration of transfer shall be canceled by the Security Registrar. 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 Declaration.
(b) In the event that any Trust Preferred Securities (i) become registered under the Securities Act or (ii) are eligible to be
transferred without restriction in accordance with Rule 144 or another exemption from registration under the Securities Act (other than Rule 144A), the Administrative Trustees shall cause to be issued, in accordance with Section 9.02(a) above,
new Certificates or other instruments representing such Trust Preferred Securities, which shall not contain the Private Placement Legend. Securities shall be freely transferable, subject to compliance with this Article 9 and the Securities Act.
Subject to the last sentence of this Section 9.02(b), if a Certificate representing a Trust Preferred Security bears a Private Placement Legend, such Trust Preferred Security (x) may be transferred to a Person or Persons who take delivery
thereof in the form of a Certificate bearing a Private Placement Legend only if the Security Registrar receives (A) an appropriately completed certificate of transfer in the form attached hereto as
Exhibit D
and (B) if applicable, a
certificate substantially in the form attached hereto as
Exhibit E
(each such certificate, a “
Transfer Certification
”); and (y) may be transferred to a Person or Persons who take delivery thereof in the form of a
Certificate not bearing a Private Placement Legend or may be exchanged for a Certificate not bearing a Private Placement Legend only if the Security Registrar has previously received an opinion of counsel in form reasonably acceptable to the Sponsor
to the effect that the Trust Preferred Securities are eligible to be transferred without restriction (a “
Transfer Opinion
”). The Institutional Trustee and the Security Registrar shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer or exchange imposed under this Declaration or under applicable law with respect to any transfer or exchange of any interest in any Security (including any transfers between or among
Clearing Agency Participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by,
the terms of this Declaration, and to examine the same to determine substantial compliance as to form with the express requirements hereof. At such time as the Debenture Issuer shall determine, in accordance with applicable law, that the Trust
Preferred Securities are no longer required to bear the Private Placement Legend, then: (x) the Sponsor shall deliver to the Institutional Trustee a Transfer Opinion; (y) the Security Registrar shall cause to be issued, in accordance with
Section 9.02(a) above, new Certificates or other instruments representing such Trust Preferred Securities, which shall not contain the Private Placement Legend; and (z) no
SS1-41
Transfer Certification shall be required as a condition to any subsequent transfer of the Trust Preferred Securities.
(c) Before registering for transfer or exchange any Trust Preferred Securities, the Securities Registrar may require an Opinion of Counsel or other evidence satisfactory to it (which may include a
certificate from such purchaser or Holder) that either (i) no portion of the assets used by such purchaser or Holder to acquire and hold the Trust Preferred Securities constitutes assets of any “employee benefit plan” subject to
Section 406 of the U.S. Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”), any plan, account or other arrangement subject to Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the
“
Code
”), or provisions under any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “
Similar Laws
”), or any entity whose underlying
assets are considered to include “plan assets” of any such employee benefit plan or other plan, account or arrangement or (ii) the purchase and holding of the Trust Preferred Securities will not constitute a non-exempt prohibited
transaction under Section 406 of ERISA or section 4975 of the Code or a violation under any applicable similar law.
Section 9.03
. Deemed Security Holders.
The Trustees and the Security Registrar shall treat the Person in whose name any Certificate shall be registered on the books and records of the Trust with respect to this Series 1 as the sole holder of
such Certificate and of the Securities represented by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in
such Certificate or in the Securities represented by such Certificate on the part of any Person, whether or not the Trust acting with respect to Series 1 shall have actual or other notice thereof.
Section 9.04
. Book Entry Interests.
The Trust Preferred Securities are issued in the form of definitive, fully registered Trust Preferred Security Certificates (the “
Definitive Trust Preferred Security Certificates
”). The
Trust Preferred Securities may, upon the instruction of the Sponsor, be issued in the form of one or more, fully registered, global Trust Preferred Security Certificates (each a “
Global Certificate
”), to be delivered to DTC, the
initial Clearing Agency, by, or on behalf of, the Trust with respect to this Series 1. Such Global Certificates shall initially be registered on the books and records of the Trust with respect to this Series 1 in the name of Cede & Co., the
nominee of DTC, and no Trust Preferred Security Beneficial Owner will receive a definitive Trust Preferred Security Certificate representing such Trust Preferred Security Beneficial Owner’s interests in such Global Certificates, except
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as provided in Section 9.07. If the Trust Preferred Securities are held as Global Certificates, then unless and until Definitive Trust Preferred Security Certificates shall have been issued
to the Trust Preferred Security Beneficial Owners pursuant to Section 9.07:
(a) the provisions of this Section 9.04
shall be in full force and effect;
(b) the Trust acting with respect to this Series 1 and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Declaration (including the payment of Distributions on the Global Certificates and receiving approvals, votes or consents hereunder) as the Holder of the Trust Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Trust Preferred Security Beneficial Owners;
(c) to the
extent that the provisions of this Section 9.04 conflict with any other provisions of this Declaration, the provisions of this Section 9.04 shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Trust
Preferred Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants and the Clearing Agency shall receive and transmit payments of Distributions on the Global Certificates to such Clearing Agency Participants. DTC
will make book entry transfers among the Clearing Agency Participants.
Section 9.05
. Notices to Clearing Agency.
While the Trust Preferred Securities are in the form of Definitive Trust Preferred Security Certificates, all notices and
communications to the Trust Preferred Security Holders shall be made at the respective addresses of the Holders set forth on the books and records of the Trust with respect to this Series 1. If the Trust Preferred Securities are held as Global
Certificates, whenever a notice or other communication to the Trust Preferred Security Holders is required under this Declaration, the Administrative Trustees shall give all such notices and communications specified herein to be given to the Trust
Preferred Security Holders to the Clearing Agency, and shall have no notice obligations to the Trust Preferred Security Beneficial Owners.
Section 9.06
. Appointment of Successor Clearing Agency.
If any
Clearing Agency elects to discontinue its services as a securities depositary with respect to the Trust Preferred Securities, the Administrative Trustees may, in their sole discretion, appoint a successor Clearing Agency with respect to such Trust
Preferred Securities.
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Section 9.07
. Definitive Trust Preferred Security Certificates.
If, following the issuance of Global Certificates:
(a) a Clearing Agency elects to discontinue its services as a securities depositary with respect to the Trust Preferred Securities and a successor Clearing Agency is not appointed within 90 days after
such discontinuance pursuant to Section 9.06; or
(b) the Administrative Trustees elect after consultation with the
Sponsor and subject to the procedures of the Clearing Agency to terminate the book entry system through the Clearing Agency with respect to the Trust Preferred Securities, then:
(c) Definitive Trust Preferred Security Certificates shall be prepared by the Administrative Trustees on behalf of the Trust acting with
respect to this Series 1 with respect to such Trust Preferred Securities; and
(d) upon surrender of the Global Certificates
by the Clearing Agency, accompanied by registration instructions, the Administrative Trustees and the Security Registrar shall cause Definitive Certificates to be delivered to Trust Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the Trust with respect to this Series 1 nor the Security Registrar 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 Clearing Agency. The Definitive Trust Preferred Security Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the
Administrative 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 Administrative 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 Trust Preferred Securities may be listed, or to conform to usage.
Section 9.08
. Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any
mutilated Certificates should be surrendered to the Security Registrar, or if the Security Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Security Registrar such security or indemnity as may be required by them to keep each of them
harmless, then, in the
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absence of notice that such Certificate shall have been acquired by a bona fide purchaser, any Administrative Trustee on behalf of the Trust with respect to this Series 1 shall execute and
deliver, 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 9.08, the Administrative
Trustees and the Security Registrar 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 Securities, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.
ARTICLE 10
L
IMITATION
O
F
L
IABILITY
O
F
H
OLDERS
O
F
S
ECURITIES
, T
RUSTEES
O
R
O
THERS
Section 10.01
. Liability.
(a) Except as expressly set forth in this Declaration, the Guarantee Agreement and the terms of the 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 of the Securities which shall be made solely from assets of the Trust with respect to this Series 1; and
(ii) required to pay to the Trust with respect to this Series 1 or to any Holder of Securities any deficit upon dissolution of the Trust with respect to this Series 1 or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the debts and obligations of the Trust with respect to this Series 1
(other than with respect to the Securities) to the extent not satisfied out of the assets of the Trust with respect to this Series 1.
(c) Pursuant to § 3803(a) of the Statutory Trust Act, the Holders of the Trust Preferred Securities 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 10.02
.
Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust
with respect to this Series 1 or any Covered Person for any loss, damage or claim incurred by reason of any act or omission
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performed or omitted by such Indemnified Person in good faith on behalf of the Trust with respect to this Series 1 and in a manner such Indemnified Person reasonably believed to be within the
scope of the authority conferred on such Indemnified Person by this 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 gross 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 Trust with respect to this Series 1 and upon such information, opinions, reports or statements presented to the Trust with respect to this Series 1 by any Person as to matters the Indemnified Person reasonably
believes are within such other Person’s professional or expert competence and who, if selected by such Person, has been selected with reasonable care by such Person, 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 of Securities might properly be paid.
Section 10.03
. 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 Trust with respect to this Series 1 or to any other
Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust with respect to this Series 1 or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict or eliminate 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 any Covered
Persons; or
(ii) whenever this 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 Trust with respect to this Series 1 or any Holder of Securities,
(iii) 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
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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 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 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 Trust with respect to this Series 1 or any other Person; or
(ii)
in its “good faith” or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law.
Section 10.04
. Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full extent permitted by law, any Company 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 Trust with respect to this Series 1) by reason of the fact that he is or was a Company 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 Trust with respect to this Series 1, 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 Company 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 Trust with respect to this Series 1, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
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(ii) The Debenture Issuer shall indemnify, to the full extent permitted by
law, any Company 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 Trust with respect to this Series 1 to procure a judgment in its favor by
reason of the fact that he is or was a Company 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 Trust with respect to this Series 1 and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust with respect to this Series 1 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 Company 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 10.04(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 10.04(a) (unless ordered by a court)
shall be made by the Debenture Issuer only as authorized in the specific case upon a determination that indemnification of the Company Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth
in paragraphs (i) and (ii). Such determination shall be made (1) by the Administrative Trustees by a majority vote of a quorum consisting of such Administrative 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 Administrative Trustees so directs, by independent legal counsel in a written opinion, or (3) by the Common Security Holder of the Trust with respect to this
Series 1.
(v) Expenses (including attorneys’ fees) incurred by a Company Indemnified Person in defending
a civil, criminal, administrative or investigative action, suit or proceeding referred to in
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paragraphs (i) and (ii) of this Section 10.04(a) shall be paid by the 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 Company Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Debenture Issuer as authorized in this Section 10.04(a). Notwithstanding
the foregoing, no advance shall be made by the Debenture Issuer if a determination is reasonably and promptly made (i) by the Administrative Trustees by a majority vote of a quorum of disinterested Administrative Trustees, (ii) if such a
quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion or (iii) the Common Security Holder of the Trust with respect to this Series 1,
that, based upon the facts known to the Administrative Trustees, counsel or the Common Security Holder at the time such determination is made, such Company 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 Trust with respect to this Series 1, or, with respect to any criminal proceeding, that such Company 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 Administrative Trustees, independent legal counsel or Common Security Holder reasonably determine that such person deliberately breached his duty to the Trust with respect to this Series 1 or the
Common or Trust Preferred Security Holders.
(vi) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 10.04(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 Debenture Issuer or Trust Preferred Security Holders of the Trust with respect to this Series 1 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 10.04(a) shall be deemed to be provided by a contract between the Debenture Issuer and each Company Indemnified Person who serves in such capacity at any time while this
Section 10.04(a) is in effect. Any repeal or modification of this Section 10.04(a) shall not affect any rights or obligations then existing.
(vii) The Debenture Issuer may purchase and maintain insurance on behalf of any person who is or was a Company 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 Debenture Issuer would have the power to indemnify him against such liability under the provisions of this Section 10.04(a).
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(viii) For purposes of this Section 10.04(a), references to “the
Trust with respect to this Series 1” shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the
provisions of this Section 10.04(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 10.04(a)
shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Company Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person.
(b) The 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 and all loss, liability, claim, damage or expense incurred
without negligence, bad faith or willful misconduct on its part, arising out of or in connection with the acceptance or administration or 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 10.04(b) shall survive the
resignation or removal of the Institutional Trustee or the Delaware Trustee, as the case may be, and the termination of this Declaration. The Debenture Issuer agrees to pay the Institutional Trustee and the Delaware Trustee from time to time such
compensation for all services rendered by the Institutional Trustee and the Delaware Trustee hereunder as may be mutually agreed upon in writing by the Debenture Issuer and the Institutional Trustee or the Delaware Trustee, as the case may be, and,
except as otherwise expressly provided therein or herein, to reimburse the Institutional Trustee and the Delaware Trustee upon its or their request for all reasonable expenses (including reasonable counsel fees and expenses), disbursements and
advances incurred or made by the Institutional Trustee or the Delaware Trustee, as the case may be, in accordance with the provisions of this Declaration, except any such expense, disbursement or advance as may be attributable to its or their
negligence, bad faith or willful misconduct. The provisions of this sentence shall survive the
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resignation or removal of the Delaware Trustee or the Institutional Trustee or the termination of this Declaration.
(c) When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
Section 10.05
. 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 Trust with respect to this
Series 1, and the Trust with respect to this Series 1 and the Holders of Securities shall have no rights by virtue of this 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 Trust with respect to this Series 1, 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 Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust acting with respect to this Series 1, 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
A
CCOUNTING
; C
ERTAIN
T
AX
M
ATTERS
Section 11.01
. Fiscal Year.
The fiscal year (“
Fiscal Year
”) of the Trust with respect to this Series 1 shall be the calendar year, or such other year as is required by the Code.
Section 11.02
. Certain Accounting Matters.
(a) At all times during the existence of this Series 1 of the Trust, the Administrative Trustees shall keep, or cause to be kept, full books of account,
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records and supporting documents, which shall reflect in reasonable detail, each transaction of the Trust with respect to this Series 1. The books of account shall be maintained on the accrual
method of accounting, in accordance with generally accepted accounting principles, consistently applied. The Trust acting with respect to this Series 1 shall use the accrual method of accounting for United States federal income tax purposes. The
books of account and the records of the Trust with respect to this Series 1 shall be examined by and reported upon as of the end of each Fiscal Year of the Trust by a firm of independent certified public accountants selected by the Administrative
Trustees.
(b) The Administrative Trustees shall cause to be prepared and delivered to each of the Holders of Securities, to
the extent, if any, required by the Trust Indenture Act, within 90 days after the end of each Fiscal Year of this Series 1 of the Trust, annual financial statements of the Trust with respect to this Series 1, including a balance sheet of the Trust
with respect to this Series 1 as of the end of such Fiscal Year, and the related statements of income or loss.
(c) The
Administrative Trustees shall cause to be duly prepared and delivered to each of the Holders of Securities any annual United States federal income tax information statement required by the Code, containing such information with regard to the
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 Administrative Trustees shall endeavor to deliver all such statements
within 30 days after the end of each Fiscal Year of this Series 1 of the Trust.
(d) The Administrative 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 tax returns required to be
filed by the Trust with respect to this Series 1 with any taxing authority.
Section 11.03
. Banking.
The Trust acting with respect to this Series 1 shall maintain one or more bank accounts in the name and for the sole benefit of the Trust
with respect to this Series 1;
provided
,
however
, that all payments of funds in respect of the Debentures held by the Institutional Trustee shall be made directly to the Institutional Trustee Account and no other funds of the Trust
with respect to this Series 1 shall be deposited in the Institutional Trustee Account. The sole signatories for such accounts shall be designated by the Administrative Trustees;
provided
,
however
, that the Institutional Trustee shall
designate the signatories for the Institutional Trustee Account.
Section 11.04
. Withholding.
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The Trust acting with respect to this Series 1 and the Administrative Trustees shall comply
with all withholding requirements under United States federal, state and local law. The Trust acting with respect to this Series 1 shall request, and the Holders shall provide to the Trust with respect to this Series 1, such forms or certificates as
are necessary to establish an exemption from, or reduction in, withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Trust acting with respect to this Series 1 to assist it in determining
the extent of, and in fulfilling, its withholding obligations. The Administrative Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent that the Trust acting with respect to this Series 1 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 overwithholding, 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 Trust acting with respect to this Series 1 may reduce subsequent Distributions by the amount of such withholding.
Section 11.05
. Tax Treatment.
The Trust and each beneficial owner of Securities, by acquiring such Securities, agrees, unless otherwise required by law, to treat, for all United States federal income tax purposes (i) each series
of the Trust as a separate entity, (ii) Series 1 as a grantor trust, (iii) itself as owning an undivided beneficial interest in the Series 1 Debentures, (iv) the Series 1 Debentures as indebtedness of the Debenture Issuer, and
(v) the stated interest on the Series 1 Debentures as ordinary interest income that is includible in such beneficial owner’s gross income at the time the interest is paid or accrued in accordance with such beneficial owner’s regular
method of tax accounting.
ARTICLE 12
A
MENDMENTS
A
ND
M
EETINGS
Section 12.01
. Amendments.
(a) Except as otherwise provided in this Declaration or by any applicable terms of the Securities, this Declaration may be amended only by a written instrument approved and executed by:
(i) the Administrative Trustees (or, if there are more than two Administrative Trustees a majority of the Administrative
Trustees);
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(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 of the
Declaration 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 Trust acting with respect to this Series 1 and the Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the 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 Trust acting with respect to this Series 1 and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Declaration (including
the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor or the Trust
with respect to this Series 1) that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A)(x) cause the Trust or Series 1 (as applicable) to be classified (a) as other than either a grantor trust or a
partnership or (b) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or (y) materially reduce the likelihood of the Trust or Series 1 (as applicable) being classified as a grantor trust
for United States federal income tax purposes,
provided
that the foregoing shall not limit amendments to all or a portion of this Series 1 to designate one or more new series with such terms as specified with respect to such new series, to
the extent 100% of Holders of Securities of this Series 1 have consented to any such amendment provided that the consent of the Holders of the Common Securities shall not be required for any such designation of a Special New Series;
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(B) reduce or otherwise adversely affect the powers of the Institutional
Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust or this Series 1 to be deemed to
be an Investment Company required to be registered under the Investment Company Act;
(iv) in the case of any
amendment and redesignation of a portion of the Trust Preferred Securities of this Series 1 and the amendment and redesignation of a portion of the Common Securities and Debentures of this Series 1:
(A) if the amendment and redesignation would result in this Series 1 of the Trust issuing more than one series of Trust
Preferred Securities or more than one series of Common Securities;
(B) if the amendment and redesignation
would result in there being any interest in the Trust with respect to Series 1 other than the Securities
(C)
if the amendment and the redesignation of a new Series of Securities is not limited to a simultaneous redesignation of both Trust Preferred Securities and Common Securities on the date of such redesignaton; or
(D) unless such amendment and redesignation shall be made only with the consent of 100% of all holders of Common
Securities and 100% of all holders of Trust Preferred Securities of this Series 1 except that the consent of the Holders of the Common Securities shall not be required for any such designation of a Special New Series.
(c) Any amendment that would adversely affect the rights, privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such Securities.
(d) Section 9.01(c) and this
Section 12.01 shall not be amended without the consent of all of the Holders of the Securities.
(e) Article 4 shall not
be amended without the consent of the Holders of a Majority in liquidation amount of the Common Securities.
(f) The rights of
the Holders of the Common Securities under Article 5 to increase or decrease the number of, and appoint and remove Trustees shall not
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be amended without the consent of the Holders of a Majority in liquidation amount of the Common Securities.
(g) Subject to Section 12.01(c), this Declaration may be amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity or manifest error;
(ii) correct or supplement any provision in this Declaration that may be defective or inconsistent with any other
provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-7 or written change in interpretation or application of Rule 3a-7 by
any legislative body, court, government agency or regulatory authority;
(v) to modify, eliminate and add to
any provision of the Declaration to such extent as may be reasonably necessary to effectuate any of the foregoing or to otherwise comply with applicable law; and
(vi) modify, eliminate or add to any provisions of this Declaration to the extent necessary or prudent to (x) ensure
that the Trust or Series 1 (as applicable) will be classified, for United States federal income tax purposes, as either a grantor trust or a partnership, and not as an entity taxable as a corporation, or (y) increase the likelihood of the Trust
or Series 1 (as applicable) being classified as a grantor trust for United States federal income tax purposes.
(h) Any
amendment to the Base Declaration must be in accordance with the provisions of this Series 1 and the provisions of each other Series affected by such amendment.
Section 12.02
. Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called at any time by the Administrative Trustees (or as provided in the terms of the Securities) to consider and act on any matter on which
Holders of such class of Securities are entitled to act under the terms of this Declaration, the terms of the Securities or the rules of any stock exchange on which the Trust Preferred Securities are listed or admitted for trading. The
Administrative Trustees shall call a meeting of the Holders of such class if directed to do so by the Holders of Securities representing at least 10% in liquidation amount of such class of
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Securities. Such direction shall be given by delivering to the Administrative Trustees one or more calls in a writing stating that the signing Holders of Securities wish to call a meeting and
indicating the general or specific purpose for which the meeting is to be called. Any Holders of Securities calling a meeting shall specify in writing the Security Certificates held by the Holders of Securities exercising the right to call a meeting
and only those 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 Securities, the following provisions shall apply to meetings of Holders
of Securities:
(i) notice of any such meeting shall be given to all the Holders of Securities 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 of Securities is permitted or required under this Declaration or the rules of any stock exchange on which
the Trust Preferred Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders of Securities. Any action that may be taken at a meeting of the Holders of Securities may be taken without a
meeting if a consent in writing setting forth the action so taken is signed by the Holders of Securities owning not less than the minimum amount of Securities in liquidation amount that would be necessary to authorize or take such action at a
meeting at which all Holders of Securities 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 of Securities entitled to vote who have not consented in
writing. The Administrative Trustees may specify that any written ballot submitted to the Security Holder for the purpose of taking any action without a meeting shall be returned to the Trust acting with respect to this Series 1 within the time
specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities 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 of Securities 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 Trust with respect to this Series 1 were a Delaware corporation and the Holders of the Securities were stockholders of a
Delaware corporation;
SS1-57
(iii) each meeting of the Holders of the Securities shall be conducted by
the Administrative Trustees or by such other Person that the Administrative Trustees may designate; and
(iv)
unless the Statutory Trust Act, this Declaration, the terms of the Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Trust Preferred Securities are then listed or trading, otherwise provides, the
Administrative Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Securities, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders
of Securities, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote.
ARTICLE 13
R
EPRESENTATIONS
OF
I
NSTITUTIONAL
T
RUSTEE
Section 13.01
. Representations and Warranties of Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and warrants to the Trust with respect to this Series 1 and to the Sponsor at the date of this Declaration, and each Successor
Institutional Trustee represents and warrants to the Trust with respect to this Series 1 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 banking corporation or association with trust powers, duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or formation, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the Institutional Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration has been duly executed and delivered by the Institutional Trustee, and it constitutes a 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);
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(c) the execution, delivery and performance of the Declaration by the Institutional Trustee
does not conflict with or constitute a breach of the Articles of Organization or By-laws of the Institutional Trustee; and
(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 Declaration.
Section 13.02
.
[Reserved]
ARTICLE 14
M
ISCELLANEOUS
Section 14.01
. Notices.
Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed
to have been duly given (a) on the date of delivery if delivered personally, or by facsimile, upon confirmation of receipt, or (b) on the second business day following the date of dispatch if delivered by a recognized next day courier
service. All notices shall be delivered, telecopied or sent by a recognized next day courier service, as set forth below, or pursuant to such other instructions as may be designated by the Trust with respect to this Series 1, the Trustees or the
Holders:
(a) if given to the Trust with respect to this Series 1, in care of the Administrative Trustees at the mailing
address set forth below for the Trust acting with respect to Series 1 (or such other address as the Trust may give notice of to the Holders of the Securities and the Institutional Trustee):
GMAC Capital Trust I
c/o Ally Financial Inc.
200 Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Attention: General Counsel
(b) if given to the Institutional Trustee, at the
mailing address set forth below (or such other address as the Institutional Trustee may give notice of to the Holders of the Securities and the Sponsor):
The Bank of New York Mellon
101 Barclay Street-8W
New York, New York 10286
Attention: Corporate Trust Administration
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(c) if given to the Holder of the Common Securities, at the mailing address of the Sponsor
set forth below (or such other address as the Holder of the Common Securities may give notice of to the Trust with respect to this Series 1 and the Institutional Trustee):
Ally Financial Inc.
200 Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Attention: General Counsel
(d) if given to any other Holder, at the address set
forth on the books and records of the Trust with respect to this Series 1.
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 14.02
. Governing Law; Waiver of Trial by Jury.
THIS
DECLARATION SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE AND TO BE PREFORMED ENTIRELY WITHIN SUCH STATE. EACH OF THE PARTIES HERETO AGREES (A) TO SUBMIT TO
THE NON-EXCLUSIVE JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE UNITED STATES COURT OF FEDERAL CLAIMS FOR ANY AND ALL CIVIL ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING OF THIS
DECLARATION OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, AND (B) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THAT NOTICE MAY BE SERVED UPON THE TRUST, THE TRUSTEES AND THE HOLDERS AT THE ADDRESSES AND IN THE MANNER SET FORTH IN
SECTION 14.01 AND, IF APPLICABLE, TO CERTAIN HOLDERS IN ACCORDANCE WITH FEDERAL LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY CIVIL LEGAL ACTION OR PROCEEDING RELATING
TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 14.03
. Intention of the Parties.
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It is the intention of the parties hereto that this Series 1 be classified for United States
federal income tax purposes as a domestic grantor trust. The provisions of this Declaration shall be interpreted to further this intention of the parties.
Section 14.04
. Headings.
Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation of this Declaration or any provision hereof.
Section 14.05
. Successors and Assigns.
Whenever in this 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
Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed.
Section 14.06
. Partial Enforceability.
If any provision of this
Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this 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 14.07
. Counterparts.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Delivery of an executed signature page of this Indenture by facsimile or electronic (including PDF) transmission shall be effective as delivery of a manually executed
counterpart thereof.
SS1-61
IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day
and year first above written.
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By:
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/s/ Sean Leary
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Name:
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Sean Leary
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Title:
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Administrative Trustee
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By:
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/s/ Christopher Halmy
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Name:
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Christopher Halmy
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Title:
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Administrative Trustee
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THE BANK OF NEW YORK MELLON,
as Institutional Trustee
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By:
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/s/ Sherma Thomas
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Name:
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Sherma Thomas
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Title:
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Senior Associate
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Ally Financial Inc., as Sponsor
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By:
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/s/ Cathy L. Quenneville
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Name:
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Cathy L. Quenneville
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Title:
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Secretary
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[Series 1 Supplement to
the Second Amended and Restated Declaration of Trust Signature Page]
SS1-62
ANNEX I
TERMS OF
8.0% TRUST PREFERRED SECURITIES
SERIES 1
8.0% COMMON SECURITIES
SERIES 1
Pursuant to Section 7.01 of the Series 1 Supplement (as
amended from time to time, the “
Series 1 Supplement
”) to the Second Amended and Restated Declaration of Trust, dated as of March 1, 2011 (as amended from time to time, the “
Base Declaration
” and together with the
Series 1 Supplement, the “
Declaration
”), the designation, rights, privileges, restrictions, preferences and other terms and provisions of the Trust Preferred Securities and the Common Securities are set out below (each capitalized
term used but not defined herein has the meaning set forth in the Declaration):
1.
Designation and Number
.
(a)
Trust Preferred Securities
. [
—
] Trust Preferred Securities of the Trust with
respect to this Series 1 with an aggregate liquidation amount with respect to the assets of the Trust with respect to this Series 1 of [
—
] DOLLARS
($[
—
]), and a liquidation amount with respect to the assets of the Trust with respect to this Series 1 of $1,000 per security, are hereby designated for the purposes of identification only as
“8.0% Trust Preferred Securities, Series 1” (the “
Trust Preferred Securities
”). The Trust Preferred Security Certificates evidencing the Trust Preferred Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the Trust Preferred Securities are listed.
(b)
Common Securities
. [
—
]
([
—
]) Common Securities of the Trust with respect to this Series 1 with an aggregate liquidation amount with respect to the assets of the Trust with respect to this Series 1 of [
—
] DOLLARS ($[
—
]), and a liquidation amount with respect to the assets of the Trust with respect to this Series 1 of $1,000 per common security, are hereby
designated for the purposes of identification only as “8.0% Common Securities, Series 1” (the “
Common Securities
”). The Common Security Certificates evidencing the Common Securities shall be substantially in the form of
Exhibit A-2 to the Declaration, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice.
2.
Distributions
.
SS1-I-1
(a) Distributions payable on each Security will be fixed at a rate per annum of 8.0% (the
“
Coupon Rate
”) of the stated liquidation amount per Security, such rate being the rate of interest payable on the Debentures to be held by the Institutional Trustee. Distributions in arrears beyond the first date such Distributions
are payable (or would be payable, if not for any Extension Period (as defined below) or default by the Debenture Issuer on the Debentures) will accumulate at the rate of interest payable on the Debentures, compounded quarterly (to the extent
permitted by applicable law). The term “
Distributions
” as used herein includes such cash distributions and any such interest payable unless otherwise stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds available therefor. 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 a
partial month in such period.
(b) Distributions on the Securities will be cumulative, will accrue from and including
December 30, 2009, and will be payable quarterly in arrears, on February 15, May 15, August 15 and November 15 of each year, commencing on February 15, 2010. When, as and if available for payment,
Distributions will be made by the Institutional Trustee, except as otherwise described below. The Debenture Issuer has the right under the Indenture to defer payments of interest on the Debentures by extending the interest payment period from time
to time on the Debentures for a period not exceeding 20 consecutive quarters (each an “
Extension Period
”), during which Extension Period no interest shall be due and payable on the Debentures,
provided
, that no Extension
Period may extend beyond the date of maturity of the Debentures. As a consequence of the Debenture Issuer’s extension of the interest payment period, quarterly Distributions will also be deferred. Despite such deferral, quarterly Distributions
will continue to accumulate to the extent and in the amount that interest accrues and compounds on the underlying Debentures. In the event that the Debenture Issuer exercises its right to extend the interest payment period, then (a) the
Debenture Issuer and any subsidiary of the Debenture Issuer (other than a subsidiary of the Debenture Issuer that is a depository institution or a subsidiary thereof) 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 the Debenture Issuer’s capital stock or make any guarantee payment with respect thereto (other than (i) redemptions, purchases or other acquisitions of
shares of capital stock of the Debenture Issuer in connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Debenture Issuer or any of its
subsidiaries of record ownership in capital stock of the Debenture Issuer
SS1-I-2
for the beneficial ownership of any other persons (other than the Debenture Issuer or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or
conversion of any class or series of the Debenture Issuer’s capital stock for any other class or series of the Debenture Issuer’s capital stock, in each case, solely to the extent required pursuant to binding contractual agreements entered
into prior to or on December 30, 2009 or any subsequent agreement for the accelerated exercise, settlement or exchange thereof for capital stock of the Debenture Issuer, (iv) distributions by or among any wholly-owned subsidiary of the
Debenture Issuer, (v) redemptions of securities held by the Debenture Issuer or any wholly owned subsidiary of the Debenture Issuer, and (vi) unpaid tax distributions to holders of membership interests of GMAC LLC pursuant to
Section 4(b) of GMAC LLC’s Plan of Conversion, dated June 30, 2009), and (b) the Debenture Issuer and any subsidiary of the Debenture Issuer (other than a subsidiary of the Debenture Issuer that is a depository institution, or a
subsidiary thereof) shall not make any payment of interest on or principal of (or premium, if any, on), or repay, repurchase or redeem, any debt securities or guarantees issued by the Debenture Issuer which rank
pari passu
with or junior to
the Debentures (“
Junior Subordinated Indebtedness
”) (other than (i) redemptions, purchases or other acquisitions of Junior Subordinated Indebtedness in connection with the administration of any employee benefit plan in the
ordinary course of business and consistent with past practice, (ii) the acquisition by the Debenture Issuer or any of its subsidiaries of record ownership in Junior Subordinated Indebtedness for the beneficial ownership of any other persons
(other than the Debenture Issuer or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or conversion of any class or series of Junior Subordinated Indebtedness for any other class or series of Junior
Subordinated Indebtedness, (iv) redemptions of securities held by the Debenture Issuer or any wholly-owned subsidiary of the Debenture Issuer and (v) any payment of interest on Junior Subordinated Indebtedness paid
pro rata
with
interest paid on the Debentures such that the respective amounts of such payments made shall bear the same ratio to each other as all accrued but unpaid interest per like-amount of Debentures and all Junior Subordinated Indebtedness bear to each
other). The restrictions in the foregoing clauses (a) and (b) will not apply to (i) any stock dividends paid by the Debenture Issuer where the dividend stock is the same stock as that on which the dividend is being paid or
(ii) dividends or distributions by or other transactions solely among the Debenture Issuer and any wholly-owned subsidiary of the Debenture Issuer or solely among wholly-owned subsidiaries of the Debenture Issuer. For the avoidance of doubt,
the Trust with respect to this Series 1 shall have the right to make partial Distributions during an Extension Period if a corresponding payment of interest is made on the Debentures. Prior to the termination of any such Extension Period, the
Debenture Issuer may further extend such Extension Period;
provided
, that such Extension Period, together with all such other extensions thereof, may not exceed 20 consecutive quarters;
provided further
, that no Extension Period may
extend beyond the maturity of the Debentures. Payments of
SS1-I-3
deferred Distributions and accrued interest thereon will be payable to Holders as they appear on the books and records of the Trust with respect to this Series 1 on the record date immediately
preceding the end of the Extension Period. At the termination of any Extension Period and upon the payment of all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements. The Administrative
Trustees will give notice to each Holder of any Extension Period upon their receipt of notice thereof from the Debenture Issuer.
(c) Distributions on the Securities will be payable to the Holders thereof as they appear on the books and records of the Trust with respect to this Series 1 at the close of business on the relevant
record dates. While the Trust Preferred Securities are in definitive, fully-registered form, subject to the rules of any securities exchange on which the Trust Preferred Securities are listed, the relevant record dates shall be 15 days prior to the
relevant payment dates or such other record date fixed by the Administrative Trustee that is not more than 60 nor less than 10 days prior to such relevant payment dates (each a “
Distribution Record Date
”), which payment dates shall
correspond to the interest payment dates on the Debentures. If the Trust Preferred Securities shall be in book-entry only form, the relevant record dates shall be one Business Day prior to the relevant payment dates, which payment dates shall
correspond to the interest payment dates on the Debentures. Subject to any applicable laws and regulations and the provisions of the Declaration, each such payment in respect of the Trust Preferred Securities will be made in accordance with the
procedures of The Depository Trust Company (“
DTC
”). The relevant record dates for the Common Securities shall be the same record date as for the Trust Preferred Securities. Distributions payable on any Securities that are not
punctually paid on any Distribution payment date, as a result of the Debenture Issuer having failed to make a payment under the Debentures, will cease to be payable to the Person in whose name such Securities are registered on the relevant record
date, and such defaulted Distribution will instead be payable to the Person in whose name such Securities are registered on the special record date or other specified date determined in accordance with the Indenture. If any date on which
Distributions are payable on the 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. Any day that is a
Distribution Record Date shall be a Distribution Record Date whether or not such day is a Business Day.
(d) In the event that
there is any money or other property, held by or for the Trust with respect to this Series 1 that is not accounted for hereunder, such
SS1-I-4
property shall be distributed Pro Rata (as defined herein) among the Holders of the Securities.
3.
Liquidation Distribution upon Dissolution
.
(a) In the event of any
voluntary or involuntary dissolution, of the Trust or this Series 1, the Holders of the Securities will be entitled to receive out of the assets of the Trust with respect to this Series 1 available for distribution to Holders of Securities after
satisfaction of claims and obligations of the Trust with respect to this Series 1 pursuant to applicable law, distributions in an amount equal to the aggregate of the stated liquidation amount per Security plus accrued and unpaid Distributions
thereon to the date of payment (such amount being the “
Liquidation Distribution
”), unless, in connection with the winding-up, Debentures in an aggregate principal amount equal to the aggregate stated liquidation amount, with an
interest rate equal to the Coupon Rate, and bearing accrued and unpaid interest in an amount equal to the accumulated and unpaid Distributions on, such Securities outstanding at such time, have been distributed on a Pro Rata basis to the Holders of
the Securities in exchange for such Securities. Prior to any such Liquidation Distribution, the Debenture Issuer will obtain any required regulatory approval.
(b) If, upon any such dissolution, the Liquidation Distribution can be paid only in part because the Trust with respect to this Series 1 has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust with respect to this Series 1 on the Securities shall be paid on a Pro Rata basis.
4.
Redemption and Distribution
.
(a) Upon the repayment of the Debentures
in whole or in part, whether at maturity or upon redemption (either at the option of the Debenture Issuer or pursuant to a Special Event as described below or while Trust Preferred Securities are held by the U.S. Government in connection with
assistance provided to the Debenture Issuer under the Troubled Asset Relief Program or any similar or related U.S. Government program, subject to consultation with the Board of Governors of the Federal Reserve System (the “
Federal
Reserve
”)), the proceeds from such repayment or payment shall be simultaneously applied to redeem Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Debentures so repaid or redeemed at a
redemption price equal to the liquidation amount per Security plus an amount equal to accrued and unpaid Distributions thereon at the date of the redemption, payable in cash (the “
Redemption Price
”). Holders shall be given not less
than 30 nor more than 60 days’ notice of such redemption. Prior to any such redemption, the Debenture Issuer will obtain any required regulatory approval.
SS1-I-5
(b) If fewer than all the outstanding Securities are to be so redeemed, the Securities will
be redeemed Pro Rata and the Trust Preferred Securities to be redeemed will be as described in Section 4(e)(ii) below.
(c) Subject to obtaining any required regulatory approval, if, at any time, a Tax Event, an Investment Company Event or a Regulatory
Capital Event (each as defined below, and each a “
Special Event
”) shall occur and be continuing, the Debenture Issuer shall have the right, upon not less than 30 nor more than 60 days’ notice, to redeem the Debentures, in whole
or in part, for cash within 90 days following the occurrence of such Special Event, and, following such redemption, Securities with an aggregate liquidation amount equal to the aggregate principal amount of the Debentures so redeemed shall be
redeemed by the Trust with respect to this Series 1 at the Redemption Price on a Pro Rata basis;
provided
,
however
, that if at the time there is available to the Debenture Issuer or the Trust with respect to this Series 1 the
opportunity to eliminate, within such 90-day period, the Special Event by taking some ministerial action, such as filing a form or making an election or pursuing some other similar reasonable measure that will have no adverse effect on the Trust
with respect to this Series 1 (a “
Ministerial Action
”), the Debenture Issuer or the holders of the Trust Preferred Securities or the Debentures, then the Debenture Issuer or the Trust acting with respect to this Series 1 will pursue
such measure in lieu of redemption.
“
Tax Event
” means that the Administrative Trustees shall have received
an opinion of a nationally recognized independent tax counsel experienced in such matters (a “
Tax Event Opinion
”) 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 amendment to, or change in, an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation or the publication of any judicial decision or regulatory determination or administrative pronouncement on or after December 30,
2009), in either case after December 30, 2009, there is more than an insubstantial risk that (i) Series 1 of the Trust would be subject to United States federal income tax with respect to interest accrued or received on the Debentures,
(ii) Series 1 of the Trust would be subject to more than a
de minimis
amount of other taxes, duties or other governmental charges, or (iii) interest payable to Series 1 of the Trust on the Debentures would not be deductible, in
whole or in part, by the Debenture Issuer for United States federal income tax purposes.
“
Investment Company
Event
” means that the Administrative Trustees shall have received an opinion of a nationally recognized independent counsel experienced in practice under the Investment Company Act to the effect that, as a result of the occurrence of a
change in law or regulation or a written change in interpretation or application of law or regulation by any legislative body, court,
SS1-I-6
governmental agency or regulatory authority (a “
Change in 1940 Act Law
”), there is a more than an insubstantial risk that the Trust or this Series 1 is or will be considered an
Investment Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after December 30, 2009.
“
Regulatory Capital Event
” means a determination by the Debenture Issuer, based on an opinion of counsel experienced in such matters (who may be an employee of the Debenture Issuer or any
of its affiliates), that, as a result of (a) any amendment to, clarification of or change (including any announced prospective change) in applicable laws or regulations or official interpretations thereof or policies with respect thereto or
(b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment, clarification, change, pronouncement or decision is announced or is effective after December 30, 2009,
there is more than an insubstantial risk that the Trust Preferred Securities will no longer constitute Tier 1 Capital of the Debenture Issuer or any bank holding company of which the Debenture Issuer is a subsidiary (or its equivalent) for purposes
of the capital adequacy guidelines or policies of the Federal Reserve or its successor as the Debenture Issuer’s primary federal banking regulator,
provided
,
however
, that the distribution of the Debentures in connection with the
liquidation of the Trust or this Series 1 of the Trust shall not in and of itself constitute a Regulatory Capital Event unless such liquidation shall have occurred in connection with a Tax Event or an Investment Company Event.
On and from the date fixed by the Administrative Trustees for any distribution of the Debentures and dissolution of the Trust with
respect to this Series 1: (i) the Securities will no longer be deemed to be outstanding, (ii) if any Global Securities have been issued, DTC or its nominee (or any successor Clearing Agency or its nominee), as the record Holder of the
Trust Preferred Securities, will receive a registered global certificate or certificates representing the Debentures to be delivered upon such distribution and (iii) any certificates representing Securities, except for certificates representing
Trust Preferred Securities held by DTC or its nominee (or any successor Clearing Agency or its nominee), will be deemed to represent beneficial interests in the Debentures having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid Distributions on such Securities until such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
(d) The Trust acting with respect to this Series 1 may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions have been paid on all Securities for all quarterly Distribution periods terminating on or before the date of redemption.
SS1-I-7
(e) Redemption or Distribution procedures will be as follows:
(i) Notice of any redemption of, or notice of distribution of Debentures in exchange for the Securities (a
“
Redemption/Distribution Notice
”) will be given by the Trust with respect to this Series 1 by mail to the Institutional Trustee and the Delaware Trustee and to each Holder of the 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 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(e)(i), a Redemption/Distribution Notice shall be deemed to be given on the day such notice is first mailed by first-class mail, postage prepaid, to the Holders of the Securities.
Each Redemption/Distribution Notice shall be addressed to the Holders of the Securities at the address of each such Holder appearing in the books and records of the Trust with respect to this Series 1. No defect in the 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 Securities are to be redeemed, the Securities to be redeemed shall
be redeemed Pro Rata from each Holder of Trust Preferred Securities, it being understood that, in respect of Trust Preferred Securities registered in the name of and held of record by DTC or its nominee (or any successor Clearing Agency or its
nominee), the distribution of the proceeds of such redemption will be made to each Clearing Agency Participant (or Person on whose behalf such nominee holds such securities) in accordance with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust acting with respect to this Series 1 gives a
Redemption/Distribution Notice, which notice may only be issued if the Debentures are redeemed as set out in this Section 4 (which notice will be irrevocable), then (A) while the Trust Preferred Securities are in book-entry only form, with
respect to the Trust Preferred Securities, by 12:00 noon, New York City time, on the redemption date,
provided
that the Debenture Issuer has paid to the Institutional Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will deposit irrevocably with DTC or its nominee (or successor Clearing Agency or its nominee) funds sufficient to pay the applicable Redemption Price with respect to the Trust
Preferred Securities and will give DTC (or any successor Clearing Agency) irrevocable instructions and authority to pay the Redemption Price to the Holders of the Trust Preferred Securities,
SS1-I-8
and (B) with respect to Trust Preferred Securities issued in definitive form and Common Securities,
provided
,
that
the Debenture Issuer has paid the Institutional Trustee a
sufficient amount of cash in connection with the related redemption or maturity of the Debentures, the Institutional Trustee will pay the relevant Redemption Price to the Holders of such Securities by check mailed to the address of the relevant
Holder appearing on the books and records of the Trust with respect to this Series 1 on the redemption date. If a 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 Securities so called for redemption and all rights of the Holders of such Securities so called for redemption will
cease, except the right of the Holders of such Securities to receive the Redemption Price, but without interest on such Redemption Price. Neither the Administrative Trustees nor the Trust with respect to this Series 1 shall be required to register
or cause to be registered the transfer of any Securities that have been so called for redemption. If any date fixed for redemption of 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 payment of the Redemption Price in respect of any Securities is improperly withheld or refused and not paid either by the Institutional Trustee or by
the Sponsor as guarantor pursuant to the relevant Securities Guarantee, Distributions on such 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 Redemption Price.
(iv)
Redemption/Distribution Notices shall be sent by the Administrative Trustees on behalf of the Trust with respect to this Series 1 to (A) in respect of the Trust Preferred Securities, DTC or its nominee (or any successor Clearing Agency or its
nominee) if the Global Certificates have been issued or, if Definitive Trust Preferred Security Certificates have been issued, to the Holder thereof and (B) in respect of the Common Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws),
the Debenture Issuer or its affiliates may at any time and from time to time purchase
SS1-I-9
outstanding Trust Preferred Securities by tender, in the open market or by private agreement.
5.
Voting Rights — Trust Preferred Securities
.
(a) Except as
provided under Sections 5(b), 5(c) and 7 and as otherwise required by law and the Declaration, the Holders of the Trust Preferred Securities will have no voting rights.
(b) So long as any Trust Preferred Securities are outstanding, the vote or consent of the Holders of a Majority in aggregate liquidation amount of the Trust Preferred Securities, voting separately as a
class, shall be necessary for effecting or validating:
(i) Any authorization or issuance of equity securities
of Series 1 ranking senior to the Trust Preferred Securities with respect to either or both the payment of distributions and/or the distribution of assets on any liquidation, dissolution or winding up of Series 1 of the Trust;
(ii) Any amendment, alteration or repeal of any provision of the Indenture, Base Declaration or Declaration (including,
unless no vote on such merger or consolidation is required by Section 5(b)(iii) below, any amendment, alteration or repeal by means of a merger, consolidation or otherwise) so as to adversely affect the rights, preferences, privileges or voting
powers of the Trust Preferred Securities; or
(iii) Any consummation of a binding exchange or reclassification
involving the Trust Preferred Securities, unless in each case (x) the Trust Preferred Securities remain outstanding or, in the case of any such merger or consolidation with respect to which the Debenture Issuer is not the surviving or resulting
entity, are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (y) such units remaining outstanding or such preference securities, as the case may be, have such rights,
preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and limitations and
restrictions thereof, of Trust Preferred Securities immediately prior to such consummation, taken as a whole;
(c) Subject to
the requirements set forth in this paragraph, the Holders of a Majority in aggregate liquidation amount of the Trust Preferred 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 direct the exercise of any trust or power conferred upon the Institutional Trustee under the
SS1-I-10
Declaration, including the right to direct the Institutional Trustee, as holder of the Debentures, to (i) direct the time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred on the Debenture Trustee with respect to the Debentures, (ii) waive any past Default (as defined in the Indenture) that is waivable under Section 5.06 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Debentures shall be due and payable or (iv) consent to any amendment, modification or termination of the Indenture or the Debentures where
such consent shall be required; provided that, where a consent or action under the Indenture would require the consent or act of the Holders of greater than a majority in principal amount of Debentures affected thereby (a “
Super
Majority
”), 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 Trust Preferred Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures outstanding;
provided
,
further
, that the Institutional Trustee shall have the right to refrain from following any such direction that violates the Declaration or
conflicts with any applicable rule of law or would involve it in personal liability against which indemnity would, in the opinion of the Institutional Trustee, not be adequate, and the Institutional Trustee may take any other action deemed proper by
it that is not inconsistent with such direction. The Institutional Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Trust Preferred Securities. Except with respect to directing the time, method
and place of conducting a proceeding for a remedy available to the Institutional Trustee, the Institutional Trustee, as holder of the Debentures, shall not take any of the actions described in clauses (i), (ii), (iii) or (iv) above unless
the Institutional Trustee has obtained an opinion of a nationally recognized independent tax counsel experienced in such matters to the effect that such action will not (x) cause the Trust or Series 1 (as applicable) to be classified
(a) as other than either a grantor trust or a partnership or (b) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or (y) materially reduce the likelihood of the Trust or Series 1
(as applicable) being classified as a grantor trust for United States federal income tax purposes. To the fullest extent permitted by law, if the Institutional Trustee fails to enforce its rights under the Debentures, any Holder of Trust Preferred
Securities may directly institute a legal proceeding against the Debenture Issuer to enforce the Institutional Trustee’s rights under the Debentures without first instituting a legal proceeding against the Institutional Trustee or any other
Person or entity. If a Default under the Declaration has occurred and is continuing and such event is attributable to the failure of the Debenture Issuer to pay interest or principal (or premium, if any) on the Debentures on the date such interest
or principal (or premium, if any) is otherwise payable (or in the case of redemption, on the redemption date), then a holder of Trust Preferred Securities may also directly institute a proceeding for enforcement of payment to such holder (a
“
Direct
SS1-I-11
Action
”) of the principal of or interest (or premium, if any) on the Debentures having a principal amount equal to the aggregate liquidation amount of the Trust Preferred Securities
of such holder on or after the respective due date specified or provided for in the Debentures without first (i) directing the Institutional Trustee to enforce the terms of the Debentures or (ii) instituting a legal proceeding directly
against the Debenture Issuer to enforce the Institutional Trustee’s rights under the Debentures. Notwithstanding anything to the contrary in this Declaration, for so long as the U.S. Government is a holder of 100% of the Trust Preferred
Securities of this Series 1, the U.S. Government shall have (i) the right to exercise its rights under Section 5.06 of the Indenture and Section 5.04 of the Guarantee Agreement and, if the U.S. Government shall exercise any such
rights, the Institutional Trustee shall not take any contradictory action and (ii) the exclusive power, duty and authority (in lieu of the Administrative Trustees) to exercise the rights set forth in Section 3.07(g) of the Declaration.
Except as provided in the preceding two sentences or as provided for in the Indenture or the terms of the Debentures, the Holders of Trust Preferred Securities will not be able to exercise directly any other remedy available to the holders of the
Debentures. In connection with such Direct Action, the Debenture Issuer will be subrogated to the rights of such Holder of Trust Preferred Securities under the Declaration to the extent of any payment made by the Debenture Issuer to such holder of
Trust Preferred Securities in such Direct Action.
Any required approval or direction of Holders of Trust Preferred Securities
may be given at a separate meeting of Holders of Trust Preferred Securities convened for such purpose, at a meeting of all of the Holders of Securities in the Trust or pursuant to written consent. The Administrative Trustees will cause a notice of
any meeting at which Holders of Trust 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 Trust 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 Trust Preferred Securities will be required for the Trust with respect to this Series 1 to redeem and cancel Trust Preferred Securities or to distribute the
Debentures in accordance with the Declaration and the terms of the Securities.
Notwithstanding that Holders of Trust
Preferred Securities are entitled to vote or consent under any of the circumstances described above, any of the Trust 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;
provided, however,
that the
SS1-I-12
foregoing shall apply to the U.S. Government only to the extent required by Section 316(a) of the Trust Indenture Act.
Voting and consensual rights available to or in favor of Holders or Trust Preferred Security Beneficial Owners under this Trust Agreement
may, to the extent permitted by applicable rule or law, be exercised only by a United States Person that is a beneficial owner of a Trust Preferred Security or by a United States Person acting as irrevocable agent with discretionary powers for the
beneficial owner of a Trust Preferred Security that is not a United States Person. Beneficial owners of Trust Preferred Securities that are not United States Persons must, to the extent permitted by applicable rule or law, irrevocably appoint a
United States Person with discretionary powers to act as their agent with respect to such voting and consensual rights.
6.
Voting Rights — Common Securities
.
(a) Except as provided under Sections 6(b), 6(c) and 7 and as otherwise
required by law and the Declaration, the Holders of the Common Securities will have no voting rights.
(b) The Holders of the
Common Securities are entitled, in accordance with and subject to Article 5 of the Declaration, to vote to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.06 of the Declaration and only after the Default with respect to the Trust 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 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 direct the exercise of any trust or power conferred upon the Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the Debenture Trustee, or exercising any trust or power conferred on the Debenture Trustee with respect to the Debentures, (ii) waiving any past Default (as defined in the
Indenture) that is waivable under Section 5.06 of the Indenture, or (iii) exercising any right to rescind or annul a declaration that the principal of all the Debentures shall be due and payable,
provided that
, where a consent or
action under the Indenture would require the consent or act of the Holders of a Super Majority of the 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 Common Securities which the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding;
provided
,
further
, that the Institutional Trustee shall
have the right to refrain from following any such direction that violates the Declaration
SS1-I-13
or conflicts with any applicable rule of law or would involve it in personal liability against which indemnity would, in the opinion of the Institutional Trustee, not be adequate, and the
Institutional Trustee may take any other action deemed proper by it that is not inconsistent with such direction. 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 Trust Preferred Securities. Other than with respect to directing the time, method and place of conducting any proceeding for any remedy available to the Institutional Trustee or the Debenture Trustee as set forth above, the
Institutional Trustee shall not take any action in accordance with the directions of the Holders of the Common Securities under this paragraph unless the Institutional Trustee has obtained an opinion of nationally recognized tax counsel experienced
in such matters to the effect that such action will not (i) cause the Trust or Series 1 (as applicable) to be classified (x) as other than either a grantor trust or a partnership or (y) as an entity taxable as a corporation, in either
case, for United States federal income tax purposes, or (ii) materially reduce the likelihood of the Trust or Series 1 (as applicable) being classified as a grantor trust for United States federal income tax purposes. If the Institutional
Trustee fails to enforce its rights under the Declaration, any Holder of Common Securities may institute a legal proceeding directly against any Person to enforce the Institutional Trustee’s rights under the Declaration, without first
instituting a legal proceeding against the Institutional Trustee or any other Person.
(d) Any approval or direction of
Holders of Common Securities may be given at a separate meeting of Holders of Common Securities convened for such purpose, at a meeting of all of the Holders of Securities in the Trust with respect to this Series 1 or pursuant to written consent.
The Administrative Trustees will cause a notice of any meeting at which Holders of 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
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.
(e) No vote or consent of the Holders of the Common Securities will be required for the Trust acting with respect to this Series 1 to redeem and cancel Common Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the Securities.
7.
Amendments to Declaration and Indenture
.
(a) In addition to any requirements under Section 12.01 of the Declaration, if any proposed amendment to the Declaration
provides for, or the Administrative Trustees otherwise propose to effect, (i) any action that would
SS1-I-14
adversely affect the powers, preferences or rights of the Securities, whether by way of amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up or termination of the
Trust with respect to this Series 1, other than as described in Section 8.01 of the Declaration, then the Holders of outstanding Securities as a 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 Securities, voting together as a single class;
provided
,
however
, if any
amendment or proposal referred to in clause (i) above would adversely affect only the Trust Preferred Securities or only the 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 Securities.
(b) In the event the consent of the Institutional Trustee as the holder of the Debentures is required under the Indenture with respect to any amendment, modification or termination of the Indenture or the
Debentures, the Institutional Trustee shall request the written direction of the Holders of the 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 Securities voting or consenting 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 Securities which the relevant Super Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided
,
further
, that the Institutional Trustee shall not take any action in accordance with the directions of the Holders of the Securities under this Section 7(b) unless the Institutional Trustee has obtained an
opinion of nationally recognized tax counsel experienced in such matters to the effect that such action will not (i) cause the Trust or Series 1 (as applicable) to be classified (x) as other than either a grantor trust or a partnership or
(y) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or (ii) materially reduce the likelihood of the Trust or Series 1 (as applicable) being classified as a grantor trust for United
States federal income tax purposes.
8.
Pro Rata
.
A reference in these terms of the Securities to any payment, distribution or treatment as being “
Pro Rata
” shall mean
pro rata to each Holder of Securities according to the aggregate liquidation amount of the Securities held by the relevant Holder in relation to the aggregate liquidation amount of all Securities outstanding unless, in relation to a payment, a
Default under the 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 Trust Preferred Securities pro
SS1-I-15
rata according to the aggregate liquidation amount of Trust Preferred Securities held by the relevant Holder relative to the aggregate liquidation amount of all Trust Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of the Trust Preferred Securities, to each Holder of Common Securities pro rata according to the aggregate liquidation amount of Common Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Common Securities outstanding.
9.
Ranking
.
The Trust Preferred Securities rank
pari passu
and payment thereon shall be made Pro Rata with the Common Securities except that,
where a Default (as defined in the Indenture) occurs and is continuing under the Indenture in respect of the Debentures held by the Institutional Trustee, the rights of Holders of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of the Trust Preferred Securities.
10.
Listing
.
The Trust Preferred Securities will not initially be listed
on any exchange. In the event that the Holder of the Common Securities determines to list the Trust Preferred Securities on an exchange, the Administrative Trustees shall use their best efforts to cause the Trust Preferred Securities to be so
listed.
11.
Acceptance of Securities Guarantee and Indenture
.
Each Holder of Trust Preferred Securities and Common Securities, by the acceptance thereof, agrees to the provisions of the Guarantee
Agreement, including the subordination provisions therein and to the provisions of the Indenture.
12.
No Preemptive
Rights
.
The Holders of the Securities shall have no preemptive rights to subscribe for any additional securities.
13.
Miscellaneous
.
These terms constitute a part of the Declaration.
The Sponsor will provide a
copy of the Declaration or the Guarantee Agreement, and the Indenture to a Holder without charge on written request to the Sponsor at its principal place of business.
SS1-I-16
EXHIBIT A-1
FORM OF TRUST PREFERRED SECURITY CERTIFICATE
SERIES 1
THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THE SECURITIES REPRESENTED BY THIS INSTRUMENT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING
THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS (X) A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (Y) AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE DEBENTURE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
SS1-A1-1
THE DEBENTURES WERE ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF
SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. ALLY FINANCIAL INC. (THE “COMPANY”) WILL, BEGINNING NO LATER THAN TEN (10) DAYS AFTER THE ISSUE DATE, PROMPTLY PROVIDE TO HOLDERS OF SECURITIES, UPON
WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE, AND THE YIELD TO MATURITY WITH RESPECT TO THE DEBENTURES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT ALLY FINANCIAL INC., 200 RENAISSANCE CENTER, P.O. BOX 200,
DETROIT, MICHIGAN 48265-2000, ATTENTION: CHIEF FINANCIAL OFFICER.
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (I) NO PORTION OF THE ASSETS USED BY IT TO ACQUIRE AND HOLD THE SECURITY CONSTITUTES ASSETS OF ANY “EMPLOYEE BENEFIT PLAN”
SUBJECT TO SECTION 406 OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), ANY PLAN, ACCOUNT OR OTHER ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”), OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR ANY ENTITY WHOSE UNDERLYING ASSETS ARE
CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER PLAN, ACCOUNT OR ARRANGEMENT OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAW.
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Certificate Number
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Number of Trust Preferred Securities
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CUSIP
NO.
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Aggregate liquidation amount:
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$
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SS1-A1-2
Certificate Evidencing Trust Preferred Securities
of
GMAC Capital
Trust I
8.0% Trust Preferred Securities
Series 1
(Liquidation Amount $1,000 per Trust Preferred Security)
GMAC Capital Trust I, a statutory trust formed under the laws of the State of Delaware (the “
Trust
”), hereby certifies
that
(the “
Holder
”) is the registered owner of
(
) preferred securities of
the Trust representing undivided beneficial interests in the assets of the Trust with respect to Series 1 designated the 8.0% Trust Preferred Securities, Series 1 (the “
Trust Preferred Securities
”). The Trust Preferred Securities
are transferable on the books and records of the Trust with respect to Series 1, 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 Trust Preferred Securities are set forth in, and this certificate and the Trust Preferred Securities represented hereby are issued and shall in all respects be subject to, the
provisions of the Second Amended and Restated Declaration of Trust of the Trust dated as of March 1, 2011, as the same may be amended from time to time, together with the Series 1 Supplement thereto (the “
Declaration
”), including
the designation of the terms of the Trust Preferred Securities as set forth in Annex I thereto. Capitalized terms used herein but not defined shall have the meaning given them in the Declaration. The Holder is entitled to the benefits of the
Guarantee Agreement to the extent provided therein. The Sponsor will provide a copy of the Declaration, the Guarantee Agreement and the Indenture to a Holder without charge upon written request to the Sponsor at its principal place of business.
The Holder of this certificate, by accepting this certificate, is deemed to have (i) agreed to the terms of the
Indenture and the Debentures, including that the Debentures are subordinate and junior in right of payment to all Senior Indebtedness (as defined in the Indenture) and (ii) agreed to the terms of the Guarantee Agreement, including that the
Guarantee Agreement is (A) subordinate and junior in right of payment to all other liabilities of Ally, (B)
pari passu
with the most senior preferred or preference stock now or hereafter issued by Ally and with any guarantee now or
hereafter issued by Ally with respect to preferred or preference stock of Ally’s affiliates and (C) senior to Ally’s common stock.
SS1-A1-3
Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to
the benefits thereunder.
By acceptance, the Holder, and by acquiring an interest herein, each beneficial owner of a Trust
Preferred Security, agrees, unless otherwise required by law, to treat, for United States federal income tax purposes, (i) each series of the Trust as a separate entity, (ii) Series 1 as a grantor trust, (iii) itself as owning an
undivided beneficial interest in the Series 1 Debentures, (iv) the Series 1 Debentures as indebtedness of the Debenture Issuer, and (v) the stated interest on the Series 1 Debentures as ordinary interest income that is includible in such
beneficial owner’s gross income at the time the interest is paid or accrued in accordance with such beneficial owner’s regular method of tax accounting.
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of
,
.
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GMAC Capital Trust I
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By:
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Name:
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Title:
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Administrative Trustee
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SS1-A1-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred Security Certificate to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to
transfer this Trust Preferred Security Certificate on the books of the Trust for Series 1. The agent may substitute another to act for him or her.
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Date:
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Signature:
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(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
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SS1-A1-5
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
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Certificate Number
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Number of Common Securities
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Certificate Evidencing Common Securities
of
GMAC Capital Trust I
8.0% Common Securities
Series 1
(Liquidation Amount $1,000 per Common Security)
GMAC Capital Trust I, a statutory trust formed under the laws of the State of Delaware (the “
Trust
”), hereby certifies
that Ally Financial Inc., a Delaware corporation (the “
Holder
”), is the registered owner of
(
) common securities of the Trust with respect to Series 1 representing undivided beneficial interests in the assets of the Trust held with respect to
Series 1, designated the 8.0% Common Securities, Series 1 (the “
Common Securities
”). The Common Securities are transferable on the books and records of the Trust with respect to Series 1, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for transfer and satisfaction of the other conditions set forth in the Declaration (as defined below), including, without limitation, Section 9.01 thereof. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities represented hereby are issued and shall in all respects be subject to the provisions of the Second Amended and Restated Declaration of Trust of the
Trust dated as of March 1, 2011, as the same may be amended from time to time, together with the Series 1 Supplement thereto (the “
Declaration
”), including the designation of the terms of the Common Securities as set forth in Annex
I thereto. Capitalized terms used herein but not defined shall have the meaning given them in the Declaration. The Sponsor will provide a copy of the Declaration 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 Holder is bound by the Declaration and is entitled to the
benefits thereunder.
The Holder of this certificate, by accepting this certificate, is deemed to have agreed to the terms of
the Indenture and the Debentures, including that the Debentures are subordinate and junior in right of payment to all Senior
SS1-A2-1
Indebtedness (as defined in the Indenture) as and to the extent provided in the Indenture.
By acceptance, the Holder, and by acquiring an interest herein, each beneficial owner of a Common Security, agrees, unless otherwise required by law, to treat, for United States federal income tax
purposes, (i) each series of the Trust as a separate entity, (ii) Series 1 as a grantor trust, (iii) itself as owning an undivided beneficial interest in the Series 1 Debentures, (iv) the Series 1 Debentures as indebtedness of
the Debenture Issuer, and (v) the stated interest on the Series 1 Debentures as ordinary interest income that is includible in such beneficial owner’s gross income at the time the interest is paid or accrued in accordance with such
beneficial owner’s regular method of tax accounting.
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of
,
.
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GMAC Capital Trust I
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By:
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Name:
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Title:
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Administrative Trustee
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SS1-A2-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred Security Certificate to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee)
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and irrevocably appoints
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agent to transfer this Trust Preferred Security Certificate on the books of the Trust for Series
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1. The agent may substitute another to act for him or her.
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(Sign exactly as your name appears on the other side of this Trust Preferred
Security
Certificate)
SS1-A2-3
EXHIBIT B
SPECIMEN OF DEBENTURE
SS1-B-1
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “
SECURITIES ACT
”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS (X) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (Y) AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT OFFER, SELL
OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (I) NO PORTION OF THE ASSETS USED BY
IT TO ACQUIRE AND HOLD THE SECURITY CONSTITUTES ASSETS OF ANY “EMPLOYEE BENEFIT PLAN” SUBJECT TO SECTION 406 OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“
ERISA
”), ANY PLAN, ACCOUNT OR OTHER
SS1-B-2
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “
CODE
”), OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR
REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “
SIMILAR LAWS
”), OR ANY ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
PLAN, ACCOUNT OR ARRANGEMENT OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAW.
THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“
OID
”), FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275
OF THE CODE. ALLY FINANCIAL INC. (THE “
COMPANY
”) WILL, BEGINNING NO LATER THAN TEN (10) DAYS AFTER THE ISSUE DATE, PROMPTLY PROVIDE TO HOLDERS OF SECURITIES, UPON WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE
DATE AND THE YIELD TO MATURITY WITH RESPECT TO THE SECURITIES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT ALLY FINANCIAL INC., 200 RENAISSANCE CENTER, P.O. BOX 200, DETROIT, MICHIGAN 48265-2000, ATTENTION: CHIEF FINANCIAL OFFICER.
No.
$
ALLY FINANCIAL INC.
8.0% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE February 15, 2040
SERIES 1
ALLY FINANCIAL INC., a Delaware corporation (the
“
Company
”, which term includes any successor corporation under the indenture dated as of December 30, 2009 as amended and restated on March 1, 2011, between the Company and The Bank of New York Mellon, as trustee), for value
received, hereby promises to pay to The Bank of New York Mellon, as Institutional Trustee of GMAC Capital Trust I (the “
Trust
”) with respect to Series 1 thereof (“
Series 1 of the Trust
”), pursuant to that certain
Second Amended and Restated Declaration of Trust and Series 1 Supplement thereto, each dated as of March 1, 2011, or registered
SS1-B-3
assigns, the principal sum of [ ] ($[ ]) on
February 15, 2040, and to pay interest on said principal sum from December 30, 2009, 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, quarterly (subject to deferral as set forth herein) in arrears on February 15, May 15, August 15 and November 15 of each year commencing February 15, 2010, at a rate of 8.0% 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 an amount of interest is payable for
any period shorter than a full quarterly period, interest will be computed on the basis of the actual number of days elapsed in a partial month in such period. In the event that any date on which interest is payable on this Security 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 Security (or one or more Predecessor Securities, as defined in said Indenture) is registered at the close of business on the regular record date
for such interest installment, which shall be (a) while this Security is held by the Institutional Trustee of Series 1 of the Trust or is represented by a Global Security, the close of business on the Business Day next preceding such Interest
Payment Date, or (b) if pursuant to the provisions of the Indenture this Security is not in book-entry form, 15 days prior to such Interest Payment Date or such other record date fixed by the Administrative Trustee that is not more than 60 nor
less than 10 days prior to such Interest Payment Date. 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 Security (or one or more Predecessor Securities) is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered
Holders of this series of Securities 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 Securities of this
series 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 Security shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States of America that at the time of
SS1-B-4
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 Company 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 Security is the Institutional Trustee of a series of a GMAC Trust, the payment of the principal of (and premium,
if any) and interest on this Security will be made at such place and to such account as may be designated by such Institutional Trustee.
This Security is not a deposit or savings account. This Security is not insured by the Federal Deposit Insurance Corporation or any other governmental agency or instrumentality.
The indebtedness evidenced by this Security 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 of the Company, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by, such provisions, (b) authorizes and directs the 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 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 of the Company, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
This Security 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 Trustee.
The provisions of this Security 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.
SS1-B-5
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated:
, 2011
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ALLY FINANCIAL INC.
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By:
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Name:
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[ ]
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Title:
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[ ]
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Attest:
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By:
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Name: [ ]
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Title: Administrative Trustee
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities described in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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Authorized Signatory
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SS1-B-6
(REVERSE OF SECURITY)
ALLY FINANCIAL INC.
8.0% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE FEBRUARY 15, 2040 SERIES 1
This Security is one of a duly authorized issue of securities of the Company (herein sometimes referred to as the “
Securities
”), specified in the Indenture, all issued or to be issued in
one or more series under and pursuant to an indenture dated as of December 30, 2009 as amended and restated on March 1, 2011 (the “
Indenture
”), duly executed and delivered between the Company and The Bank of New York Mellon, as
trustee (the “
Trustee
”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. By the terms of the Indenture, the Securities 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 Securities is limited in aggregate principal amount to $[ ].
The Company shall have the right to redeem this Security, in whole or in part, (i) while 8.0% Trust Preferred Securities of Series 1 of the Trust (the “
Trust Preferred Securities
”)
or this Security are held by the U.S. Government in connection with assistance provided to the Company under the Troubled Asset Relief Program or any similar or related U.S. government program, subject to consultation with the Federal Reserve;
(ii) at the option of the Company without premium or penalty, at any time on or after December 30, 2014 (an “
Optional Redemption
”); or (iii) any time in certain circumstances upon the occurrence of a Tax Event, an
Investment Company Event or a Regulatory Capital Event (each as defined below, and each a “
Special Event
”), at a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest to the date of
such redemption (the “
Optional Redemption Price
”). Any redemption pursuant to this paragraph will be made at the Optional Redemption Price upon not less than 30 days nor more than 60 days notice, and with respect to a redemption
upon a Special Event, within 90 days following the occurrence of such Special Event;
provided, however
, that if at the time there is available to the Company or Series 1 of the Trust the opportunity to eliminate, within such 90 day period,
the Special Event by taking some ministerial action, such as filing a form or making an election or pursuing some other similar reasonable measure that will have no adverse effect on Series 1 of the Trust, the Company or the holders of the Trust
Preferred Securities or the Securities, then the Company or Series 1 of the Trust will pursue such measure in lieu of redemption. If the Securities of this
SS1-B-7
series are only partially redeemed by the Company pursuant to an Optional Redemption, such Securities will be redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided
that if, at the time of redemption, the Securities of this series are registered as a Global Security, the Depositary (as defined herein) shall determine the principal amount of such Securities held by each Security Beneficial Owner
to be redeemed in accordance with its procedures.
“
Tax Event
” means that the Administrative Trustees shall
have received an opinion of a nationally recognized independent tax counsel experienced in such matters (a “
Tax Event Opinion
”) 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 amendment to, or change in, an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation and the publication of any judicial decision or regulatory determination or administrative pronouncement on or after
December 30, 2009), in either case after December 30, 2009 there is more than an insubstantial risk that (i) Series 1 of the Trust would be subject to United States federal income tax with respect to interest accrued or received on
the Securities of this series, (ii) Series 1 of the Trust would be subject to more than a
de minimis
amount of other taxes, duties or other governmental charges, or (iii) interest payable to Series 1 of the Trust on the Securities
of this series would not be deductible, in whole or in part, by the Company for United States federal income tax purposes.
“
Investment Company Event
” means that the Administrative Trustees shall have received an opinion of a nationally
recognized independent counsel experienced in practice under the Investment Company Act to the effect that, as a result of the occurrence of a change in law or regulation or a written change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a “
Change in 1940 Act Law
”), there is a more than an insubstantial risk that Series 1 of the Trust (or the Trust) is or will be considered an Investment
Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after December 30, 2009.
“
Regulatory Capital Event
” means a determination by the Company, based on an opinion of counsel experienced in such matters (who may be an employee of the Company or any of its
affiliates), that, as a result of (a) any amendment to, clarification of or change (including any announced prospective change) in applicable laws or regulations or official interpretations thereof or policies with respect thereto or
(b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment, clarification, change, pronouncement or decision is announced or is
SS1-B-8
effective after December 30, 2009, there is more than an insubstantial risk that the Trust Preferred Securities will no longer constitute Tier I Capital of the Company or any bank holding
company of which the Company is a subsidiary (or its equivalent) for purposes of the capital adequacy guidelines or policies of the Board of Governors of the Federal Reserve System or its successor as the Company’s primary federal banking
regulator,
provided, however
, that the distribution of the Debentures in connection with the liquidation of Series 1 of the Trust (or the Trust) shall not in and of itself constitute a Regulatory Capital Event unless such liquidation shall
have occurred in connection with a Tax Event or an Investment Company Event.
Any redemption of the Securities of this series,
in whole or in part, prior to the stated maturity date is subject to the prior concurrence approval of the Federal Reserve or the staff thereof, (i) if such concurrence or approval is then required in order for securities such as the Securities
of this series to qualify as tier 1 capital of a bank holding company under applicable capital adequacy guidelines, regulations, policies, or published interpretations of the Federal Reserve, or (ii) if the Federal Reserve or its staff has
informed the Company that it must obtain such approval before redeeming the Securities.
In the event of redemption of this
Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, with respect to the Securities of this series shall have occurred and be
continuing, the principal of all the Securities of this series 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 Company and the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities 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 Securities of such series under the Indenture;
provided
,
however
, that no such supplemental indenture shall
modify certain provisions of the Indenture, as set forth in the Indenture, without the consent of the Holders of each Security then outstanding and affected thereby including, without limitation, to: (i) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or the interest thereon is payable,
SS1-B-9
or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify
the provisions of the Indenture with respect to the subordination of the Securities in a manner adverse to the Holders, or (ii) reduce the aforesaid percentage of Securities, the Holders of which are required to consent to any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time outstanding affected thereby, on behalf of all of the Holders of the Securities 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 Securities of such series. Any such consent or waiver by the registered Holder of this Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this
Security and of any Security issued in exchange herefor 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 Security. In determining whether
the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver under the Indenture or hereunder, Securities owned by the U.S. Government shall not be deemed
to be Securities owned by an Affiliate of the Company.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Security at the time and place and at the rate and in the money herein
prescribed.
So long as no Event of Default, as defined in the Indenture, shall have occurred and be continuing, the Company
shall have the right at any time during the term of the Securities of this series and from time to time to extend the interest payment period of such Securities for up to 20 consecutive quarters (an “
Extended Interest Payment
Period
”), at the end of which period the Company shall pay all interest then accrued and unpaid (together with interest thereon at the rate specified for the Securities of this series to the extent that payment of such interest is
enforceable under applicable law);
provided
, that no such Extended Interest Payment Period shall extend beyond the maturity of such Securities; and
provided further
that during any such Extended Interest Payment Period (a) the
Company and any subsidiary of the Company (other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) shall not declare or pay any dividend on, make any distributions with respect to, or redeem,
SS1-B-10
purchase, acquire or make a liquidation payment with respect to, any of the Company’s capital stock or make any guarantee payment with respect thereto (other than (i) redemptions,
purchases or other acquisitions of shares of capital stock of the Company in connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the acquisition by the
Company or any of its subsidiaries of record ownership in capital stock of the Company for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians, (iii) as a result of
an exchange or conversion of any class or series of the Company’s capital stock for any other class or series of the Company’s capital stock, in each case, solely to the extent required pursuant to binding contractual agreements entered
into prior to or on December 30, 2009 or any subsequent agreement for the accelerated exercise, settlement or exchange thereof for capital stock of the Company, (iv) distributions by or among any wholly-owned subsidiary of the Company,
(v) redemptions of securities held by the Company or any wholly-owned subsidiary of the Company, and (vi) unpaid tax distributions to holders of membership interests of GMAC LLC pursuant to Section 4(b) of GMAC LLC’s Plan of
Conversion, dated June 30, 2009), and (b) the Company and any subsidiary of the Company (other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) shall not make any payment of interest on or
principal of (or premium, if any, on), or repay, repurchase or redeem, any debt securities or guarantees issued by the Company which rank
pari passu
with or junior to the Securities (“
Junior Subordinated Indebtedness
”) (other
than (i) redemptions, purchases or other acquisitions of Junior Subordinated Indebtedness in connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the
acquisition by the Company or any of its subsidiaries of record ownership in Junior Subordinated Indebtedness for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians,
(iii) as a result of an exchange or conversion of any class or series of Junior Subordinated Indebtedness for any other class or series of Junior Subordinated Indebtedness, (iv) redemptions of securities held by the Company or any
wholly-owned subsidiary of the Company and (v) any payment of interest on Junior Subordinated Indebtedness paid
pro rata
with interest paid on the Securities of this series such that the respective amounts of such payments made shall
bear the same ratio to each other as all accrued but unpaid interest per like-amount of such Securities and all Junior Subordinated Indebtedness bear to each other). The restrictions in the foregoing clauses (a) and (b) will not apply to
(i) any stock dividends paid by the Company where the dividend stock is the same stock as that on which the dividend is being paid or (ii) dividends or distributions by or other transactions solely among the Company and any wholly-owned
subsidiary of the Company or solely among wholly-owned subsidiaries of the Company. For the avoidance of doubt, the Company shall have the right to make partial payments of interest on any Interest Payment Date during an Extended
SS1-B-11
Interest Payment Period. Prior to the termination of any such Extended Interest Payment Period, the Company may further extend such Extended Interest Payment Period,
provided
that such
Extended Interest Payment Period together with all such other extensions thereof shall not exceed 20 consecutive quarters;
provided further
, that no Extended Interest Payment Period may extend beyond the maturity of the Securities of this
series. At the termination of any such Extended Interest Payment Period and upon the payment of all accrued and unpaid interest and any additional amounts then due, the Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set forth, this Security is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this Security for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company or the Trustee duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities 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 Company or the Trustee 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 Security, the Company, the
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 Security 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 Company nor the 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 Security, 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 Company 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.
If issued as a Global Security, this
Global Security is exchangeable for Securities of this series in definitive form only under certain limited circumstances set forth in the Indenture. Securities of this series so issued are
SS1-B-12
issued only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series so issued are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Security shall have the meanings assigned to them in the Officer’s Certificate. All other terms used in this
Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
SS1-B-13
EXHIBIT C
[Reserved]
SS1-C-1
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED UPON
TRANSFER OF PREFERRED SECURITIES]
Ally Financial Inc.
200
Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Facsimile:
(313) 656-6214
Attention: General Counsel
The Bank of New York Mellon
101 Barclay Street — 8W
New York, New York 10286
Attention: Corporate
Trust Administration
Re: 8.0% Trust Preferred Securities, Series 1, liquidation amount $1,000 per preferred security (the
“
Securities
”) CUSIP #
[
]
Reference is hereby made to that certain Second Amended and Restated Declaration of Trust, dated as of March 1, 2011 (the
“
ARDT
”), among Ally Financial Inc., the administrative trustees named therein, BNY Mellon Trust of Delaware, as Delaware Trustee, and The Bank of New York Mellon, as Institutional Trustee (the “
Institutional
Trustee
”). Capitalized terms used but not defined herein shall have the meanings set forth in the ARDT.
This
certificate relates to $
aggregate liquidation amount of Securities held in definitive form by the undersigned.
The undersigned,
(transferor), hereby requests that the Security Registrar register a transfer of a Security or Securities to
(transferee).
In connection with such transfer of the Security or Securities, the undersigned confirms that such Securities are being transferred in accordance with their terms:
CHECK ONE BOX BELOW:
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to Ally Financial Inc. or any subsidiary thereof; or
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to a “qualified institutional buyer” within the meaning of Rule 144A (“
Rule 144A
”) under the Securities Act of 1933, as amended (the
“
Securities Act
”) and in compliance with Rule 144A or (B) an institutional “accredited investor” within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act;
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pursuant to an exemption from registration provided by Rule 144 under the Securities Act or any other available exemption from the registration requirements of the
Securities Act.
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SS1-D-1
Unless one of the boxes is checked, the Security Registrar will refuse to register the
transfer of any of the Securities referenced in this certificate.
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(Signature must be
guaranteed by a
participant in a recognized signature
guarantee medallion program)
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TO BE COMPLETED BY PURCHASER
IF THE SECOND BOX ABOVE IS CHECKED.
The undersigned represents and warrants that: (
initial applicable statement
)
it and any account for which it is acting is a “qualified institutional buyer” within the meaning of Rule 144A
under the Securities Act of 1933, as amended (“
Rule 144A
”), (ii) it exercises sole investment discretion with respect to each such account, and (iii) it is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing
representations in order to claim the exemption from registration provided by Rule 144A.
it is an institutional “accredited investor”
within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act purchasing for its own account or for the account of such an “accredited investor”, and it is acquiring the Securities for investment
purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, and it has such knowledge and experience in financial and business matters as to be capable of evaluation the merits and
risks of its investment in the Securities, and it and any account for which it is acting is able to bear the economic risks of the investment.
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[Name of Transferee]
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By:
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Name:
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Title:
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SS1-D-2
EXHIBIT E
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE
144A]
Ally Financial Inc.
200
Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Facsimile:
(313) 656-6214
Attention: General Counsel
The Bank of New York Mellon
101 Barclay Street — 8W
New York, New York 10286
Attention: Corporate
Trust Administration
Re: 8.0% Trust Preferred Securities, Series 1, liquidation amount $1,000 per preferred security (the
“
Securities
”) CUSIP #
[
]
Ladies and Gentlemen:
In connection with our proposed sale of
$
[
] aggregate liquidation amount of the Securities (the “
Subject Securities
”), we hereby certify that such transfer is being effected pursuant to
and in accordance with Rule 144A (“
Rule 144A
”) under the United States Securities Act of 1933, as amended, and, accordingly, we hereby further certify that the Subject Securities are being transferred to a person that we reasonably
believe is purchasing the Subject Securities for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified institutional
buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Subject Securities are being transferred in compliance with any applicable securities laws of any state of the United States.
The Bank of New York Mellon and Ally Financial Inc. are entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
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Very truly yours,
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[Name of Transferor]
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SS1-E-1
SERIES 2 SUPPLEMENT TO THE SECOND
AMENDED AND RESTATED DECLARATION OF TRUST
TABLE OF CONTENTS
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P
AGE
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A
RTICLE
1
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INTERPRETATION AND DEFINITIONS
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SECTION 1.01
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Definitions
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1
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A
RTICLE
2
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TRUST INDENTURE ACT
|
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|
|
|
|
|
|
|
|
SECTION 2.01
|
|
Trust Indenture Act; Application.
|
|
|
9
|
|
|
SECTION 2.02
|
|
Lists of Holders of Securities.
|
|
|
9
|
|
|
SECTION 2.03
|
|
Reports by the Institutional Trustee.
|
|
|
10
|
|
|
SECTION 2.04
|
|
Reports to Institutional Trustee.
|
|
|
10
|
|
|
SECTION 2.05
|
|
Evidence of Compliance with Conditions Precedent.
|
|
|
10
|
|
|
SECTION 2.06
|
|
Defaults; Waiver
.
|
|
|
10
|
|
|
SECTION 2.07
|
|
Default; Notice
.
|
|
|
12
|
|
|
|
|
|
A
RTICLE
3
|
|
|
|
|
|
ORGANIZATION
|
|
|
|
|
|
|
|
|
|
SECTION 3.01
|
|
Name
.
|
|
|
13
|
|
|
SECTION 3.02
|
|
Office
|
|
|
13
|
|
|
SECTION 3.03
|
|
Duration of Series 2
|
|
|
13
|
|
|
SECTION 3.04
|
|
Purpose
.
|
|
|
13
|
|
|
SECTION 3.05
|
|
Authority
.
|
|
|
14
|
|
|
SECTION 3.06
|
|
Title to Property of the Trust.
|
|
|
14
|
|
|
SECTION 3.07
|
|
Powers and Duties of the Administrative Trustees.
|
|
|
14
|
|
|
SECTION 3.08
|
|
Prohibition of Actions by the Trust and the Trustees.
|
|
|
18
|
|
|
SECTION 3.09
|
|
Powers and Duties of the Institutional Trustee.
|
|
|
19
|
|
|
SECTION 3.10
|
|
Certain Duties and Responsibilities of the Institutional Trustee.
|
|
|
21
|
|
|
SECTION 3.11
|
|
Certain Rights of Institutional Trustee.
|
|
|
23
|
|
|
SECTION 3.12
|
|
[Reserved]
.
|
|
|
26
|
|
|
SECTION 3.13
|
|
Execution of Documents.
|
|
|
26
|
|
|
SECTION 3.14
|
|
Not Responsible for Recitals or Issuance of Securities.
|
|
|
26
|
|
|
SECTION 3.15
|
|
[Reserved]
|
|
|
26
|
|
|
SECTION 3.16
|
|
[Reserved]
|
|
|
26
|
|
SS2-i
|
|
|
|
|
|
|
|
|
A
RTICLE
4
|
|
|
|
|
|
SPONSOR
|
|
|
|
|
|
|
|
|
|
SECTION 4.01
|
|
Sponsor’s Purchase of Common Securities.
|
|
|
26
|
|
|
SECTION 4.02
|
|
Responsibilities of the Sponsor.
|
|
|
26
|
|
|
|
|
|
A
RTICLE
5
|
|
|
|
|
|
TRUSTEES
|
|
|
|
|
|
|
|
|
|
SECTION 5.01
|
|
Number of Trustees; U.S. Person.
|
|
|
27
|
|
|
SECTION 5.02
|
|
[Reserved]
|
|
|
28
|
|
|
SECTION 5.03
|
|
Institutional Trustee; Eligibility.
|
|
|
28
|
|
|
SECTION 5.04
|
|
Qualifications of Administrative Trustees Generally.
|
|
|
29
|
|
|
SECTION 5.05
|
|
Initial Trustees; Additional Powers of Administrative Trustees
|
|
|
29
|
|
|
SECTION 5.06
|
|
Appointment, Removal and Resignation of Trustees.
|
|
|
30
|
|
|
SECTION 5.07
|
|
Vacancies Among Trustees.
|
|
|
31
|
|
|
SECTION 5.08
|
|
Effect of Vacancies.
|
|
|
31
|
|
|
SECTION 5.09
|
|
Meetings
.
|
|
|
32
|
|
|
SECTION 5.10
|
|
Delegation of Power.
|
|
|
32
|
|
|
SECTION 5.11
|
|
Merger, Conversion, Consolidation or Succession to Business.
|
|
|
33
|
|
|
|
|
|
A
RTICLE
6
|
|
|
|
|
|
DISTRIBUTIONS; EXCHANGES
|
|
|
|
|
|
|
|
|
|
SECTION 6.01
|
|
Distributions
.
|
|
|
33
|
|
|
SECTION 6.02
|
|
Exchanges
.
|
|
|
33
|
|
|
|
|
|
A
RTICLE
7
|
|
|
|
|
|
SECURITIES
|
|
|
|
|
|
|
|
|
|
SECTION 7.01
|
|
General Provisions Regarding Securities.
|
|
|
34
|
|
|
|
|
|
A
RTICLE
8
|
|
|
|
|
|
DISSOLUTION; TERMINATION OF SERIES
|
|
|
|
|
|
|
|
|
|
SECTION 8.01
|
|
Dissolution of Series 2.
|
|
|
35
|
|
|
|
|
|
A
RTICLE
9
|
|
|
|
|
|
TRANSFER OF INTERESTS
|
|
|
|
|
|
|
|
|
|
SECTION 9.01
|
|
Transfer of Securities.
|
|
|
36
|
|
|
SECTION 9.02
|
|
Transfer of Certificates.
|
|
|
38
|
|
|
SECTION 9.03
|
|
Deemed Security Holders.
|
|
|
39
|
|
|
SECTION 9.04
|
|
Book Entry Interests.
|
|
|
40
|
|
SS2-ii
|
|
|
|
|
|
|
|
|
SECTION 9.05
|
|
Notices to Clearing Agency.
|
|
|
40
|
|
|
SECTION 9.06
|
|
Appointment of Successor Clearing Agency.
|
|
|
41
|
|
|
SECTION 9.07
|
|
Definitive Trust Preferred Security Certificates.
|
|
|
41
|
|
|
SECTION 9.08
|
|
Mutilated, Destroyed, Lost or Stolen Certificates.
|
|
|
42
|
|
|
|
|
|
A
RTICLE
10
|
|
|
|
|
|
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
|
|
|
|
|
|
|
|
|
|
SECTION 10.01
|
|
Liability
.
|
|
|
42
|
|
|
SECTION 10.02
|
|
Exculpation
.
|
|
|
43
|
|
|
SECTION 10.03
|
|
Fiduciary Duty
.
|
|
|
43
|
|
|
SECTION 10.04
|
|
Indemnification
.
|
|
|
44
|
|
|
SECTION 10.05
|
|
Outside Businesses
.
|
|
|
48
|
|
|
|
|
|
A
RTICLE
11
|
|
|
|
|
|
ACCOUNTING; CERTAIN TAX MATTERS
|
|
|
|
|
|
|
|
|
|
SECTION 11.01
|
|
Fiscal Year
.
|
|
|
49
|
|
|
SECTION 11.02
|
|
Certain Accounting Matters.
|
|
|
49
|
|
|
SECTION 11.03
|
|
Banking
.
|
|
|
50
|
|
|
SECTION 11.04
|
|
Withholding
.
|
|
|
50
|
|
|
SECTION 11.05
|
|
Tax Treatment
.
|
|
|
50
|
|
|
|
|
|
A
RTICLE
12
|
|
|
|
|
|
AMENDMENTS AND MEETINGS
|
|
|
|
|
|
|
|
|
|
SECTION 12.01
|
|
Amendments
.
|
|
|
51
|
|
|
SECTION 12.02
|
|
Meetings of the Holders of Securities; Action by Written Consent.
|
|
|
53
|
|
|
|
|
|
A
RTICLE
13
|
|
|
|
|
|
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
|
|
|
|
|
|
|
|
|
|
SECTION 13.01
|
|
Representations and Warranties of Institutional Trustee.
|
|
|
55
|
|
|
SECTION 13.02
|
|
[Reserved]
|
|
|
56
|
|
|
|
|
|
A
RTICLE
14
|
|
|
|
|
|
MISCELLANEOUS
|
|
|
|
|
|
|
|
|
|
SECTION 14.01
|
|
Notices.
|
|
|
56
|
|
|
SECTION 14.02
|
|
Governing Law; Waiver of Trial by Jury.
|
|
|
57
|
|
|
SECTION 14.03
|
|
Intention of the Parties.
|
|
|
57
|
|
|
SECTION 14.04
|
|
Headings
.
|
|
|
58
|
|
|
SECTION 14.05
|
|
Successors and Assigns.
|
|
|
58
|
|
|
SECTION 14.06
|
|
Partial Enforceability.
|
|
|
58
|
|
SS2-iii
|
|
|
|
|
|
|
|
|
SECTION 14.07
|
|
Counterparts.
|
|
|
58
|
|
|
|
|
|
|
ANNEX I
|
|
TERMS OF SECURITIES
|
|
|
SS2-I-1
|
|
|
EXHIBIT A-1
|
|
FORM OF TRUST PREFERRED SECURITY CERTIFICATE
|
|
|
SS2-A1-1
|
|
|
EXHIBIT A-2
|
|
FORM OF COMMON SECURITY CERTIFICATE
|
|
|
SS2-A2-1
|
|
|
EXHIBIT B
|
|
SPECIMEN OF DEBENTURE
|
|
|
SS2-B-1
|
|
|
EXHIBIT C
|
|
UNDERWRITING AGREEMENT
|
|
|
SS2-C-1
|
|
|
EXHIBIT D
|
|
FORM OF TRANSFER CERTIFICATE
|
|
|
SS2-D-1
|
|
|
EXHIBIT E
|
|
FORM OF RULE 144A TRANSFER CERTIFICATE
|
|
|
SS2-E-1
|
|
SS2-iv
CROSS-REFERENCE TABLE*
|
|
|
|
|
|
|
Section of Trust Indenture Act of 1939, as amended
|
|
Section of Series 2 Supplement
|
|
|
§310
|
|
|
2.01(c)
|
|
|
(a)
|
|
|
5.03(a)
|
|
|
(b)
|
|
|
5.03(c), 5.03(d)
|
|
|
§311 (a)
|
|
|
2.02(b)
|
|
|
(b)
|
|
|
2.02(b)
|
|
|
§312 (a)
|
|
|
2.02(a)
|
|
|
(b)
|
|
|
2.02(b)
|
|
|
§313
|
|
|
2.03
|
|
|
§314 (a)
|
|
|
2.04; 3.07(j)
|
|
|
(c)
|
|
|
2.05
|
|
|
§315 (a)
|
|
|
3.10(b)
|
|
|
(c)
|
|
|
3.10(a)
|
|
|
(d)
|
|
|
3.10(a)
|
|
|
§316 (a)
|
|
|
2.01(a)
|
|
|
(a)(1)(A)
|
|
|
2.06(b)(ii)
|
|
|
(a)(1)(B)
|
|
|
2.06(a)(ii), 2.06(b)(ii)
|
|
|
(c)
|
|
|
3.07(e)
|
|
|
§317
|
|
|
2.01(c)
|
|
|
(b)
|
|
|
2.01(c)
|
|
|
*
|
This Cross-Reference Table does not constitute part of the Series 2 Supplement and shall not affect the interpretation of any of its terms or provisions.
|
SS2-v
SERIES 2 SUPPLEMENT TO THE
SECOND AMENDED AND RESTATED
DECLARATION OF TRUST
OF
GMAC CAPITAL TRUST I
March 1, 2011
This Series 2 Supplement, together with the Base Declaration, as
defined in the Second Amended and Restated Declaration of Trust dated March 1, 2011 of which this Series 2 Supplement forms an integral part, establishes the terms applicable to Series 2 of GMAC Capital Trust I (the “
Trust
”)
including the Securities issued in respect of such series and the related assets. This Series 2 Supplement, together with the Base Declaration as it applies to this Series 2, is at times referred to as the “
Declaration
.”
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.01
Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Series 2 Supplement but not defined in the preamble above or in the Base Declaration have
the respective meanings assigned to them in this Section 1.01;
(b) a term defined anywhere in this Declaration has the
same meaning throughout this Declaration;
(c) all references to “the Declaration” or “this Declaration”
are to the Base Declaration, together with this Series 2 Supplement (and not any other Series Supplement), as modified, supplemented or amended from time to time;
(d) all references in this Series 2 Supplement to Articles and Sections and Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to this Series 2 Supplement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when used in this Declaration unless otherwise
defined in this Series 2 Supplement or unless the context otherwise requires;
(f) a reference to the singular includes the
plural and vice versa; and
SS2-1
(g) terms defined in, and provisions set forth in, any Series Supplement other than this
Series 2 Supplement shall have no effect with respect to this Series 2 Supplement.
“
10% in liquidation amount of the
Securities
” means, except as provided in the terms of the Trust Preferred Securities or by the Trust Indenture Act, Holders of outstanding Securities voting together as a single class or, as the context may require, Holders of outstanding
Trust Preferred Securities or Holders of outstanding Common Securities voting separately as a class, who are the record owners of an aggregate liquidation amount representing 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 Securities of the relevant class.
“
Administrative Trustee
” has the meaning specified in Section 5.01(a).
“
Affiliate
” has the same meaning as given to that term in Rule 405 of the Securities Act or any successor rule
thereunder.
“
Ally
” means Ally Financial Inc., a Delaware corporation.
“
Authorized Officer
” of a Person means any Person that is authorized to bind such Person.
“
Book Entry Interest
” means a beneficial interest in a Global Certificate, ownership and transfers of which shall be
maintained and made through book entries by a Clearing Agency as described in Section 9.04.
“
Business
Day
” means any day other than a Saturday, Sunday or any other day on which banking institutions in the State of New York generally are authorized or required by law or other governmental action to close.
“
Certificate
” means a Common Security Certificate or a Trust Preferred Security Certificate.
“
Change in 1940 Act Law
” has the meaning set forth in Annex I hereto.
“
Clearing Agency
” means an organization registered as a “Clearing Agency” pursuant to Section 17A of the
Exchange Act that is acting as depositary for the Trust Preferred Securities and in whose name or in the name of a nominee of that organization shall be registered one or more Global Certificates and which shall undertake to effect book entry
transfers and pledges of the Trust Preferred Securities.
SS2-2
“
Clearing Agency Participant
” means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency effects book entry transfers and pledges of securities deposited with the Clearing Agency.
“
Closing Date
” means March 1, 2011.
“
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.
“
Common Securities
” has the meaning specified in Section 7.01.
“
Common Security Certificate
” means a definitive certificate in fully registered form representing a Common Security
substantially in the form of
Exhibit A-2
.
“
Company Indemnified Person
” means (a) any
Administrative Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Administrative Trustee; or (d) any officer, employee or
agent of the Trust or its Affiliates, in each case acting with respect to this Series 2 or, if applicable, with respect to the Trust as a whole.
“
Corporate Trust Office
” means the office of the Institutional Trustee at which the corporate trust business of the Institutional Trustee shall, at any particular time, be principally
administered, which office at the Closing Date is located at 101 Barclay Street-8W, New York, New York 10286.
“
Covered Person
” means (a) any officer, director, shareholder, partner, member, representative, employee or agent
of (i) the Trust or (ii) the Trust’s Affiliates, in each case acting with respect to this Series 2 or, if applicable, with respect to the Trust as a whole, and (b) any Holder of Securities.
“
Debenture Issuer
” means Ally Financial Inc. in its capacity as issuer of the Debentures under the Indenture.
“
Debenture Trustee
” means The Bank of New York Mellon, acting as trustee under the Indenture with respect to
the relevant series supplement of the Indenture for the Debentures until a successor is appointed thereunder, and thereafter means such successor trustee.
“
Debentures
” or “
Series 2 Debentures
” means the series of Debentures to be issued by the Debenture Issuer under the Indenture to be held by the
SS2-3
Institutional Trustee with respect to this Series 2, a specimen certificate for such series of Debentures being
Exhibit B
.
“
Default
” in respect of the Securities means a Default (as defined in the Indenture) has occurred and is continuing in
respect of the Debentures.
“
Definitive Trust Preferred Security Certificates
” has the meaning set forth in
Section 9.04.
“
Distribution
” has the meaning set forth in Section 6.01.
“
DTC
” means The Depository Trust Company, the initial Clearing Agency.
“
Exchange
” has the meaning set forth in Section 6.02(a).
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation.
“
Fiduciary Indemnified Person
” has the meaning set forth in Section 10.04(b).
“
Fiscal Year
” has the meaning set forth in Section 11.01.
“
Global Certificate
” has the meaning set forth in Section 9.04.
“
Guarantee Agreement
” means the Series 2 Trust Preferred Securities Guarantee Agreement dated March 1, 2011, of Ally, as
Guarantor in respect of the Trust Preferred Securities.
“
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 Statutory Trust Act.
“
Indemnified Person
” means a Company Indemnified Person or a Fiduciary Indemnified Person.
“
Indenture
” means the Amended and Restated Indenture dated as of March 1, 2011, as further amended or supplemented from
time to time, between the Debenture Issuer and the Debenture Trustee, governing the Debentures held with respect to this Series 2 of the Trust.
“
Institutional Trustee
” means the Trustee with respect to this Series 2 of the Trust meeting the eligibility requirements set forth in Section 5.03.
SS2-4
“
Institutional Trustee Account
” has the meaning set forth in
Section 3.09(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.
“
Investment Company Event
” has the meaning set forth in Annex I hereto.
“
Legal Action
” has the meaning set forth in Section 3.07(g).
“
Liquidation Amount
” means, with respect to Trust Preferred Securities or Common Securities, the liquidation amount per
Trust Preferred Security or Common Security, respectively, as set forth in Annex I hereto.
“
Majority in liquidation
amount of the Securities
” means, except as provided in the terms of the Trust Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities voting together as a single class or, as the context may require, Holders
of outstanding Trust Preferred Securities or Holders of outstanding Common Securities voting separately as a class, who are the record owners of an aggregate liquidation amount representing 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 Securities of the relevant class.
“
Ministerial Action
” has the meaning set forth in Annex I hereto.
“
Officers’ Certificate
” means, with respect to any Person, a certificate signed by two Authorized Officers of such
Person,
provided
that only one Administrative Trustee is required to sign on behalf of the Trust, acting with respect to this Series 2, any Officers’ Certificate delivered pursuant to Section 2.05 of this Series 2 Supplement. Any
Officers’ Certificate delivered with respect to compliance with a condition or covenant provided for in this Series 2 Supplement shall include:
(a) a statement that each officer signing the Officers’ 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
Officers’ Certificate;
SS2-5
(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 specified in Section 3.09(h).
“
Payment Amount
” has the meaning specified in Section 6.01.
“
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.
“
Private Placement Legend
” has the meaning specified in Section 9.01(b).
“
Quorum
” means any one Administrative Trustee or, if there is only one Administrative Trustee, such Administrative
Trustee.
“
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.
“
Responsible Officer
” means, with respect to the Institutional Trustee, any officer within the Corporate Trust Office of
the Institutional Trustee with direct responsibility for the administration of this Declaration 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-7
” means Rule 3a-7 under the Investment
Company Act.
“
Securities
” means the Common Securities and the Trust Preferred Securities.
“
Securities Act
” means the Securities Act of 1933, as amended from time to time, or any successor legislation.
“
Security Registrar
” has the meaning set forth in Section 9.02(a).
“
Special Event
” has the meaning set forth in Annex I hereto.
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“
Sponsor
” means Ally or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
“
Sponsor Affiliated Holder
” has the meaning set forth
in Section 6.02(a).
“
Statutory Trust Act
” means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Code §§ 3801 et seq., as it may be amended from time to time, or any successor legislation.
“
Successor
Institutional Trustee
” has the meaning set forth in Section 5.06(b).
“
Super Majority
” has the
meaning set forth in Section 2.06(a)(ii).
“
Tax Event
” has the meaning set forth in Annex I hereto.
“
Three-month LIBOR
” means, with respect to any quarterly interest period, the rate (expressed as a
percentage per annum) for deposits in United States dollars for a three-month period, as applicable, commencing on the first day of that quarterly interest period that appears on the Reuters Screen LIBOR as of 11:00 a.m. (London time) on the LIBOR
determination date for that quarterly interest period, as the case may be. If such rate does not appear on Reuters Screen LIBOR, three-month LIBOR will be determined on the basis of the rates at which deposits in United States dollars for a
three-month period commencing on the first day of that quarterly interest period, as applicable, and in a principal amount of not less than $1 million are offered to prime banks in the London interbank market by four major banks in the London
interbank market selected by the calculation agent (after consultation with Ally), at approximately 11:00 a.m., London time, on the LIBOR determination date for that quarterly interest period. The calculation agent will request the principal London
office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, three-month LIBOR with respect to that quarterly interest period, as applicable, will be the arithmetic mean (rounded upward if necessary
to the nearest whole multiple of 0.00001%) of such quotations. If fewer than two quotations are provided, three-month LIBOR with respect to that quarterly interest period, as applicable, will be the arithmetic mean (rounded upward if necessary to
the nearest whole multiple of 0.00001%) of the rates quoted by three major banks in New York City selected by the calculation agent, at approximately 11:00 a.m., New York City time, on the first day of that quarterly interest period, as applicable,
for loans in United States dollars to leading European banks for a three-month period, as applicable, commencing on the first day of that quarterly interest period and in a principal amount of not less than $1 million. However, if fewer than three
banks selected by the calculation agent to provide quotations are quoting as described above, three-month LIBOR for that quarterly interest period, as applicable, will be the same as three-month LIBOR as determined for the
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previous interest period or, in the case of the quarterly interest period beginning on February 15, 2016, 0.29000%. The establishment of three-month LIBOR for each quarterly interest period,
as applicable, by the calculation agent shall (in the absence of manifest error) be final and binding.
“
Transfer
Certification
” has the meaning set forth in Section 9.02(b).
“
Transfer Opinion
” has the
meaning set forth in Section 9.02(b).
“
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 Preferred Securities
” has the meaning specified in Section 7.01.
“
Trust 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 Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case
in accordance with the rules of such Clearing Agency).
“
Trust Preferred Security Certificate
” means a
certificate representing a Trust Preferred Security substantially in the form of
Exhibit A-1
.
“
Trustee
” or “
Trustees
” means each Person who acts as an Administrative Trustee, Institutional Trustee,
or Delaware 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.
“
Trust Indenture Act
” means the Trust Indenture Act of 1939, as amended from time to time, or any successor legislation.
“United States Person”
means a “United States person” within the meaning of Section 7701(a)(30) of the
Code.
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ARTICLE 2
TRUST INDENTURE ACT
Section 2.01
Trust Indenture Act;
Application
.
(a) This Declaration is subject to the provisions of the Trust Indenture Act that are required to be
part of this Declaration and shall, to the extent applicable, be governed by such provisions.
(b) The Institutional Trustee
shall be the only Trustee that is a Trustee with respect to this Series 2 for the purposes of the Trust Indenture Act.
(c) If
and to the extent that any provision of this Declaration limits, qualifies or conflicts with the duties imposed by §§ 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust held with respect to this Series 2, the payments received therefrom and the profits and losses derived therefrom.
Section 2.02
Lists of Holders of Securities
.
(a) Each of the Sponsor and the Administrative Trustees on behalf of this Series 2 of the 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 of the Securities (“List of Holders”) as of such record date, provided, that neither the Sponsor nor the
Administrative Trustees on behalf of this Series 2 of the 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 Administrative Trustees on behalf of this Series 2 of the Trust, and (ii) at any other time, within 30 days of receipt by the Trust, acting with respect to this Series 2 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 Lists of Holders given to it or which it
receives in the 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 §§ 311(a), 311(b) and 312(b) of the Trust Indenture Act.
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Section 2.03
Reports by the Institutional Trustee
.
Within 60 days after May 15 of each year (commencing with the year of the first anniversary of the Closing Date), the Institutional
Trustee shall provide to the Holders of the Trust Preferred Securities such reports as are required by § 313(a) of the Trust Indenture Act, if any, in the form and in the manner provided by § 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the other requirements of § 313 of the Trust Indenture Act.
Section 2.04
Reports to Institutional Trustee
.
Each of the Sponsor and the Administrative Trustees on behalf of this Series 2 of the Trust shall provide to the Institutional Trustee
such documents, reports and information as required by § 314(a) of the Trust Indenture Act (if any) and the compliance certificate required by § 314(a)(4) of the Trust Indenture Act in the form, in the manner and at the times required by
§ 314 of the Trust Indenture Act, but, with respect to the compliance certificate, no later than 120 days after each calendar year. The Sponsor shall notify the Institutional Trustee when any Trust Preferred Securities are listed on any stock
exchange.
Section 2.05
Evidence of Compliance with Conditions Precedent
.
Each of the Sponsor and the Administrative Trustees on behalf of this Series 2 of the Trust shall provide to the Institutional Trustee
such evidence of compliance with any conditions precedent provided for in this Declaration that relate to any of the matters set forth in § 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to § 314(c)(1) of the Trust Indenture Act may be given in the form of an Officers’ Certificate.
Section 2.06
Defaults; Waiver
.
(a) The Holders of a Majority in liquidation amount of Trust Preferred Securities may, by vote, on behalf of the Holders of all of the Trust Preferred Securities, waive any past Default in respect of the
Trust Preferred Securities and its consequences, provided, that if the underlying Default under the Indenture:
(i) is not waivable under the Indenture, the Default under this Declaration shall also not be waivable; or
(ii) is waivable only with the consent of holders of more than a majority in principal amount of the Debentures (a
“Super Majority”) affected thereby, only the Holders of at least the proportion in aggregate liquidation amount of the Trust Preferred Securities that the relevant Super Majority represents of the aggregate principal amount of the
Debentures
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outstanding may waive such Default in respect of the Trust Preferred Securities under this Declaration.
The foregoing provisions of this Section 2.06(a) shall be in lieu of § 316(a)(1)(B) of the Trust Indenture Act and such § 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities to the extent permitted by the Trust Indenture Act. Upon such waiver, any such default shall cease to exist, and any Default with respect to the Trust Preferred Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other default or a Default with respect to the Trust Preferred Securities or impair any right consequent thereon. Any waiver by
the Holders of the Trust Preferred Securities of a Default with respect to the Trust Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Default with respect to the Common Securities
for all purposes of this Declaration without any further act, vote, or consent of the Holders of the Common Securities.
(b)
The Holders of a Majority in liquidation amount of the Common Securities may, by vote, on behalf of the Holders of all of the Common Securities, waive any past Default with respect to the Common Securities and its consequences, provided, that if the
underlying Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Default under this Declaration as provided in this Section 2.06(b), the Default under this Declaration shall also not be waivable; or
(ii) is waivable only with the consent of a Super Majority, except where the Holders of the Common Securities are deemed
to have waived such Default under this Declaration as provided in this Section 2.06(b), only the Holders of at least the proportion in aggregate liquidation amount of the Common Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding may waive such Default in respect of the Common Securities under this Declaration;
provided, further each Holder of Common Securities will be deemed to have waived any such Default and all Defaults with respect to the Common Securities
and its consequences until all Defaults with respect to the Trust Preferred Securities have been cured, waived or otherwise eliminated, and until such Defaults with respect to the Trust Preferred Securities 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 Trust Preferred Securities and only the Holders of the Trust Preferred Securities will have the right to direct the Institutional Trustee in
accordance with the terms of the Securities. The foregoing
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provisions of this Section 2.06(b) shall be in lieu of §§ 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such §§ 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Declaration and the Securities to the extent permitted by the Trust Indenture Act. Subject to the foregoing provisions of this Section 2.06(b), upon the waiver of a Default by the Holders of
a Majority in liquidation amount of the Common Securities, any such default shall cease to exist and any Default with respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Declaration, but no
such waiver shall extend to any subsequent or other default or Default with respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of a Default under the Indenture by the Institutional Trustee at the direction of the Holders of the Trust Preferred Securities, constitutes a waiver of the corresponding Default under this
Declaration. The foregoing provisions of this Section 2.06(c) shall be in lieu of § 316(a)(1)(B) of the Trust Indenture Act and such § 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Series 2 Supplement
and the Securities to the extent permitted by the Trust Indenture Act.
Section 2.07
Default; Notice
.
(a) The Institutional Trustee shall, within 90 days after the occurrence of a Default, transmit by mail, first class postage
prepaid, (or such other means of communication as may be acceptable to the Clearing Agency) to the Holders of the Securities, notices of (i) all defaults with respect to the Securities actually known to a Responsible Officer of the
Institutional Trustee, unless such defaults have been cured before the giving of such notice (the term “defaults” for the purposes of this Section 2.07(a) being hereby defined to be a 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) and (ii) any notice of default received from the Indenture Trustee with respect to the Debentures, which notice from the Institutional
Trustee to the Holders shall state that a Default under the Indenture also constitutes a Default with respect to the Securities; provided that, except for a default in the payment of principal of (or premium, if any) or interest on any of the
Debentures or in the payment of any sinking fund installment established for the Debentures, the Institutional Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the interests of the Holders of the Securities.
(b) The Institutional
Trustee shall not be deemed to have knowledge of any default except:
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(i) a default under Sections 5.07(b) and 5.07(c) of the Indenture; or
(ii) any default as to which the Institutional Trustee shall have received written notice or of which a
Responsible Officer of the Institutional Trustee charged with the administration of this Declaration shall have actual knowledge.
ARTICLE 3
ORGANIZATION
Section 3.01
Name
.
The Series governed by this Declaration shall be designated Series 2 of the Trust (“Series 2”), as such name may be modified from time to time by the Administrative Trustees following written
notice to the Institutional Trustee, the Delaware Trustee and the Holders of Securities. The Trust’s activities with respect to this Series 2 may be conducted under the name of the Trust with respect to this Series 2 or any other name deemed
advisable by the Administrative Trustees.
Section 3.02
Office
.
The principal address of the Trust for matters relating to this Series 2 is c/o Ally Financial Inc., 200 Renaissance Center, P.O. Box
200, Detroit, Michigan 48265-2000. On ten Business Days written notice to the Institutional Trustee, the Delaware Trustee and the Holders of Securities, the Administrative Trustees may designate another principal address for matters relating to this
Series 2.
Section 3.03
Duration of Series 2
.
This Series 2, unless dissolved and terminated pursuant to the provisions of this Declaration, shall have existence for fifty-five
(55) years from the Original Closing Date.
Section 3.04
Purpose
.
The exclusive purposes and functions of this Series 2 of the Trust are (a) to act in accordance with this Declaration with respect to the Trust
Preferred Securities, (b) to act in accordance with this Declaration with respect to the Common Securities, (c) to acquire the Debentures from the Debenture Issuer, and (d) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust, acting with respect to this Series 2, shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets, or otherwise take any action or undertake
(or permit to be undertaken) any activity that would cause the Trust or Series 2 (as applicable) to be classified
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(i) as other than either a grantor trust or a partnership or (ii) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or materially reduce
the likelihood of the Trust or Series 2 (as applicable) being classified as a grantor trust for United States federal income tax purposes. The Trust and this Series 2 shall be administered exclusively in the United States, and a court within the
United States shall be able to exercise primary supervision over the administration of the Trust and each series thereof within the meaning of Treasury Regulation Sections 301.7701-7(a) and (c).
Section 3.05
Authority
.
Subject to the limitations provided in this Declaration and to the specific duties of the Institutional Trustee, the Administrative Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust with respect to this Series 2. An action taken by the Administrative Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust with respect to this Series 2 and an action taken by the
Institutional Trustee on behalf of the Trust with respect to this Series 2 in accordance with its powers shall constitute the act of and serve to bind the Trust with respect to this Series 2. In dealing with the Trustees acting on behalf of the
Trust with respect to this Series 2, no person shall be required to inquire into the authority of the Trustees to bind the Trust with respect to this Series 2. Persons dealing with the Trust acting with respect to this Series 2 are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this Declaration.
Section 3.06
Title to
Property of the Trust
.
Except as provided in Section 3.09 with respect to the Debentures and the Institutional
Trustee Account or as otherwise provided in this Declaration, legal title to all assets of the Trust with respect to this Series 2 shall be vested in the Trust acting with respect to this Series 2. The Holders shall not have legal title to any part
of the assets of the Trust or any series of the Trust, but shall have an undivided beneficial interest in the assets of the Trust held with respect to this Series 2, the payments received therefrom and the profits and losses derived therefrom.
Section 3.07
Powers and Duties of the Administrative Trustees
.
The Administrative Trustees shall have the exclusive power, duty and authority to cause the Trust to engage in the following activities,
if and as applicable, with respect to this Series 2:
(a) in connection with the designation of the Series 2 Trust Preferred
Securities, in accordance with this Declaration, to sell the Series 2 Common Securities in accordance with this Declaration. This Series 2 of the Trust may
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issue no more than one series of Trust Preferred Securities and no more than one series of Common Securities, and,
provided further
, that there shall be no interests in the Trust with
respect to Series 2 other than the Securities, and the designation of Series 2 Securities shall be limited to a simultaneous designation of both Trust Preferred Securities and Common Securities on the Closing Date;
(b) in connection with the Trust Preferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission on behalf of the Trust with respect to this Series 2 a registration statement on
Form S-3 or on another appropriate form, or a registration statement under Rule 462(b) of the Securities Act, in each case prepared by the Sponsor, including any pre-effective or post-effective amendments thereto, relating to the registration under
the Securities Act of the Trust 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 Trust Preferred Securities in any State in which the Sponsor has determined to qualify or register such Trust Preferred
Securities for sale;
(iii) execute and file an application, prepared by the Sponsor, to the New York Stock
Exchange or any other national stock exchange for listing upon notice of issuance of any Trust Preferred Securities; and
(iv) execute and file with the Commission on behalf of the Trust with respect to this Series 2 a registration statement on Form 8-A, prepared by the Sponsor, including any pre-effective or post-effective
amendments thereto, relating to the registration of the Trust Preferred Securities under Section 12(b) of the Exchange Act;
(v) deliver, along with the other parties thereto including the United States Department of Treasury and the underwriters, the underwriting agreement providing for the resale of the Trust Preferred
Securities (the “Underwriting Agreement”), such Underwriting Agreement and the execution thereof by any Administrative Trustee of this Series 2 being hereby authorized by this Declaration;
(c) to hold the Debentures; provided, however, that the Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Institutional Trustee for the benefit of the Holders of the Trust Preferred Securities and the Holders of Common Securities;
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(d) to give the Sponsor and the Institutional Trustee prompt written notice of the
occurrence of a Special Event; provided, that the Administrative Trustees shall consult with the Sponsor and the Institutional Trustee before taking or refraining from taking any Ministerial Action in relation to a Special 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 § 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Trust Preferred Securities and Holders of Common Securities as to
such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Administrative Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the Trust with respect to this Series 2 (“Legal Action”), unless pursuant to Section 3.09(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 Trust
with respect to this Series 2 to comply with the Trust’s obligations under the Trust Indenture Act;
(j) to give the
certificate required by § 314(a)(4) of the Trust Indenture Act to the Institutional Trustee, which certificate may be executed by any Administrative Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of the purposes of the Trust, with respect to this Series 2;
(l) to act as, or appoint another Person to act as, registrar and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment period under the Indenture;
(n) to take all
action with respect to this Series 2 that may be necessary or appropriate for the preservation and the continuation of the Trust’s valid existence, rights, franchises and privileges as a statutory trust under the laws of the State of Delaware
and of each other jurisdiction in which such existence is
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necessary to protect the limited liability of the Holders of the Trust Preferred Securities or to enable the Trust, acting with respect to this Series 2, to effect the purposes with respect to
this Series 2 for which the Trust was created;
(o) to take any action, not inconsistent with this Declaration or with
applicable law, that the Administrative Trustees determine in their discretion to be necessary or desirable in carrying out the activities of the Trust with respect to this Series 2 as set out in this Section 3.07, including, but not limited
to:
(i) causing the Trust and this Series 2 not to be deemed to be an Investment Company required to be
registered under the Investment Company Act;
(ii) taking any action to the extent necessary or prudent to
(x) ensure that the Trust or Series 2 (as applicable) will be classified, for United States federal income tax purposes, as either a grantor trust or a partnership, and not as an entity taxable as a corporation, or (y) increase the
likelihood of the Trust or Series 2 (as applicable) being classified as a grantor trust for United States federal income tax purposes;
(iii) cooperating with the Debenture Issuer to ensure that the Debentures will be treated as indebtedness of the Debenture Issuer for United States federal income tax purposes;
provided
, that any such action does not adversely affect the interests of Holders;
(p) to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with
respect to this Series 2 of the Trust to be duly prepared and filed by the Administrative Trustees, on behalf of the Trust with respect to this Series 2; and
(q) to execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust with respect to this Series 2 in all matters necessary or incidental to the
foregoing.
The Administrative Trustees must exercise the powers set forth in this Section 3.07 in a manner that is
consistent with the purposes and functions of the Trust with respect to this Series 2 set out in Section 3.04, and the Administrative Trustees shall not take any action that is inconsistent with the purposes and functions of the Trust with
respect to this Series 2 set forth in Section 3.04.
Subject to this Section 3.07, the Administrative Trustees shall
have none of the powers or the authority of the Institutional Trustee set forth in Section 3.09.
Any expenses incurred
by the Administrative Trustees pursuant to this Section 3.07 shall be reimbursed by the Debenture Issuer.
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Section 3.08
Prohibition of Actions by the Trust and the Trustees
.
(a) The Trust acting with respect to this Series 2 shall not, and the Trustees (including the Institutional Trustee) shall
not cause the Trust with respect to this Series 2 to, engage in any activity other than as required or authorized by this Declaration. In particular, the Trust acting with respect to this Series 2 shall not:
(i) invest any proceeds received by the Trust with respect to this Series 2 from holding the Debentures, but shall
promptly distribute all such proceeds to Holders of Securities pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property with respect to this Series 2 for other than a Trust purpose with respect to this Series 2;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary the Trust assets with respect to this Series 2 or the
terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust with respect to this Series 2 other than the Securities; or
(vii) other than as provided in this Declaration, (A) direct the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect to the Debentures, (B) waive any past default that is waivable under the Indenture with respect to the Debentures, (C) exercise any right to rescind or annul any declaration that the
principal of all the Debentures shall be due and payable or (D) consent to any amendment, modification or termination of the Indenture or the Debentures where such consent shall be required, unless the Trust acting with respect to this Series 2
shall have obtained an opinion of nationally recognized independent tax counsel experienced in such matters to the effect that such action will not (x) cause the Trust or Series 2 (as applicable) to be classified (a) as other than either a
grantor trust or a partnership or (b) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or (y) materially reduce the likelihood of the Trust or Series 2 (as applicable) being classified
as a grantor trust for United States federal income tax purposes.
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Section 3.09
Powers and Duties of the Institutional Trustee
.
(a) The legal title to the Debentures shall be owned by and held of record in the name of the Institutional Trustee in trust for the
benefit of the Holders of the Securities. The right, title and interest of the Institutional Trustee to the Debentures shall vest automatically in each Person who may hereafter be appointed as Institutional Trustee in accordance with
Section 5.06. Such vesting and cessation of title shall be effective whether or not conveying documents with regard to the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and interest in the Debentures to the Administrative 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 of the Securities and, upon the receipt of payments of funds made in respect of the Debentures held by the Institutional Trustee,
deposit such funds into the Institutional Trustee Account and make payments to the Holders of the Trust Preferred Securities and Holders of the Common Securities from the Institutional Trustee Account in accordance with Section 6.01. Funds in
the Institutional Trustee Account shall be held uninvested until disbursed in accordance with this Declaration. The Institutional Trustee Account shall be an account that is maintained with a banking institution the rating on whose long-term
unsecured indebtedness assigned by a “nationally recognized statistical rating organization,” as that term is used by the Commission in Rule 15c3-1(c)(2)(vi)(F) under the Securities Act, is at least equal to the rating assigned to the
Trust Preferred Securities by a nationally recognized statistical rating organization;
(ii) engage in such
ministerial activities as shall be necessary or appropriate to effect the redemption of the Trust Preferred Securities and the Common Securities to the extent the Debentures are redeemed or mature and to effect the Exchange of Trust Preferred
Securities and Common Securities for Debentures to the extent the Sponsor or a Sponsor Affiliated Holder elects to effect such Exchange pursuant to Section 6.02 hereof; and
(iii) upon written notice of distribution issued by the Administrative Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as shall be necessary or appropriate to
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effect the distribution of the Debentures to Holders of Securities pursuant to the terms of the Securities.
(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 Securities.
(e) Subject to Section 2.06, the Institutional Trustee shall take any Legal Action which arises out of or in connection with a
Default of which a Responsible Officer of the Institutional Trustee has actual knowledge or the Institutional Trustee’s duties and obligations under this Declaration or the Trust Indenture Act.
(f) The Institutional Trustee shall not resign as a Trustee unless either:
(i) this Series 2 of the Trust has been completely liquidated and the proceeds of the liquidation distributed to the
Holders of Securities pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee has
been appointed and has accepted that appointment in accordance with Section 5.06.
(g) The Institutional Trustee shall
have the legal power to exercise all of the rights, powers and privileges of a holder of Debentures under the Indenture and, if a Default actually known to a Responsible Officer of the Institutional Trustee occurs and is continuing, the
Institutional Trustee shall, for the benefit of Holders of the Securities, enforce its rights as holder of the Debentures subject to the rights of the Holders pursuant to the terms of such Securities, this Declaration, the Statutory Trust Act and
the Trust Indenture Act.
(h) The Institutional Trustee may authorize one or more Persons (each, a “Paying Agent”)
to pay Distributions, redemption payments or liquidation payments on behalf of this Series 2 of the Trust with respect to all Securities and any such Paying Agent shall comply with § 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.
(i) Subject to this Section 3.09, the Institutional Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 3.07.
The Institutional Trustee must exercise the powers set forth in this Section 3.09 in a manner that is consistent with
the purposes and functions of the Trust with respect to this Series 2 set out in Section 3.04, and the Institutional Trustee
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shall not take any action that is inconsistent with the purposes and functions of the Trust with respect to this Series 2 set out in Section 3.04.
Section 3.10
Certain Duties and Responsibilities of the Institutional Trustee
.
(a) The Institutional Trustee, before the occurrence of any Default and after the curing of all Defaults that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this Declaration and no implied covenants shall be read into this Declaration against the Institutional Trustee. In case a Default has occurred (that has not been cured or waived
pursuant to Section 2.06) of which a Responsible Officer of the Institutional Trustee has actual knowledge, the Institutional Trustee shall exercise such of the rights and powers vested in it by this Declaration, and use the same degree of care
and skill in the exercise of such rights and powers, 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 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 a Default and after the curing or waiving of all such Defaults
that may have occurred:
(A) the duties and obligations of the Institutional Trustee shall be determined solely
by the express provisions of this 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 Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Institutional Trustee; and
(B) in the absence of willful
misconduct 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 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 Declaration (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
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(ii) the Institutional Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Institutional Trustee, 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 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 Declaration;
(iv) no
provision of this Declaration shall require the Institutional Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Declaration or indemnity reasonably satisfactory to the Institutional Trustee against such risk or
liability 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 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 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 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 3.09(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 Administrative Trustees or the Sponsor
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with their respective duties under this Declaration, nor shall the Institutional Trustee be liable for any default or misconduct of the Administrative Trustees or the Sponsor.
Section 3.11
Certain Rights of Institutional Trustee
.
(a) Subject to the provisions of Section 3.10:
(i) the Institutional 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 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
Administrative Trustees contemplated by this Declaration shall be sufficiently evidenced by an Officers’ Certificate;
(iii) whenever in the administration of this 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 Administrative 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 of its selection and the advice or opinion of such
counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion, such 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 Declaration from any court of competent jurisdiction;
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(vi) the Institutional Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or direction of any Holder, unless such Holder shall have provided to the Institutional Trustee security and indemnity, reasonably satisfactory to the Institutional Trustee,
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 3.11(a)(vi) shall be taken to relieve the Institutional Trustee, upon the occurrence of a Default, of its
obligation to exercise the rights and powers vested in it by this 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, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Institutional Trustee, in its discretion and after prior consultation with the Sponsor, may make such further inquiry or investigation into such facts or matters as it may see fit at the expense of the Sponsor and
shall incur no liability of any kind by reason of such inquiry or investigation;
(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) the rights,
privileges, protections, immunities and benefits given to the Institutional Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Institutional Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder by the Institutional Trustee and appointed with due care by it;
(x) any action taken by the Institutional Trustee or its agents hereunder shall bind the Trust with respect to this Series 2 and the Holders of the Securities, 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 Declaration, both of which shall be conclusively evidenced by the Institutional Trustee’s or its agent’s taking such action;
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(xi) whenever in the administration of this 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 of the Securities which
instructions may only be given by the Holders of the same proportion in liquidation amount of the Securities as would be entitled to direct the Institutional Trustee under the terms of the 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;
(xii) except as otherwise expressly provided by this Declaration, the Institutional Trustee shall not be under any
obligation to take any action that is discretionary under the provisions of this Declaration;
(xiii) in no
event shall the Institutional Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Institutional Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action; and
(xiv) in no event shall the Institutional Trustee be
responsible or liable for any failure or delay in the performance of its obligations under this Declaration arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of third party utilities, communications or computer (software or hardware)
services.
(b) No provision of this 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.
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Section 3.12
[Reserved]
.
Section 3.13
Execution of Documents
.
Unless otherwise determined by the Administrative Trustees, and except as otherwise required by the Statutory Trust Act, any Administrative Trustee is authorized to execute on behalf of the Trust with
respect to this Series 2 any documents that the Administrative Trustees have the power and authority to execute pursuant to Section 3.07; provided, that the registration statement referred to in Section 3.07(b)(i), including any amendments
thereto, shall be signed by all of the Administrative Trustees.
Section 3.14
Not Responsible for Recitals or
Issuance of Securities
.
The recitals contained in this Declaration and the 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 Trust with respect to this Series 2 or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this Declaration or the Securities.
Section 3.15
[Reserved]
Section 3.16
[Reserved]
ARTICLE 4
SPONSOR
Section 4.01
Sponsor’s Purchase of Common Securities
.
On the Closing Date, the Sponsor will own all of the Common Securities with respect to this Series 2 of the Trust.
Section 4.02
Responsibilities of the Sponsor
.
In connection with any resale of the Trust Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage
in the following activities with respect to this Series 2 of the Trust, if and as applicable:
(a) to prepare for filing with
the Commission by the Trust with respect to this Series 2 a registration statement on Form S-3 or on another appropriate form, or a registration statement under Rule 462(b) of the Securities Act, including any pre-effective or post-effective
amendments thereto, relating to the registration under the Securities Act of the Trust Preferred Securities;
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(b) to determine the States in which to take appropriate action to qualify or register for
sale all or part of the Trust Preferred Securities and to do any and all such acts, other than actions which must be taken by the Trust with respect to this Series 2, and advise the Trust with respect to this Series 2 of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the Trust with respect to this Series 2, 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 Trust with respect to this Series 2 an application to the New York Stock Exchange or any other national
stock exchange for listing upon notice of issuance of any Trust Preferred Securities;
(d) to negotiate, along with the other
parties thereto including the United States Department of Treasury and the Underwriters, the terms of the Underwriting Agreement providing for the resale of the Trust Preferred Securities;
(e) to prepare for filing with the Commission by the Trust with respect to this Series 2 a registration statement on Form 8-A, including
any pre-effective or post-effective amendments thereto, relating to the registration of the Trust Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto; and
(f) otherwise to carry out and perform the obligations of the Trust with respect to this Series 2.
ARTICLE 5
TRUSTEES
Section 5.01
Number of Trustees; U.S. Person
.
The number of Trustees with respect to this Series 2 initially shall be three (3) exclusive of the Delaware Trustee, and:
(a) the number of Trustees with respect to this Series 2 may be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities or by written consent,
provided, however
, that the number of Trustees shall in no event be less than two (2); provided further
that (1) there shall be at least one Trustee acting for the Trust with respect to this Series who is an employee or officer of, or is affiliated with the Sponsor (an “Administrative Trustee”); and (2) one Trustee shall be the
Institutional Trustee; and
(b) no Person shall serve as a Trustee unless such Person is a United States Person.
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Section 5.02
[Reserved]
Section 5.03
Institutional Trustee; Eligibility
.
(a) There shall at all times be one Trustee that shall act as Institutional Trustee with respect to Series 2 of the Trust which shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the laws of the United States of America or any State 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 million U.S. dollars ($50,000,000), and subject to supervision or examination by Federal, State 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 5.03(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; and
(iii) if the Trust or this Series 2 is
excluded from the definition of an Investment Company solely by means of Rule 3a-7 and to the extent Rule 3a-7 requires a trustee having certain qualifications to hold title to the “eligible assets” with respect to this Series 2 of the
Trust, the Institutional Trustee shall possess those qualifications.
(b) If at any time the Institutional Trustee shall cease
to be eligible to so act under Section 5.03(a), the Institutional Trustee shall immediately resign in the manner and with the effect set forth in Section 5.06(c).
(c) If the Institutional Trustee has or shall acquire any “conflicting interest” within the meaning of § 310(b) of the Trust Indenture Act, the Institutional Trustee and the Holders of the
Common Securities (as if such Holders were the obligor referred to in § 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of § 310(b) of the Trust Indenture Act, subject to the penultimate paragraph
thereof.
(d) The Guarantee Agreement shall be deemed to be specifically described in this Declaration for purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
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(e) The initial Institutional Trustee shall be as set forth in Section 5.05 hereof.
Section 5.04
Qualifications of Administrative Trustees Generally
.
Each Administrative 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 and shall be a United States Person.
Section 5.05
Initial Trustees; Additional Powers
of Administrative Trustees
.
(a) The initial Administrative Trustees shall be:
Alison M. Summerville
Matthew M. Brennan
The initial Institutional Trustee shall be:
The Bank of New York Mellon
101 Barclay Street-8W
New York, New York 10286
Attention: Corporate Trust Administration
(b) Except as expressly set forth in this Declaration and except if a meeting of the Administrative Trustees is called with respect to any matter over which the Administrative Trustees have power to act,
any power of the Administrative Trustees may be exercised by, or with the consent of, any one such Administrative Trustee.
(c) Unless otherwise determined by the Administrative Trustees, and except as otherwise required by the Statutory Trust Act or applicable
law, any Administrative Trustee is authorized to execute on behalf of the Trust with respect to this Series 2 any documents which the Administrative Trustees have the power and authority to cause the Trust with respect to this Series 2 to execute
pursuant to Section 3.07, provided, that any registration statement referred to in Section 3.07(b)(i), including any amendments thereto, shall be signed by all of the Administrative Trustees; and
(d) an Administrative 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 Administrative Trustees have power and authority to cause the Trust with respect to this Series 2 to execute pursuant to Section 3.07.
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Section 5.06
Appointment, Removal and Resignation of Trustees
.
(a) Subject to Section 5.06(b), Trustees may be appointed or removed without cause at any time:
(i) in the case of the Administrative Trustees by vote of the Holders of a Majority in liquidation amount of the Common
Securities voting as a class by written consent or at a meeting of the Holders of the Common Securities;
(ii)
in the case of the Institutional Trustee and the Delaware Trustee, unless a Default shall have occurred and be continuing, by a vote of the Holders of a Majority in liquidation amount of the Common Securities voting as a class by written consent or
at a meeting of the Holders of the Common Securities; and
(iii) in the case of the Institutional Trustee and
the Delaware Trustee, if a Default shall have occurred and be continuing, by a vote of the Holders of a Majority in liquidation amount of the Trust Preferred Securities voting as a class by written consent or at a meeting of the Holders of the Trust
Preferred Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall not be removed in accordance with
Section 5.06(a) until a successor Trustee possessing the qualifications to act as Institutional Trustee under Section 5.03 (a “Successor Institutional Trustee”) has been appointed and has accepted such appointment by written
instrument executed by such Successor Institutional Trustee and delivered to the Administrative Trustees and the Sponsor.
(c)
A Trustee appointed to office shall hold office until his successor shall have been appointed or until his death, removal or resignation. Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in
writing signed by the Trustee and delivered to the Sponsor and the Trust with respect to this Series 2, 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 Trust with respect to this Series 2, the Sponsor and the resigning Institutional Trustee; or
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(B) until the assets of the Trust with respect to this Series 2 have been
completely liquidated and the proceeds thereof distributed to the holders of the Securities.
(d) The Holders of the Common
Securities shall use their best efforts to promptly appoint a Successor Institutional Trustee as the case may be if the Institutional Trustee delivers an instrument of resignation in accordance with this Section 5.06.
(e) If no Successor Institutional Trustee shall have been appointed and accepted appointment as provided in this Section 5.06 within
60 days after delivery to the Sponsor and the Trust with respect to this Series 2 of an instrument of resignation, the resigning Institutional Trustee may petition any court of competent jurisdiction at the expense of the Sponsor for appointment of
a Successor Institutional Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper and prescribe, appoint a Successor Institutional Trustee.
(f) No Institutional Trustee shall be liable for the acts or omissions to act of any Successor Institutional Trustee.
Section 5.07
Vacancies Among Trustees
.
If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 5.01, or if the number of Trustees is increased pursuant to Section 5.01, a
vacancy shall occur. A resolution certifying the existence of such vacancy by the Administrative Trustees or, if there are more than two, a majority of the Administrative Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 5.06.
Section 5.08
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 Trust with respect to this Series 2. Whenever a vacancy in the number of Administrative Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 5.06, the Administrative Trustees in office, regardless of their number, shall have all the powers granted to the Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration.
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Section 5.09
Meetings
.
If there is more than one Administrative Trustee, meetings of the Administrative Trustees shall be held from time to time upon the call
of any Administrative Trustee. Regular meetings of the Administrative Trustees may be held at a time and place fixed by resolution of the Administrative Trustees. Notice of any in-person meetings of the Administrative 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 Administrative 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 an Administrative Trustee at a meeting shall constitute a waiver of notice of such meeting except where an Administrative 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 Declaration, any action of the Administrative Trustees may be taken at a meeting by vote of a majority of the
Administrative 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 Administrative Trustees. In the
event there is only one Administrative Trustee, any and all action of such Administrative Trustee shall be evidenced by a written consent of such Administrative Trustee.
Section 5.10
Delegation of Power
.
(a) Any Administrative
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 purpose of executing any documents contemplated in Section 3.07, including any registration
statement or amendment thereto filed with the Commission, or making any other governmental filing;
(b) the Administrative
Trustees shall have power to delegate from time to time to such of their number or to officers of the Trust with respect to this Series 2 the doing of such things and the execution of such instruments either in the name of the Trust with respect to
this Series 2 or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Trust, with respect to
this Series 2, as set forth herein; and
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(c) any delegation of power by an Administrative Trustee under Section 3.07(g) (and
Section 3.07(o) insofar as it applies to Section 3.07(g)) or by the Institutional Trustee under Section 3.09(e) shall be to a United States Person.
Section 5.11
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Institutional Trustee or the Delaware Trustee, as the case may be, may be merged or converted or with which either may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Institutional Trustee or the Delaware Trustee, as the case may be, shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Institutional Trustee
or the Delaware Trustee, as the case may be, shall be the successor of the Institutional Trustee or the Delaware Trustee, as the case may be, hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE 6
DISTRIBUTIONS; EXCHANGES
Section 6.01
Distributions
.
Holders shall receive
Distributions (as defined herein) in accordance with the applicable terms of the relevant Holder’s Securities. Distributions shall be made on the Trust Preferred Securities and the Common Securities in accordance with the preferences set forth
in their respective terms. If and to the extent that the Debenture Issuer makes a payment of interest (including Compounded Interest (as defined in the Indenture)), premium and/or principal on the Debentures held by the Institutional Trustee (the
amount of any such payment being a “Payment Amount”), the Institutional Trustee shall and is directed to make a distribution (a “Distribution”) of the Payment Amount to Holders.
Section 6.02
Exchanges
.
(a) If at any time the Sponsor or any of its Affiliates (the Sponsor or any such Affiliate, a “Sponsor Affiliated Holder”) is the Holder of any Trust Preferred Securities or is a Trust Preferred
Security Beneficial Owner, such Sponsor Affiliated Holder shall have the right to deliver to the Institutional Trustee all or such portion of its Trust Preferred Securities as it elects and, subject to the terms of the Indenture, receive, in
exchange therefor, Debentures having an aggregate principal amount equal to the aggregate Liquidation Amount of the Trust Preferred Securities exchanged therefor (such an exchange being referred to herein as an “Exchange”). Such election
(i) shall be exercisable, and shall be effective on any Business Day, provided that such Business Day is not a record
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date or any date falling between a record date and a date on which the related Distribution is payable, by such Sponsor Affiliated Holder delivering to the Institutional Trustee a written notice
of such election specifying the aggregate Liquidation Amount of Trust Preferred Securities with respect to which such election is being made and the date on which such Exchange shall occur, which date shall be not less than three (3) Business
Days after the date of receipt by the Institutional Trustee of such election notice and (ii) shall be conditioned upon such Sponsor Affiliated Holder having delivered or caused to be delivered to the Institutional Trustee or its designee the
Trust Preferred Securities which are the subject of such election by 10:00 a.m. New York City time, on the date on which such Exchange is to occur. After the Exchange, such Trust Preferred Securities shall be cancelled and shall no longer be deemed
to be outstanding and all rights of the Sponsor Affiliated Holder with respect to such Trust Preferred Securities shall cease. So long as the Trust Preferred Securities are in book-entry-only form, the delivery and the cancellation of the Trust
Preferred Securities pursuant to this Section 6.02 shall be made in accordance with the customary procedures of the Clearing Agency for the Trust Preferred Securities.
(b) In the case of an Exchange described in Section 6.02(a), the Trust shall, acting with respect to this Series 2, at the written request of the Sponsor, on the date of such Exchange, exchange
Debentures having a principal amount equal to a proportional amount of the aggregate Liquidation Amount of the outstanding Common Securities, such proportional amount determined by multiplying the aggregate Liquidation Amount of the outstanding
Common Securities by the ratio of the aggregate Liquidation Amount of the Trust Preferred Securities exchanged pursuant to Section 6.02(a) to the aggregate Liquidation Amount of the Trust Preferred Securities outstanding immediately prior to
such Exchange, for such proportional amount of Common Securities held by the Sponsor (which contemporaneously shall be cancelled and no longer be deemed to be outstanding); provided, that the Sponsor delivers or causes to be delivered to the
Institutional Trustee or its designee the required amount of Common Securities to be exchanged by 10:00 a.m., New York City time, on the date on which such Exchange is to occur.
ARTICLE 7
SECURITIES
Section 7.01
General Provisions Regarding Securities
.
(a) As of the Closing Date, this Series 2 of the Trust has outstanding one class of preferred securities representing undivided
beneficial interests in the assets of the Trust with respect to this Series 2 having such terms as are set forth in Annex I (the “Trust Preferred Securities”) and one class of common securities representing undivided beneficial interests
in the assets of the Trust with respect to this Series 2 having such terms as are set forth in Annex I (the “Common
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Securities”). The Trust shall issue no securities or other interests in the assets of the Trust with respect to this Series 2 other than the Trust Preferred Securities and the Common
Securities.
(b) The Certificates shall be signed on behalf of the Trust with respect to this Series 2 by an Administrative
Trustee. Such signature shall be the manual or facsimile signature of any present or any future Administrative Trustee. In case any Administrative Trustee of the Trust with respect to this Series 2 who shall have signed any of the Securities shall
cease to be such Administrative Trustee before the Certificates so signed shall be delivered by the Trust with respect to this Series 2, such Certificates nevertheless may be delivered as though the person who signed such Certificates had not ceased
to be such Administrative Trustee; and any Certificate may be signed on behalf of the Trust with respect to this Series 2 by such persons who, at the actual date of execution of such Security, shall be the Administrative Trustees of the Trust with
respect to this Series 2, although at the date of the execution and delivery of the Declaration any such person was not such an Administrative Trustee. Certificates shall be printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the Administrative 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 Administrative 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 Securities may be listed, or to conform to usage.
(c) Any cash consideration received by the Trust with respect to this Series 2 for the issuance of the Securities shall constitute a contribution to the capital of the Trust and shall not constitute a
loan to the Trust with respect to this Series 2.
(d) The Securities are deemed to be validly issued, fully paid and
non-assessable.
(e) Every Person, by virtue of having become a Holder or a Trust Preferred Security Beneficial Owner in
accordance with the terms of this Declaration, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Declaration.
ARTICLE 8
DISSOLUTION; TERMINATION OF SERIES
Section 8.01
Dissolution of Series 2
.
(a) This Series 2 of the Trust shall dissolve:
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(i) upon the bankruptcy of any Holder of the Common Securities or the
Sponsor;
(ii) upon the filing of a certificate of dissolution or its equivalent with respect to the Sponsor or
the revocation of the Sponsor’s charter and the expiration of 90 days after the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of any Holder of the Common Securities, the Sponsor, the Trust or this Series 2;
(iv) subject to obtaining any required regulatory approval, when all of the Securities have been called for redemption;
(v) subject to obtaining any required regulatory approval, upon the Exchange of all of the then-outstanding
Trust Preferred Securities pursuant to Section 6.02;
(vi) subject to obtaining any required regulatory
approval, when this Series 2 shall have been dissolved in accordance with the terms of the Securities upon election by the Sponsor of its right to terminate this Series 2 and distribute all of the Debentures to the Holders of Securities in exchange
for all of the Securities.
(viii) upon the expiration of the term of this Series 2 set forth in
Section 3.03.
(b) As soon as is practicable after the occurrence of an event referred to in Section 8.01(a), and
after satisfaction of the claims and obligations of the Trust with respect to this Series 2 as required by applicable law, including Section 3808 of the Statutory Trust Act, and subject to the terms set forth in Annex I, the Administrative
Trustees, when notified in writing of the completion of the winding up of this Series 2 of the Trust in accordance with the Statutory Trust Act, shall terminate this Series 2 of the Trust by recording such termination on the books and records of the
Trust.
(c) The provisions of Section 3.10, Section 3.11 and Article 10 shall survive the termination of this Series
2 of the Trust.
ARTICLE 9
TRANSFER OF INTERESTS
Section 9.01
Transfer of Securities
.
(a) Securities may be transferred, in whole or in part, only in accordance with the terms and conditions set forth in this
Declaration and in the
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terms of the Securities. Any transfer or purported transfer of any Security not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article 9, all Certificates or other instruments representing the Trust Preferred Securities will bear a legend
substantially to the following effect (the “Private Placement Legend”):
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN
EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS (X) A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (Y) AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE SECURITIES
REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE DEBENTURE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
(c) Subject to this Article 9, the Sponsor and any Related Party may transfer Common Securities only to the Sponsor or a Related Party of
the Sponsor
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that is a United States Person; provided, that any such transfer is subject to the condition precedent that the transferor obtain the written opinion of nationally recognized independent counsel
experienced in such matters that such transfer would not cause more than an insubstantial risk that:
(i) (x)
the Trust or Series 2 (as applicable) would be classified (a) as other than either a grantor trust or a partnership or (b) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or
(y) there would be a material reduction in the likelihood that the Trust or Series 2 (as applicable) would be classified as a grantor trust for United States federal income tax purposes; and
(ii) the Trust or this Series 2 would be an Investment Company or the transferee would become an Investment Company.
Section 9.02
Transfer of Certificates
.
(a) The Trust acting with respect to this Series 2 shall cause to be kept at the Corporate Trust Office of the Institutional Trustee a
register in which, subject to such reasonable regulations as it may prescribe, the Trust acting with respect to this Series 2 shall provide for the registration of Trust Preferred Securities and of transfers of Trust Preferred Securities. The
Institutional Trustee is hereby appointed “Security Registrar” for the purpose of registering Trust Preferred Securities and transfers of Trust Preferred Securities as herein provided. The Security Registrar 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 Security Registrar 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 Security Registrar shall cause one or more new Certificates to be issued 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 Security Registrar 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 Security Registrar. 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 Declaration.
(b) In the event that any Trust Preferred Securities (i) become registered under the Securities Act or (ii) are eligible to be
transferred without restriction in accordance with Rule 144 or another exemption from registration under the Securities Act (other than Rule 144A), the Administrative Trustees shall cause to be issued, in accordance with Section 9.02(a) above,
new Certificates or other instruments representing such Trust Preferred Securities, which shall not contain
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the Private Placement Legend. Securities shall be freely transferable, subject to compliance with this Article 9 and the Securities Act. Subject to the last sentence of this Section 9.02(b),
if a Certificate representing a Trust Preferred Security bears a Private Placement Legend, such Trust Preferred Security (x) may be transferred to a Person or Persons who take delivery thereof in the form of a Certificate bearing a Private
Placement Legend only if the Security Registrar receives (A) an appropriately completed certificate of transfer in the form attached hereto as
Exhibit D
and (B) if applicable, a certificate substantially in the form attached hereto
as
Exhibit E
(each such certificate, a “Transfer Certification”); and (y) may be transferred to a Person or Persons who take delivery thereof in the form of a Certificate not bearing a Private Placement Legend or may be
exchanged for a Certificate not bearing a Private Placement Legend only if the Security Registrar has previously received an opinion of counsel in form reasonably acceptable to the Sponsor to the effect that the Trust Preferred Securities are
eligible to be transferred without restriction (a “Transfer Opinion”). The Institutional Trustee and the Security Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on
transfer or exchange imposed under this Declaration or under applicable law with respect to any transfer or exchange of any interest in any Security (including any transfers between or among Clearing Agency Participants, members or beneficial owners
in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Declaration, and to examine the same to
determine substantial compliance as to form with the express requirements hereof. At such time as the Debenture Issuer shall determine, in accordance with applicable law, that the Trust Preferred Securities are no longer required to bear the Private
Placement Legend, then: (x) the Sponsor shall deliver to the Institutional Trustee a Transfer Opinion; (y) the Security Registrar shall cause to be issued, in accordance with Section 9.02(a) above, new Certificates or other
instruments representing such Trust Preferred Securities, which shall not contain the Private Placement Legend; and (z) no Transfer Certification shall be required as a condition to any subsequent transfer of the Trust Preferred Securities.
Section 9.03
Deemed Security Holders
.
The Trustees and the Security Registrar shall treat the Person in whose name any Certificate shall be registered on the books and records
of the Trust with respect to this Series 2 as the sole holder of such Certificate and of the Securities represented by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such Certificate or in the Securities represented by such Certificate on the part of any Person, whether or not the Trust acting with respect to this Series 2 shall have actual or
other notice thereof.
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Section 9.04
Book Entry Interests
.
The Trust Preferred Securities are issued in the form of definitive, fully registered Trust Preferred Security Certificates (the
“Definitive Trust Preferred Security Certificates”). The Trust Preferred Securities may, upon the instruction of the Sponsor, be issued in the form of one or more, fully registered, global Trust Preferred Security Certificates (each a
“Global Certificate”), to be delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Trust with respect to this Series 2. Such Global Certificates shall initially be registered on the books and records of the Trust with
respect to this Series 2 in the name of Cede & Co., the nominee of DTC, and no Trust Preferred Security Beneficial Owner will receive a definitive Trust Preferred Security Certificate representing such Trust Preferred Security Beneficial
Owner’s interests in such Global Certificates, except as provided in Section 9.07. If the Trust Preferred Securities are held as Global Certificates, then unless and until Definitive Trust Preferred Security Certificates shall have been
issued to the Trust Preferred Security Beneficial Owners pursuant to Section 9.07:
(a) the provisions of this
Section 9.04 shall be in full force and effect;
(b) the Trust acting with respect to this Series 2 and the Trustees
shall be entitled to deal with the Clearing Agency for all purposes of this Declaration (including the payment of Distributions on the Global Certificates and receiving approvals, votes or consents hereunder) as the Holder of the Trust Preferred
Securities and the sole holder of the Global Certificates and shall have no obligation to the Trust Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.04 conflict with any other provisions of this Declaration, the provisions of this Section 9.04 shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners shall be exercised only through the Clearing Agency and shall be limited
to those established by law and agreements between such Trust Preferred Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants and the Clearing Agency receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will make book entry transfers among the Clearing Agency Participants.
Section 9.05
Notices to Clearing Agency
.
While the Trust Preferred Securities are in the form of Definitive Trust Preferred Security Certificates, all notices and communications to the Trust Preferred Security Holders shall be made at the
respective addresses of the Holders set forth on the books and records of the Trust with respect to this Series
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2. If the Trust Preferred Securities are held as Global Certificates, whenever a notice or other communication to the Trust Preferred Security Holders is required under this Declaration, the
Administrative Trustees shall give all such notices and communications specified herein to be given to the Trust Preferred Security Holders to the Clearing Agency, and shall have no notice obligations to the Trust Preferred Security Beneficial
Owners.
Section 9.06
Appointment of Successor Clearing Agency
.
If any Clearing Agency elects to discontinue its services as a securities depositary with respect to the Trust Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor Clearing Agency with respect to such Trust Preferred Securities.
Section 9.07
Definitive Trust Preferred Security Certificates
.
If:
(a) a
Clearing Agency elects to discontinue its services as a securities depositary with respect to the Trust Preferred Securities and a successor Clearing Agency is not appointed within 90 days after such discontinuance pursuant to Section 9.06; or
(b) the Administrative Trustees elect after consultation with the Sponsor and subject to the procedures of the Clearing
Agency to terminate the book entry system through the Clearing Agency with respect to the Trust Preferred Securities,
then:
(c) Definitive Trust Preferred Security Certificates shall be prepared by the Administrative Trustees on behalf of the Trust acting with
respect to this Series 2 with respect to such Trust Preferred Securities; and
(d) upon surrender of the Global Certificates
by the Clearing Agency, accompanied by registration instructions, the Administrative Trustees and the Security Registrar shall cause Definitive Certificates to be delivered to Trust Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the Trust with respect to this Series 2 nor the Security Registrar 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 Clearing Agency. The Definitive Trust Preferred Security Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the
Administrative Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or
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endorsements as the Administrative 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 Trust Preferred Securities may be listed, or to conform to usage.
Section 9.08
Mutilated, Destroyed, Lost or Stolen Certificates
.
If:
(a) any mutilated Certificates should be surrendered to the Security Registrar, or if the Security Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Security
Registrar 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 Administrative Trustee on behalf of the Trust with respect to this Series 2 shall execute and deliver, 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 9.08, the Administrative Trustees and the Security Registrar 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 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 10.01
Liability
.
(a) Except as expressly set forth in this Declaration, the Guarantee Agreement and the terms of the 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 of the Securities which shall be made solely from assets of the Trust with respect to this Series 2; and
(ii) required to pay to the Trust with respect to this Series 2 or to any Holder of Securities any deficit upon dissolution of the Trust with respect to this Series 2 or otherwise.
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(b) The Holder of the Common Securities shall be liable for all of the debts and obligations
of the Trust with respect to this Series 2 (other than with respect to the Securities) to the extent not satisfied out of the assets of the Trust with respect to this Series 2.
(c) Pursuant to § 3803(a) of the Statutory Trust Act, the Holders of the Trust Preferred Securities 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 10.02
Exculpation
.
(a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust with respect to this Series 2 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 Trust with respect to this Series 2 and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this 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 gross 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 Trust with respect to this Series 2
and upon such information, opinions, reports or statements presented to the Trust with respect to this Series 2 by any Person as to matters the Indemnified Person reasonably believes are within such other Person’s professional or expert
competence and who, if selected by such Person, has been selected with reasonable care by such Person, 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 of Securities might properly be paid.
Section 10.03
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 Trust with respect to this Series 2 or to any other
Covered Person, an Indemnified Person acting under this Declaration shall not be liable to the Trust with respect to this Series 2 or to any other Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict or eliminate the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the
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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 any Covered Persons; or
(ii) whenever this 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 Trust with respect to this Series 2 or any Holder of Securities,
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 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 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 Trust with respect to this Series 2 or any other Person; or
(ii) in its “good faith” or under another express standard, the Indemnified Person shall act under
such express standard and shall not be subject to any other or different standard imposed by this Declaration or by applicable law.
Section 10.04
Indemnification
.
(a) (i) The Debenture Issuer
shall indemnify, to the full extent permitted by law, any Company 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 Trust with respect to this Series 2) by reason of the
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fact that he is or was a Company 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 Trust with respect to this Series 2, 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 Company 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 Trust with respect to this Series 2, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
(i) The
Debenture Issuer shall indemnify, to the full extent permitted by law, any Company 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 Trust
with respect to this Series 2 to procure a judgment in its favor by reason of the fact that he is or was a Company 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 Trust with respect to this Series 2 and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company Indemnified Person shall have been adjudged to be liable to the Trust with respect to this Series 2 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.
(ii) To the extent that a Company
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 10.04(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.
(iii) Any indemnification under paragraphs (i) and
(ii) of this Section 10.04(a) (unless ordered by a court) shall be made by the
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Debenture Issuer only as authorized in the specific case upon a determination that indemnification of the Company Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and (ii). Such determination shall be made (1) by the Administrative Trustees by a majority vote of a quorum consisting of such Administrative 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 Administrative Trustees so directs, by independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust with respect to this Series 2.
(iv) Expenses (including attorneys’ fees) incurred by
a Company Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (i) and (ii) of this Section 10.04(a) shall be paid by the 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 Company Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 10.04(a). Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer if a determination is reasonably and promptly made (i) by the Administrative Trustees by a majority
vote of a quorum of disinterested Administrative Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion or
(iii) the Common Security Holder of the Trust with respect to this Series 2, that, based upon the facts known to the Administrative Trustees, counsel or the Common Security Holder at the time such determination is made, such Company 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 Trust with respect to this Series 2, or, with respect to any criminal proceeding, that such Company 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 Administrative Trustees, independent legal counsel or Common Security Holder reasonably determine that such person
deliberately breached his duty to the Trust with respect to this Series 2 or the Common or Trust Preferred Security Holders.
(v) The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 10.04(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 Debenture Issuer or Trust Preferred Security Holders of the Trust with
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respect to this Series 2 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 10.04(a) shall be deemed to be provided by a contract between the Debenture Issuer and each Company Indemnified Person who serves in such capacity at any time while this Section 10.04(a) is in effect. Any repeal or modification of
this Section 10.04(a) shall not affect any rights or obligations then existing.
(vi) The Debenture Issuer
may purchase and maintain insurance on behalf of any person who is or was a Company 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
Debenture Issuer would have the power to indemnify him against such liability under the provisions of this Section 10.04(a).
(vii) For purposes of this Section 10.04(a), references to “the Trust with respect to this Series 2” shall include, in addition to the resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity
as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 10.04(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.
(viii) The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section 10.04(a) shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Company Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(b) The 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
and all loss, liability, claim, damage or expense incurred without negligence, bad faith or willful misconduct on its part, arising out of or in connection with the acceptance or administration or 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
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powers or duties hereunder. The obligation to indemnify as set forth in this Section 10.04(b) shall survive the resignation or removal of the Institutional Trustee or the Delaware Trustee,
as the case may be, and the termination of this Declaration. The Debenture Issuer agrees to pay the Institutional Trustee and the Delaware Trustee from time to time such compensation for all services rendered by the Institutional Trustee and the
Delaware Trustee hereunder as may be mutually agreed upon in writing by the Debenture Issuer and the Institutional Trustee or the Delaware Trustee, as the case may be, and, except as otherwise expressly provided therein or herein, to reimburse the
Institutional Trustee and the Delaware Trustee upon its or their request for all reasonable expenses (including reasonable counsel fees and expenses), disbursements and advances incurred or made by the Institutional Trustee or the Delaware Trustee,
as the case may be, in accordance with the provisions of this Declaration, except any such expense, disbursement or advance as may be attributable to its or their negligence, bad faith or willful misconduct. The provisions of this sentence shall
survive the resignation or removal of the Delaware Trustee or the Institutional Trustee or the termination of this Declaration.
(c) When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
Section 10.05
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 Trust with respect to this Series 2, and the Trust with respect to this Series 2 and the Holders of Securities shall have no rights by virtue of this 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 Trust with respect to this Series 2, 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 Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust acting
with respect to this Series 2, 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
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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; CERTAIN TAX MATTERS
Section 11.01
Fiscal Year
.
The fiscal year (“Fiscal
Year”) of the Trust with respect to this Series 2 shall be the calendar year, or such other year as is required by the Code.
Section 11.02
Certain Accounting Matters
.
(a) At all times
during the existence of this Series 2 of the Trust, the Administrative 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 Trust with
respect to this Series 2. The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting principles, consistently applied. The Trust acting with respect to this Series 2 shall use the
accrual method of accounting for United States federal income tax purposes. The books of account and the records of the Trust with respect to this Series 2 shall be examined by and reported upon as of the end of each Fiscal Year of the Trust by a
firm of independent certified public accountants selected by the Administrative Trustees.
(b) The Administrative Trustees
shall cause to be prepared and delivered to each of the Holders of Securities, to the extent, if any, required by the Trust Indenture Act, within 90 days after the end of each Fiscal Year of this Series 2 of the Trust, annual financial statements of
the Trust with respect to this Series 2, including a balance sheet of the Trust with respect to this Series 2 as of the end of such Fiscal Year, and the related statements of income or loss;
(c) The Administrative Trustees shall cause to be duly prepared and delivered to each of the Holders of Securities any annual United
States federal income tax information statement required by the Code, containing such information with regard to the 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 Administrative Trustees shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of this Series 2 of the Trust.
(d) The Administrative 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
SS2-49
income tax law, and any other tax returns required to be filed by the Trust with respect to this Series 2 with any taxing authority.
Section 11.03
Banking
.
The Trust acting with respect to this Series 2 shall maintain one or more bank accounts in the name and for the sole benefit of the Trust with respect to this Series 2; provided, however, that all
payments of funds in respect of the Debentures held by the Institutional Trustee shall be made directly to the Institutional Trustee Account and no other funds of the Trust with respect to this Series 2 shall be deposited in the Institutional
Trustee Account. The sole signatories for such accounts shall be designated by the Administrative Trustees; provided, however, that the Institutional Trustee shall designate the signatories for the Institutional Trustee Account.
Section 11.04
Withholding
.
The Trust acting with respect to this Series 2 and the Administrative Trustees shall comply with all withholding requirements under United States federal, state and local law. The Trust acting with
respect to this Series 2 shall request, and the Holders shall provide to the Trust with respect to this Series 2, such forms or certificates as are necessary to establish an exemption from, or reduction in, withholding with respect to each Holder,
and any representations and forms as shall reasonably be requested by the Trust acting with respect to this Series 2 to assist it in determining the extent of, and in fulfilling, its withholding obligations. The Administrative Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that the Trust acting with
respect to this Series 2 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 overwithholding, 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 Trust acting with respect to
this Series 2 may reduce subsequent Distributions by the amount of such withholding.
Section 11.05
Tax
Treatment
.
The Trust and each beneficial owner of Securities, by acquiring such Securities, agrees, unless otherwise
required by law, to treat, for all United States federal income tax purposes (i) each series of the Trust as a separate entity, (ii) Series 2 as a grantor trust, (iii) itself as owning an undivided beneficial interest in the Series 2
Debentures, (iv) the Series 2 Debentures as indebtedness of the Debenture Issuer, and (v) the stated interest on the Series 2 Debentures as
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ordinary interest income that is includible in such beneficial owner’s gross income at the time the interest is paid or accrued in accordance with such beneficial owner’s regular method
of tax accounting.
ARTICLE 12
AMENDMENTS AND MEETINGS
Section 12.01
Amendments
.
(a) Except as otherwise provided in this Declaration or by any applicable terms of the Securities, this Declaration may be amended only
by a written instrument approved and executed by:
(i) the Administrative Trustees (or, if there are more than
two Administrative Trustees a majority of the Administrative 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 of the Declaration 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 Trust acting with respect to this Series 2 and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the 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 Trust acting with respect to this Series 2 and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor or the Trust with respect to this Series 2) that such
amendment is permitted by, and conforms to, the terms of this Declaration (including the terms of the Securities); and
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(iii) to the extent the result of such amendment would be to:
(A) (x) cause the Trust or Series 2 (as applicable) to be classified (a) as other than either a grantor trust or a
partnership or (b) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or (y) materially reduce the likelihood of the Trust or Series 2 (as applicable) being classified as a grantor trust
for United States federal income tax purposes;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust or this Series 2 to
be deemed to be an Investment Company required to be registered under the Investment Company Act.
(c) Any amendment that
would adversely affect the rights, privileges or preferences of any Holder of Securities may be effected only with such additional requirements as may be set forth in the terms of such Securities.
(d) Section 9.01(c) and this Section 12.01 shall not be amended without the consent of all of the Holders of the Securities.
(e) Article 5 shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Common
Securities.
(f) The rights of the Holders of the 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 Common Securities.
(g) Subject to Section 12.01(c), this Declaration may be amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity or manifest error;
(ii) correct or supplement any provision in this Declaration that may be defective or inconsistent with any other
provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
(iv) to conform to any change in Rule 3a-7 or written change in interpretation or application of Rule 3a-7 by
any legislative body, court,
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government agency or regulatory authority which amendment does not have a material adverse effect on the right, preferences or privileges of the Holders;
(v) to modify, eliminate and add to any provision of the Declaration to such extent as may be reasonably necessary to
effectuate any of the foregoing or to otherwise comply with applicable law; and
(vi) modify, eliminate or add
to any provisions of this Declaration to the extent necessary or prudent to (x) ensure that the Trust or Series 2 (as applicable) will be classified, for United States federal income tax purposes, as either a grantor trust or a partnership, and
not as an entity taxable as a corporation, or (y) increase the likelihood of the Trust or Series 2 (as applicable) being classified as a grantor trust for United States federal income tax purposes.
(g) Any amendment to the Base Declaration must be made in accordance with the provisions of this Series 2 and the provisions of each
other Series affected by such amendment.
Section 12.02
Meetings of the Holders of Securities; Action by Written
Consent
.
(a) Meetings of the Holders of any class of Securities may be called at any time by the Administrative
Trustees (or as provided in the terms of the Securities) to consider and act on any matter on which Holders of such class of Securities are entitled to act under the terms of this Declaration, the terms of the Securities or the rules of any stock
exchange on which the Trust Preferred Securities are listed or admitted for trading. The Administrative Trustees shall call a meeting of the Holders of such class if directed to do so by the Holders of Securities representing at least 10% in
liquidation amount of such class of Securities. Such direction shall be given by delivering to the Administrative Trustees one or more calls in a writing stating that the signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any Holders of Securities calling a meeting shall specify in writing the Security Certificates held by the Holders of Securities exercising the right to call a meeting and only those
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 Securities, the following provisions shall apply to meetings of Holders of Securities:
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(i) notice of any such meeting shall be given to all the Holders of
Securities 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 of Securities is permitted or required under this Declaration or the rules of
any stock exchange on which the Trust Preferred Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders of Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing setting forth the action so taken is signed by the Holders of Securities owning not less than the minimum amount of Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders of Securities 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 of Securities entitled to
vote who have not consented in writing. The Administrative Trustees may specify that any written ballot submitted to the Security Holder for the purpose of taking any action without a meeting shall be returned to the Trust acting with respect to
this Series 2 within the time specified by the Administrative Trustees;
(ii) each Holder of a Security may
authorize any Person to act for it by proxy on all matters in which a Holder of Securities 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 of Securities 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 Trust with respect to this Series 2 were a Delaware corporation and the Holders of
the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the
Securities shall be conducted by the Administrative Trustees or by such other Person that the Administrative Trustees may designate; and
(iv) unless the Statutory Trust Act, this Declaration, the terms of the Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Trust Preferred Securities are then
listed or trading, otherwise provides, the Administrative Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Securities, including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of Securities, waiver of any such notice, action by consent without a meeting, the establishment of
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a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote.
ARTICLE 13
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
Section 13.01
Representations and Warranties of Institutional Trustee
.
The Trustee that acts as initial Institutional Trustee represents and warrants to the Trust with respect to this Series 2 and to the Sponsor at the date of this Declaration, and each Successor
Institutional Trustee represents and warrants to the Trust with respect to this Series 2 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 banking corporation or association with trust powers, duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or formation, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the Institutional Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration has been duly executed and delivered by the Institutional Trustee, and it constitutes a 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 the Declaration by the Institutional Trustee does not conflict with or constitute a breach of the Articles of Organization or By-laws of the Institutional Trustee; and
(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 Declaration.
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Section 13.02
[Reserved]
ARTICLE 14
MISCELLANEOUS
Section 14.01
Notices
.
Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if
delivered personally, or by facsimile, upon confirmation of receipt, or (b) on the second business day following the date of dispatch if delivered by a recognized next day courier service. All notices shall be delivered, telecopied or sent by a
recognized next day courier service, as set forth below, or pursuant to such other instructions as may be designated by the Trust with respect to this Series 2, the Trustees or the Holders:
(a) if given to the Trust with respect to this Series 2, in care of the Administrative Trustees at the mailing address set forth below
for the Trust acting with respect to Series 2 (or such other address as the Trust may give notice of to the Holders of the Securities and the Institutional Trustee):
GMAC Capital Trust I
c/o Ally Financial Inc.
200 Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Attention: General Counsel
(b) if given to the Institutional Trustee, at the mailing address set forth below (or such other address as the Institutional Trustee may give notice of to the Holders of the Securities and the Sponsor):
The Bank of New York Mellon
101 Barclay Street-8W
New York, New York 10286
Attention: Corporate Trust Administration
(c) if given to the Holder of the Common Securities, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Common Securities may give notice of to the Trust
with respect to this Series 2 and the Institutional Trustee):
Ally Financial Inc.
200 Renaissance Center
P.O. Box 200
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Detroit, Michigan 48265-2000
Attention: General Counsel
(d) if given to any other Holder, at the address set forth on the books and records of the Trust with respect to this Series 2.
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 14.02
Governing Law; Waiver of Trial by Jury
THIS DECLARATION SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS MADE AND TO BE PREFORMED ENTIRELY WITHIN SUCH STATE. EACH OF THE PARTIES HERETO AGREES (A) TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
AND THE UNITED STATES COURT OF FEDERAL CLAIMS FOR ANY AND ALL CIVIL ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING OF THIS DECLARATION OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, AND (B) TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW THAT NOTICE MAY BE SERVED UPON THE TRUST, THE TRUSTEES AND THE HOLDERS AT THE ADDRESSES AND IN THE MANNER SET FORTH IN SECTION 14.01 AND, IF APPLICABLE, TO CERTAIN HOLDERS IN ACCORDANCE WITH FEDERAL LAW. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY CIVIL LEGAL ACTION OR PROCEEDING RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 14.03
Intention of the Parties
.
It is the intention of the parties hereto that this Series 2 be classified for United States federal income tax purposes as a domestic grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
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Section 14.04
Headings
.
Headings contained in this Declaration are inserted for convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
Section 14.05
Successors and Assigns
.
Whenever in this 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 Declaration by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed.
Section 14.06
Partial Enforceability
.
If any provision of this Declaration, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this 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 14.07
Counterparts
.
This instrument may be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of an executed signature page of this Indenture by facsimile or electronic (including PDF) transmission shall be effective as
delivery of a manually executed counterpart thereof.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day
and year first above written.
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By:
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/s/ Alison M. Summerville
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Name:
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Alison M. Summerville
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Title:
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Administrative Trustee
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By:
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/s/ Matthew M. Brennan
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Name:
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Matthew M. Brennan
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Title:
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Administrative Trustee
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THE BANK OF NEW YORK MELLON, as Institutional Trustee
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By:
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/s/ Sherma Thomas
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Name:
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Sherma Thomas
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Title:
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Senior Associate
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Ally Financial Inc., as Sponsor
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By:
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/s/ Cathy L. Quenneville
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Name:
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Cathy L. Quenneville
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Title:
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Secretary
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[Series 2 Supplement to
the Second Amended and Restated Declaration of Trust Signature Page]
SS2-59
ANNEX I
TERMS OF
8.125% FIXED RATE/FLOATING RATE PREFERRED SECURITIES
SERIES 2
8.125% FIXED RATE/FLOATING RATE COMMON SECURITIES
SERIES 2
Pursuant to Section 7.01 of the Series 2 Supplement (as amended from time to time, the “Series 2
Supplement”) to the Second Amended and Restated Declaration of Trust, dated as of March 1, 2011 (as amended from time to time, the “Base Declaration” and together with the Series 2 Supplement, the “Declaration”), the
designation, rights, privileges, restrictions, preferences and other terms and provisions of the Trust Preferred Securities and the Common Securities are set out below (each capitalized term used but not defined herein has the meaning set forth in
the Declaration):
1.
Designation and Number
.
(a)
Trust Preferred Securities
. ONE HUNDRED SIX MILLION SIX HUNDRED EIGHTY THOUSAND (106,680,000) Trust Preferred Securities of the Trust with respect to this Series 2 with an aggregate liquidation
amount with respect to the assets of the Trust with respect to this Series 2 of TWO BILLION SIX HUNDRED SIXTY SEVEN MILLION DOLLARS ($2,667,000,000), and a liquidation amount with respect to the assets of the Trust with respect to this Series 2 of
$25 per security, are hereby designated for the purposes of identification only as “8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2” (the “Trust Preferred Securities”). The Trust Preferred Security
Certificates evidencing the Trust Preferred Securities shall be substantially in the form of Exhibit A-1 to the 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 Trust Preferred Securities are listed.
(b)
Common
Securities
. THREE MILLION TWO HUNDRED THOUSAND FOUR HUNDRED (3,200,400) Common Securities of the Trust with respect to this Series 2 with an aggregate liquidation amount with respect to the assets of the Trust with respect to this Series 2 of
EIGHTY MILLION TEN THOUSAND DOLLARS ($80,010,000), and a liquidation amount with respect to the assets of the Trust with respect to this Series 2 of $25 per common security, are hereby designated for the purposes of identification only as
“8.125% Fixed Rate/Floating Rate Common Securities, Series 2” (the “Common Securities”). The Common Security Certificates evidencing the Common Securities shall be substantially in the form of Exhibit A-2 to the Declaration, with
such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice.
2.
Distributions
.
SS2-I-1
(a) Distributions will be cumulative and will be payable on each Security until redemption
(i) from March 1, 2011 to but excluding February 15, 2016, at an annual rate of 8.125% payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each year, beginning August 15,
2011, and (ii) from and including February 15, 2016 to but excluding February 15, 2040, at an annual rate equal to three-month LIBOR plus 5.785% payable quarterly in arrears on February 15, May 15, August 15
and November 15 of each year, beginning May 15, 2016 (the “Coupon Rates”), these rates being the rates payable on the Debentures to be held by the Institutional Trustee. The amount of Distributions payable (w) from March 1,
2011 to but excluding February 15, 2016 shall be computed for any full quarterly Distribution period on the basis of a 360-day year consisting 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 a partial month in such period and (x) from and including February 15, 2016 to but excluding February 15, 2040 shall
be computed on the basis of a 360-day year and the actual number of days elapsed. Distributions in arrears beyond the first date such Distributions are payable (or would be payable, if not for any Extension Period (as defined below) or default by
the Debenture Issuer on the Debentures) will bear interest thereon, compounded quarterly on February 15, May 15, August 15 and November 15 of each year, beginning August 15, 2011, at the applicable Coupon Rate and without
regard for any Extension Period (to the extent permitted by applicable law). The term “Distributions” as used herein includes such cash distributions and any such interest payable unless otherwise stated. A Distribution is payable only to
the extent that payments are made in respect of the Debentures held by the Institutional Trustee and to the extent the Institutional Trustee has funds available therefor.
(b) When, as and if available for payment, Distributions will be made by the Institutional Trustee, except as otherwise described below. The Debenture Issuer has the right under the Indenture to defer
payments of interest on the Debentures by extending the interest payment period from time to time on the Debentures for a period not exceeding 20 consecutive quarters (each an “Extension Period”), during which Extension Period no interest
shall be due and payable on the Debentures, provided, that no Extension Period may extend beyond the date of maturity of the Debentures. As a consequence of the Debenture Issuer’s extension of the interest payment period, quarterly
Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accumulate to the extent and in the amount that interest accrues and compounds on the underlying Debentures. In the event that the Debenture Issuer
exercises its right to extend the interest payment period, then (a) the Debenture Issuer and any subsidiary of the Debenture Issuer (other than a subsidiary of the Debenture Issuer that is a depository institution or a subsidiary thereof) shall
not declare or pay any dividend on, make any distributions with
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respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Debenture Issuer’s capital stock or make any guarantee payment with respect thereto (other
than (i) redemptions, purchases or other acquisitions of shares of capital stock of the Debenture Issuer in connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice,
(ii) the acquisition by the Debenture Issuer or any of its subsidiaries of record ownership in capital stock of the Debenture Issuer for the beneficial ownership of any other persons (other than the Debenture Issuer or any of its subsidiaries),
including trustees or custodians, (iii) as a result of an exchange or conversion of any class or series of the Debenture Issuer’s capital stock for any other class or series of the Debenture Issuer’s capital stock, in each case,
solely to the extent required pursuant to binding contractual agreements entered into prior to or on December 30, 2009 or any subsequent agreement for the accelerated exercise, settlement or exchange thereof for capital stock of the Debenture
Issuer, (iv) distributions by or among any wholly-owned subsidiary of the Debenture Issuer, (v) redemptions of securities held by the Debenture Issuer or any wholly-owned subsidiary of the Debenture Issuer, and (vi) unpaid tax
distributions to holders of membership interests of GMAC LLC pursuant to Section 4(b) of GMAC LLC’s Plan of Conversion, dated June 30, 2009), and (b) the Debenture Issuer and any subsidiary of the Debenture Issuer (other than a
subsidiary of the Debenture Issuer that is a depository institution, or a subsidiary thereof) shall not make any payment of interest on or principal of (or premium, if any, on), or repay, repurchase or redeem, any debt securities or guarantees
issued by the Debenture Issuer which rank
pari passu
with or junior to the Debentures (“
Junior Subordinated Indebtedness
”) (other than (i) redemptions, purchases or other acquisitions of Junior Subordinated Indebtedness
in connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Debenture Issuer or any of its subsidiaries of record ownership in Junior
Subordinated Indebtedness for the beneficial ownership of any other persons (other than the Debenture Issuer or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or conversion of any class or series of
Junior Subordinated Indebtedness for any other class or series of Junior Subordinated Indebtedness, (iv) redemptions of securities held by the Debenture Issuer or any wholly-owned subsidiary of the Debenture Issuer and (v) any payment of
interest on Junior Subordinated Indebtedness paid
pro rata
with interest paid on the Debentures such that the respective amounts of such payments made shall bear the same ratio to each other as all accrued but unpaid interest per like-amount
of Debentures and all Junior Subordinated Indebtedness bear to each other). The restrictions in the foregoing clauses (a) and (b) will not apply to (i) any stock dividends paid by the Debenture Issuer where the dividend stock is the
same stock as that on which the dividend is being paid or (ii) dividends or distributions by or other transactions solely among the Debenture Issuer and any wholly-owned subsidiary of the Debenture Issuer or solely among wholly-owned
subsidiaries of the Debenture Issuer. For the
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avoidance of doubt, the Trust with respect to this Series 2 shall have the right to make partial Distributions during an Extension Period if a corresponding payment of interest is made on the
Debentures. Prior to the termination of any such Extension Period, the Debenture Issuer may further extend such Extension Period;
provided
, that such Extension Period, together with all such other extensions thereof, shall not exceed 20
consecutive quarters;
provided further
, that no Extension Period may extend beyond the maturity of the Debentures. Payments of deferred Distributions and accrued interest thereon will be payable to Holders as they appear on the books and
records of the Trust with respect to this Series 2 on the record date immediately preceding the end of the Extension Period. At the termination of any Extension Period and upon the payment of all amounts then due, the Debenture Issuer may commence a
new Extension Period, subject to the above requirements. The Administrative Trustees will give notice to each Holder of any Extension Period upon their receipt of notice thereof from the Debenture Issuer.
(c) Distributions on the Securities will be payable to the Holders thereof as they appear on the books and records of the Trust with
respect to this Series 2 at the close of business on the relevant record dates. While the Trust Preferred Securities are in definitive, fully-registered form, subject to the rules of any securities exchange on which the Trust Preferred Securities
are listed, the relevant record dates shall be 15 days prior to the relevant payment dates or such other record date fixed by the Administrative Trustee that is not more than 60 nor less than 10 days prior to such relevant payment dates (each a
“Distribution Record Date”), which payment dates shall correspond to the interest payment dates on the Debentures. If the Trust Preferred Securities shall be in book-entry only form, the relevant record dates shall be one Business Day
prior to the relevant payment dates, which payment dates shall correspond to the interest payment dates on the Debentures. Subject to any applicable laws and regulations and the provisions of the Declaration, each such payment in respect of the
Trust Preferred Securities will be made in accordance with the procedures of The Depository Trust Company (“DTC”). The relevant record dates for the Common Securities shall be the same record date as for the Trust Preferred Securities.
Distributions payable on any Securities that are not punctually paid on any Distribution payment date, as a result of the Debenture Issuer having failed to make a payment under the Debentures, will cease to be payable to the Person in whose name
such Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Securities are registered on the special record date or other specified date determined in
accordance with the Indenture. If any date on which Distributions are payable on the Securities on or before February 15, 2016 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). If any date on which Distributions are payable on the Securities after February 15,
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2016 is not a Business Day, then payment of the Distribution payable on such date shall be made or be made available for payment on the next succeeding day that is a Business Day and interest
will accrue to but excluding the date interest is paid. However, if such Business Day is in the next succeeding calendar month, such payment shall be made on, and interest will accrue to but excluding, the immediately preceding Business Day.
(d) In the event that there is any money or other property held by or for the Trust with respect to this Series 2 that is not
accounted for hereunder, such property shall be distributed Pro Rata (as defined herein) among the Holders of the Securities.
3.
Liquidation Distribution upon Dissolution
.
(a) In the event of any voluntary or involuntary dissolution, of the Trust or this Series 2, the Holders of the Securities will be entitled to receive out of the assets of the Trust with respect to this
Series 2 available for distribution to Holders of Securities after satisfaction of claims and obligations of the Trust with respect to this Series 2 pursuant to applicable law, distributions in an amount equal to the aggregate of the stated
liquidation amount per Security plus accrued and unpaid Distributions thereon to the date of payment (such amount being the “
Liquidation Distribution
”), unless, in connection with the winding-up, Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount, with an interest rate equal to the Coupon Rate, and bearing accrued and unpaid interest in an amount equal to the accumulated and unpaid Distributions on, such Securities outstanding at such
time, have been distributed on a Pro Rata basis to the Holders of the Securities in exchange for such Securities. Prior to any such Liquidation Distribution, the Debenture Issuer will obtain any required regulatory approval.
(b) If, upon any such dissolution, the Liquidation Distribution can be paid only in part because the Trust with respect to this Series 2
has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by the Trust with respect to this Series 2 on the Securities shall be paid on a Pro Rata basis.
4.
Redemption and Distribution
.
(a) Upon the repayment of the Debentures in whole or in part, whether at maturity or upon redemption (either at the option of the Debenture Issuer or pursuant to a Special Event as described below), the
proceeds from such repayment or payment shall be simultaneously applied to redeem Securities having an aggregate liquidation amount equal to the aggregate principal amount of the Debentures so repaid or redeemed at a redemption price equal to the
liquidation amount per Security plus an amount equal to accrued and unpaid
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Distributions thereon at the date of the redemption, payable in cash (the “Redemption Price”). Holders shall be given not less than 30 nor more than 60 days’ notice of such
redemption. Prior to any such redemption, the Debenture Issuer will obtain any required regulatory approval.
(b) If fewer
than all the outstanding Securities are to be so redeemed, the Securities will be redeemed Pro Rata and the Trust Preferred Securities to be redeemed will be as described in Section 4(g)(ii) below.
(c) Subject to obtaining any required regulatory approval, the Debenture Issuer may redeem the Debentures, in whole or in part, at any
time on or after February 15, 2016 at the Redemption Price.
(d) Subject to obtaining any required regulatory approval,
if, at any time, a Tax Event or an Investment Company Event (each as defined below, and each a “Special Event”) shall occur and be continuing, the Debenture Issuer shall have the right, upon not less than 30 nor more than 60 days’
notice, to redeem the Debentures, in whole or in part, for cash within 90 days following the occurrence of such Special Event, and, following such redemption, Securities with an aggregate liquidation amount equal to the aggregate principal amount of
the Debentures so redeemed shall be redeemed by the Trust with respect to this Series 2 at the Redemption Price on a Pro Rata basis; provided, however, that if at the time there is available to the Debenture Issuer or the Trust with respect to this
Series 2 the opportunity to eliminate, within such 90-day period, the Special Event by taking some Ministerial Action, such as filing a form or making an election or pursuing some other similar reasonable measure that will have no adverse effect on
the Trust with respect to this Series 2 (a “Ministerial Action”), the Debenture Issuer or the holders of the Trust Preferred Securities or the Debentures, then the Debenture Issuer or the Trust acting with respect to this Series 2 will
pursue such measure in lieu of redemption.
“Tax Event” means that the Administrative Trustees shall have received
an opinion of a nationally recognized independent tax counsel experienced in such matters (a “Tax Event Opinion”) 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 amendment to, or change in, an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation or the publication of any judicial decision or regulatory determination or administrative pronouncement on or after December 30,
2009), in either case after December 30, 2009 there is more than an insubstantial risk that (i) Series 2 of the Trust would be subject to United States federal income tax with respect to interest accrued or received on the Debentures,
(ii) Series 2 of the Trust would be subject to more than a
de minimis
amount of
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other taxes, duties or other governmental charges, or (iii) interest payable to Series 2 of the Trust on the Debentures would not be deductible, in whole or in part, by the Debenture Issuer
for United States federal income tax purposes.
“Investment Company Event” means that the Administrative Trustees
shall have received an opinion of a nationally recognized independent counsel experienced in practice under the “Investment Company Act” to the effect that, as a result of the occurrence of a change in law or regulation or a written change
in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority (a “Change in 1940 Act Law”), there is a more than an insubstantial risk that the Trust or this Series 2 is
or will be considered an Investment Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after December 30, 2009.
On and from the date fixed by the Administrative Trustees for any distribution of the Debentures and dissolution of the Trust with
respect to this Series 2: (i) the Securities will no longer be deemed to be outstanding, (ii) if any Global Securities have been issued, DTC or its nominee (or any successor Clearing Agency or its nominee), as the record Holder of the
Trust Preferred Securities, will receive a registered global certificate or certificates representing the Debentures to be delivered upon such distribution and (iii) any certificates representing Securities, except for certificates representing
Trust Preferred Securities held by DTC or its nominee (or any successor Clearing Agency or its nominee), will be deemed to represent beneficial interests in the Debentures having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid Distributions on such Securities until such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
(e) The Trust acting with respect to this Series 2 may not redeem fewer than all the outstanding
Securities unless all accumulated and unpaid Distributions have been paid on all Securities for all quarterly Distribution periods terminating on or before the date of redemption.
(f) [Reserved]
(g) Redemption or Distribution procedures will be as follows:
(i) Notice of any redemption of, or notice of distribution of Debentures in exchange for the Securities (a
“Redemption/Distribution Notice”) will be given by the Trust with respect to this Series 2 by mail to the Institutional Trustee and the Delaware Trustee and to each Holder of the Securities to be redeemed or exchanged not fewer than 30 nor
more
SS2-I-7
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 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(g)(i), a Redemption/ Distribution Notice shall be deemed to be given on the day such notice is first mailed by first-class mail, postage
prepaid, to the Holders of the Securities. Each Redemption/Distribution Notice shall be addressed to the Holders of the Securities at the address of each such Holder appearing in the books and records of the Trust with respect to this Series 2. No
defect in the 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 Securities are to be redeemed, the Securities to be redeemed shall
be redeemed Pro Rata from each Holder of Trust Preferred Securities, it being understood that, in respect of Trust Preferred Securities registered in the name of and held of record by DTC or its nominee (or any successor Clearing Agency or its
nominee), the distribution of the proceeds of such redemption will be made to each Clearing Agency Participant (or Person on whose behalf such nominee holds such securities) in accordance with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust acting with respect to this Series 2 gives a
Redemption/Distribution Notice, which notice may only be issued if the Debentures are redeemed as set out in this Section 4 (which notice will be irrevocable), then (A) while the Trust Preferred Securities are in book-entry only form, with
respect to the Trust Preferred Securities, by 12:00 noon, New York City time, on the redemption date, provided, that the Debenture Issuer has paid to the Institutional Trustee a sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Institutional Trustee will deposit irrevocably with DTC or its nominee (or successor Clearing Agency or its nominee) funds sufficient to pay the applicable Redemption Price with respect to the Trust Preferred
Securities and will give DTC (or any successor Clearing Agency) irrevocable instructions and authority to pay the Redemption Price to the Holders of the Trust Preferred Securities, and (B) with respect to Trust Preferred Securities issued in
definitive form and Common Securities, provided, that the Debenture Issuer has paid the Institutional Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Debentures, the Institutional Trustee will pay the
relevant Redemption Price to the Holders of such Securities by check mailed to the address of the relevant Holder appearing on the books and records of the Trust with respect to this Series 2 on the
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redemption date. If a 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 Securities so called for redemption and all rights of the Holders of such Securities so called for redemption will cease, except the right of the Holders of
such Securities to receive the Redemption Price, but without interest on such Redemption Price. Neither the Administrative Trustees nor the Trust with respect to this Series 2 shall be required to register or cause to be registered the transfer of
any Securities that have been so called for redemption. If any date fixed for redemption of 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 payment of the Redemption Price in respect of any Securities is improperly withheld or refused and not paid either by the Institutional Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such 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 Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Administrative Trustees on behalf of the Trust with respect to this Series 2 to (A) in respect of the Trust Preferred Securities, DTC or its nominee (or any successor Clearing Agency or its nominee) if the Global Certificates have been issued
or, if Definitive Trust Preferred Security Certificates have been issued, to the Holder thereof and (B) in respect of the Common Securities, to the Holder thereof.
(v) Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws),
the Debenture Issuer or its affiliates may at any time and from time to time purchase outstanding Trust Preferred Securities by tender, in the open market or by private agreement.
5.
Voting Rights — Trust Preferred Securities
.
(a) Except as provided under Sections 5(b) and 7 and as otherwise required by law and the Declaration, the Holders of the Trust Preferred Securities will have no voting rights.
SS2-I-9
(b) (1) Subject to the requirements set forth in this paragraph, the Holders of a Majority
in aggregate liquidation amount of the Trust Preferred 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 direct the exercise of any
trust or power conferred upon the Institutional Trustee under the Declaration, including the right to direct the Institutional Trustee, as holder of the Debentures, to (i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or exercising any trust or power conferred on the Debenture Trustee with respect to the Debentures, (ii) waive any past Default (as defined in the Indenture) that is waivable under Section 5.06 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Debentures shall be due and payable or (iv) consent to any amendment, modification or termination of the Indenture or the Debentures
where such consent shall be required; provided, that, where a consent or action under the Indenture would require the consent or act of the Holders of greater than a majority in principal amount of Debentures affected thereby (a “Super
Majority”), 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 Trust Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding; provided, further, that the Institutional Trustee shall have the right to refrain from following any such direction that violates the Declaration or conflicts with any
applicable rule of law or would involve it in personal liability against which indemnity would, in the opinion of the Institutional Trustee, not be adequate, and the Institutional Trustee may take any other action deemed proper by it that is not
inconsistent with such direction. The Institutional Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Trust Preferred Securities. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy available to the Institutional Trustee, the Institutional Trustee, as holder of the Debentures, shall not take any of the actions described in clause (i), (ii), (iii) or (iv) above unless the
Institutional Trustee has obtained an opinion of a nationally recognized independent tax counsel experienced in such matters to the effect such action will not (x) cause the Trust or Series 2 (as applicable) to be classified (a) as other
than either a grantor trust or a partnership or (b) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or (y) materially reduce the likelihood of the Trust or Series 2 (as applicable)
being classified as a grantor trust for United States federal income tax purposes. To the fullest extent permitted by law, if the Institutional Trustee fails to enforce its rights under the Debentures, any Holder of Trust Preferred Securities may
directly institute a legal proceeding against the Debenture Issuer to enforce the Institutional Trustee’s rights under the Debentures without first instituting a legal proceeding against the Institutional Trustee or any other Person or entity.
If a Default under the Declaration has occurred and is continuing and such event is attributable to the failure of the
SS2-I-10
Debenture Issuer to pay interest or principal (or premium, if any) on the Debentures on the date such interest or principal (or premium, if any) is otherwise payable (or in the case of
redemption, on the redemption date), then a holder of Trust Preferred Securities may also directly institute a proceeding for enforcement of payment to such holder (a “Direct Action”) of the principal of or interest (or premium, if any) on
the Debentures having a principal amount equal to the aggregate liquidation amount of the Trust Preferred Securities of such holder on or after the respective due date specified or provided for in the Debentures without first (i) directing the
Institutional Trustee to enforce the terms of the Debentures or (ii) instituting a legal proceeding directly against the Debenture Issuer to enforce the Institutional Trustee’s rights under the Debentures. Except as provided in the
preceding sentence, the Holders of Trust Preferred Securities will not be able to exercise directly any other remedy available to the holders of the Debentures. In connection with such Direct Action, the Debenture Issuer will be subrogated to the
rights of such Holder of Trust Preferred Securities under the Declaration to the extent of any payment made by the Debenture Issuer to such holder of Trust Preferred Securities in such Direct Action.
(2) Any required approval or direction of Holders of Trust Preferred Securities may be given at a separate meeting of Holders of Trust
Preferred Securities convened for such purpose, at a meeting of all of the Holders of Securities in the Trust or pursuant to written consent. The Administrative Trustees will cause a notice of any meeting at which Holders of Trust 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 Trust 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.
(3) No vote or consent of the Holders
of the Trust Preferred Securities will be required for the Trust with respect to this Series 2 to redeem and cancel Trust Preferred Securities or to distribute the Debentures in accordance with the Declaration and the terms of the Securities.
(4) Notwithstanding that Holders of Trust Preferred Securities are entitled to vote or consent under any of the circumstances
described above, any of the Trust 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
to the extent required by Section 316(a) of the Trust Indenture Act.
(5) Voting and consensual rights available to or in
favor of Holders or Trust Preferred Security Beneficial Owners under this Trust Agreement may, to
SS2-I-11
the extent permitted by applicable rule or law, be exercised only by a United States Person that is a beneficial owner of a Trust Preferred Security or by a United States Person acting as
irrevocable agent with discretionary powers for the beneficial owner of a Trust Preferred Security that is not a United States Person. Beneficial owners of Trust Preferred Securities that are not United States Persons must, to the extent permitted
by applicable rule or law, irrevocably appoint a United States Person with discretionary powers to act as their agent with respect to such voting and consensual rights.
6.
Voting Rights — Common Securities
.
(a) Except as provided under
Sections 6(b), (c) and 7 and as otherwise required by law and the Declaration, the Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with and subject to Article 5 of the Declaration, to vote to appoint, remove or replace any Trustee or to increase or decrease the
number of Trustees.
(c) Subject to Section 2.06 of the Declaration and only after the Default with respect to the Trust
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 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 direct the exercise of any trust or power conferred upon the Institutional Trustee under the Declaration, including
(i) directing the time, method, place of conducting any proceeding for any remedy available to the Debenture Trustee, or exercising any trust or power conferred on the Debenture Trustee with respect to the Debentures, (ii) waiving any past
Default (as defined in the Indenture) that is waivable under Section 5.06 of the Indenture, or (iii) exercising any right to rescind or annul a declaration that the principal of all the Debentures shall be due and payable, provided that,
where a consent or action under the Indenture would require the consent or act of the Holders of a Super Majority of the 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 Common Securities which the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding; provided, further, that the Institutional Trustee
shall have the right to refrain from following any such direction that violates the Declaration or conflicts with any applicable rule of law or would involve it in personal liability against which indemnity would, in the opinion of the Institutional
Trustee, not be adequate, and the Institutional Trustee may take any other action deemed proper by it that is not inconsistent with such direction. Pursuant to this Section 6(c), the Institutional Trustee shall not revoke any action previously
authorized or approved by a vote
SS2-I-12
of the Holders of the Trust Preferred Securities. Other than with respect to directing the time, method and place of conducting any proceeding for any remedy available to the Institutional
Trustee or the Debenture Trustee as set forth above, the Institutional Trustee shall not take any action in accordance with the directions of the Holders of the Common Securities under this paragraph unless the Institutional Trustee has obtained an
opinion of nationally recognized tax counsel experienced in such matters to the effect that such action will not (i) cause the Trust or Series 2 (as applicable) to be classified (x) as other than either a grantor trust or a partnership or
(y) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or (ii) materially reduce the likelihood of the Trust or Series 2 (as applicable) being classified as a grantor trust for United
States federal income tax purposes. If the Institutional Trustee fails to enforce its rights under the Declaration, any Holder of Common Securities may institute a legal proceeding directly against any Person to enforce the Institutional
Trustee’s rights under the Declaration, without first instituting a legal proceeding against the Institutional Trustee or any other Person.
(d) Any approval or direction of Holders of Common Securities may be given at a separate meeting of Holders of Common Securities convened for such purpose, at a meeting of all of the Holders of Securities
in the Trust with respect to this Series 2 or pursuant to written consent. The Administrative Trustees will cause a notice of any meeting at which Holders of 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 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.
(e) No vote or consent of the Holders of the Common Securities will be required for the Trust acting with respect to this
Series 2 to redeem and cancel Common Securities or to distribute the Debentures in accordance with the Declaration and the terms of the Securities.
7.
Amendments to Declaration and Indenture
.
(a) In addition to any
requirements under Section 12.01 of the Declaration, if any proposed amendment to the Declaration provides for, or the Administrative Trustees otherwise propose to effect, (i) any action that would adversely affect the powers, preferences
or rights of the Securities, whether by way of amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up or termination of the Trust with respect to this Series 2, other than as described in Section 8.01 of the
Declaration, then the Holders of outstanding Securities as a class, will be entitled to vote on such amendment or proposal (but
SS2-I-13
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
Securities, voting together as a single class; provided, however, if any amendment or proposal referred to in clause (i) above would adversely affect only the Trust Preferred Securities or only the 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 Securities.
(b) In the event the consent of the Institutional Trustee as the holder of the Debentures is required under the Indenture with respect to
any amendment, modification or termination of the Indenture or the Debentures, the Institutional Trustee shall request the written direction of the Holders of the 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 Securities voting or consenting 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 Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided, further, that the Institutional Trustee shall not take any action in accordance with the directions of the Holders of the Securities under this Section 7(b) unless the Institutional
Trustee has obtained an opinion of nationally recognized tax counsel experienced in such matters to the effect that such action will not (i) cause the Trust or Series 2 (as applicable) to be classified (x) as other than either a grantor
trust or a partnership or (y) as an entity taxable as a corporation, in either case, for United States federal income tax purposes, or (ii) materially reduce the likelihood of the Trust or Series 2 (as applicable) being classified as a
grantor trust for United States federal income tax purposes.
8.
Pro Rata
.
A reference in these terms of the Securities to any payment, distribution or treatment as being “Pro Rata” shall mean pro rata
to each Holder of Securities according to the aggregate liquidation amount of the Securities held by the relevant Holder in relation to the aggregate liquidation amount of all Securities outstanding unless, in relation to a payment, a Default under
the 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 Trust Preferred Securities pro rata according to the aggregate liquidation amount of Trust Preferred
Securities held by the relevant Holder relative to the aggregate liquidation amount of all Trust Preferred Securities outstanding, and only after satisfaction of all amounts owed to the Holders of the Trust Preferred Securities, to each Holder of
Common Securities pro rata according to the aggregate liquidation amount of Common
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Securities held by the relevant Holder relative to the aggregate liquidation amount of all Common Securities outstanding.
9.
Ranking
.
The Trust Preferred Securities rank
pari passu
and
payment thereon shall be made Pro Rata with the Common Securities except that, where a Default (as defined in the Indenture) occurs and is continuing under the Indenture in respect of the Debentures held by the Institutional Trustee, the rights of
Holders of the Common Securities to payment in respect of Distributions and payments upon liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of the Trust Preferred Securities.
10.
Listing.
The Trust Preferred Securities will not initially be listed on any exchange. In the event that the Holder of the Common Securities determines to list the Trust Preferred Securities on an exchange, the
Administrative Trustees shall use their best efforts to cause the Trust Preferred Securities to be so listed.
11.
Acceptance of Securities Guarantee and Indenture
.
Each Holder of Trust Preferred Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Guarantee Agreement, including the subordination provisions therein and to the provisions of the Indenture.
12.
No Preemptive Rights
.
The Holders of the Securities shall have no
preemptive rights to subscribe for any additional securities.
13.
Miscellaneous
.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration or the Guarantee Agreement, and the Indenture to a Holder without charge on written request to the Sponsor at its principal place of business.
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EXHIBIT A-1
FORM OF TRUST PREFERRED SECURITY CERTIFICATE
SERIES 2
THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
SS2-A1-1
IF THE DEBENTURES ARE ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR PURPOSES OF
SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, ALLY FINANCIAL INC. (THE “COMPANY”) WILL, BEGINNING NO LATER THAN TEN (10) DAYS AFTER THE ISSUE DATE, PROMPTLY PROVIDE TO HOLDERS OF SECURITIES, UPON
WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE, AND THE YIELD TO MATURITY WITH RESPECT TO THE DEBENTURES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT ALLY FINANCIAL INC., 200 RENAISSANCE CENTER, P.O. BOX 200,
DETROIT, MICHIGAN 48265-2000, ATTENTION: CHIEF FINANCIAL OFFICER.
SS2-A1-2
|
|
|
|
|
Certificate Number
|
|
Number of Trust Preferred Securities
|
CUSIP NO. [
—
]
Certificate
Evidencing Trust Preferred Securities
of
GMAC Capital Trust I
8.125% Fixed Rate/Floating Rate Trust Preferred Securities
Series 2
(Liquidation Amount $25 per Trust Preferred Security)
GMAC Capital Trust I, a
statutory trust formed under the laws of the State of Delaware (the “Trust”), hereby certifies that
(the
“Holder”) is the registered owner of
(
) preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust with respect to Series 2 designated the 8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2 (the “Trust Preferred Securities”). The Trust Preferred
Securities are transferable on the books and records of the Trust with respect to Series 2, 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 Trust Preferred Securities are set forth in, and this certificate and the Trust Preferred Securities represented hereby are issued and shall in all respects be subject to,
the provisions of the Second Amended and Restated Declaration of Trust of the Trust dated as of March 1, 2011, as the same may be amended from time to time, together with the Series 2 Supplement thereto (the “Declaration”), including the
designation of the terms of the Trust Preferred Securities as set forth in Annex I thereto. Capitalized terms used herein but not defined shall have the meaning given them in the Declaration. The Holder is entitled to the benefits of the Guarantee
Agreement to the extent provided therein. The Sponsor will provide a copy of the Declaration, the Guarantee Agreement and the Indenture to a Holder without charge upon written request to the Sponsor at its principal place of business.
The Holder of this certificate, by accepting this certificate, is deemed to have (i) agreed to the terms of the Indenture and the
Debentures, including that the Debentures are subordinate and junior in right of payment to all Senior Indebtedness (as defined in the Indenture) and (ii) agreed to the terms of the Guarantee Agreement, including that the Guarantee Agreement is
(A) subordinate and junior in right of payment to all other liabilities of Ally, (B)
pari passu
with the most senior preferred or preference stock now or hereafter issued by Ally and
SS2-A1-3
with any guarantee now or hereafter issued by Ally with respect to preferred or preference stock of Ally’s affiliates and (C) senior to Ally’s common stock.
Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder, and by acquiring an interest herein, each beneficial owner of a Trust Preferred Security, agrees, unless
otherwise required by law, to treat, for United States federal income tax purposes, (i) each series of the Trust as a separate entity, (ii) Series 2 as a grantor trust, (iii) itself as owning an undivided beneficial interest in the
Series 2 Debentures, (iv) the Series 2 Debentures as indebtedness of the Debenture Issuer, and (v) the stated interest on the Series 2 Debentures as ordinary interest income that is includible in such beneficial owner’s gross income
at the time the interest is paid or accrued in accordance with such beneficial owner’s regular method of tax accounting.
SS2-A1-4
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of
,
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GMAC Capital Trust I
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Name:
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Title:
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Administrative Trustee
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SS2-A1-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred Security Certificate to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Trust Preferred Security Certificate on the books of the Trust for Series 2. The agent may substitute another to act for him or her.
(Sign exactly as your name appears on the other side of this Trust Preferred
Security
Certificate)
SS2-A1-6
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
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Certificate Number
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Number of Common Securities
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Certificate Evidencing Common Securities
of
GMAC Capital Trust I
8.125% Fixed Rate/Floating Rate Common Securities
Series 2
(Liquidation Amount $25 per Common Security)
GMAC Capital Trust I, a statutory trust formed under the laws of the State of Delaware (the “Trust”), hereby certifies that
Ally Financial Inc., a Delaware corporation (the “Holder”), is the registered owner of
(
) common securities of the Trust with respect to Series 2 representing undivided beneficial interests in the assets of
the Trust held with respect to Series 2, the payments received therefrom and the profits and losses derived therefrom, designated the 8.125% Fixed Rate/Floating Rate Common Securities, Series 2 (the “Common Securities”). The Common
Securities are transferable on the books and records of the Trust with respect to Series 2, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer and satisfaction of the other
conditions set forth in the Declaration (as defined below), including, without limitation, Section 9.01 thereof. The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities represented
hereby are issued and shall in all respects be subject to the provisions of the Second Amended and Restated Declaration of Trust of the Trust dated as of March 1, 2011, as the same may be amended from time to time, together with the Series 2
Supplement thereto (the “Declaration”), including the designation of the terms of the Common Securities as set forth in Annex I thereto. Capitalized terms used herein but not defined shall have the meaning given them in the Declaration.
The Sponsor will provide a copy of the Declaration and the Indenture to a Holder without charge upon written request to the Sponsor at its principal place of business.
SS2-A2-1
Upon receipt of this certificate, the Holder is bound by the Declaration and is entitled to
the benefits thereunder.
The Holder of this certificate, by accepting this certificate, is deemed to have agreed to the terms
of the Indenture and the Debentures, including that the Debentures are subordinate and junior in right of payment to all Senior Indebtedness (as defined in the Indenture) as and to the extent provided in the Indenture.
By acceptance, the Holder, and by acquiring an interest herein, each beneficial owner of a Common Security, agrees, unless otherwise
required by law, to treat, for United States federal income tax purposes (i) each series of the Trust as a separate entity, (ii) Series 2 as a grantor trust, (iii) itself as owning an undivided beneficial interest in the Series 2
Debentures, (iv) the Series 2 Debentures as indebtedness of the Debenture Issuer, and (v) the stated interest on the Series 2 Debentures as ordinary interest income that is includible in such beneficial owner’s gross income at the
time the interest is paid or accrued in accordance with such beneficial owner’s regular method of tax accounting.
SS2-A2-2
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of
,
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GMAC Capital Trust I
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Name:
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Title:
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Administrative Trustee
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SS2-A2-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security Certificate to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee)
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and irrevocably appoints
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agent to transfer this Common Security Certificate on the books of the Trust for Series 2. The agent may substitute another to act for him or
her.
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(Sign exactly as your name appears on the other side of this Common Security
Certificate)
SS2-A2-4
EXHIBIT B
SPECIMEN OF DEBENTURE
IF THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT (“
OID
”), FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF THE CODE, ALLY FINANCIAL INC. (THE “
COMPANY
”) WILL, BEGINNING NO LATER THAN TEN (10) DAYS AFTER THE ISSUE DATE, PROMPTLY PROVIDE TO HOLDERS OF
SECURITIES, UPON WRITTEN REQUEST,
SS2-B-1
THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY WITH RESPECT TO THE SECURITIES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT ALLY FINANCIAL INC., 200
RENAISSANCE CENTER, P.O. BOX 200, DETROIT, MICHIGAN 48265-2000, ATTENTION: CHIEF FINANCIAL OFFICER.
No. 1
$[ ]
ALLY FINANCIAL INC.
8.125% FIXED RATE/FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST
DEBENTURES
DUE FEBRUARY 15, 2040
ALLY FINANCIAL INC., a Delaware corporation (the “
Company
”, which term includes any successor corporation under the indenture dated as of December 30, 2009 as amended and restated on
March 1, 2011, between the Company and The Bank of New York Mellon, as trustee), for value received, hereby promises to pay to The Bank of New York Mellon, as Institutional Trustee of GMAC Capital Trust I (the “
Trust
”) with respect
to Series 2 thereof (“
Series 2 of the Trust
”), pursuant to that certain Second Amended and Restated Declaration of Trust and Series 2 Supplement thereto, each dated as of March 1, 2011 (the “
Declaration
”), or
registered assigns, the principal sum of [ ] ($[ ]) on February 15, 2040, and to pay interest on said
principal sum (i) from and including March 1, 2011 to but excluding February 15, 2016, at an annual rate of 8.125% payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each
year, beginning August 15, 2011, and (ii) from and including February 15, 2016 to but excluding February 15, 2040, at an annual rate equal to three-month LIBOR (as defined in the Declaration) plus 5.785% payable quarterly in
arrears on February 15, May 15, August 15 and November 15 of each year, beginning May 15, 2016 (the “
Coupon Rate
”), 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 applicable Coupon Rate per annum compounded quarterly on
February 15, May 15, August 15 and November 15 of each year, beginning August 15, 2011, at the applicable Coupon Rate and without regard for any Extended Interest Payment Period (as defined below) (to the extent
permitted by applicable law). The amount of interest payable shall be computed on the basis of (i) a 360-day year consisting of twelve 30-day months with respect to any interest payment period ending on or before February 15, 2016 and will
include the first day but exclude the last day of such period, and (ii) a 360-day year and the actual number of days elapsed with respect to any
SS2-B-2
interest payment period after February 15, 2016 and will include the first day of such period but exclude the date of maturity. 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 with respect to any interest payment period ending on or before February 15, 2016, will be computed on the basis of the actual number of days
elapsed in a partial month in such period. If the date for payment of any interest on or before February 15, 2016 is not a Business Day, then payment of interest payable on such date shall be made or be made available for payment on the next
succeeding day that is a Business Day, and without any interest or other payment in respect of any such delay. If any interest payment date after February 15, 2016 is not a Business Day, then payment of interest payable on such date shall be
made or be made available for payment on the next succeeding day that is a Business Day and interest will accrue to but excluding the date interest is paid. However, if such Business Day is in the next succeeding calendar month, such payment shall
be made on, and interest will accrue to but excluding, the immediately preceding Business Day. 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 Security (or one or more Predecessor Securities, as defined in said Indenture) is registered at the close of business on the regular record date for such interest installment, which shall be (a) while this Security
is held by the Institutional Trustee of Series 2 of the Trust or is represented by a Global Security, the close of business on the Business Day next preceding such Interest Payment Date, or (b) if pursuant to the provisions of the Indenture
this Security is not in book-entry form, 15 days prior to such Interest Payment Date or such other record date fixed by the Administrative Trustee that is not more than 60 nor less than 10 days prior to such Interest Payment Date. 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 Security (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Securities 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 Securities of this series 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 Security shall be payable at the office or agency of the 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 Company 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 Security is the Institutional Trustee of a
SS2-B-3
series of a GMAC Trust, the payment of the principal of (and premium, if any) and interest on this Security will be made at such place and to such account as may be designated by such
Institutional Trustee.
This Security is not a deposit or savings account. This Security is not insured by the Federal Deposit
Insurance Corporation or any other governmental agency or instrumentality.
The indebtedness evidenced by this Security 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 of the Company, and this Security is issued subject to the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by, such provisions, (b) authorizes and directs the 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 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 of the Company, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
This Security 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 Trustee.
The provisions of this Security
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.
SS2-B-4
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated:
, 2011
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ALLY FINANCIAL INC.
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities described in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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Authorized Signatory
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SS2-B-5
(REVERSE OF SECURITY)
ALLY FINANCIAL INC.
8.125% FIXED RATE/FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST
DEBENTURES
DUE FEBRUARY 15, 2040
This Security is one of a duly authorized issue of securities of the Company (herein sometimes referred to as the “
Securities
”), specified in the Indenture, all issued or to be issued in
one or more series under and pursuant to an indenture dated as of December 30, 2009 as amended and restated on March 1, 2011 (the “
Indenture
”), duly executed and delivered between the Company and The Bank of New York Mellon, as
trustee (the “
Trustee
”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. By the terms of the Indenture, the Securities 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 Securities is limited in aggregate principal amount to $[ ].
The Company shall have the right to redeem this Security (i) at the option of the Company, in whole or in part, at any time on or after February 15, 2016 (an “
Optional
Redemption
”), or (ii) any time in certain circumstances upon the occurrence of a Tax Event or an Investment Company Event (as defined below, each, a “
Special Event
”) at a redemption price equal to 100% of the principal
amount thereof, plus any accrued and unpaid interest to the date of such redemption (the “
Optional Redemption Price
”). Any redemption pursuant to this paragraph will be made at the Optional Redemption Price upon not less than 30
days nor more than 60 days notice, and with respect to a redemption upon a Special Event, within 90 days following the occurrence of such Special Event;
provided, however
, that if at the time there is available to the Company or Series 2 of
the Trust the opportunity to eliminate, within such 90 day period, the Special Event by taking some ministerial action, such as filing a form or making an election or pursuing some other similar reasonable measure that will have no adverse effect on
Series 2 of the Trust, the Company or the holders of the Trust Preferred Securities or the Securities, then the Company or Series 2 of the Trust will pursue such measure in lieu of redemption. If the Securities of this series are only partially
redeemed by the Company pursuant to an Optional Redemption, such Securities will be redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided
that if, at the time of redemption, the Securities of this series are
registered as a Global Security, the Depositary (as defined herein) shall determine the principal amount of such Securities held by each Security Beneficial Owner to be redeemed in accordance with its procedures.
SS2-B-6
“
Tax Event
” means that the Administrative Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such matters (a “
Tax Event Opinion
”) 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 amendment to, or change in, an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation and the publication of any judicial decision or regulatory determination or administrative pronouncement on or after December 30,
2009), in either case after December 30, 2009 there is more than an insubstantial risk that (i) Series 2 of the Trust would be subject to United States federal income tax with respect to interest accrued or received on the Securities of
this series, (ii) Series 2 of the Trust would be subject to more than a
de minimis
amount of other taxes, duties or other governmental charges, or (iii) interest payable to Series 2 of the Trust on the Securities of this series
would not be deductible, in whole or in part, by the Company for United States federal income tax purposes.
“
Investment Company Event
” means that the Administrative Trustees shall have received an opinion of a nationally
recognized independent counsel experienced in practice under the Investment Company Act to the effect that, as a result of the occurrence of a change in law or regulation or a written change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a “
Change in 1940 Act Law
”), there is a more than an insubstantial risk that Series 2 of the Trust (or the Trust) is or will be considered an Investment
Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after December 30, 2009.
Any redemption of the Securities of this series, in whole or in part, prior to the stated maturity date is subject to the prior concurrence approval of the Federal Reserve or the staff thereof,
(i) if such concurrence or approval is then required in order for securities such as the Securities of this series to qualify as tier 1 capital of a bank holding company under applicable capital adequacy guidelines, regulations, policies, or
published interpretations of the Federal Reserve, or (ii) if the Federal Reserve or its staff has informed the Company that it must obtain such approval before redeeming the Securities.
In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the
Indenture, with respect to the Securities of this series shall have occurred and be continuing, the principal of all
SS2-B-7
the Securities of this series 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 Company and the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities 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 Securities of such series under the Indenture;
provided
,
however
, that no such
supplemental indenture shall modify certain provisions of the Indenture, as set forth in the Indenture, without the consent of the Holders of each Security then outstanding and affected thereby including, without limitation, to: (i) extend the
fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of the Indenture with respect to the subordination of the Securities in a manner adverse to the Holders, or (ii) reduce the aforesaid percentage of Securities, the Holders
of which are required to consent to any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) provided
for in the Indenture. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time outstanding affected thereby, on behalf of all of the Holders of the
Securities 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 Securities of such series. Any such consent or waiver by the registered Holder of this Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Security and of any Security issued in exchange herefor 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 Security. In determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver under the Indenture or hereunder,
Securities owned by the U.S. Government shall not be deemed to be Securities owned by an Affiliate of the Company.
SS2-B-8
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Security at the time and place and at the rate and in the money herein prescribed.
So long as no Event of Default, as defined in the Indenture, shall have occurred and be continuing, the Company shall have
the right at any time during the term of the Securities of this series and from time to time to extend the interest payment period of such Securities for up to 20 consecutive quarters (an “
Extended Interest Payment Period
”), at the
end of which period the Company shall pay all interest then accrued and unpaid (together with interest thereon at the rate specified for the Securities of this series to the extent that payment of such interest is enforceable under applicable law);
provided
, that no such Extended Interest Payment Period shall extend beyond the maturity of such Securities; and
provided further
that during any such Extended Interest Payment Period (a) the Company and any subsidiary of the
Company (other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) 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 the Company’s capital stock or make any guarantee payment with respect thereto (other than (i) redemptions, purchases or other acquisitions of shares of capital stock of the Company in connection with the
administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Company or any of its subsidiaries of record ownership in capital stock of the Company for the
beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or conversion of any class or series of the Company’s capital stock for any
other class or series of the Company’s capital stock, in each case, solely to the extent required pursuant to binding contractual agreements entered into prior to or on December 30, 2009 or any subsequent agreement for the accelerated
exercise, settlement or exchange thereof for capital stock of the Company, (iv) distributions by or among any wholly-owned subsidiary of the Company, (v) redemptions of securities held by the Company or any wholly-owned subsidiary of the
Company, and (vi) unpaid tax distributions to holders of membership interests of GMAC LLC pursuant to Section 4(b) of GMAC LLC’s Plan of Conversion, dated June 30, 2009), and (b) the Company and any subsidiary of the Company
(other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) shall not make any payment of interest on or principal of (or premium, if any, on), or repay, repurchase or redeem, any debt securities or guarantees
issued by the Company which rank
pari passu
with or junior to the Securities (“
Junior Subordinated Indebtedness
”) (other than (i) redemptions, purchases or other acquisitions of Junior Subordinated Indebtedness in
connection with the administration of any employee benefit plan
SS2-B-9
in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Company or any of its subsidiaries of record ownership in Junior Subordinated Indebtedness
for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or conversion of any class or series of Junior Subordinated Indebtedness
for any other class or series of Junior Subordinated Indebtedness, (iv) redemptions of securities held by the Company or any wholly-owned subsidiary of the Company and (v) any payment of interest on Junior Subordinated Indebtedness paid
pro rata
with interest paid on the Securities of this series such that the respective amounts of such payments made shall bear the same ratio to each other as all accrued but unpaid interest per like-amount of such Securities and all Junior
Subordinated Indebtedness bear to each other). The restrictions in the foregoing clauses (a) and (b) will not apply to (i) any stock dividends paid by the Company where the dividend stock is the same stock as that on which the
dividend is being paid or (ii) dividends or distributions by or other transactions solely among the Company and any wholly-owned subsidiary of the Company or solely among wholly-owned subsidiaries of the Company. For the avoidance of doubt, the
Company shall have the right to make partial payments of interest on any Interest Payment Date during an Extended Interest Payment Period. Prior to the termination of any such Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period,
provided
that such Extended Interest Payment Period together with all such other extensions thereof shall not exceed 20 consecutive quarters;
provided further
, that no Extended Interest Payment Period
may extend beyond the maturity of the Securities of this series. At the termination of any such Extended Interest Payment Period and upon the payment of all accrued and unpaid interest and any additional amounts then due, the Company may commence a
new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set forth, this
Security is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Security for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the Company or the Trustee duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities 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 Company or the Trustee 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 Security, the Company, the 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
SS2-B-10
Security 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 Company nor the 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 Security, 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 Company 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.
If issued as a Global Security, this Global Security is exchangeable for Securities of this series in definitive form only
under certain limited circumstances set forth in the Indenture. Securities of this series so issued are issued 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 therein set forth, Securities of this series so issued are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering
the same.
All terms used in this Security shall have the meanings assigned to them in the Officer’s Certificate. All other terms used in
this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
SS2-B-11
EXHIBIT C
UNDERWRITING AGREEMENT
SS2-C-1
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED UPON
TRANSFER OF PREFERRED SECURITIES]
Ally Financial Inc.
200
Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Facsimile:
(313) 656-6214
Attention: General Counsel
The Bank of New York Mellon
101 Barclay Street — 8W
New York, New York 10286
Attention: Corporate
Trust Administration
Re: 8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2, liquidation amount $25 per preferred security
(the “Securities”) CUSIP # [ ]
Reference is hereby made to that certain Second Amended and Restated Declaration of Trust, dated as of March 1, 2011 (the “ARDT”), among Ally Financial Inc., the administrative trustees named
therein, BNY Mellon Trust of Delaware, as Delaware Trustee, and The Bank of New York Mellon, as Institutional Trustee (the “Institutional Trustee”). Capitalized terms used but not defined herein shall have the meanings set forth in the
ARDT.
This certificate relates to $
aggregate
liquidation amount of Securities held in definitive form by the undersigned.
The undersigned,
(transferor), hereby requests that the Security Registrar register a transfer of a Security or Securities to
(transferee).
In connection with such
transfer of the Security or Securities, the undersigned confirms that such Securities are being transferred in accordance with their terms:
CHECK ONE BOX BELOW:
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to Ally Financial Inc. or any subsidiary thereof; or
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to a “qualified institutional buyer” within the meaning of Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended
(the “Securities Act”) and in compliance with Rule 144A or (B) an institutional “accredited investor” within the meaning of
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SS2-D-1
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subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act;
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pursuant to an exemption from registration provided by Rule 144 under the Securities Act or any other available exemption from the registration requirements of the
Securities Act
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Unless one of the boxes is checked, the Security Registrar will refuse to register the transfer of any of the
Securities referenced in this certificate.
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(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program)
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TO BE COMPLETED BY PURCHASER IF THE SECOND BOX ABOVE IS CHECKED.
The undersigned represents and warrants that: (
initial applicable statement
)
it and any account for which it is acting is a
“qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended (“
Rule 144A
”), (ii) it exercises sole investment discretion with respect to each such account, and
(iii) it is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
it is an institutional “accredited investor” within the meaning of subparagraph (a)(1), (2), (3) or
(7) of Rule 501 under the Securities Act purchasing for its own account or for the account of such an “accredited investor”, and it is acquiring the Securities for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act, and it has such knowledge and experience in financial and business matters as to be capable of evaluation the merits and risks of its investment in the Securities, and it and any
account for which it is acting is able to bear the economic risks of the investment.
SS2-D-2
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[Name of Transferee]
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By:
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Name:
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Title:
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SS2-D-3
EXHIBIT E
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE
144A]
Ally Financial Inc.
200
Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Facsimile:
(313) 656-6214
Attention: General Counsel
The Bank of New York Mellon
101 Barclay Street — 8W
New York, New York 10286
Attention: Corporate
Trust Administration
Re: 8.125% Fixed Rate/Floating Rate Trust Preferred Securities, Series 2, liquidation amount $25 per preferred security
(the “Securities”) CUSIP #
[
]
Ladies and Gentlemen:
In connection with our proposed sale of
$
aggregate liquidation amount of the Securities (the “Subject Securities”), we hereby certify that such transfer is being effected pursuant to and in
accordance with Rule 144A (“Rule 144A”) under the United States Securities Act of 1933, as amended, and, accordingly, we hereby further certify that the Subject Securities are being transferred to a person that we reasonably believe is
purchasing the Subject Securities for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified institutional buyer” within
the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Subject Securities are being transferred in compliance with any applicable securities laws of any state of the United States.
The Bank of New York Mellon and Ally Financial Inc. are entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
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Very truly yours,
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[Name of Transferor]
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By:
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SS2-E-1
SS2-E-2
Exhibit 4.2
ALLY FINANCIAL INC.
TO
THE BANK OF
NEW YORK MELLON
Trustee
AMENDED AND
RESTATED INDENTURE
Dated as of March 1, 2011
Providing for the issuance of Junior Subordinated Debt Securities
TABLE OF CONTENTS
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P
AGE
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ARTICLE 1
D
EFINITIONS
AND
O
THER
P
ROVISIONS
OF
G
ENERAL
A
PPLICATION
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Section 1.01
.
|
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Definitions
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1
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Section 1.02
.
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Compliance Certificates and Opinions
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10
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Section 1.03
.
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Form of Documents Delivered to Trustee
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11
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Section 1.04
.
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Acts of Holders; Record Dates
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11
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Section 1.05
.
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Notices, Etc., to Trustee and Company
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12
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Section 1.06
.
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Notice to Holders; Waiver
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13
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Section 1.07
.
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Trust Indenture Act
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13
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Section 1.08
.
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Effect of Headings and Table of Contents
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13
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Section 1.09
.
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Successors and Assigns
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13
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Section 1.10
.
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Separability Clause
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14
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Section 1.11
.
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Benefits of Indenture
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14
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Section 1.12.
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Governing Law; Submission to Jurisdiction
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14
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Section 1.14
.
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Legal Holidays
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14
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Section 1.15
.
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Tax Characterization
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15
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Section 1.16
.
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Notices
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15
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ARTICLE 2
S
ECURITY
F
ORMS
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Section 2.01
.
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Forms Generally
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16
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Section 2.02
.
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Form of Face of Security
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16
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Section 2.03
.
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Form of Reverse of Security
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21
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Section 2.04
.
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Form of Trustee’s Certificate of Authentication
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27
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ARTICLE 3
T
HE
S
ECURITIES
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Section 3.01
.
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Amount Unlimited; Issuable in Series
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27
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Section 3.02
.
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Denominations
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29
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Section 3.03
.
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Execution, Authentication, Delivery and Dating
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29
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Section 3.04
.
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Temporary Securities
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30
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Section 3.05
.
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Registration, Registration of Transfer and Exchange
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31
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Section 3.06
.
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Mutilated, Destroyed, Lost and Stolen Securities
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33
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Section 3.07
.
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Payment of Interest; Interest Rights Preserved
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34
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Section 3.08
.
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Persons Deemed Owners
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35
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Section 3.09
.
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Cancellation
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35
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Section 3.10.
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Interest
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36
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Section 3.11.
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Form and Payment
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37
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Section 3.12.
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Global Securities
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37
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Section 3.13.
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CUSIP Numbers
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39
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ARTICLE 4
S
ATISFACTION
AND
D
ISCHARGE
; D
EFEASANCE
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Section 4.01.
|
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Satisfaction and Discharge of Indenture
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39
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Section 4.02.
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Defeasance and Discharge
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40
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Section 4.03.
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Covenant Defeasance
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41
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Section 4.04.
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Conditions to Defeasance or Covenant Defeasance
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42
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Section 4.05.
|
|
Application of Trust Money
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43
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Section 4.06.
|
|
Indemnity for U.S. Government Obligations
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43
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Section 4.07.
|
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Reinstatement
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43
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ARTICLE 5
R
EMEDIES
|
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Section 5.01.
|
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Events of Default
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44
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Section 5.02.
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Acceleration of Maturity
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45
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Section 5.03.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
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46
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|
Section 5.04.
|
|
Trustee to File Claims as Attorney-in-Fact
|
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47
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Section 5.05.
|
|
Application of Money Collected
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48
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Section 5.06.
|
|
Control by Holders; Waiver of Past Default
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48
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|
Section 5.07.
|
|
Limitation on Suits; Default
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50
|
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|
Section 5.08.
|
|
Costs and Attorneys’ Fees in Legal Proceedings
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51
|
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|
Section 5.09.
|
|
Remedies Cumulative
|
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|
52
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Section 5.10.
|
|
Waiver of Stay or Extension Laws
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52
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ARTICLE 6
T
HE
T
RUSTEE
|
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|
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|
|
Section 6.01.
|
|
Certain Duties and Responsibilities
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|
53
|
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|
Section 6.02.
|
|
Notice of Defaults
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|
|
54
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|
Section 6.03.
|
|
Certain Rights of Trustee
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|
|
54
|
|
|
Section 6.04.
|
|
Not Responsible for Recitals or Issuance of Securities
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56
|
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|
Section 6.05.
|
|
May Hold Securities
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|
57
|
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|
Section 6.06.
|
|
Money Held in Trust
|
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|
57
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|
Section 6.07.
|
|
Compensation and Reimbursement
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|
57
|
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|
Section 6.08.
|
|
Disqualification; Conflicting Interests
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|
58
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|
Section 6.09.
|
|
Corporate Trustee Required; Eligibility
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|
|
58
|
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|
Section 6.10.
|
|
Resignation and Removal; Appointment of Successor
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|
|
59
|
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|
Section 6.11.
|
|
Acceptance of Appointment by Successor
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|
|
60
|
|
|
Section 6.12.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
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|
62
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ii
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Section 6.13.
|
|
Preferential Collection of Claims Against Company
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62
|
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Section 6.14.
|
|
Appointment of Authenticating Agent
|
|
|
62
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|
|
ARTICLE 7
H
OLDERS
L
ISTS
AND
R
EPORTS
BY
T
RUSTEE
AND
C
OMPANY
|
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|
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|
Section 7.01.
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
64
|
|
|
Section 7.02.
|
|
Preservation of Information; Communications to Holders
|
|
|
64
|
|
|
Section 7.03.
|
|
Reports by Trustee
|
|
|
64
|
|
|
Section 7.04.
|
|
Reports by Company
|
|
|
65
|
|
|
Section 7.05.
|
|
Officers’ Certificate as to Events of Default
|
|
|
65
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|
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|
|
ARTICLE 8
C
ONSOLIDATION
, M
ERGER
, C
ONVEYANCE
, T
RANSFER
OR
L
EASE
|
|
|
|
|
|
|
Section 8.01.
|
|
Company May Consolidate, Etc., Only on Certain Terms
|
|
|
66
|
|
|
Section 8.02.
|
|
Successor Corporation Substituted
|
|
|
66
|
|
|
|
|
ARTICLE 9
S
UPPLEMENTAL
I
NDENTURES
|
|
|
|
|
|
|
Section 9.01.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
67
|
|
|
Section 9.02.
|
|
Supplemental Indentures with Consent of Holders
|
|
|
68
|
|
|
Section 9.03.
|
|
Execution of Supplemental Indentures
|
|
|
69
|
|
|
Section 9.04.
|
|
Effect of Supplemental Indentures
|
|
|
70
|
|
|
Section 9.05.
|
|
Conformity with Trust Indenture Act
|
|
|
70
|
|
|
Section 9.06.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
70
|
|
|
|
|
ARTICLE 10
C
OVENANTS
|
|
|
|
|
|
|
Section 10.01.
|
|
Payment of Principal, Premium and Interest
|
|
|
70
|
|
|
Section 10.02.
|
|
Maintenance of Office or Agency
|
|
|
70
|
|
|
Section 10.03.
|
|
Money for Securities Payments to be Held in Trust
|
|
|
71
|
|
|
Section 10.04.
|
|
Statement by Officers as to Default
|
|
|
72
|
|
|
Section 10.05.
|
|
Covenants as to GMAC Trusts
|
|
|
73
|
|
|
Section 10.06.
|
|
Payment of Expenses
|
|
|
73
|
|
|
Section 10.07.
|
|
Listing on an Exchange
|
|
|
74
|
|
|
Section 10.08.
|
|
Future Issuance of Securities under this Indenture
|
|
|
75
|
|
|
|
|
ARTICLE 11
R
EDEMPTION
OF
S
ECURITIES
|
|
|
|
|
|
|
Section 11.01.
|
|
Applicability of Article; Federal Reserve Approval
|
|
|
75
|
|
|
Section 11.02.
|
|
Election to Redeem; Notice to Trustee
|
|
|
75
|
|
iii
|
|
|
|
|
|
|
|
|
Section 11.03.
|
|
Selection by Trustee of Securities to be Redeemed
|
|
|
76
|
|
|
Section 11.04.
|
|
Notice of Redemption
|
|
|
76
|
|
|
Section 11.05.
|
|
Deposit of Redemption Price
|
|
|
77
|
|
|
Section 11.06.
|
|
Securities Payable on Redemption Date
|
|
|
77
|
|
|
Section 11.07.
|
|
Securities Redeemed in Part
|
|
|
78
|
|
|
|
|
ARTICLE 12
S
INKING
F
UNDS
|
|
|
|
|
|
|
Section 12.01.
|
|
Applicability of Article
|
|
|
78
|
|
|
Section 12.02.
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
79
|
|
|
Section 12.03.
|
|
Redemption of Securities for Sinking Fund
|
|
|
79
|
|
|
|
|
ARTICLE 13
E
XTENSION
OF
I
NTEREST
P
AYMENT
P
ERIOD
|
|
|
|
|
|
|
Section 13.01.
|
|
Extension of Interest Payment Period
|
|
|
80
|
|
|
Section 13.02.
|
|
Notice of Extension
|
|
|
80
|
|
|
Section 13.03.
|
|
Limitation of Transactions
|
|
|
81
|
|
|
|
|
ARTICLE 14
S
UBORDINATION
OF
S
ECURITIES
|
|
|
|
|
|
|
Section 14.01.
|
|
Agreement to Subordinate
|
|
|
83
|
|
|
Section 14.02.
|
|
Default on Senior Indebtedness
|
|
|
83
|
|
|
Section 14.03.
|
|
Liquidation; Dissolution; Bankruptcy
|
|
|
84
|
|
|
Section 14.04.
|
|
Subrogation
|
|
|
85
|
|
|
Section 14.05.
|
|
Trustee to Effectuate Subordination
|
|
|
86
|
|
|
Section 14.06.
|
|
Notice by the Company
|
|
|
87
|
|
|
Section 14.07.
|
|
Rights of the Trustee; Holders of Senior Indebtedness
|
|
|
87
|
|
|
Section 14.08.
|
|
Subordination may not be Impaired
|
|
|
88
|
|
|
Section 14.09.
|
|
Trustee’s Compensation not Prejudiced
|
|
|
88
|
|
|
|
|
ARTICLE 15
M
ISCELLANEOUS
|
|
|
|
|
|
|
Section 15.01.
|
|
Acknowledgment of Rights
|
|
|
89
|
|
|
Section 15.02.
|
|
Counterparts
|
|
|
89
|
|
Exhibit A Form of Transfer
Certificate
Exhibit B Form of Rule 144A Transfer Certificate
Annex I Form of Series 1 Securities
Annex II Form of Series 2 Securities
iv
INDEX OF TERMS
|
|
|
|
|
|
|
|
|
P
AGE
|
|
|
Act
|
|
|
2
|
|
|
Administrative Trustees
|
|
|
2
|
|
|
Affiliate
|
|
|
2
|
|
|
Authenticating Agent
|
|
|
2
|
|
|
Board of Directors
|
|
|
2
|
|
|
Board Resolution
|
|
|
2
|
|
|
Book Entry Interest
|
|
|
2
|
|
|
Business Day
|
|
|
2
|
|
|
Commission
|
|
|
3
|
|
|
Common Securities
|
|
|
3
|
|
|
Company
|
|
|
1, 3, 18
|
|
|
Company Order
|
|
|
3
|
|
|
Company Request
|
|
|
3
|
|
|
Compounded Interest
|
|
|
3, 80
|
|
|
Control
|
|
|
3
|
|
|
Corporate Trust Office
|
|
|
3
|
|
|
Coupon Rate
|
|
|
3, 36
|
|
|
Covenant Defeasance
|
|
|
3, 42
|
|
|
Declaration
|
|
|
4
|
|
|
Default
|
|
|
4, 50
|
|
|
Defaulted Interest
|
|
|
4, 34
|
|
|
Defeasance
|
|
|
4, 41
|
|
|
Deferred Interest
|
|
|
4, 80
|
|
|
Delaware Trustee
|
|
|
4
|
|
|
Depositary
|
|
|
4
|
|
|
Direct Action
|
|
|
4, 89
|
|
|
Dissolution Event
|
|
|
4
|
|
|
Distributions
|
|
|
4
|
|
|
Event of Default
|
|
|
4, 44
|
|
|
Exchange Act
|
|
|
4,78
|
|
|
Extended Interest Payment Period
|
|
|
4, 24, 80
|
|
|
Federal Reserve
|
|
|
4
|
|
|
Floating or Adjustable Rate Provision
|
|
|
4
|
|
|
Floating or Adjustable Rate Security
|
|
|
5
|
|
|
Global Security
|
|
|
5
|
|
|
GMAC Trust
|
|
|
5
|
|
|
Holder
|
|
|
5
|
|
|
Indenture
|
|
|
5, 21
|
|
|
Institutional Trustee
|
|
|
5
|
|
|
Interest Payment Date
|
|
|
5, 19, 36
|
|
v
|
|
|
|
|
|
|
Interest Payment Period
|
|
|
5, 36
|
|
|
mandatory sinking fund
|
|
|
23
|
|
|
mandatory sinking fund payment
|
|
|
78
|
|
|
Maturity
|
|
|
5
|
|
|
Non Book-Entry Trust Preferred Securities
|
|
|
5, 38
|
|
|
Officers’ Certificate
|
|
|
5
|
|
|
Opinion of Counsel
|
|
|
6
|
|
|
Optional Redemption
|
|
|
22
|
|
|
Optional Redemption Price
|
|
|
22
|
|
|
optional sinking fund payment
|
|
|
78
|
|
|
Outstanding
|
|
|
6
|
|
|
Paying Agent
|
|
|
7
|
|
|
Person
|
|
|
7
|
|
|
Place of Payment
|
|
|
7
|
|
|
Predecessor Security
|
|
|
7
|
|
|
Private Placement Legend
|
|
|
7, 17
|
|
|
Redemption Date
|
|
|
7
|
|
|
Redemption Price
|
|
|
7
|
|
|
Regular Record Date
|
|
|
7
|
|
|
Responsible Officer
|
|
|
8
|
|
|
Securities
|
|
|
1, 8, 21
|
|
|
Securities Act
|
|
|
8, 17
|
|
|
Security Beneficial Owner
|
|
|
8
|
|
|
Security Register
|
|
|
8, 31
|
|
|
Security Registrar
|
|
|
8, 31
|
|
|
Senior Indebtedness
|
|
|
8
|
|
|
Special Record Date
|
|
|
9
|
|
|
Stated Maturity
|
|
|
9
|
|
|
TARP
|
|
|
9
|
|
|
Transfer Certification
|
|
|
9, 32
|
|
|
Transfer Opinion
|
|
|
9, 32
|
|
|
Trust Indenture Act
|
|
|
9
|
|
|
Trust Preferred Securities
|
|
|
9
|
|
|
Trust Preferred Security Certificate
|
|
|
10
|
|
|
Trust Securities
|
|
|
10
|
|
|
Trustee
|
|
|
1, 10, 21
|
|
|
U.S. Government
|
|
|
10
|
|
|
U.S. Government Obligations
|
|
|
10, 42
|
|
vi
Ally Financial Inc.
Reconciliation and tie between Trust Indenture Act and
Amended and Restated
Indenture, dated as of March 1, 2011
|
|
|
|
|
|
|
Trust Indenture Act Section
|
|
Amended and Restated Indenture Section
|
|
|
§ 310 (b)
|
|
|
6.08, 6.10(d)(i)
|
|
|
§ 311 (a)
|
|
|
6.13
|
|
|
(b)
|
|
|
6.13
|
|
|
§ 312 (b)
|
|
|
7.02
|
|
|
(c)
|
|
|
7.02
|
|
|
§ 313 (a)
|
|
|
7.03
|
|
|
§ 316 (a)
|
|
|
1.07(a)
|
|
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Amended and Restated Indenture.
vii
AMENDED AND RESTATED INDENTURE (herein called the “
Indenture
”), dated as of
March 1, 2011, between ALLY FINANCIAL INC., a corporation duly organized and existing under the laws of the State of Delaware (herein called the “
Company
”), having its principal office at 200 Renaissance Center, P.O. Box 200,
Detroit, Michigan 48265-2000, and THE BANK OF NEW YORK MELLON, a New York banking corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the “
Trustee
”). This Indenture amends and
restates in its entirety the indenture between the parties hereto dated as of December 30, 2009.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of
its unsecured junior subordinated debentures, notes or other evidences of indebtedness (herein called the “
Securities
”), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE 1
D
EFINITIONS
AND
O
THER
P
ROVISIONS
OF
G
ENERAL
A
PPLICATION
Section 1.01
.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term “
generally accepted accounting principles
” with respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such computation; and
(4) 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.
Certain terms, used principally in Article 6, are defined in that Article.
“
Act
” when used with respect to any Holder, has the meaning specified in Section 1.04.
“
Administrative Trustees
” has the meaning set forth in the Declaration of the applicable GMAC Trust.
“
Affiliate
” means, with respect to any Person, any other Person that, directly or indirectly, whether through one or
more intermediaries, Controls, is Controlled by or is under common Control with such Person, excluding any employee benefit plan or related trust;
provided
that (i) no GMAC Trust to which Securities have been issued shall be deemed to be
an Affiliate of the Company and (ii) the United States Department of the Treasury shall not be deemed to be an Affiliate of the Company for purposes hereof.
“
Authenticating Agent
” means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Securities.
“
Board of Directors
” means either the board of directors of the Company or any duly authorized committee of that board.
“
Board Resolution
” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors or by a duly authorized committee of the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“
Book Entry Interest
” means a beneficial interest in a Global Security, ownership and transfers of which shall be
maintained and made through book entries by the Depositary.
“
Business Day
” means any day except Saturday,
Sunday or any other day on which banking institutions in the State of New York generally are authorized or required by law or other governmental action to close.
2
“
Commission
” means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, 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
” means with respect to a series of a GMAC Trust undivided beneficial
common interests in the assets of such series of such GMAC Trust which rank, except upon the occurrence and continuation of an Event of Default,
pari passu
with Trust Preferred Securities of such series of such GMAC Trust.
“
Company
” means the Person named as the “
Company
” in the first paragraph of this instrument until a
successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Company
” shall mean such successor corporation.
“
Company Request
” or “
Company Order
” means a written request or order signed in the name of the Company
by the Chief Executive Officer, the Chairman of the Board, the Chief Administrative Officer, any Vice Chairman, the Chief Financial Officer, the Controller, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, or a member of the
Funding Committee of the Company, and by its General Counsel and Corporate Secretary, or any Assistant Secretary of the Company, and delivered to the Trustee.
“
Compounded Interest
” has the meaning specified in Section 13.01.
“
Control,
” “
Controlled
” or “
Controlling
” means, with respect to any Person, any circumstance in which such Person is directly or indirectly controlled by
another Person by virtue of the latter Person having the power to (i) elect, or cause the election of (whether by way of voting capital stock, by contract, trust or otherwise), the majority of the members of the board of directors or a similar
governing body of the first Person, or (ii) direct (whether by way of voting capital stock, by contract, trust or otherwise) the affairs and policies of such Person.
“
Corporate Trust Office
” means the office of the Trustee in the City of New York, New York at which at any particular time its corporate trust business shall be principally administered,
which at the date hereof is located at 101 Barclay Street — 8W, New York, New York 10286 or such other address as the Trustee may designate from time to time by notice to the Holders and the Company.
“
Coupon Rate
” has the meaning specified in Section 3.10(a).
“
Covenant Defeasance
” has the meaning specified in Section 4.03.
3
“
Declaration
” means, with respect to a series of a GMAC Trust, the second
amended and restated declaration of trust which consists of the base declaration and any series supplement applicable to such series or any other governing instrument of such GMAC Trust with respect to such series.
“
Default
” has the meaning specified in Section 5.07.
“
Defaulted Interest
” has the meaning specified in Section 3.07(b).
“
Defeasance
” has the meaning specified in Section 4.02.
“
Deferred Interest
” has the meaning specified in Section 13.01.
“
Delaware Trustee
” has the meaning specified in the Declaration of the applicable GMAC Trust.
“
Depositary
” means, with respect to Securities of any series issuable in whole or in part in the form of one or more
Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
“
Direct Action
” has the meaning specified in Section 15.01.
“
Dissolution Event
” means, with respect to a series of a GMAC Trust, that as a result of the occurrence and continuation
of an event set forth in the Declaration of that GMAC Trust with respect to such series of such GMAC Trust (or such entire GMAC Trust) is to be dissolved in accordance with its Declaration.
“
Distributions
” on Trust Securities of a series of a GMAC Trust has the meaning set forth in the Declaration of such
GMAC Trust applicable to such series.
“
Event of Default
” has the meaning specified in Section 5.01.
“
Exchange Act
” means the Securities Exchange Act of 1934 as amended from time to time, and any successor
legislation.
“
Extended Interest Payment Period
” has the meaning specified in Section 13.01.
“
Federal Reserve
” means either or both of the Board of Governors of the Federal Reserve System and the Federal Reserve
Bank of Chicago, or its successor as the Company’s primary federal banking regulator.
“
Floating or Adjustable
Rate Provision
” means a formula or provision, specified in a Board Resolution or an indenture supplemental hereto, providing
4
for the determination, whether pursuant to objective factors or pursuant to the sole discretion of any Person (including the Company), and periodic adjustment of the interest rate per annum borne
by a Floating or Adjustable Rate Security.
“
Floating or Adjustable Rate Security
” means any Security which
provides for interest to be payable thereon at a rate per annum that may vary from time to time over the term thereof in accordance with a Floating or Adjustable Rate Provision.
“
Global Security
” means a Security that evidences all or part of the Securities of any series and is authenticated and
delivered to, and registered in the name of, the Depositary for such Securities or a nominee thereof.
“
GMAC
Trust
” means GMAC Capital Trust I, a Delaware statutory trust, or any similar trust created for the purpose of issuing Trust Preferred Securities in connection with the issuance of Securities under this Indenture.
“
Holder
” means a Person in whose name a Security is registered in the Security Register.
“
Indenture
” means this instrument as originally executed or as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 3.01.
“
Institutional Trustee
” has the meaning set forth in the Declaration of the applicable series of a GMAC Trust.
“
Interest Payment Date
,” when used with respect to any Security, means the Stated Maturity of an installment
of interest on such Security.
“
Interest Payment Period
” has the meaning specified in Section 3.10.
“
Maturity
,” when used with respect to any Security, means the date on which the principal of such Security
or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“
Non Book-Entry Trust Preferred Securities
” has the meaning specified in Section 3.12(a)(ii).
“
Officers’ Certificate
” means a certificate signed by the Chief Executive Officer, the Chairman of the Board, the
Chief Administrative Officer, any Vice Chairman, the Chief Financial Officer, the Controller, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, or a member of the Funding
5
Committee of the Company, and by its General Counsel and Corporate Secretary, or any Assistant Secretary of the Company, and delivered to the Trustee. The officer signing an Officers’
Certificate pursuant to Section 10.04 shall be the principal executive, financial or accounting officer of the Issuer or the Company, as the case may be.
“
Opinion of Counsel
” means a written opinion of counsel, who may be counsel for the Company.
“
Outstanding,
” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities;
provided
that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to Section 3.06, other than
any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities are valid obligations of the Company;
provided
that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or (subject to Section 1.07) any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding;
provided
,
however
, that the foregoing shall apply to the U.S. Government only to the extent required by Section 316(a) of the Trust Indenture Act;
provided
,
further
, that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded
and
provided
,
further
, that Securities held by the Institutional Trustee for the benefit of the holders of the Trust Securities shall not be so disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the
6
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
“
Paying Agent
” means any Person
authorized by the Company to pay the principal of (or premium, if any) or interest on any Securities on behalf of the Company.
“
Person
” means any individual, corporation, partnership, limited liability company, joint venture, association, joint
stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“
Place of Payment,
” when used with respect to the Securities of any series, means the place or places where the
principal of (and premium, if any) and interest on the Securities of that series are payable as specified as contemplated by Section 3.01.
“
Predecessor Security
” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
“
Private Placement Legend
” has the meaning set forth in Section 2.02.
“
Redemption Date
,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
“
Redemption Option Date
” means, with respect to a series of Securities, the date
specified as contemplated by Section 3.01 on or after which, from time to time, the Company, at its option, may redeem such series of Securities in whole or in part.
“
Redemption Price,
” when used with respect to any Security to be redeemed, means such percentage of the principal amount of such Security that is specified pursuant to Section 3.01
plus any accrued and unpaid interest thereon to the date of redemption.
“
Regular Record Date
” for the
interest payable on any Interest Payment Date on the Securities of any series means the date specified as such pursuant to Section 3.01.
7
“
Responsible Officer
” means, with respect to the Trustee, any officer
within the Corporate Trust Office of the Trustee having direct responsibility for the administration of this Indenture 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.
“
Securities
” has the meaning
stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“
Securities Act
” means the Securities Act of 1933, as amended from time to time, or any successor legislation.
“
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 Depositary, or
on the books of a Person maintaining an account with such Depositary (directly as a Depositary participant or as an indirect participant, in each case in accordance with the rules of the Depositary).
“
Security Register
” and “
Security Registrar
” have the respective meanings specified in
Section 3.05(a).
“
Senior Indebtedness
” means with respect to the Company the principal, premium, if
any, and interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not such claim for post-petition interest is allowed in such proceeding) on and of all
indebtedness and obligations in respect of (i) (A) indebtedness of the Company for money borrowed and (B) indebtedness evidenced by securities, notes, debentures, bonds or other similar instruments issued by the Company, including,
without limitation, all indebtedness (whether now or hereafter outstanding) issued under the subordinated debt indenture, dated as of December 31, 2008, between the Company and The Bank of New York Mellon, as trustee, as the same may be
amended, modified or supplemented from time to time; (ii) all capital lease obligations of the Company; (iii) all obligations of the Company issued or assumed as the deferred purchase price of property, all conditional sale obligations of
the Company and all obligations of the Company under any conditional sale or title retention agreement; (iv) all obligations, contingent or otherwise, of the Company in respect of any letters of credit, banker’s acceptance, security
purchase facilities and similar credit transactions; (v) all obligations of the Company in respect of interest rate swap, cap or other agreements, interest rate future or options contracts, currency swap agreements, currency future or option
contracts and other similar agreements; (vi) all obligations of the type referred to in clauses (i) through (v) of other Persons for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise
(“
guarantees
”); and (vii) all obligations of the type referred to in clauses (i)
8
through (vi) of other Persons secured by any lien on any property or asset of the Company (whether or not such obligation is assumed by the Company), except that Senior Indebtedness does not
include obligations in respect of (1) any indebtedness issued under this Indenture; (2) any guarantee entered into by the Company in respect of any series of preferred securities, capital securities or preference stock of a GMAC Trust;
(3) any accounts payable or other liabilities to trade creditors (including guarantees thereof or instruments evidencing such liabilities) or (4) any indebtedness or any guarantee that is by its terms subordinated to, or ranks equally
with, the Securities and the issuance of which, in the case of this clause (4) only, (x) has received the concurrence or approval of the Federal Reserve or its staff or (y) does not at the time of issuance prevent the Securities from
qualifying for tier 1 capital treatment (irrespective of any limits on the amount of the Company’s tier 1 capital) under applicable capital adequacy guidelines, regulations, policies, published interpretations, or any applicable concurrence or
approval of the Federal Reserve or its staff.
“
Special Event
” with respect to any series of a GMAC Trust,
has the meaning specified in the Declaration for such series of such GMAC Trust.
“
Special Record Date
” for
the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“
Stated
Maturity
” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
“
TARP
” means the Troubled Asset Relief Program established under
Section 101 of the Emergency Economic Stabilization Act of 2008.
“
Transfer Certification
” has the
meaning set forth in Section 3.05(h).
“
Transfer Opinion
” has the meaning set forth in
Section 3.05(h).
“
Trust Indenture Act
” means the Trust Indenture Act of 1939, as in force at the date
as of which this instrument was executed, except as provided in Section 9.05.
“
Trust Preferred
Securities
” means with respect to a series of a GMAC Trust undivided beneficial preferred interests in the assets of such series of such GMAC Trust which rank, except upon the occurrence and continuation of an Event of Default,
pari
passu
with Common Securities issued by such series of such GMAC Trust.
9
“
Trust Preferred Security Certificate
” has the meaning specified in the
Declaration of the applicable series of a GMAC Trust.
“
Trust Securities
” means Common Securities and Trust
Preferred Securities of any series of any GMAC Trust.
“
Trustee
” means the Person named as the
“
Trustee
” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Trustee
” shall mean or include each
Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “
Trustee
” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“
U.S. Government
” means any of (i) the federal government of the United States of America,
(ii) any instrumentality or agency of the federal government of the United States of America and (iii) any Person wholly-owned by, or the sole beneficiary of which is, the federal government of the United States of America or any
instrumentality or agency thereof.
“
U.S. Government Obligations
” has the meaning specified in
Section 4.04.
Section 1.02
.
Compliance Certificates and Opinions.
Upon any application or
request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that 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, if any, have been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than the
Officers’ Certificate required by Section 10.04) shall include,
(a)
a statement that each individual signing
such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(b)
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;
10
(c)
a statement that, in the opinion of each such individual, 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
(d)
a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03
.
Form of Documents Delivered to Trustee.
(a)
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
(b)
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
(c)
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04
.
Acts of Holders; Record Dates.
(a)
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture
to be given or taken by Holders shall be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced
thereby)
11
are herein sometimes referred to as the “
Act
” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b)
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c)
The ownership of Securities shall be proved by the Security Register.
(d)
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon such Security.
Section 1.05
.
Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a)
the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with and received by the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration;
provided, however
, that such instrument
will be considered properly given if submitted in an electronic format acceptable to the Trustee, or
(b)
the Company
by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company;
provided, however
, that such instrument will be considered properly given if submitted in an electronic
format acceptable to the Company.
12
Section 1.06
.
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07
.
Trust Indenture Act.
(a)
This
Indenture shall be subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions, subject to any applicable exemptive order issued by the
Commission, including any such order addressing the final paragraph of Section 316(a) of the Trust Indenture Act.
Section 1.08
.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09
.
Successors and Assigns.
(a)
Neither this Indenture nor any right, remedy, obligation nor liability arising hereunder or by reason hereof shall be
assignable by any party hereto without the prior written consent of the other party, and any attempt to assign any right, remedy, obligation or liability hereunder without such consent shall be void, except in connection with a transaction involving
the Company that is permitted under Article 8 and pursuant to which the successor or assignee agrees in writing to perform the Company’s obligations hereunder.
13
(b)
This Indenture shall be binding upon and shall inure to the benefit of any
successor or permitted assign of the Company and the Trustee.
Section 1.10
.
Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the
provision at issue.
Section 1.11
.
Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness, the Holders, and, to the extent expressly provided in 5.02, 5.06, 9.02 and 15.01, the holders of the Trust Preferred Securities or Trust Securities, as applicable, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.12
. Governing Law; Submission to Jurisdiction.
THIS INDENTURE AND THE SECURITIES 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 FOR THE PRINCIPLES OF ITS CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES IN SECTION 1.13 TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE UNITED STATES COURT OF FEDERAL CLAIMS FOR ANY AND ALL CIVIL ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY, AND (A) THAT NOTICE MAY BE SERVED UPON (I) THE COMPANY AT THE ADDRESS AND IN THE MANNER SET FORTH FOR NOTICES TO THE COMPANY IN SECTION 1.15 AND (II) THE UNITED STATES DEPARTMENT OF THE TREASURY IN ACCORDANCE WITH
FEDERAL LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY CIVIL LEGAL ACTION OR PROCEEDING RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 1.14
.
Legal Holidays.
14
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity,
provided
that no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, 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.
Section 1.15
.
Tax
Characterization.
The Company, the Trustee and each Holder and beneficial owner of a Security (by acceptance or
acquisition thereof) agrees to treat the Securities as indebtedness for United States federal, state and local income and franchise tax purposes and agrees not to take any contrary position before any taxing authority or on any tax return unless
otherwise required by law.
Section 1.16
.
Notices.
Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed
to have been duly given (a) on the date of delivery if delivered personally, or by facsimile, upon confirmation of receipt, or (b) on the second Business Day following the date of dispatch if delivered by a recognized next day courier
service. All notices shall be delivered, telecopied or sent by a recognized next day courier service, as set forth below, or pursuant to such other instructions as may be designated by the Trustee, the Company or the Holders:
(a)
If given to the Trustee, at the Trustee’s mailing address set forth below (or such other address as the Trustee may give
notice of to the Holders and the Company):
The Bank of New York Mellon
101 Barclay Street – 8W
New York, New York 10286
Attention: Corporate Trust Administration
(b)
If given to the Company, at the Company’s mailing address set forth below (or such other address as the Company may give
notice of to the Holders and the Trustee):
15
Ally Financial Inc.
200 Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Attention: General Counsel
(c)
If given to any Holder, at the address set
forth on the books and records of the Company.
ARTICLE 2
S
ECURITY
F
ORMS
Section 2.01
.
Forms Generally.
The Securities of each
series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution 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 the
rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
The Securities of
Series 1 and Series 2 shall be in substantially the form set forth in Annex I and Annex II, respectively.
The Trustee’s
certificates of authentication shall be in substantially the form set forth in this Article.
The definitive Securities may be
produced in any manner as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02
.
Form of Face of Security.
[
If the
Security is to be a Global Security, insert
: This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is
16
registered in the name of a Depositary or a nominee of a Depositary. This Security is exchangeable for Securities 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 Security (other than a transfer of this Security 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 Security 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 Security 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.]
[If the Security is issued pursuant to an exemption
from registration under the Securities Act, insert a legend substantially to the following effect (the “
Private Placement Legend
”), unless the Company shall determine, in accordance with applicable law, that such
legend is inapplicable. If a Security that includes such legend (i) becomes registered under the Securities Act or (ii) is eligible to be transferred without restriction in accordance with Rule 144 or another exemption from registration
under the Securities Act (other than Rule 144A), it shall be exchanged upon surrender in accordance with Section 3.05 at the option of the Holder for a Security that does not include such legend:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“
SECURITIES ACT
”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS (X) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR
(Y) AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, (2) AGREES THAT IT
17
WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT,
(B) FOR SO LONG AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.]
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED BY ITS PURCHASE AND
HOLDING THEREOF THAT EITHER (I) NO PORTION OF THE ASSETS USED BY IT TO ACQUIRE AND HOLD THE SECURITY CONSTITUTES ASSETS OF ANY “EMPLOYEE BENEFIT PLAN” SUBJECT TO SECTION 406 OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED (“
ERISA
”), ANY PLAN, ACCOUNT OR OTHER ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “
CODE
”), OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR
OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “
SIMILAR LAWS
”), OR ANY ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT
PLAN OR OTHER PLAN, ACCOUNT OR ARRANGEMENT OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR
LAW.
[
If the security is issued with original issue discount, insert
: THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE
DISCOUNT (“
OID
”), FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF THE CODE, ALLY FINANCIAL INC. (THE “
COMPANY
”) WILL, BEGINNING NO LATER THAN TEN (10) DAYS AFTER THE ISSUE DATE, PROMPTLY PROVIDE TO HOLDERS OF
SECURITIES, UPON WRITTEN REQUEST,
18
THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY WITH RESPECT TO THE SECURITIES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT ALLY FINANCIAL INC., 200
RENAISSANCE CENTER, P.O. BOX 200, DETROIT, MICHIGAN 48265-2000, ATTENTION: CHIEF FINANCIAL OFFICER.]
No.
ALLY FINANCIAL INC.
[Insert title of series of Security]
ALLY FINANCIAL INC., a Delaware corporation (the “
Company,
” which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay to or
registered assigns, the principal sum of
dollars ($ ) on
, , and to pay interest on said principal sum from, , 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, [quarterly] [(subject to deferral as set forth herein)] in arrears on
, , and
] of each year commencing [ , ],
at [
If the Security is to bear interest at a fixed rate, insert
-a rate of % per annum,] [If the Security is a Floating or Adjustable Rate Security, insert a rate of % per annum
[computed-determined] in accordance with the [insert defined name of Floating or Adjustable Rate Provision] set forth below] 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, and for any period shorter than a full quarterly period for which interest is payable, interest will be computed on the basis of the actual number of days elapsed in a partial
month in such period. In the event that any date on which interest is payable on this Security 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 Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business on the regular record date for such interest installment, which shall be the close of business on the Business Day next preceding such Interest Payment Date, [
if
pursuant to the provisions of the
19
Indenture the Securities are no longer represented by a Global Security
: which shall be the close of business on the Business Day next preceding such Interest Payment Date or such other
record date fixed by the Administrative Trustee that is not more than 60 nor less than 10 days prior to such Interest Payment Date.] 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 Security (or one or more Predecessor Securities) is registered at the close of business on a special record date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Securities 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 Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. Payments on this Global Security will be
made to the Depository Trust Company, or to a successor Depositary. [
If pursuant to the provisions of the Indenture the Securities are no longer represented by a Global Security
: The principal of (and premium, if any) and the interest on this
Security shall be payable at the office or agency of the 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 Company 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 Security
is the Institutional Trustee of a series of a GMAC Trust, the payment of the principal of (and premium, if any) and interest on this Security will be made at such place and to such account as may be designated by such Institutional Trustee.]
This Security is not a deposit or savings account. This Security is not insured by the Federal Deposit Insurance
Corporation or any other governmental agency or instrumentality.
[At this point in the Security Form of any series of
Floating or Adjustable Rate Securities, the text of the Floating or Adjustable Rate Provision relating thereto should be inserted.]
The indebtedness evidenced by this Security 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 of the Company,
and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by, such provisions, (b) authorizes and directs the 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 Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof,
by his or her acceptance hereof,
20
hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness of the Company, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said provisions.
This Security 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 Trustee.
The provisions of this Security 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated:
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ALLY FINANCIAL INC.
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By:
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Name:
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Title:
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By:
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Section 2.03
.
Form of Reverse of Security
.
This Security is one of a duly authorized issue of securities of the Company (herein sometimes referred to as the
“
Securities
”), specified in the Indenture, all issued or to be issued in one or more series under and pursuant to the indenture dated as of December 30, 2009 as amended and restated on March 1, 2011 (the
“
Indenture
”), duly executed and delivered between the Company and The Bank of New York Mellon, as trustee (the “
Trustee
”), to which Indenture and all indentures supplemental thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. By the terms of the Indenture, the Securities are issuable in series that may
vary as to amount, date of maturity, rate of interest and in other respects as provided in the
21
Indenture. This series of Securities is limited in aggregate principal amount to $ .
Because of the occurrence and continuation of a Special Event, in certain circumstances, this Security may become due and payable at
[
specify redemption prices
] % of the principal amount thereof, together with any interest accrued thereon (the “
Redemption Price
”). The Redemption Price shall be paid prior to 12:00 noon, New York City time, on the date of
such redemption or at such earlier time as the Company determines. The Company shall have the right to redeem this Security at the option of the Company, [without premium or penalty,] in whole or in part at any time on or after
[ , ] (an “
Optional Redemption
”), or at any time in certain circumstances upon the occurrence of a Special Event
at a redemption price equal to [
specify redemption prices
] % of the principal amount thereof, plus any accrued but unpaid interest to the date of such redemption (the “
Optional Redemption Price
”). Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days notice, at the Optional Redemption Price. If the Securities of this series are only partially redeemed by the Company pursuant to an Optional Redemption, such Securities
will be redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided
that if, at the time of redemption, the Securities of this series are registered as a Global Security, the Depositary shall determine the principal
amount of such Securities held by each Security Beneficial Owner to be redeemed in accordance with its procedures.
Any
redemption of the Securities of this series, in whole or in part, prior to the stated maturity date is subject to the prior concurrence or approval of the Federal Reserve or the staff thereof, (i) if such concurrence or approval is then
required in order for securities such as the Securities of this series to qualify as tier 1 capital of a bank holding company under applicable capital adequacy guidelines, regulations, policies, or published interpretations of the Federal Reserve,
or (ii) if the Federal Reserve or its staff has informed the Company that it must obtain such approval before redeeming the Securities.
[The Securities of this series are subject to redemption upon not less than 30 days’ nor more than 60 days’ notice by mail, (1) on in any
year commencing with the year and ending with the year through operation of the sinking fund for this series at a Redemption Price of
, (2) at any time [on or after ,
, as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [on or before
, , and if redeemed during the 12-month period beginning of the years indicated, and thereafter at a Redemption Price equal to
% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption
22
Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all
as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
, redeem any Securities of this series as contemplated by Clause (2) of the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or indirectly, of monies borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than
% per annum.]
[The sinking fund for this series provides for the redemption on in each year beginning
with the year and ending with the year of [not less than] $ (“
mandatory
sinking fund
”) and not more than $ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made in the [inverse] order in which they become due.]
In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
In case an Event of Default, as defined in the Indenture, with respect to the Securities of this series
shall have occurred and be continuing, the principal of all the Securities of this series 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 Company and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities 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 Securities of such series under the Indenture;
provided, however
, that no such
supplemental indenture shall modify certain provisions of the Indenture, as set forth in the Indenture, without the consent of the Holders of each Security then outstanding and affected thereby including, without limitation, to: (i) extend the
fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or the interest thereon is payable,
23
or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify
the provisions of the Indenture with respect to the subordination of the Securities in a manner adverse to the Holders, or (ii) reduce the aforesaid percentage of Securities, the Holders of which are required to consent to any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time outstanding affected thereby, on behalf of all of the Holders of the Securities 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 Securities of such series. Any such consent or waiver by the registered Holder of this Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this
Security and of any Security issued in exchange herefor 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 Security. In determining whether
the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver under the Indenture or hereunder, Securities owned by the U.S. Government shall not be deemed
to be Securities owned by an Affiliate of the Company.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Security at the time and place and at the rate and in the money herein
prescribed.
So long as no Event of Default shall have occurred and be continuing, the Company shall have the right at any
time during the term of the Securities of this series and from time to time to extend the interest payment period of such Securities for up to 20 consecutive quarters (an “
Extended Interest Payment Period
”), at the end of which
period the Company shall pay all interest then accrued and unpaid (together with interest thereon at the rate specified for the Securities of this series to the extent that payment of such interest is enforceable under applicable law);
provided
, that no such Extended Interest Payment Period shall extend beyond the maturity of such Securities; and
provided further
that during any such Extended Interest Payment Period (a) the Company and any subsidiary of the
Company (other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) shall not declare or pay any dividend on, make any distributions with respect to, or redeem, purchase, acquire
24
or make a liquidation payment with respect to, any of the Company’s capital stock or make any guarantee payment with respect thereto (other than (i) redemptions, purchases or other
acquisitions of shares of capital stock of the Company in connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Company or any of its
subsidiaries of record ownership in capital stock of the Company for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or
conversion of any class or series of the Company’s capital stock for any other class or series of the Company’s capital stock, in each case, solely to the extent required pursuant to binding contractual agreements entered into prior to or
on the original issue date of the Securities of this series or any subsequent agreement for the accelerated exercise, settlement or exchange thereof for capital stock of the Company, (iv) distributions by or among any wholly-owned subsidiary of
the Company, (v) redemptions of securities held by the Company or any wholly-owned subsidiary of the Company, and (vi) unpaid tax distributions to holders of membership interests of GMAC LLC pursuant to Section 4.01(b) of GMAC
LLC’s Plan of Conversion, dated June 30, 2009), and (b) the Company and any subsidiary of the Company (other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) shall not make any payment of
interest on or principal of (or premium, if any, on), or repay, repurchase or redeem, any debt securities or guarantees issued by the Company which rank
pari passu
with or junior to the Securities (“
Junior Subordinated
Indebtedness
”) (other than (i) redemptions, purchases or other acquisitions of Junior Subordinated Indebtedness in connection with the administration of any employee benefit plan in the ordinary course of business and consistent with
past practice, (ii) the acquisition by the Company or any of its subsidiaries of record ownership in Junior Subordinated Indebtedness for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries),
including trustees or custodians, (iii) as a result of an exchange or conversion of any class or series of Junior Subordinated Indebtedness for any other class or series of Junior Subordinated Indebtedness, (iv) redemptions of securities
held by the Company or any wholly-owned subsidiary of the Company and (v) any payment of interest on Junior Subordinated Indebtedness paid pro rata with interest paid on the Securities of this series such that the respective amounts of such
payments made shall bear the same ratio to each other as all accrued but unpaid interest per like-amount of such Securities and all Junior Subordinated Indebtedness bear to each other). The foregoing restrictions, however, will not apply to
(i) any stock dividends paid by the Company where the dividend stock is the same stock as that on which the dividend is being paid or (ii) dividends or distributions by or other transactions solely among the Company and any wholly-owned
subsidiary of the Company or solely among wholly-owned subsidiaries of the Company. For the avoidance of doubt, the Company shall have the right to make partial payments of interest on any Interest Payment Date during an Extended Interest Payment
Period. Prior to
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the termination of any such Extended Interest Payment Period, the Company may further extend such Extended
Interest Payment Period,
provided
that such Extended Interest Payment Period together with all such other extensions thereof shall not exceed 20 consecutive quarters;
provided further
, that no Extended Interest Payment Period may
extend beyond the maturity of the Securities of this series. At the termination of any such Extended Interest Payment Period and upon the payment of all accrued and unpaid interest and any additional amounts then due, the Company may commence a new
Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set forth, this
Security is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Security for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the Company or the Trustee duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities 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 Company or the Trustee 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 Security, the Company, the 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 Security 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 Company nor the 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 Security, 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 Company 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 Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof.] [This Global Security is exchangeable for Securities of
this series in definitive form only under certain limited circumstances set forth in the Indenture. Securities of
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this series so issued are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof.] As provided in the Indenture and subject to certain
limitations [herein and] therein set forth, Securities of this series [so issued] are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
Section 2.04
.
Form of Trustee’s Certificate of Authentication
.
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities described in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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Authorized Signatory
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Dated:
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ARTICLE 3
T
HE
S
ECURITIES
Section 3.01
.
Amount Unlimited; Issuable in Series
.
(a)
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
(b)
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board
Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(i)
the title of the Securities of the series (which shall distinguish the Securities of the series from all
Securities of any other series);
27
(ii)
the date or dates on which the principal of the Securities of
the series is payable, and, if applicable to the series, the terms of any sinking fund obligations with respect to such series;
(iii)
the rate or rates at which the Securities of the series shall bear interest or the Floating or Adjustable Rate Provision, pursuant to which such rates shall be determined, the date or dates
from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for the interest payable on any Interest Payment Date (if such Interest Payment Dates or Regular Record
Dates differ from those provided herein);
(iv)
the place or places where the principal of (and any
premium, if any) and interest on Securities of the series shall be payable;
(v)
in addition to the
redemption rights provided herein (including the Redemption Option Date for the series), the period or periods within which and the price or prices at which any Securities of the series may be redeemed, in whole or in part, at the option of the
Company;
(vi)
if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;
(vii)
any other defaults applicable
with respect to the Securities of the series in addition to those provided in Section 5.07(a) through (f);
(viii)
any other covenant or warranty included for the benefit of Securities of the series in addition to (and not
inconsistent with) those included in this Indenture for the benefit of Securities of all series, or any other covenant or warranty included for the benefit of Securities of the series in lieu of any covenant or warranty included in this Indenture
for the benefit of Securities of all series, or any provision that any covenant or warranty included in this Indenture for the benefit of Securities of all series shall not be for the benefit of Securities of the series, or any combination of such
covenants, warranties or provisions;
(ix)
the subordination terms of the Securities of the series;
(x)
the provisions of this Indenture, if any, that shall not apply to the series; and
(xi)
any other terms of the series (which additional terms shall not be inconsistent with the provisions of this
Indenture).
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(c)
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 Board Resolution and set forth, or determined in the manner provided, in the Officers’ Certificate referred to above or in any such indenture supplemental hereto.
(d)
If any of the terms of the Securities of a series are established by action taken pursuant to a Board Resolution,
a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the
Securities of such series.
Section 3.02
.
Denominations
.
The Securities of each series shall be issuable in registered form without coupons and in such denominations as shall be specified as
contemplated by Section 3.01. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03
.
Execution, Authentication, Delivery and Dating
.
(a)
The Securities shall be executed on behalf of the Company by its Chief Executive Officer, its Chairman of the Board, its Chief
Administrative Officer, any Vice Chairman, its Chief Financial Officer, its Controller, its Chief Accounting Officer, its Treasurer or any Assistant Treasurer, attested by (x) its Corporate Secretary or (y) one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
(b)
Securities
bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
(c)
At any
time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, at the time of the initial delivery
by the Company of Securities of such series to the
29
Trustee for authentication, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,
(i)
if the form of such Securities has been established by or pursuant to Board Resolution as permitted by
Section 2.01, that such form has been established in conformity with the provisions of this Indenture;
(ii)
if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by
Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and
(iii)
that such Securities, when authenticated and delivered by or on behalf of the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, and other laws of general applicability relating to or affecting the
enforcement or creditors’ rights and to general equity principles.
(d)
If such form or terms have been so
established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
(e)
Each Security shall be dated the date of
its authentication.
(f)
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Section 3.04
.
Temporary Securities
.
(a)
Pending
the preparation of definitive Securities of any series, the Company may execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions,
30
substitutions and other variations as the directors or officers executing such Securities may determine, as evidenced by their execution of such Securities.
(b)
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for Securities of that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like aggregate principal amount of definitive Securities of the same series and of like tenor of authorized denominations. 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 such series.
Section 3.05
.
Registration, Registration of Transfer and Exchange
.
(a)
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “
Security Register
”) in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities, or of Securities of a particular series, and of transfers of Securities or of Securities of such series. The Trustee is hereby appointed “
Security Registrar
” for the purpose
of registering Securities and transfers of Securities as herein provided.
(b)
Subject to Section 3.11, upon
surrender for registration of transfer of any Security of any series at the office or agency of the Company in a Place of Payment for Securities of that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of like tenor of the same series, of any authorized denominations and of a like aggregate principal amount.
(c)
Subject to Section 3.11, at the option of the Holder, Securities of any series may be exchanged for other Securities of
like tenor of the same series, of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.
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(d)
All Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
(e)
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
(f)
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company or the Trustee may
require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities.
(g)
The Company shall not be required (i) to issue, register the transfer of or exchange any Security of any series during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing,
or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(h)
Subject to this Section 3.05, Securities shall be freely transferable, subject to compliance with the Securities Act.
Subject to the last sentence of this subsection (h), if a Security bears a Private Placement Legend, such Security (x) may be transferred to a Person or Persons who take delivery thereof in the form of a Security bearing a Private Placement
Legend only if the Security Registrar receives (A) an appropriately completed certificate of transfer in the form attached hereto as Exhibit A and (B) if applicable, a certificate substantially in the form attached hereto as Exhibit B
(each, a “
Transfer Certification
”); and (y) may be transferred to a Person or Persons who take delivery thereof in the form of a Security not bearing a Private Placement Legend, or may be exchanged for a Certificate not bearing
a Private Placement Legend, only if the Security Registrar has previously received an opinion of counsel in form reasonably acceptable to the Company to the effect that the Securities of the same series are eligible to be transferred without
restriction (a “
Transfer Opinion
”). The Trustee and the Security Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer or exchange imposed under this Indenture
or under applicable law with respect to any transfer or exchange of any interest in any Security (including any transfers between or among Depositary participants, members or beneficial owners in any Global Security) other than to require delivery
of such certificates and other
32
documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as
to form with the express requirements hereof. At such time as the Company shall determine, in accordance with applicable law, that the Securities are no longer required to bear the Private Placement Legend, the Company shall deliver to the Trustee a
Transfer Opinion, and no Transfer Certification shall be required as a condition to any subsequent transfer of any Security.
Section 3.06
.
Mutilated, Destroyed, Lost and Stolen Securities
.
(a)
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
(b)
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount as such destroyed, lost or stolen Security and bearing a
number not contemporaneously outstanding.
(c)
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
(d)
Upon the issuance of any new Security under this Section, the Company 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 (including the fees and expenses of the Trustee) connected therewith.
(e)
Every new
Security of any series issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
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(f)
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07
.
Payment of Interest; Interest Rights Preserved
.
(a)
Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
(b)
Interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (other than pursuant to an Extended Interest Payment Period) (herein called “
Defaulted Interest
”)
shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or
(ii) below:
(i)
The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (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
Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the 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 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 Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and
at the expense of the Company, 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 Holder of Securities of such series at his address as it
appears in the Security Register, 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 so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or
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their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (ii).
(ii)
The Company may make payment of any Defaulted Interest on the Securities of any series 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 written notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee in its sole discretion.
(c)
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
(d)
For the purposes of determining the Holders who are entitled to participate in any distribution on the Securities in respect
of which a Regular Record Date or a Special Record Date is not otherwise provided for in this Indenture, or for the purpose of any other action (unless provided for pursuant to Section 3.01), the Company may from time to time fix a date, not
more than 90 days prior to the date of the payment of distribution or other action, as the case may be, as a record date for the determination of the identity of the Holders of record for such purposes.
Section 3.08
.
Persons Deemed Owners
.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 3.07) interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Section 3.09
.
Cancellation
.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. No
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Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. Unless otherwise directed by
a Company Order, delivery of which must be delivered in a timely manner to prevent such disposition, all cancelled Securities held by the Trustee shall be disposed of by it in its customary manner, and the Trustee, upon receipt of a written request
of the Company, shall deliver a certificate of such disposal to the Company.
Section 3.10
.
Interest
.
(a)
Each Security will bear interest at the rate established for the series of Securities of which
such Security is a part pursuant to Section 3.01 (the “
Coupon Rate
”) from and including the original date of issuance of such Security 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 (or on such other periodic basis established for such series of Securities of which such
Security is a part pursuant to Section 3.01), payable (subject to the provisions of Article 4) quarterly in arrears on February 15, May 15, August 15 and November 15 of each year (or in such other periodic
installments on such other dates established as payment dates for the series of Securities of which such Security is a part pursuant to Section 3.01) (each, an “
Interest Payment Date
”) commencing on the date established for the
series of Securities of which such Security is a part pursuant to Section 3.01, to the Person in whose name such Security or any Predecessor Security is registered, at the close of business on the Regular Record Date for such interest
installment, which, in respect of any Securities of which the Institutional Trustee of the applicable series of any GMAC Trust is the Holder or a Global Security, shall be the close of business on the Business Day next preceding that Interest
Payment Date. Notwithstanding the foregoing sentence, if the Trust Preferred Securities of the applicable series of a GMAC Trust are no longer in book-entry only form or, except if the Securities originally issued to such series of such GMAC Trust
are held by the Institutional Trustee of such series of such GMAC Trust, the Securities of any series are not represented by a Global Security, the Company may select a Regular Record Date for such interest installment on such series of Securities
which shall be any date more than 14 days but less than 60 days before an Interest Payment Date.
(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 and will include the first day but exclude the last day of such period. 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 a partial month in such period. In the event that any date on which interest is payable
on the Securities of any series is not a Business Day, then payment of interest payable on such date will be made on the
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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.
(c)
If the Securities of a series are established as a series of Floating or Adjustable Rate Securities pursuant to Section 3.01, then Section 3.10(b) shall not apply and the Floating or
Adjustable Rate Provisions, together with any additional terms established in the applicable Board Resolution, supplemental indenture or form of the executed Security shall govern such series.
Section 3.11
.
Form and Payment
.
Except as provided in Section 3.12, the Securities of each series shall be issued in fully registered certificated form without interest coupons. Principal and interest on the Securities issued in
certificated form will be payable, the transfer of such Securities will be registrable, and such Securities will be exchangeable, for Securities of the same series bearing identical terms and provisions at the office or agency of the Trustee;
provided, however
, that payment of interest may be made at the option of the Company by check mailed to the Holders of such Securities at such address as shall appear in the Security Register. Notwithstanding the foregoing, so long as the
Holder of all Securities of any series is the Institutional Trustee of any series of any GMAC Trust, the payment of the principal of and interest (including Compounded Interest, if any) on Securities of such series will be made at such place and to
such account as may be designated by the Institutional Trustee.
Section 3.12
.
Global Securities
.
(a)
In connection with a Dissolution Event with respect to any series of any GMAC Trust,
(i)
the Securities in non book-entry certificated form held by such series of such GMAC Trust, or its Institutional
Trustee, will be presented to the Trustee by the Institutional Trustee of such series of such GMAC Trust in exchange for a Global Security in an aggregate principal amount equal to the aggregate principal amount of all outstanding Securities of the
series issued to such series of such GMAC Trust, to be registered in the name of the Depositary, or its nominee, and delivered by the Trustee to the Depositary for crediting to the accounts of its participants pursuant to the instructions of the
Administrative Trustees of the relevant series of the relevant GMAC Trust. The Company upon any such presentation shall execute a Global Security in such aggregate principal amount and deliver the same to the Trustee for authentication
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and delivery in accordance with this Indenture. Payments on any Securities issued as a Global Security will be made to the Depositary; and
(ii)
if any Trust Preferred Securities of such series of such GMAC Trust are held in non book-entry certificated
form, the Securities in non book-entry certificated form held by such series of such GMAC Trust, or its Institutional Trustee, may be presented to the Trustee by the Institutional Trustee of such series of such GMAC Trust and any Trust Preferred
Security Certificate which represents Trust Preferred Securities of such series of such GMAC Trust other than Trust Preferred Securities held by the Depositary or its nominee (“
Non Book-Entry Trust Preferred Securities
”) will be
deemed to represent Securities presented to the Trustee by such Institutional Trustee having an aggregate principal amount equal to the aggregate liquidation amount of the Non Book-Entry Trust Preferred Securities until such Trust Preferred Security
Certificates are presented to the Security Registrar for transfer or reissuance at which time such Trust Preferred Security Certificates will be cancelled and a Security, registered in the name of the holder of the Trust Preferred Security
Certificate or the transferee of the holder of such Trust Preferred Security Certificate, as the case may be, with an aggregate principal amount equal to the aggregate liquidation amount of the Trust Preferred Security Certificate cancelled, will be
executed by the Company and delivered to the Trustee for authentication and delivery in accordance with this Indenture. On issue of such Securities, Securities with an equivalent aggregate principal amount that were presented by the Institutional
Trustee to the Trustee will be deemed to have been cancelled.
(b)
A Global Security may be transferred, in whole but
not in part, only to another nominee of the Depositary, or to a successor Depositary selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for any series of Securities or if at any time the Depositary 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 Depositary for such series is not appointed by the Company within 90 days after the Company receives such notice or
becomes aware of such condition, as the case may be, the Company will execute, and, subject to this Article 3, the Trustee, upon written notice from the Company, 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 in exchange for such Global Security. In addition, the Company may at any time determine that the Securities
of any series shall no longer be represented by a Global Security, subject to the procedures of the Depositary. In such event the Company will execute and, subject to this
38
Article 3, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, 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 for 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 cancelled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security shall be
registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary,
for delivery to the Persons in whose names such Securities are so registered.
Section 3.13
.
CUSIP
Numbers
.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so,
the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE 4
S
ATISFACTION
AND
D
ISCHARGE
; D
EFEASANCE
Section 4.01
.
Satisfaction and Discharge of Indenture
.
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(a)
either
(i)
all Securities theretofore authenticated and delivered (other than (A) Securities which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.06 and (B) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid
39
to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(ii)
all such Securities not theretofore delivered to the Trustee for cancellation
(A)
have become due and payable, or
(B)
will become due and payable at their Stated Maturity within one year, or
(C)
are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A),
(B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; or
(b)
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c)
the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07,
the Company’s obligation to pay the expenses of any series of any GMAC Trust under Section 10.06, and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations
of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02
.
Defeasance and Discharge
.
The following provisions shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution,
Officers’ Certificate or indenture supplemental hereto provided pursuant to Section 3.01. In addition to discharge of this Indenture pursuant to Sections 4.01 and 4.03, in the case of any series of Securities with respect to which an
amount sufficient to pay and
40
discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, as certified pursuant to
subparagraph (a) of Section 4.04, can be determined at the time of making the deposit referred to in such subparagraph (a), the Company shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a
series as provided in this Section on and after the date the conditions set forth in Section 4.04 are satisfied, and the provisions of this Indenture with respect to the Securities of such series shall no longer be in effect (except as to
(i) rights of registration of transfer and exchange of Securities of such series, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities of such series, (iii) rights of Holders of Securities of such series to
receive, solely from the trust fund described in subparagraph (a) of Section 4.04, payments of principal thereof and interest, if any, thereon upon the original stated due dates therefor (but not upon acceleration), and remaining rights of
the Holders of Securities of such series to receive mandatory sinking fund payments, if any, (iv) the rights, obligations, duties and immunities of the Trustee hereunder, (v) this Section 4.02, (vi) the rights of the Holders of
Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (vii) the Company’s obligation to pay the expenses of any series of any GMAC Trust under
Section 10.06) (hereinafter called “
Defeasance
”), and the Trustee at the cost and expense of the Company, shall execute proper instruments acknowledging the same.
Section 4.03
.
Covenant Defeasance.
In the case of any series of Securities with respect to which an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, as certified pursuant to subparagraph (a) of Section 4.04 can be determined at the time of making the deposit referred to in such subparagraph (a), (i) the Company shall
be released from its obligations under any covenants specified in or pursuant to this Indenture (except as to (A) rights of registration of transfer and exchange of Securities of such series, (B) substitution of mutilated, defaced,
destroyed, lost or stolen Securities of such series, (C) rights of Holders of Securities of such series to receive, from the Company pursuant to Section 10.01, payments of principal thereof and interest, if any, thereon upon the original
stated due dates therefor (but not upon acceleration), the Holders of Securities of such series to receive mandatory sinking fund payments, if any, (D) the rights, obligations, duties and immunities of the Trustee hereunder, (E) the rights
of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (F) the Company’s obligation to pay the expenses of any series of any GMAC
Trust under Section 10.06), and (ii) the occurrence of any event specified in Section 5.07(e) (with respect to any of the covenants specified in or pursuant to this Indenture) and 5.07(f) shall be deemed not to be or result in a
Default, in each
41
case with respect to the Outstanding Securities of such series as provided in this Section on and after the date the conditions set forth in Section 4.04 are satisfied (hereinafter called
“
Covenant Defeasance
”), and the Trustee, at the cost and expense of the Company, shall execute proper instruments acknowledging the same. For this purpose, such Covenant Defeasance means that the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set forth in any such covenant (to the extent so specified in the case of Section 5.07(e)), whether directly or indirectly by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document, but the remainder of this Indenture and the Securities of such series shall be unaffected thereby.
Section 4.04
.
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 4.02 or 4.03 to the Outstanding Securities:
(a)
with reference to Section 4.02 or 4.03, the Company has irrevocably deposited or caused to be irrevocably deposited with
the Trustee as funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of Securities of such series (i) cash in an amount, (ii) direct obligations of the United States of America, backed by
its full faith and credit (“
U.S. Government Obligations
”), maturing as to principal and interest, if any, at such times and in such amounts as will insure the availability of cash, or (iii) a combination of (i) and (ii),
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, (A) the principal of and interest, if any, on all Securities of such
series on each date that such principal or interest, if any, is due and payable, and (B) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of this Indenture and the
Securities of such series;
(b)
in the case of Defeasance under Section 4.02, the Company has delivered to the
Trustee an Opinion of Counsel based on the fact that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date hereof, there has been a change in the applicable United
States federal income tax law, in either case to the effect that, and such opinion shall confirm that, the 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
such deposit, Defeasance and discharge 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 deposit, Defeasance and discharge had not occurred;
42
(c)
in the case of Covenant Defeasance under Section 4.03, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that, and such opinion shall confirm that, the 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
such deposit and Covenant Defeasance 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 deposit and Covenant Defeasance had not occurred;
(d)
such Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under,
any agreement or instrument to which the Company is a party or by which it is bound; and
(e)
the Company shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent contemplated by this provision have been complied with.
Section 4.05
.
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations deposited with the
Trustee pursuant to Section 4.04 shall be held in trust, and such money and all money from such U.S. Government Obligations shall be applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money and U.S.
Government Obligations has been deposited with the Trustee. All money or U.S. Government Obligations deposited with the Trustee under Section 4.01 or Section 4.04 shall not be subject to the claims of the holders of Senior Indebtedness
under Article 14.
Section 4.06
.
Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 4.04 or the principal or interest received in respect of such obligations other than any such tax, fee or other charge that by law is for the account of the Holders of Outstanding Securities.
Section 4.07
.
Reinstatement.
If the Trustee is unable to apply any money or U.S. Government Obligations in accordance with Section 4.04 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority
43
enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 4.04, until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 4.04;
provided
that, if the Company has made any
payment of principal or interest on the Securities of any series because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 5
R
EMEDIES
Section 5.01
.
Events of Default.
The term
“
Event of Default
” as used in this Indenture with respect to Securities of any series shall mean one of the following described events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a)
failure to pay in full interest accrued upon any Security of that series upon the conclusion of a period consisting of 20 consecutive quarters, commencing with the earliest quarter for which
interest (including Deferred Interest) has not been paid in full, and continuance of such failure to pay for a period of 30 days;
(b)
the entry by a court having jurisdiction in the premises of a decree or order for relief in respect of the Company in an involuntary case under the Federal bankruptcy code, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or
for substantially all 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
(c)
the commencement by the Company of a voluntary case under the Federal bankruptcy code, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by the Company to the entry of an order for relief in an involuntary case under any such law, or the consent by the Company to
the appointment of or taking possession by a receiver, liquidator, assignee, trustee,
44
custodian or sequestrator (or similar official) of the Company or for substantially all of its property, or the making by it of an assignment for the benefit of creditors.
Section 5.02
.
Acceleration of Maturity.
If any one or more of the above described Events of Default shall occur with respect to Securities of any series at the time Outstanding,
then, and in each and every such case, during the continuance of such Event of Default, the Trustee or the Holders of 25% or more in principal amount of the Securities of such series then Outstanding may declare the principal amount of all the
Securities of such series then Outstanding, if not then due and payable, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by such Holders), and upon any such declaration the principal amount and
the accrued interest on the Securities of such series shall become and be immediately due and payable, anything in this Indenture or in the Securities of such series contained to the contrary notwithstanding,
provided
that if, upon an Event
of Default, the Trustee or the Holders of 25% or more in principal amount of the Securities of that series then Outstanding fail to declare the principal amount of all the Securities of such series then Outstanding to be immediately due and payable,
the holders of at least 25% in aggregate liquidation amount of the corresponding series of Trust Preferred Securities then Outstanding shall have such right by a notice in writing to the Company and the Trustee; and upon any such declaration such
principal amount of and the accrued interest on all the Securities of such series then Outstanding shall become immediately due and payable. Payment of principal and interest on such Securities shall remain subordinated to the extent provided in
Article 14 notwithstanding that such amount shall become immediately due and payable as herein provided. This provision, however, is subject to the condition that, if at any time after the principal of all the Securities of such series shall have
been so declared to be due and payable, all arrears of interest, if any, upon all the Securities of such series (with interest, to the extent that interest thereon shall be legally enforceable, on any overdue installment of interest at the rate
borne by the Securities of such series) and all amounts owing the Trustee and any predecessor trustee hereunder under Section 6.07 and all other sums payable under this Indenture (except the principal of the Securities of such series which
would not be due and payable were it not for such declaration) shall be paid by the Company, and every other Default under this Indenture, other than the non-payment of the principal of Securities of that series which have become due solely by such
declaration of acceleration, shall have been made good to the reasonable satisfaction of the Trustee or of the Holders of a majority in principal amount of the Securities of such series then Outstanding, or provision deemed by the Trustee or by such
Holders to be adequate therefor shall have been made, then and in every such case the Holders of a majority in principal amount of the Securities of such series then Outstanding may, on behalf of the Holders of all the Securities of such series,
waive the Event of Default by reason of which the principal of the Securities of
45
such series shall have been so declared to be due and payable and may rescind and annul such declaration and its consequences,
provided
that, if the Holders of at least a majority in
principal amount of the Securities of such series then Outstanding fails to rescind and annul such declaration and its consequences, the holders of a majority in aggregate liquidation amount of the related series of Trust Preferred Securities then
outstanding shall have such right by written notice to the Company and the Trustee, subject to the satisfaction of the conditions set forth in this sentence; but no such waiver, rescission or annulment shall extend to or affect any subsequent
Default or impair any right consequent thereon. Any declaration by the Trustee pursuant to this Section 5.02 shall be by written notice to the Company, and any declaration or waiver by the Holders of Securities of any series or by the holders
of Trust Securities of any series pursuant to this Section 5.02 shall be by written notice to the Company and the Trustee.
Section 5.03
.
Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
If the Company shall fail for a period of 30 days to pay any installment of interest on the Securities of any series that is
due and payable or shall fail to pay the principal of and premium, if any, on any of the Securities of such series when and as the same shall become due and payable, whether at maturity, or by call for redemption (otherwise than pursuant to a
sinking fund) by declaration as authorized by this Indenture, or otherwise, or shall fail for a period of 30 days to make any sinking fund payment as to a series of Securities, then, upon demand of the Trustee, the Company will pay to the Trustee
for the benefit of the Holders of Securities of such series then Outstanding the whole amount which then shall have become due and payable on any such Security, with interest on the overdue principal and premium, if any, and (so far as the same may
be legally enforceable) on the overdue installments of interest at the rate borne by the Securities of such series, and all amounts owing the Trustee and any predecessor trustee hereunder under Section 6.07.
(b)
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or proceeding 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 Company or any other obligor upon the Securities of such series, and collect the moneys adjudged or decreed to be payable out of the property of the Company or any other obligor upon the
Securities of such series, wherever situated, in the manner provided by law. Every recovery of judgment in any such action or other proceeding, subject to the payment to the Trustee of all amounts owing the Trustee and any predecessor trustee
hereunder under Section 6.07, shall be for the ratable benefit of the Holders of such series of Securities which shall be the subject of such action or
46
proceeding. All rights of action upon or under any of the Securities or this Indenture may be enforced by the Trustee without the possession of any of the Securities and without the production of
any thereof at any trial or any proceeding relative thereto.
(c)
If a Default, of which a Responsible Officer of the
Trustee has actual knowledge, with respect to any series of Securities occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture, or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 5.04
.
Trustee to File Claims as
Attorney-in-Fact.
The Trustee is hereby appointed, and each and every Holder of the Securities, by receiving and holding
the same, shall be conclusively deemed to have appointed the Trustee, the true and lawful attorney-in-fact of such Holder, with authority to make or file (whether or not the Company shall be in default in respect of the payment of the principal of,
or interest on, any of the Securities), in its own name and as trustee of an express trust or otherwise as it shall deem advisable, in any receivership, insolvency, liquidation, bankruptcy, reorganization, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or to their respective creditors or property, any and all claims, proofs of claim, proofs of debt, petitions, consents, other papers and documents and amendments of any
thereof, as may be necessary or advisable in order to have the claims of the Trustee and any predecessor trustee hereunder and of the Holders of the Securities allowed in any such proceeding and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to execute and deliver any and all other papers and documents and to do and perform any and all other acts and things, as it may deem necessary or advisable in order to enforce in any such proceeding any
of the claims of the Trustee and any predecessor trustee hereunder and of any of such Holders in respect of any of the Securities; and any receiver, assignee, trustee, custodian or debtor in any such proceeding is hereby authorized, and each and
every taker or Holder of the Securities, by receiving and holding the same, shall be conclusively deemed to have authorized any such receiver, assignee, trustee, custodian or debtor, to make any such payment or delivery only to or on the order of
the Trustee, and to pay to the Trustee any amount due it and any predecessor trustee hereunder under Section 6.07;
provided, however
, that nothing herein contained shall be deemed to authorize or empower the Trustee to consent to or
accept or adopt, on behalf of any Holder of Securities, any plan of reorganization or readjustment of the Company affecting the Securities or the rights of any
47
Holder thereof, or to authorize or empower the Trustee to vote in respect of the claim of any Holder of any Securities in any such proceeding.
Section 5.05
.
Application of Money Collected.
Any money or property collected or to be applied by the Trustee with respect to a series of Securities under this Article 5 shall be
applied in the following order, at the date or dates fixed by the Trustee for the distribution of such money or property on account of principal or any premium or interest, upon presentation of the several Securities, and the notation thereon of the
payment, if only partially paid, and upon surrender thereof, if fully paid:
First: To the payment of all amounts due to the
Trustee and any predecessor trustee hereunder under Section 6.07.
Second: Subject to Article 14, in case the principal
of the Outstanding Securities of such series shall not have become due and be unpaid, to the payment of interest on the Securities of such series, in the order of the maturity of the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue installments of interest at the rate borne by such Securities, such payments to be made ratably to the Persons entitled thereto.
Third: Subject to Article 14, in case the principal of the Outstanding Securities of such series shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the Securities of such series for principal and premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the extent that such interest
has been collected by the Trustee) upon overdue installments of interest at the rate borne by the Securities of such series, and in case such moneys shall be insufficient to pay in full the whole amounts so due and unpaid upon the Securities of such
series, then to the payment of such principal and premium, if any, and interest without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over
any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and premium, if any, and accrued and unpaid interest.
Fourth: The balance, if any, to the Company or as a court of competent jurisdiction may direct.
Section 5.06
.
Control by Holders; Waiver of Past Default.
(a)
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may direct the time, method
and place of
48
conducting any proceeding for any remedy available to the Trustee hereunder, or of exercising any trust or power hereby conferred upon the Trustee with respect to the Securities of such series;
provided, however
, that the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel determines that the action so directed may not lawfully be taken or would be unduly prejudicial to
Holders not joining in such direction or would involve the Trustee in personal liability. Notwithstanding anything to the contrary in this Indenture, for so long as the U.S. Government is a holder of 100% of the Trust Preferred Securities of a
series of a GMAC Trust, the U.S. Government shall have the right to institute and conduct any proceeding for any remedy conferred upon the Trustee hereunder, or to exercise any trust or power hereby conferred upon the Trustee, in each case with
respect to the Securities held by such series of such GMAC Trust and, if the U.S. Government shall institute any such proceeding or exercise any such trust or power, the Trustee, consistent with its rights, duties and obligations under this
Indenture, shall not take any contradictory action with respect to the Securities held by such series of such GMAC Trust.
(b)
Prior to any declaration accelerating the maturity of the Securities of any series, the Holders of a majority in aggregate
principal amount of such series of Outstanding Securities may on behalf of the Holders of all of the Securities of such series waive any past default hereunder and its consequences except a default not theretofore cured in the payment of interest or
any premium on or the principal of the Securities of such series or in respect of any covenant or provision hereof which under Article 9 cannot be modified or waived without the consent of the Holder of each Outstanding Security of each series
affected thereby;
provided, however
, that if the Securities of such series are held by a series of a GMAC Trust or a trustee of such series of such trust, such waiver or modification to such waiver shall not be effective until the holders of
Trust Securities representing a majority in liquidation preference of such series of Trust Securities of the applicable series of GMAC Trust shall have consented to such waiver or modification to such waiver in accordance with the Declaration for
such series of GMAC Trust;
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 such series of Trust Securities of the applicable GMAC Trust
shall have consented to such waiver in accordance with the Declaration for such series of GMAC Trust. Upon any such waiver the Company, the 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. Whenever any default hereunder shall have been waived as permitted by this Section 5.06, said default
shall for all purposes of the Securities of such series and this Indenture cease to exist, and any Default or Event of Default arising therefrom shall be deemed to have been cured and to be not continuing. Notwithstanding anything to the contrary in
this Indenture, for so long as the U.S. Government is a holder of 100%
49
of the Trust Preferred Securities of a series of a GMAC Trust, the U.S. Government shall on its own behalf as the Holder of such series of Trust Securities, have the right to waive any Default or
Event of Default with respect to the related series of Securities.
Section 5.07
.
Limitation on Suits;
Default.
Subject to Section 5.06(a), no Holder of any Security of any series shall have any right to institute any
action, suit or proceeding at law or in equity for the execution of any trust hereunder or for the appointment of a receiver or for any other remedy hereunder, in each case with respect to a Default with respect to such series of Securities, unless
such Holder previously shall have given to the Trustee written notice of the happening of one or more of the Defaults herein specified with respect to such series of Securities, and unless also the Holders of 25% or more in principal amount of the
Securities of such series then Outstanding shall have requested the Trustee in writing to take action in respect of the matter complained of, and unless also there shall have been offered to the Trustee security and indemnity satisfactory to it
against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after receipt of such notification, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; and such notification, request and offer of indemnity are hereby declared in every such case to be conditions precedent to any such action, suit or proceeding by any Holder of any Security of such series; it being understood and intended
that no one or more of the Holders of Securities of such series shall have any right in any manner whatsoever by his or their action to enforce any right hereunder, except in the manner herein provided, and that every action, suit or proceeding at
law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal and ratable benefit of all Holders of the Outstanding Securities of such series;
provided, however
, that nothing contained in this
Indenture or in the Securities of such series shall affect or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and premium, if any, and interest on the Securities of such series to the respective
Holders of such Securities at the respective due dates in such Securities stated, or affect or impair the right, which is also absolute and unconditional, of such Holders to institute suit to enforce the payment thereof.
The following events shall constitute a “
Default
” with respect to any series of Securities under this Indenture:
(a)
an Event of Default with respect to such series specified in Section 5.01; or
(b)
the failure of the Company to pay any installment of interest on any Security of such series, when and as the same shall
become payable, which failure
50
shall have continued unremedied for a period of 30 days, it being understood that the occurrence of an Extended Interest Payment Period in accordance with the terms of such Security will not
constitute such a default; or
(c)
the failure of the Company to pay the principal of (and premium, if any, on) any
Security of such series, when and as the same shall become payable, whether at maturity as therein expressed, by call for redemption (otherwise than pursuant to a sinking fund), by declaration as authorized by this Indenture or otherwise, whether or
not permitted by Article 14; or
(d)
the failure of the Company to pay a sinking fund installment, if any, when and as
the same shall become payable by the terms of a Security of such series, which failure shall have continued unremedied for a period of 30 days, whether or not permitted by Article 14; or
(e)
the failure of the Company, subject to the provisions of Section 8.01, to observe and perform any other of the covenants
or agreements on the part of the Company contained in this Indenture (including any indenture supplemental hereto) (other than a covenant or agreement which has been expressly included in this Indenture solely for the benefit of a series of
Securities other than that series), which failure shall not have been remedied for a period of 90 days after written notice shall have been given to the Company by the Trustee or shall have been given to the Company and the Trustee by Holders of 25%
or more in aggregate principal amount of the Securities of such series then Outstanding, specifying such failure and requiring the Company to remedy the same; or
(f)
in the event Securities of a series are issued and sold to a series of a GMAC Trust or a trustee of such series of such trust in connection with the issuance of Trust Securities by such series
of such GMAC Trust, such series of such GMAC Trust (or the entire GMAC 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 series of such GMAC Trust, (ii) the redemption of all of the outstanding Trust Securities of such series of such GMAC Trust or (iii) mergers,
consolidations or amalgamations permitted by the Declaration of such series of such GMAC Trust; or
(g)
any other
Default provided with respect to Securities of that series.
Section 5.08
.
Costs and Attorneys’
Fees in Legal Proceedings.
All parties to this Indenture and the Holders of the Securities agree that the court may in
its discretion require, in any action, suit or proceeding for the enforcement of any right or remedy under this Indenture, or in any action, suit or proceeding against the Trustee for any action taken or omitted by it as Trustee, the
51
filing by any party litigant in such action, suit or proceeding of an undertaking to pay the costs of such action, suit or proceeding, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any party litigant in such action, suit or proceeding, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
provided, however
, that the
provisions of this Section 5.08 shall not apply to any action, suit or proceeding instituted by the Trustee, to any action, suit or proceeding instituted by any one or more Holders of Securities holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any action, suit or proceeding instituted by any Holder of Securities for the enforcement of the payment of the principal of or premium, if any, or the interest on, any of the Securities, on or
after the respective due dates expressed in such Securities.
Section 5.09
.
Remedies Cumulative.
Except as provided in the last sentence of Section 3.06, no remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities of any series is intended to be exclusive of any other remedy or remedies, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or
in equity or by statute. No delay or omission of the Trustee or of any Holder of the Securities of any series to exercise any right or power accruing upon any Default shall impair any such right or power or shall be construed to be a waiver of any
such Default or an acquiescence therein; and every power and remedy given by this Article 5 to the Trustee and to the Holders, respectively, may be exercised from time to time and as often as may be deemed expedient by the Trustee or by the Holders,
as the case may be. In case the Trustee or any Holder of Securities shall have proceeded to enforce any right under this Indenture and the proceedings for the enforcement thereof shall have been discontinued or abandoned because of waiver or for any
other reason or shall have been adjudicated adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders shall severally and respectively be restored to their former positions and rights hereunder
and thereafter all rights, remedies and powers of the Trustee and the Holders shall continue as though no such proceedings had been instituted, except as to any matters so waived or adjudicated.
Section 5.10
.
Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
52
and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no law had
been enacted.
ARTICLE 6
T
HE
T
RUSTEE
Section 6.01
.
Certain Duties and Responsibilities.
(a)
Except during the continuance of a Default;
(i)
the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)
in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the 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 Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(b)
In case a Default with respect to any series of
Securities, of which a Responsible Officer of the Trustee has actual knowledge, has occurred and is continuing, the 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.
(c)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(i)
this subsection shall not be construed to limit the effect of subsection (a) of this Section;
(ii)
the 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 Trustee was negligent in ascertaining the pertinent facts;
53
(iii)
the 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 a majority in principal amount of the Outstanding Securities of any series determined as provided in Section 5.06, relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(iv)
no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity, reasonably satisfactory to it,
against such risk or liability is not reasonably assured to it.
(d)
Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02
.
Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with respect to Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such Default hereunder actually known to a Responsible Officer of the Trustee, unless such Default shall have been cured or waived;
provided
that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and
so long as a Responsible Officer of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series; and
provided
,
further
, that in the case of any Default of the
character specified in Section 5.07(e) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.
Section 6.03
.
Certain Rights of Trustee.
Subject to the provision of Section 6.01:
(a)
the 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
54
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b)
any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c)
whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon
an Officers’ Certificate;
(d)
the Trustee may consult with counsel of its selection and the advice of such
counsel or any 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 reliance thereon;
(e)
the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity, reasonably satisfactory to it, against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f)
the 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 Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;
(g)
the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the 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;
(h)
the
Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Securities, other than (1) an Event of Default under Section 5.01(a) if such an Event of Default shall have occurred; (2) a
55
Default under Section 5.07(b) or 5.07(c) if such a Default shall have occurred; or (3) any Default as to which the Trustee shall have received written notice (which notice shall have
been given to the Trustee at the Corporate Trust Office of the Trustee by the Company or by any Holder of the relevant Securities and which is in fact such a Default) or of which a Responsible Officer shall have actual knowledge;
(i)
the Trustee shall not be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j)
the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces
beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
third-party utilities, communications or computer (software or hardware) services;
(k)
the rights, privileges,
protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder by the Trustee and appointed with due care by it;
(l)
the Trustee may request that
the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any
person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(m)
the permissive rights of the Trustee enumerated herein shall not be construed as duties; and
(n)
the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
Section 6.04
.
Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company,
56
and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.05
.
May Hold Securities.
The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 6.08 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06
.
Money Held in Trust.
Money held by the
Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 6.07
.
Compensation and Reimbursement.
(a)
The Company agrees:
(i)
to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(ii)
except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, nominees, custodians and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence, bad faith or willful misconduct; and
(iii)
to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred
without negligence, bad faith or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust hereunder, including the costs and expenses of defending itself against any claim or liability in
57
connection with the exercise or performance of any of its powers or duties hereunder.
(b)
As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of Holders of particular Securities. The obligations of the Company under this Section shall survive the removal or resignation of the Trustee and the satisfaction, discharge or termination
of this Indenture.
(c)
Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee incurs any expenses or renders any services after the occurrence of an Event of Default specified in Section 5.01(b) or Section 5.01(c), such expenses and the compensation for such services are intended to constitute expenses of
administration under the United States Bankruptcy Code (Title 11 of the United States Code) or any similar federal or state law for the relief of debtors.
Section 6.08
.
Disqualification; Conflicting Interests.
The Trustee shall be subject to the provisions of Section 310(b) of the Trust Indenture Act during the period of time provided for
therein. In determining whether the Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded for purposes of the conflicting interest
provisions of such Section 310(b) the Securities of every other series issued under this Indenture. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
Section 6.09
.
Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws
of the United States of America, any State thereof or the District of Columbia, 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 or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervision or examining authority, then for the purposes of this Section, 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 the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
58
Section 6.10
.
Resignation and Removal; Appointment of Successor.
(a)
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
(b)
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c)
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
(d)
If at any time:
(i)
the Trustee shall fail to
comply with Section 310(b) of the Trust Indenture Act after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(ii)
the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii)
the Trustee shall become incapable of acting or
shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the Trustee with respect to all
Securities, or (ii) subject to Section 5.08, any Holder who has been a bona fide Holder of a Security 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 Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
59
(e)
If the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f)
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11
.
Acceptance of Appointment by Successor.
(a)
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and
60
deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to the Securities of all series for which it is the Trustee hereunder, 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 that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) 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 trusts 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; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates.
(c)
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d)
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
(e)
The Trustee shall not be liable for the acts or omissions to act of any
successor Trustee.
61
Section 6.12
.
Merger, Conversion, Consolidation or Succession to
Business.
Any corporation or association into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or association to which all or substantially all of the corporate trust business of the
Trustee may be sold or otherwise transferred, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act,
provided
such corporation shall be otherwise qualified and eligible under this
Article. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13
.
Preferential Collection of Claims Against Company.
The Trustee shall comply with the Trust Indenture Act Section 311(a), excluding any creditor relationship listed in the Trust
Indenture Act Section 311(b). A Trustee who has resigned or been removed shall be subject to the Trust Indenture Act Section 311(a) to the extent indicated therein.
Section 6.14
.
Appointment of Authenticating Agent.
(a)
At any time when any of the Securities remain Outstanding the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to
the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital
and surplus
62
of such Authenticating Agent 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, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
(b)
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to
be an Authenticating Agent,
provided
such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
(c)
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
(d)
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
(e)
If an appointment with respect to one or
more series is made pursuant to this Section, the Securities of such series may have endorsed thereon an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
63
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THE BANK OF NEW YORK MELLON, As Trustee
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By:
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As Authenticating Agent
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By:
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Authorized Officer
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Dated
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ARTICLE 7
H
OLDERS
L
ISTS
AND
R
EPORTS
BY
T
RUSTEE
AND
C
OMPANY
Section 7.01
.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a)
semi-annually not more than 15 days after each Regular Record Date a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of such series as of the preceding March 1 or September 1, or as of such Regular Record Date, as the case may be, and
(b)
at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company 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; and
provided, further
that the Company shall not be obligated to furnish such list at any time the list does not differ
from the most recent list given to the Trustee by the Company;
provided
that if and so long as the Trustee shall be the Security
Registrar for such series, such list shall not be required to be furnished.
Section 7.02
.
Preservation
of Information; Communications to Holders.
Holders may communicate pursuant to the Trust Indenture Act
Section 312(b) with other Holders with respect to their rights under this Indenture and the Securities. The Company, the Trustee, the Registrar and any other person shall have the protection of the Trust Indenture Act Section 312(c).
Section 7.03
.
Reports by Trustee.
Within 60 days after May 15 of each year commencing with the year 2010, the Trustee shall provide to the Holders of Securities such
reports as are required by Section 313(a) of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Trustee shall also
64
comply with the other requirements of Section 313 of the Trust Indenture Act. The Company will notify the Trustee when any such Securities are listed on any securities exchange.
Section 7.04
.
Reports by Company.
The Company shall:
(a)
file with the Trustee, within 15 days after the
Company 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 Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the 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 Securities Exchange Act of 1934 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)
file with the Trustee and the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(c)
transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 7.05
.
Officers’ Certificate as to Events of Default.
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The Company shall deliver to the Trustee, as soon as practicable and in any event within
five days after the Company becomes aware of the occurrence of any Default or Event of Default or an event which, with notice or the lapse of time or both, would constitute a Default or an Event of Default, an Officers’ Certificate setting
forth the details of such event, Default or Event of Default and the action which the Company proposes to take with respect thereto.
ARTICLE 8
C
ONSOLIDATION
, M
ERGER
,
C
ONVEYANCE
, T
RANSFER
OR
L
EASE
Section 8.01
.
Company May Consolidate, Etc., Only on Certain Terms
.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:
(a)
the Person formed by such consolidation (if other than the Company) or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on
all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(b)
immediately after giving effect to such transaction, no Default, and no event which, after notice or lapse of time or both, would become a Default, shall have happened and be continuing; and
(c)
the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.02
.
Successor Corporation Substituted
.
Upon any consolidation of the Company with, or merger of the Company into, any other corporation or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in accordance with Section 8.01, the successor corporation formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is
made shall
66
succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE 9
S
UPPLEMENTAL
I
NDENTURES
Section 9.01
.
Supplemental Indentures Without Consent of Holders
.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a)
to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company contained herein and in the Securities, pursuant to
Article 8; or
(b)
to add to the covenants of the Company for the benefit 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 solely for the benefit of one or more specified series) or to surrender any right or power
herein conferred upon the Company; or
(c)
to add any additional Defaults; or
(d)
to change or eliminate any of the provisions of this Indenture,
provided
that any such change or elimination
(i) shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision or (ii) shall not apply to any Outstanding
Securities; or
(e)
to secure the Securities; or
(f)
to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or
(g)
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(b); or
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(h)
to cure any ambiguity or manifest error, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(i)
to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture Act; provided such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect.
Section 9.02
.
Supplemental Indentures with Consent of Holders
.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(a)
change the
Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon (including any change in the Floating or Adjustable Rate Provision pursuant
to which such rate is determined that would reduce that rate for any period) or any premium payable upon the redemption thereof, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this Indenture
with respect to the subordination of the Securities in a manner adverse to the Holders, or
(b)
reduce the percentage
in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(c)
modify any of
the provisions of this Section or Section 5.06 except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each
68
Outstanding Security affected thereby;
provided
that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “
the
Trustee
” and concomitant changes in this Section or the deletion of this proviso, in accordance with the requirements of Section 6.11(b) and 9.01(h), or
(d)
remove or impair the rights of any Holder of Securities to bring a Direct Action in certain circumstances, as provided in Section 15.01;
provided
,
further
, that if the Securities of such series are held by a series of a GMAC Trust or a trustee of such series 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 series of the applicable GMAC 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 series of the applicable GMAC
Trust shall have consented to such supplemental indenture, and
provided
,
further
that consensual rights available to or in favor of Holders of Trust Securities under this Indenture may, to the extent permitted by applicable rule or
law, be exercised only by a “United States person” within the meaning of Section 7701(a)(30) of the Code (a “
United States Person
”) that is a beneficial owner of a Trust Security or by a United States Person acting as
irrevocable agent with discretionary powers for the beneficial owner of a Trust Security that is not a United States Person. Beneficial owners of a Trust Security that are not United States Persons must, to the extent permitted by applicable rule or
law, irrevocably appoint a United States Person with discretionary powers to act as their agent with respect to such voting and consensual rights.
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 the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03
.
Execution of Supplemental Indentures
.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be given, in addition to the documents required by Section 1.02, and (subject to Section 6.01) shall be fully
69
protected in relying upon, an Opinion of Counsel and an Officers’ Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.04
.
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby to the extent provided therein.
Section 9.05
.
Conformity with Trust Indenture Act
.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 9.06
. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE 10
C
OVENANTS
Section 10.01
.
Payment of
Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it
will duly and punctually pay the principal of (and premium, if any) and interest on the Securities of that series in accordance with the terms of the Securities of such series and this Indenture, and will duly comply with all other terms, agreements
and conditions contained in, or made in the Indenture for the benefit of, the Securities of such series.
Section 10.02
.
Maintenance of Office or Agency
.
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The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to
time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations;
provided
that no such
designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any such other office or agency.
Section 10.03
.
Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date
of the principal of (and premium, if any) or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The
Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
71
(a)
hold all sums held by it for the payment of the principal of (and premium, if
any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(b)
give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making
of any payment of principal (and premium, if any) or interest on the Securities of that series; and
(c)
at any time
during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of any series and remaining unclaimed for two years after such principal (and premium, if
any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided
that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 10.04
.
Statement by Officers as to
Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending
after the date hereof, an Officers’ Certificate stating whether or not to the best knowledge of the signers thereof the
72
Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture, and if the Company shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge.
Section 10.05
.
Covenants as to GMAC
Trusts.
For so long as any Trust Securities of a series of a GMAC Trust remain outstanding, the Company will
(i) maintain 100% direct or indirect ownership of the Common Securities of such series of such GMAC Trust;
provided, however
, that any permitted successor of the Company hereunder may succeed to the Company’s ownership of such
Common Securities, (ii) not voluntarily dissolve, wind up or terminate such series of such GMAC Trust (or the entire GMAC Trust), except in connection with a distribution of Securities upon a Special Event, and in connection with certain
mergers, consolidations or amalgamations permitted by the Declaration of such series of such GMAC Trust, (iii) timely perform its duties as Sponsor of the applicable series of applicable GMAC Trust, (iv) use its reasonable efforts to cause
such series of such GMAC Trust to remain a statutory trust, except in connection with (1) the distribution of Securities to holders of Trust Securities in liquidation of their interests in such series of such GMAC Trust, (2) the redemption
of all of the outstanding Trust Securities of such series of such GMAC Trust, or (3) mergers, consolidations or amalgamations permitted by the Declaration of such series of such GMAC Trust, and (v) not knowingly take any action that would
(x) cause such GMAC Trust or such series (as applicable) to be classified (a) as other than either a grantor trust or a partnership or (b) as an entity taxable as a corporation, in either case, for United States federal income tax
purposes, or (y) materially reduce the likelihood of the such GMAC Trust or such series (as applicable) being classified as a grantor trust for United States federal income tax purposes.
Section 10.06
.
Payment of Expenses.
(a)
In connection with the sale and issuance of each series of Securities to the Institutional Trustee of a series of a GMAC Trust and in connection with the offering and sale of Trust Securities
by such series of such GMAC Trust, the Company, in its capacity as borrower with respect to such Securities, shall:
(i)
pay all costs and expenses relating to the offering, sale and issuance of such Securities, including any commissions to any underwriters engaged by the Company in connection with such offering,
sale and issuance and compensation of the Trustee under this Indenture in accordance with the provisions of Section 6.01;
(ii)
pay all costs and expenses of such series of such GMAC Trust (including, but not limited to, costs and expenses relating to the
73
organization of the trust, the offering, sale and issuance of the Trust Securities of such series of such GMAC Trust (including any commissions to any underwriters engaged by the Company in
connection therewith), the fees and expenses of the Institutional Trustee, the Administrative Trustees and the Delaware Trustee of such series of such GMAC Trust, the costs and expenses relating to the operation, maintenance and dissolution of such
series of such GMAC Trust and the enforcement by such Institutional Trustee of the rights of the holders of the Trust Preferred Securities of such series of such GMAC 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 assets of such series of such GMAC Trust);
(iii)
be primarily liable for any indemnification obligations arising with respect to the Declaration of such series of such GMAC Trust; and
(iv)
pay any and all taxes (other than United States withholding taxes in respect of amounts paid on the Securities
held by such series of such GMAC Trust) and all liabilities, costs and expenses with respect to such taxes of such series of such GMAC Trust.
(b)
Upon termination of this Indenture or any series of Securities or the removal or resignation of the Trustee pursuant to Section 6.10, the Company shall pay to the Trustee all amounts
accrued and owing to the Trustee to the date of such termination, removal or resignation. Upon termination of the Declaration of any series of any GMAC Trust (or the entire GMAC Trust ) or the removal or resignation of the Delaware Trustee or the
Institutional Trustee, as the case may be, pursuant to Section 5.06 of the Series Supplement for such Declaration of such series of such GMAC Trust, the Company shall pay to such Delaware Trustee or such Institutional Trustee, as the case may
be, all amounts accrued and owing to such Delaware Trustee or such Institutional Trustee, as the case may be, to the date of such termination, removal or resignation.
Section 10.07
.
Listing on an Exchange.
If Securities
of any series are to be issued as a Global Security in connection with the distribution of such Securities to the holders of the Trust Preferred Securities of a series of a GMAC Trust upon a Dissolution Event with respect to such series of such GMAC
Trust (or the entire GMAC Trust) and the Trust Preferred Securities are listed on the New York Stock Exchange, Inc. or on any other national securities exchange, the Company will use its best efforts to list
74
such series of Securities on the New York Stock Exchange, Inc. or on such other securities exchange as the Trust Preferred Securities of such series of such GMAC Trust are then listed. The
Company will promptly notify the Trustee in writing of any Securities that will be listed on or delisted from any securities exchange.
Section 10.08
.
Future Issuance of Securities under this Indenture.
Any Securities issued under this Indenture shall (x) be issued with the concurrence or approval of the Federal Reserve or its staff or (y) qualify at the time of issuance for tier 1 capital
treatment (irrespective of any limits on the amount of the Company’s tier 1 capital) under applicable capital adequacy guidelines, regulations, policies, published interpretations or any applicable concurrence or approval of the Federal Reserve
or its staff.
ARTICLE 11
R
EDEMPTION
OF
S
ECURITIES
Section 11.01
.
Applicability of Article; Federal Reserve Approval.
Securities of each series are redeemable before their respective Stated Maturities in accordance with their respective terms and (except
as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this Article. Any redemption of any series of Securities, in whole or in part, prior to their respective Stated Maturities shall be subject
to receipt by the Company of the prior concurrence or approval of the Federal Reserve or its staff, (i) if such concurrence or approval is then required in order for securities such as the Securities to qualify as tier 1 capital under
applicable capital adequacy guidelines, regulations, policies, published interpretations, or any applicable concurrence or approval of the Federal Reserve or its staff, or (ii) if the Federal Reserve or its staff has informed the Company that
it must obtain such concurrence or approval before redeeming the Securities.
Section 11.02
.
Election to
Redeem; Notice to Trustee.
(a)
Subject to the provisions of Section 11.02(b) and to the other provisions of
this Article 11, except as otherwise may be specified in this Indenture or, with respect to any series of Securities, as otherwise specified as contemplated by Section 3.01 for the Securities of such series, the Company shall have the right to
redeem any series of Securities, in whole or in part, at any time on or after the Redemption Option Date for such series at the Redemption Price. The election of the Company to redeem any Securities redeemable at the election of the Company shall be
evidenced by a Board Resolution. In case of any redemption at the election of the Company of the Securities of any series, the Company shall, at least 40 days (unless a shorter period is acceptable to the
75
Trustee), but not more than 60 days, prior to the Redemption Date fixed by the Company, notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company
which is subject to a condition provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction or condition.
(b) If any series of Trust Preferred Securities are listed on the New York Stock Exchange, Inc. or on any other national securities
exchange and a partial redemption of any series of Securities would result in the delisting of the Trust Preferred Securities of such series of such GMAC Trust from any national securities exchange on which the Trust Preferred Securities of such
series of such GMAC Trust are then listed, the Company shall not be permitted to effect such partial redemption and may redeem such series of Securities only in whole.
Section 11.03
.
Selection by Trustee of Securities to be Redeemed.
If fewer than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series;
provided
that,
if at the time of redemption such Securities are registered as a Global Security, the Depositary shall determine, in accordance with its procedures, the principal amount of such Securities held by each Security Beneficial Owner to be redeemed.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in case of any
Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
Section 11.04
.
Notice of Redemption.
76
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(a)
the Redemption Date,
(b)
the Redemption Price (or if not then ascertainable, the manner of calculation thereof),
(c)
if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities of such series to be redeemed,
(d)
that on the
Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and that interest thereon will cease to accrue on and after said date,
(e)
the place or places where such Securities are to be surrendered for payment of the Redemption Price, and
(f)
that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s
request and provision of such notice information to the Trustee no less than 10 days prior to the mailing of such redemption notice, by the Trustee in the name and at the expense of the Company.
Section 11.05
.
Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
Section 11.06
.
Securities
Payable on Redemption Date.
(a)
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued
77
interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided
that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
(b)
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
(c)
The Redemption Price shall be paid prior to 12:00 noon, New York
City time, on the date of such redemption or such earlier time as the Company determines,
provided
that the Company shall deposit with the Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m., New York City time, on the date
such Redemption Price is to be paid.
Section 11.07
.
Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment for Securities of that series (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of like tenor and of any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12
S
INKING
F
UNDS
Section 12.01
.
Applicability of Article.
The
provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 for the Securities of such series.
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
78
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
.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of Securities of such series.
Section 12.02
.
Satisfaction of Sinking Fund
Payments with Securities.
Unless the form or terms of any series of Securities shall provide otherwise, the Company
(1) may deliver to the Trustee Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any
Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such Securities;
provided
that such Securities have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03
.
Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series of Securities the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 45 days before each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.04. The Company shall deposit the amount of cash, if any, required for such sinking fund payment with the Trustee in the manner provided in Section 11.05. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
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ARTICLE 13
E
XTENSION
OF
I
NTEREST
P
AYMENT
P
ERIOD
Section 13.01
.
Extension of Interest Payment Period.
So long as no Event of Default shall have occurred and be continuing, the Company shall have the right, at any time and from time to time
during the term of the Securities of any series, to defer payments of interest by extending the interest payment period of all Securities of such series for a period not exceeding 20 consecutive quarters (the “
Extended Interest Payment
Period
”), during which Extended Interest Payment Period no interest shall be due and payable on Securities of such series;
provided
that no Extended Interest Payment Period may extend beyond the Maturity of such Securities. 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 13.01, will bear interest thereon at the Coupon Rate compounded on each date
during the Extended Interest Payment Period that would be an Interest Payment Date but for the existence of such Extended Interest Payment Period for each Interest Payment Period during the Extended Interest Payment Period (“
Compounded
Interest
”). At the end of any Extended Interest Payment Period with respect to any series of Securities, the Company shall pay all interest accrued and unpaid on such Securities, including any Compounded Interest (together,
“
Deferred Interest
”) that shall be payable to the Holders of Securities of such Series in whose names such Securities are registered in the Security Register on the record date immediately preceding the end of such Extended Interest
Payment Period. For the avoidance of doubt, the Company shall have the right to make partial payments of interest on any Interest Payment Date during an Extended Interest Payment Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period;
provided
that such period, together with all such other extensions thereof, shall not exceed 20 consecutive quarters; and
provided further,
that no prepayment of interest during an
Extended Interest Payment Period shall allow the Company to extend such Extended Interest Payment Period beyond 20 consecutive quarters. Upon the termination of any Extended Interest Payment Period with respect to any series of Securities and upon
the payment of all Deferred Interest then due, the Company may commence a new Extended Interest Payment Period with respect to such series of Securities, subject to the foregoing requirements. No interest on a series of Securities shall be due and
payable during an Extended Interest Payment Period with respect thereto, except at the end thereof,
provided
the Company may prepay at any time all or any portion of the interest accrued during any Extended Interest Payment Period.
Section 13.02
.
Notice of Extension.
(a)
If the Institutional Trustee of a series of a GMAC Trust is the only Holder of Securities of a series at the time the Company
selects an Extended
80
Interest Payment Period with respect thereto, the Company shall give written notice to the Administrative Trustees and the Institutional Trustee of such series of such GMAC Trust and to the
Trustee of its selection of such Extended Interest Payment Period at least one Business Day before the earlier of (i) the next succeeding date on which Distributions on the Trust Securities issued by such series of such GMAC Trust would be
payable, if not for such Extended Interest Payment Period, or (ii) the date such series of such GMAC 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 Trust Preferred Securities issued by such series of such GMAC Trust, but in any event at least one Business Day before such record date.
(b)
If the Institutional Trustee of a series of a GMAC Trust is not the only Holder of Securities of a series at the time the
Company selects an Extended Interest Payment Period with respect thereto, the Company shall give written notice to the Holders of Securities of such series, the Administrative Trustees for such series and the Trustee of its selection of such
Extended Interest Payment Period at least 10 Business Days before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the date the Company 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 Securities of such series.
(c)
The quarter in which any notice is given pursuant to paragraphs (a) or (b) of this Section 13.02 shall be
counted as one of the 20 quarters permitted in the maximum Extended Interest Payment Period with respect to any series of Securities.
(d)
Notwithstanding anything else contained in this Indenture, the Company shall be required to give notice to any Person of its selection of an Extended Interest Payment Period no more than 15
Business Days and no less than 5 Business Days before the next succeeding Interest Payment Date of the affected Securities.
Section 13.03
.
Limitation of Transactions.
If with respect to any series of Securities (i) the Company shall exercise its right to defer payments of interest thereon as
provided in Section 13.01 or (ii) there shall have occurred and be continuing any Default, then (a) the Company and any subsidiary of the Company (other than a subsidiary that is a depository institution, or a subsidiary thereof)
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 the Company’s capital stock or make any guarantee payment with respect thereto
(other than (i) redemptions, purchases or other acquisitions of shares of capital stock of the Company in
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connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Company or any of its
subsidiaries of record ownership in capital stock of the Company for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or
conversion of any class or series of the Company’s capital stock for any other class or series of the Company’s capital stock, in each case, solely to the extent required pursuant to binding contractual agreements entered into prior to or
on the original issue date of the Securities of this series or any subsequent agreement for the accelerated exercise, settlement or exchange thereof for capital stock of the Company, (iv) distributions by or among any wholly-owned subsidiary of
the Company, (v) redemptions of securities held by the Company or any wholly-owned subsidiary of the Company, and (vi) unpaid tax distributions to holders of membership interests of GMAC LLC pursuant to Section 4.01(b) of GMAC
LLC’s Plan of Conversion, dated June 30, 2009), and (b) the Company and any subsidiary of the Company (other than a subsidiary that is a depository institution, or a subsidiary thereof) shall not make any payment of interest on or
principal of (or premium, if any, on), or repay, repurchase or redeem, any debt securities or guarantees issued by the Company which rank
pari passu
with or junior to the Securities (“
Junior Subordinated Indebtedness
”) (other
than (i) redemptions, purchases or other acquisitions of Junior Subordinated Indebtedness in connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the
acquisition by the Company or any of its subsidiaries of record ownership in Junior Subordinated Indebtedness for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians,
(iii) as a result of an exchange or conversion of any class or series of Junior Subordinated Indebtedness for any other class or series of Junior Subordinated Indebtedness, (iv) redemptions of securities held by the Company or any
wholly-owned subsidiary of the Company and (v) any payment of interest on Junior Subordinated Indebtedness paid pro rata with interest paid on the Securities of such series such that the respective amounts of such payments made shall bear the
same ratio to each other as all accrued but unpaid interest per like-amount of such Securities and all Junior Subordinated Indebtedness bear to each other). The restrictions in the foregoing clauses (a) and (b) will not apply to
(i) any stock dividends paid by the Company where the dividend stock is the same stock as that on which the dividend is being paid or (ii) dividends or distributions by or other transactions solely among the Company and any wholly-owned
subsidiary of the Company or solely among wholly-owned subsidiaries of the Company.
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ARTICLE 14
S
UBORDINATION
OF
S
ECURITIES
Section 14.01
.
Agreement to Subordinate.
(a)
The Company covenants and agrees, and each Holder of Securities issued hereunder by such Holder’s acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this Article 14; 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.
(b)
The payment by the Company of the principal of, premium, if any, and interest on all Securities
issued hereunder 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 of the Company, whether outstanding at the date of this Indenture
or thereafter incurred.
(c)
No provision of this Article 14 shall prevent the occurrence of any Default hereunder.
Section 14.02
.
Default on Senior Indebtedness.
(a)
In the event and during the continuation of any default by the Company in the payment of principal, premium, interest or any
other payment due on any Senior Indebtedness of the Company, as the case may be, or in the event that the maturity of any Senior Indebtedness of the Company, as the case may be, has been accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the principal (including redemption payments) of, or premium, if any, or interest on, the Securities or to acquire any of the Securities (except sinking fund payments made in Securities acquired
by the Company prior to such default):
(b)
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee, by any Holder or by any Paying Agent (or, if the Company is acting as its own Paying Agent, money for any such payment is segregated and held in trust) when such payment is prohibited by the preceding paragraph of this
Section 14.02, before all Senior Indebtedness of the Company is paid in full, or provision is made for such payment in money in accordance with its terms, such payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness of the Company or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, ratably according to the aggregate amount remaining unpaid on account of the principal, premium, interest or any other payment due on the Senior Indebtedness held or represented by each, for
83
application to the payment of all Senior Indebtedness of the Company, as the case may be, remaining unpaid to the extent necessary to pay such Senior Indebtedness 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, but only to the extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of such payment of the amounts then due and owing on the Senior Indebtedness and only the amounts specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
Section 14.03
.
Liquidation; Dissolution; Bankruptcy.
(a)
Upon any payment by the Company or distribution of assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all amounts due upon all Senior
Indebtedness of the Company shall first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made by the Company 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 Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of
the Securities or the Trustee would be entitled to receive, except for the provisions of this Article 14, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness of the Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to pay such Senior Indebtedness 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, before any payment or distribution is made to the Holders of Securities or to the Trustee.
(b)
In the
event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee, by any Holder or by any
Paying Agent (or, if the Company is acting as its own Paying Agent, money for any such payment is segregated and held in trust) before all Senior Indebtedness of the Company is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or
84
distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, ratably according to the aggregate amount remaining unpaid on account of the principal, premium,
interest or any other payment due on the Senior Indebtedness held or represented by each, as calculated by the Company, for application to the payment of all Senior Indebtedness of the Company, as the case may be, remaining unpaid to the extent
necessary to pay such Senior Indebtedness 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.
(c)
For purposes of this Article 14, the words “cash, property or securities” shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company 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
14 with respect to the Securities to the payment of all Senior Indebtedness of the Company, as the case may be, that may at the time be outstanding,
provided
that (i) such Senior Indebtedness 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 are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company 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 8 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 14.03 if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article 8. Nothing in Section 14.02 or in this Section 14.03 shall apply to claims of, or payments to the Trustee under or pursuant to Section 6.07.
Section 14.04
.
Subrogation.
(a)
Subject to the payment in full of all Senior Indebtedness of the Company, the rights of the Holders of the Securities shall be subrogated to the rights of the holders of such indebtedness to
receive payments or distributions of cash, property or securities of the Company, as the case may be, applicable to such Senior Indebtedness until the principal of (and premium, if any) and interest 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 of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this
Article 14, and no payment
85
over pursuant to the provisions of this Article 14 to or for the benefit of the holders of such Senior Indebtedness by Holders of the Securities or the Trustee, shall, as between the Company, its
creditors other than Holders of Senior Indebtedness of the Company, and the holders of the Securities, be deemed to be a payment by the Company to or on account of such Senior Indebtedness. It is understood that the provisions of this Article 14 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 on the other hand.
(b)
Nothing contained in this Article 14 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior Indebtedness of the Company, and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the
principal of (and 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 Company, as the case may be, other than the holders of Senior Indebtedness of the Company, as the case may be, nor shall anything herein or therein prevent the 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 14 of the holders of such Senior Indebtedness in respect of cash, property or securities of the Company, as the case may be, received
upon the exercise of any such remedy.
(c)
Upon any payment or distribution of assets of the Company referred to in
this Article 14, the Trustee, subject to the provisions of Section 6.01, and the Holders of the Securities 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 Trustee or to the Holders of
the Securities, for the purposes of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness and other indebtedness of the Company, 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 14.
Section 14.05
.
Trustee to Effectuate Subordination.
Each Holder of Securities by such Holder’s acceptance thereof authorizes and directs the Trustee on such Holder’s behalf to take
such action as may be necessary or appropriate to effectuate the subordination provided in this Article 14 and appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.
86
Section 14.06
.
Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this Article 14. Notwithstanding the provisions of this Article 14 or any other provision of this Indenture, the 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 Trustee in respect of the Securities pursuant to the provisions of this Article 14, unless and until a Responsible Officer of
the Trustee shall have received written notice thereof from the Company or a holder or holders of Senior Indebtedness or their representative or representatives or from any trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.01 shall be entitled in all respects to assume that no such facts exist;
provided, however
, that if the Trustee shall not have received the notice provided for in this Section 14.06 at
least three 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 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 three Business Days prior to such date.
The Trustee, subject to the provisions of
Section 6.01, 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 of the Company, 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 a trustee on behalf of any such holder or holders. In the event that the 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 to participate in any payment or distribution pursuant to this Article 14, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Indebtedness 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 14, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 14.07
.
Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article 14 in respect of any Senior Indebtedness at any time held by it,
87
to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article 14, and no implied covenants or obligations with respect to the holders of such Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of such Senior Indebtedness and, subject to the provisions of Section 6.01, the Trustee shall not be liable to any holder of such Senior Indebtedness if it shall pay over or deliver to Holders
of Securities, the Company or any other Person money or assets to which any holder of such Senior Indebtedness shall be entitled by virtue of this Article 14 or otherwise.
Section 14.08
.
Subordination may not be Impaired.
No
right of any present or future holder of any Senior Indebtedness of the Company 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 Company, 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 Company, 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 of the Company may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article 14 or the obligations hereunder of the Holders of the Securities to the holders of such Senior Indebtedness, 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 otherwise amend or supplement in any manner such Senior Indebtedness or any instrument evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii) release any Person liable in any manner for the collection of such
Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company, as the case may be, and any other Person.
Section 14.09
.
Trustee’s Compensation not Prejudiced.
88
Nothing in this Article 14 shall apply to amounts due to the Trustee pursuant to
Section 6.07 of this Indenture.
ARTICLE 15
M
ISCELLANEOUS
Section 15.01
.
Acknowledgment of Rights.
The Company
acknowledges that, with respect to any Securities held by a series of a GMAC Trust or a trustee of such series of such Trust, if the Institutional Trustee of such series of such GMAC Trust fails to enforce its rights under this Indenture as the
Holder of the series of Securities held as the assets of such series of such GMAC Trust, any holder of Trust Preferred Securities of such series of such GMAC Trust may institute legal proceedings directly against the Company 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 a Default has occurred and is continuing and such event is attributable to the failure of the Company to pay interest or principal (or premium, if any) on the applicable
series of Securities on the date such interest or principal (or premium, if any) is otherwise payable (or in the case of redemption, on the redemption date), the Company acknowledges that a holder of Trust Securities issued by a series of a GMAC
Trust which is, or the Institutional Trustee of which is, the Holder of such Securities may directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on (or premium, if any) the applicable series of
Securities having a principal amount equal to the aggregate liquidation amount of the Trust Securities of such holder with respect to such series (a “
Direct Action
”) on or after the respective due date specified of such holder on or
after the respective due date specified in the applicable series of Securities. Notwithstanding any payments made to such holder of the applicable series of Trust Securities by the Company in connection with a Direct Action, the Company shall remain
obligated to pay the principal of or interest on (or premium, if any) the series of Securities held by the applicable series of the applicable GMAC Trust or the Institutional Trustee of such series of such GMAC Trust, and the Company shall be
subrogated to the rights of the holder of such Trust Securities to the extent of any payments made by the Company to such holder in any Direct Action.
Section 15.02
.
Counterparts.
This instrument may be
executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of an executed
89
signature page of this Indenture by facsimile or electronic (including PDF) transmission shall be effective as delivery of a manually executed counterpart thereof.
90
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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ALLY FINANCIAL INC.
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By:
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/s/ Cathy L. Quenneville
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Name:
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Cathy L. Quenneville
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Title:
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Secretary
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THE BANK OF NEW YORK MELLON
As Trustee
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By:
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/s/ Sherma Thomas
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Name:
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Sherma Thomas
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Title:
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Senior Associate
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EXHIBIT A
[FORM OF CERTIFICATE TO BE DELIVERED UPON
TRANSFER OF SECURITIES]
Ally Financial Inc.
200 Renaissance Center
P.O. Box 200
Detroit, Michigan
48265-2000
Facsimile: (313) 656-6214
Attention: General Counsel
The Bank of New York Mellon
101 Barclay Street — 8W
New York, New York
10286
Attention: Corporate Trust Administration
Re: Junior Subordinated Deferrable Interest Debentures due
(the “
Securities
”) CUSIP # [ ]
Reference is hereby made to that certain indenture dated as of December 30, 2009 as amended and restated on
[ ], 2011 (the “
Indenture
”), between Ally Financial Inc. and The Bank of New York Mellon, as trustee (the “
Trustee
”). Capitalized terms used but not defined herein shall have the meanings set
forth in the Indenture.
This certificate relates to $ principal amount of
Securities held in definitive form by the undersigned.
The undersigned,
(transferor), hereby requests the Trustee to transfer a Security or Securities to
(transferee).
In connection with such transfer of the Security or Securities, the undersigned confirms that such Securities are being transferred in accordance with their terms:
CHECK ONE BOX BELOW:
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to Ally Financial Inc. or any subsidiary thereof; or
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¨
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to a “qualified institutional buyer” within the meaning of Rule 144A (“
Rule 144A
”) under the Securities Act of 1933, as amended (the
“
Securities Act
”) and in compliance with Rule 144A or (B) an institutional “accredited investor” within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act;
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¨
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pursuant to an exemption from registration provided by Rule 144 under the Securities Act or any other available exemption from the registration requirements of the
Securities Act.
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Unless one of the boxes is checked, the Security Registrar will refuse to register the transfer
of any of the Securities referenced in this certificate.
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Signature Guarantee:
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Name:
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(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program
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TO BE COMPLETED BY PURCHASER IF THE SECOND BOX ABOVE IS
CHECKED.
The undersigned represents and warrants that: (initial applicable
statement)
it and any account for which it is
acting is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended (“
Rule 144A
”), (ii) it exercises sole investment discretion with respect to each such account,
and (iii) it is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A; or
it is an institutional “accredited investor”
within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act purchasing for its own account or for the account of such an “accredited investor”, and it is acquiring the Securities for investment
purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, and it has such knowledge and experience in financial and business matters as to be capable of evaluation the merits and
risks of its investment in the Securities, and it and any account for which it is acting is able to bear the economic risks of the investment.
A-2
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[Name of Transferee]
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By:
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Name:
1
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Title:
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1
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To be signed by an executive officer.
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A-3
EXHIBIT B
[FORM OF CERTIFICATE TO BE DELIVERED BY QIBs
IN CONNECTION WITH TRANSFERS PURSUANT
TO RULE 144A]
Ally Financial Inc.
200 Renaissance Center
P.O. Box 200
Detroit, Michigan 48265-2000
Facsimile:
(313) 656-6214
Attention: General Counsel
The Bank of New York Mellon
101 Barclay Street — 8W
New York, New York 10286
Attention: Corporate
Trust Administration
Re: [ ] Junior Subordinated Deferrable Interest
Debentures due (the “
Securities
”) CUSIP # [ ]
Ladies and Gentlemen:
In connection with our proposed sale of
$ aggregate principal amount at maturity of the Securities (the “
Subject Securities
”), we hereby certify that such transfer is being effected pursuant to and in accordance with Rule
144A (“
Rule 144A
”) under the United States Securities Act of 1933, as amended, and, accordingly, we hereby further certify that the Subject Securities are being transferred to a person that we reasonably believe is purchasing the
Subject Securities for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and such Subject Securities are being transferred in compliance with any applicable securities laws of any state of the United States.
The Bank of New York Mellon and Ally Financial Inc. are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
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Very truly yours,
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[Name of Transferor]
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By:
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Name:
2
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Title:
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2
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To be signed by an authorized signatory.
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B-2
ANNEX I
FORM OF SERIES 1 SECURITIES
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “
SECURITIES ACT
”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS (X) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (Y) AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE
TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (I) NO PORTION OF THE ASSETS USED BY
IT TO ACQUIRE AND HOLD THE SECURITY CONSTITUTES ASSETS OF ANY “EMPLOYEE BENEFIT PLAN” SUBJECT TO SECTION 406 OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“
ERISA
”), ANY PLAN, ACCOUNT OR OTHER
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “
CODE
”), OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR
REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, “
SIMILAR LAWS
”), OR ANY ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
PLAN, ACCOUNT OR ARRANGEMENT OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAW.
[THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“
OID
”), FOR PURPOSES OF SECTIONS 1272, 1273, AND
1275 OF THE CODE. ALLY FINANCIAL INC. (THE “
COMPANY
”) WILL, BEGINNING NO LATER THAN TEN (10) DAYS AFTER THE ISSUE DATE, PROMPTLY PROVIDE TO HOLDERS OF SECURITIES, UPON WRITTEN REQUEST, THE ISSUE PRICE, THE AMOUNT OF OID, THE
ISSUE DATE AND THE YIELD TO MATURITY WITH RESPECT TO THE SECURITIES. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT ALLY FINANCIAL INC., 200 RENAISSANCE CENTER, P.O. BOX 200, DETROIT, MICHIGAN 48265-2000, ATTENTION: CHIEF FINANCIAL
OFFICER.]
No. 1
$[ ]
ALLY FINANCIAL INC.
8.0% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE February 15, 2040
ALLY FINANCIAL INC., a Delaware corporation
(the “
Company
”, which term includes any successor corporation under the indenture dated as of December 30, 2009 as amended and restated on March 1, 2011, between the Company and The Bank of New York Mellon, as trustee), for
value received, hereby promises to pay to The Bank of New York Mellon, as Institutional Trustee of GMAC Capital Trust I (the “
Trust
”) with respect to Series 1 thereof (“
Series 1 of the Trust
”), pursuant to that
certain Second Amended and Restated Declaration of Trust and Series 1 Supplement thereto, each dated as of March 1, 2011, or registered assigns, the principal sum of [ ]
($[ ]) on February 15, 2040, and to pay interest on said principal sum from December 30, 2009, or from the most
Annex I-2
recent interest payment date (each such date, an “
Interest Payment Date
”) to which interest has been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on February 15, May 15, August 15 and November 15 of each year commencing February 15, 2010, at a rate of 8.0% 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 an amount of interest is payable for any period shorter than a full quarterly period, interest will
be computed on the basis of the actual number of days elapsed in a partial month in such period. In the event that any date on which interest is payable on this Security 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 Security (or one or more Predecessor Securities, as defined in said Indenture) is registered at the close of business on the regular record date for such interest installment, which shall be (a) while this Security
is held by the Institutional Trustee of Series 1 of the Trust or is represented by a Global Security, the close of business on the Business Day next preceding such Interest Payment Date, or (b) if pursuant to the provisions of the Indenture
this Security is not in book-entry form, 15 days prior to such Interest Payment Date or such other record date fixed by the Administrative Trustee that is not more than 60 nor less than 10 days prior to such Interest Payment Date. 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 Security (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Securities 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 Securities of this series 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 Security shall be payable at the office or agency of the 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 Company by
Annex I-3
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 Security is the Institutional Trustee
of a series of a GMAC Trust, the payment of the principal of (and premium, if any) and interest on this Security will be made at such place and to such account as may be designated by such Institutional Trustee.
This Security is not a deposit or savings account. This Security is not insured by the Federal Deposit Insurance Corporation or any other
governmental agency or instrumentality.
The indebtedness evidenced by this Security 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 of the Company, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by, such provisions, (b) authorizes and directs the 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 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 of the Company, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
This Security 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 Trustee.
The provisions
of this Security 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.
Annex I-4
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated:
, 2011
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ALLY FINANCIAL INC.
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities described in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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Authorized Signatory
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[SIGNATURE
PAGE TO DEBENTURES]
(REVERSE OF SECURITY)
ALLY FINANCIAL INC.
8.0% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE February 15, 2040
This Security is one of a duly authorized issue of securities of the Company (herein sometimes referred to as the “
Securities
”), specified in the Indenture, all issued or to be issued in
one or more series under and pursuant to an indenture dated as of December 30, 2009 as amended and restated on March 1, 2011 (the “
Indenture
”), duly executed and delivered between the Company and The Bank of New York Mellon, as
trustee (the “
Trustee
”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. By the terms of the Indenture, the Securities 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 Securities is limited in aggregate principal amount to $[ ].
The
Company shall have the right to redeem this Security, in whole or in part, (i) while 8.0% Trust Preferred Securities of Series 1 of the Trust (the “
Trust Preferred Securities
”) or this Security are held by the U.S. Government
in connection with assistance provided to the Company under the Troubled Asset Relief Program or any similar or related U.S. government program, subject to consultation with the Federal Reserve; (ii) at the option of the Company without premium
or penalty, at any time on or after December 30, 2014 (an “
Optional Redemption
”); or (iii) any time in certain circumstances upon the occurrence of a Tax Event, an Investment Company Event or a Regulatory Capital Event
(each as defined below, and each a “
Special Event
”), at a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest to the date of such redemption (the “
Optional Redemption
Price
”). Any redemption pursuant to this paragraph will be made at the Optional Redemption Price upon not less than 30 days nor more than 60 days notice, and with respect to a redemption upon a Special Event, within 90 days following the
occurrence of such Special Event;
provided, however
, that if at the time there is available to the Company or Series 1 of the Trust the opportunity to eliminate, within such 90 day period, the Special Event by taking some ministerial action,
such as filing a form or making an election or pursuing some other similar reasonable measure that will have no adverse effect on Series 1 of the Trust, the Company or the holders of the Trust Preferred Securities or the Securities, then the Company
or Series 1 of the Trust will pursue such measure in lieu of redemption. If the Securities of this series are only partially redeemed by the Company pursuant to an Optional
Annex I-5
Redemption, such Securities will be redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided
that if, at the time of redemption, the Securities of this series
are registered as a Global Security, the Depositary (as defined herein) shall determine the principal amount of such Securities held by each Security Beneficial Owner to be redeemed in accordance with its procedures.
“
Tax Event
” means that the Administrative Trustees shall have received an opinion of a nationally recognized independent
tax counsel experienced in such matters (a “
Tax Event Opinion
”) 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 amendment to, or change in, an interpretation or application of such laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the publication of any judicial decision or regulatory determination or administrative pronouncement on or after December 30, 2009), in either case after December 30,
2009 there is more than an insubstantial risk that (i) Series 1 of the Trust would be subject to United States federal income tax with respect to interest accrued or received on the Securities of this series, (ii) Series 1 of the Trust
would be subject to more than a
de minimis
amount of other taxes, duties or other governmental charges, or (iii) interest payable to Series 1 of the Trust on the Securities of this series would not be deductible, in whole or in part, by
the Company for United States federal income tax purposes.
“
Investment Company Event
” means that the
Administrative Trustees shall have received an opinion of a nationally recognized independent counsel experienced in practice under the Investment Company Act to the effect that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority (a “
Change in 1940 Act Law
”), there is a more than an insubstantial risk that Series 1
of the Trust (or the Trust) is or will be considered an Investment Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after December 30, 2009.
“
Regulatory Capital Event
” means a determination by the Company, based on an opinion of counsel experienced in such
matters (who may be an employee of the Company or any of its affiliates), that, as a result of (a) any amendment to, clarification of or change (including any announced prospective change) in applicable laws or regulations or official
interpretations thereof or policies with respect thereto or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment, clarification, change, pronouncement or decision
is announced or is effective after December 30, 2009, there is more than an insubstantial risk that the
Annex I-6
Trust Preferred Securities will no longer constitute Tier I Capital of the Company or any bank holding company of which the Company is a subsidiary (or its equivalent) for purposes of the capital
adequacy guidelines or policies of the Board of Governors of the Federal Reserve System or its successor as the Company’s primary federal banking regulator,
provided, however
, that the distribution of the Debentures in connection with
the liquidation of Series 1 of the Trust (or the Trust) shall not in and of itself constitute a Regulatory Capital Event unless such liquidation shall have occurred in connection with a Tax Event or an Investment Company Event.
Any redemption of the Securities of this series, in whole or in part, prior to the stated maturity date is subject to the prior
concurrence approval of the Federal Reserve or the staff thereof, (i) if such concurrence or approval is then required in order for securities such as the Securities of this series to qualify as tier 1 capital of a bank holding company under
applicable capital adequacy guidelines, regulations, policies, or published interpretations of the Federal Reserve, or (ii) if the Federal Reserve or its staff has informed the Company that it must obtain such approval before redeeming the
Securities.
In the event of redemption of this Security in part only, a new Security or Securities of this series for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of
Default, as defined in the Indenture, with respect to the Securities of this series shall have occurred and be continuing, the principal of all the Securities of this series 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 Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities 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 Securities of such
series under the Indenture;
provided
,
however
, that no such supplemental indenture shall modify certain provisions of the Indenture, as set forth in the Indenture, without the consent of the Holders of each Security then outstanding
and affected thereby including, without limitation, to: (i) extend the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any
such payment on or
Annex I-7
after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify the provisions of the Indenture with respect to the subordination of the Securities
in a manner adverse to the Holders, or (ii) reduce the aforesaid percentage of Securities, the Holders of which are required to consent to any such supplemental indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding affected thereby, on behalf of all of the Holders of the Securities 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 Securities of such series. Any such consent or waiver by the registered
Holder of this Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Security and of any Security issued in exchange herefor 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 Security. In determining whether the Holders of the requisite principal amount of Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or waiver under the Indenture or hereunder, Securities owned by the U.S. Government shall not be deemed to be Securities owned by an Affiliate of the Company.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Security at the time and place and at the rate and in the money herein prescribed.
So long as no Event of Default, as defined in the Indenture, shall have occurred and be continuing, the Company shall have the right at
any time during the term of the Securities of this series and from time to time to extend the interest payment period of such Securities for up to 20 consecutive quarters (an “
Extended Interest Payment Period
”), at the end of which
period the Company shall pay all interest then accrued and unpaid (together with interest thereon at the rate specified for the Securities of this series to the extent that payment of such interest is enforceable under applicable law);
provided
, that no such Extended Interest Payment Period shall extend beyond the maturity of such Securities; and
provided further
that during any such Extended Interest Payment Period (a) the Company and any subsidiary of the
Company (other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) 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 the
Annex I-8
Company’s capital stock or make any guarantee payment with respect thereto (other than (i) redemptions, purchases or other acquisitions of shares of capital stock of the Company in
connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Company or any of its subsidiaries of record ownership in capital stock of the
Company for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or conversion of any class or series of the Company’s capital
stock for any other class or series of the Company’s capital stock, in each case, solely to the extent required pursuant to binding contractual agreements entered into prior to or on December 30, 2009 or any subsequent agreement for the
accelerated exercise, settlement or exchange thereof for capital stock of the Company, (iv) distributions by or among any wholly-owned subsidiary of the Company, (v) redemptions of securities held by the Company or any wholly-owned
subsidiary of the Company, and (vi) unpaid tax distributions to holders of membership interests of GMAC LLC pursuant to Section 4(b) of GMAC LLC’s Plan of Conversion, dated June 30, 2009), and (b) the Company and any
subsidiary of the Company (other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) shall not make any payment of interest on or principal of (or premium, if any, on), or repay, repurchase or redeem, any debt
securities or guarantees issued by the Company which rank
pari passu
with or junior to the Securities (“
Junior Subordinated Indebtedness
”) (other than (i) redemptions, purchases or other acquisitions of Junior
Subordinated Indebtedness in connection with the administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Company or any of its subsidiaries of record
ownership in Junior Subordinated Indebtedness for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or conversion of any class
or series of Junior Subordinated Indebtedness for any other class or series of Junior Subordinated Indebtedness, (iv) redemptions of securities held by the Company or any wholly-owned subsidiary of the Company and (v) any payment of
interest on Junior Subordinated Indebtedness paid
pro rata
with interest paid on the Securities of this series such that the respective amounts of such payments made shall bear the same ratio to each other as all accrued but unpaid interest
per like-amount of such Securities and all Junior Subordinated Indebtedness bear to each other). The restrictions in the foregoing clauses (a) and (b) will not apply to (i) any stock dividends paid by the Company where the dividend
stock is the same stock as that on which the dividend is being paid or (ii) dividends or distributions by or other transactions solely among the Company and any wholly-owned subsidiary of the Company or solely among wholly-owned subsidiaries of
the Company. For the avoidance of doubt, the Company shall have the right to make partial payments of interest on any Interest Payment Date during an Extended Interest Payment Period. Prior to the termination of any such Extended Interest
Annex I-9
Payment Period, the Company may further extend such Extended Interest Payment Period,
provided
that such Extended Interest Payment Period together with all such other extensions thereof
shall not exceed 20 consecutive quarters;
provided further
, that no Extended Interest Payment Period may extend beyond the maturity of the Securities of this series. At the termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest and any additional amounts then due, the Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set forth, this Security is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of
this Security for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Trustee duly executed by
the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities 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 Company or the Trustee 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 Security, the Company, the 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 Security 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 Company nor the 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
Security, 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 Company 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.
If issued as a Global Security, this Global Security is exchangeable for
Securities of this series in definitive form only under certain limited circumstances set forth in the Indenture. Securities of this series so issued are issued only in registered form without coupons in denominations of $1,000 and
Annex I-10
any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series so issued are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Security shall have the meanings assigned to them in the Officer’s Certificate. All other terms used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Annex I-11
ANNEX II
FORM OF SERIES 2 SECURITIES
[IF THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“
OID
”), FOR
PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF THE CODE, ALLY FINANCIAL INC. (THE “
COMPANY
”) WILL, BEGINNING NO LATER THAN TEN (10) DAYS AFTER THE ISSUE DATE, PROMPTLY PROVIDE TO HOLDERS OF SECURITIES, UPON WRITTEN REQUEST,
THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY WITH RESPECT TO THE SECURITIES.
ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT ALLY FINANCIAL INC., 200 RENAISSANCE CENTER, P.O. BOX 200, DETROIT, MICHIGAN 48265-2000, ATTENTION: CHIEF FINANCIAL OFFICER.]
No. 1
$[ ]
ALLY FINANCIAL INC.
8.125% FIXED RATE/FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST
DEBENTURES
DUE February 15, 2040
ALLY FINANCIAL INC., a Delaware corporation (the “
Company
”, which term includes any successor corporation under the indenture dated as of December 30, 2009 as amended and restated on
March 1, 2011, between the Company and The Bank of New York Mellon, as trustee), for value received, hereby promises to pay to The Bank of New York Mellon, as Institutional Trustee of GMAC Capital Trust I (the “
Trust
”) with respect
to Series 2 thereof (“
Series 2 of the Trust
”), pursuant to that certain Second Amended and Restated Declaration of Trust and Series 2 Supplement thereto, each dated as of March 1, 2011 (the “
Declaration
”), or
registered assigns, the principal sum of [ ] ($[ ]) on February 15, 2040, and to pay interest on said principal sum (i) from and including March
1, 2011 to but excluding February 15, 2016, at an annual rate of 8.125% payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each year, beginning August 15, 2011, and
(ii) from and including February 15, 2016 to but excluding February 15, 2040, at an annual rate equal to three-month LIBOR (as defined in the Declaration) plus 5.785% payable quarterly in arrears on
February 15, May 15, August 15 and November 15 of each year, beginning May 15, 2016 (the “
Coupon Rate
”), 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 applicable Coupon Rate per annum compounded quarterly on
February 15, May 15, August 15 and November 15 of each year, beginning August 15, 2011 at the applicable Coupon Rate and without regard for any Extended Interest Payment Period (as defined below) (to the extent
permitted by applicable law). The amount of interest payable shall be computed on the basis of (i) a 360-day year consisting of twelve 30-day months with respect to any interest payment period ending on or before February 15, 2016 and will
include the first day but exclude the last day of such period, and (ii) a 360-day year and the actual number of days elapsed with respect
Annex II-2
to any interest payment period after February 15, 2016 and will include the first day of such period but exclude the date of maturity. 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 with respect to any interest payment period ending on or before February 15, 2016, will be computed on the basis of the actual number
of days elapsed in a partial month in such period. If the date for payment of any interest on or before February 15, 2016 is not a Business Day, then payment of interest payable on such date shall be made or be made available for payment on the
next succeeding day that is a Business Day, and without any interest or other payment in respect of any such delay. If any interest payment date after February 15, 2016 is not a Business Day, then payment of interest payable on such date shall
be made or be made available for payment on the next succeeding day that is a Business Day and interest will accrue to but excluding the date interest is paid. However, if such Business Day is in the next succeeding calendar month, such payment
shall be made on, and interest will accrue to but excluding, the immediately preceding Business Day. 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 Security (or one or more Predecessor Securities, as defined in said Indenture) is registered at the close of business on the regular record date for such interest installment, which shall be (a) while this
Security is held by the Institutional Trustee of Series 2 of the Trust or is represented by a Global Security, the close of business on the Business Day next preceding such Interest Payment Date, or (b) if pursuant to the provisions of the
Indenture this Security is not in book-entry form, 15 days prior to such Interest Payment Date or such other record date fixed by the Administrative Trustee that is not more than 60 nor less than 10 days prior to such Interest Payment Date. 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 Security (or one or more Predecessor Securities)
is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Securities 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 Securities of this series 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 Security shall be payable at the office or agency of the 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 Company 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 Security is the Institutional Trustee of a
Annex II-3
series of a GMAC Trust, the payment of the principal of (and premium, if any) and interest on this Security will be made at such place and to such account as may be designated by such
Institutional Trustee.
This Security is not a deposit or savings account. This Security is not insured by the Federal Deposit
Insurance Corporation or any other governmental agency or instrumentality.
The indebtedness evidenced by this Security 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 of the Company, and this Security is issued subject to the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by, such provisions, (b) authorizes and directs the 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 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 of the Company, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.
This Security 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 Trustee.
The provisions
of this Security 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.
Annex II-4
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated:
, 2011
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ALLY FINANCIAL INC.
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities described in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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Authorized Signatory
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[SIGNATURE
PAGE TO DEBENTURES]
(REVERSE OF SECURITY)
ALLY FINANCIAL INC.
8.125% FIXED RATE/FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST
DEBENTURES
DUE February 15, 2040
This Security is one of a duly authorized issue of securities of the Company (herein sometimes referred to as the “
Securities
”), specified in the Indenture, all issued or to be issued in
one or more series under and pursuant to an indenture dated as of December 30, 2009 as amended and restated on March 1, 2011 (the “
Indenture
”), duly executed and delivered between the Company and The Bank of New York Mellon, as
trustee (the “
Trustee
”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. By the terms of the Indenture, the Securities 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 Securities is limited in aggregate principal amount to $[ ].
The
Company shall have the right to redeem this Security (i) at the option of the Company, in whole or in part, at any time on or after February 15, 2016 (an “
Optional Redemption
”), or (ii) any time in certain
circumstances upon the occurrence of a Tax Event or an Investment Company Event (as defined below, each, a “
Special Event
”) at a redemption price equal to 100% of the principal amount thereof, plus any accrued and unpaid interest to
the date of such redemption (the “
Optional Redemption Price
”). Any redemption pursuant to this paragraph will be made at the Optional Redemption Price upon not less than 30 days nor more than 60 days notice, and with respect to a
redemption upon a Special Event, within 90 days following the occurrence of such Special Event;
provided, however
, that if at the time there is available to the Company or Series 2 of the Trust the opportunity to eliminate, within such 90 day
period, the Special Event by taking some ministerial action, such as filing a form or making an election or pursuing some other similar reasonable measure that will have no adverse effect on Series 2 of the Trust, the Company or the holders of the
Trust Preferred Securities or the Securities, then the Company or Series 2 of the Trust will pursue such measure in lieu of redemption. If the Securities of this series are only partially redeemed by the Company pursuant to an Optional Redemption,
such Securities will be redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided
that if, at the time of redemption, the Securities of this series are registered as a Global Security, the Depositary (as defined
herein) shall determine the principal amount of such Securities held by each Security Beneficial Owner to be redeemed in accordance with its procedures.
Annex II-5
“
Tax Event
” means that the Administrative Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such matters (a “
Tax Event Opinion
”) 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 amendment to, or change in, an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation and the publication of any judicial decision or regulatory determination or administrative pronouncement on or after December 30,
2009), in either case after December 30, 2009 there is more than an insubstantial risk that (i) Series 2 of the Trust would be subject to United States federal income tax with respect to interest accrued or received on the Securities of
this series, (ii) Series 2 of the Trust would be subject to more than a
de minimis
amount of other taxes, duties or other governmental charges, or (iii) interest payable to Series 2 of the Trust on the Securities of this series
would not be deductible, in whole or in part, by the Company for United States federal income tax purposes.
“
Investment Company Event
” means that the Administrative Trustees shall have received an opinion of a nationally
recognized independent counsel experienced in practice under the Investment Company Act to the effect that, as a result of the occurrence of a change in law or regulation or a written change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a “
Change in 1940 Act Law
”), there is a more than an insubstantial risk that Series 2 of the Trust (or the Trust) is or will be considered an Investment
Company which is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after December 30, 2009.
Any redemption of the Securities of this series, in whole or in part, prior to the stated maturity date is subject to the prior concurrence approval of the Federal Reserve or the staff thereof,
(i) if such concurrence or approval is then required in order for securities such as the Securities of this series to qualify as tier 1 capital of a bank holding company under applicable capital adequacy guidelines, regulations, policies, or
published interpretations of the Federal Reserve, or (ii) if the Federal Reserve or its staff has informed the Company that it must obtain such approval before redeeming the Securities.
In the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the
Indenture, with respect to the Securities of this series shall have occurred and be continuing, the principal of all
Annex II-6
the Securities of this series 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 Company and the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities 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 Securities of such series under the Indenture;
provided
,
however
, that no such
supplemental indenture shall modify certain provisions of the Indenture, as set forth in the Indenture, without the consent of the Holders of each Security then outstanding and affected thereby including, without limitation, to: (i) extend the
fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of the Indenture with respect to the subordination of the Securities in a manner adverse to the Holders, or (ii) reduce the aforesaid percentage of Securities, the Holders
of which are required to consent to any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) provided
for in the Indenture. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of any series at the time outstanding affected thereby, on behalf of all of the Holders of the
Securities 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 Securities of such series. Any such consent or waiver by the registered Holder of this Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Security and of any Security issued in exchange herefor 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 Security. In determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver under the Indenture or hereunder,
Securities owned by the U.S. Government shall not be deemed to be Securities owned by an Affiliate of the Company.
Annex II-7
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Security at the time and place and at the rate and in the money herein prescribed.
So long as no Event of Default, as defined in the Indenture, shall have occurred and be continuing, the Company shall have
the right at any time during the term of the Securities of this series and from time to time to extend the interest payment period of such Securities for up to 20 consecutive quarters (an “
Extended Interest Payment Period
”), at the
end of which period the Company shall pay all interest then accrued and unpaid (together with interest thereon at the rate specified for the Securities of this series to the extent that payment of such interest is enforceable under applicable law);
provided
, that no such Extended Interest Payment Period shall extend beyond the maturity of such Securities; and
provided further
that during any such Extended Interest Payment Period (a) the Company and any subsidiary of the
Company (other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) 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 the Company’s capital stock or make any guarantee payment with respect thereto (other than (i) redemptions, purchases or other acquisitions of shares of capital stock of the Company in connection with the
administration of any employee benefit plan in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Company or any of its subsidiaries of record ownership in capital stock of the Company for the
beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or conversion of any class or series of the Company’s capital stock for any
other class or series of the Company’s capital stock, in each case, solely to the extent required pursuant to binding contractual agreements entered into prior to or on December 30, 2009 or any subsequent agreement for the accelerated
exercise, settlement or exchange thereof for capital stock of the Company, (iv) distributions by or among any wholly-owned subsidiary of the Company, (v) redemptions of securities held by the Company or any wholly-owned subsidiary of the
Company, and (vi) unpaid tax distributions to holders of membership interests of GMAC LLC pursuant to Section 4(b) of GMAC LLC’s Plan of Conversion, dated June 30, 2009), and (b) the Company and any subsidiary of the Company
(other than a subsidiary of the Company that is a depository institution, or a subsidiary thereof) shall not make any payment of interest on or principal of (or premium, if any, on), or repay, repurchase or redeem, any debt securities or guarantees
issued by the Company which rank
pari passu
with or junior to the Securities (“
Junior Subordinated Indebtedness
”) (other than (i) redemptions, purchases or other acquisitions of Junior Subordinated Indebtedness in
connection with the administration of any employee benefit plan
Annex II-8
in the ordinary course of business and consistent with past practice, (ii) the acquisition by the Company or any of its subsidiaries of record ownership in Junior Subordinated Indebtedness
for the beneficial ownership of any other persons (other than the Company or any of its subsidiaries), including trustees or custodians, (iii) as a result of an exchange or conversion of any class or series of Junior Subordinated Indebtedness
for any other class or series of Junior Subordinated Indebtedness, (iv) redemptions of securities held by the Company or any wholly-owned subsidiary of the Company and (v) any payment of interest on Junior Subordinated Indebtedness paid
pro rata
with interest paid on the Securities of this series such that the respective amounts of such payments made shall bear the same ratio to each other as all accrued but unpaid interest per like-amount of such Securities and all Junior
Subordinated Indebtedness bear to each other). The restrictions in the foregoing clauses (a) and (b) will not apply to (i) any stock dividends paid by the Company where the dividend stock is the same stock as that on which the
dividend is being paid or (ii) dividends or distributions by or other transactions solely among the Company and any wholly-owned subsidiary of the Company or solely among wholly-owned subsidiaries of the Company. For the avoidance of doubt, the
Company shall have the right to make partial payments of interest on any Interest Payment Date during an Extended Interest Payment Period. Prior to the termination of any such Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period,
provided
that such Extended Interest Payment Period together with all such other extensions thereof shall not exceed 20 consecutive quarters;
provided further
, that no Extended Interest Payment Period
may extend beyond the maturity of the Securities of this series. At the termination of any such Extended Interest Payment Period and upon the payment of all accrued and unpaid interest and any additional amounts then due, the Company may commence a
new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set forth, this
Security is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Security for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the Company or the Trustee duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities 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 Company or the Trustee 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 Security, the Company, the 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
Annex II-9
Security 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 Company nor the 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 Security, 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 Company 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.
If issued as a Global Security, this Global Security is exchangeable for Securities of this series in definitive form only
under certain limited circumstances set forth in the Indenture. Securities of this series so issued are issued 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 therein set forth, Securities of this series so issued are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering
the same.
All terms used in this Security shall have the meanings assigned to them in the Officer’s Certificate. All
other terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Annex II-10