Exhibit 1.1
ALLY FINANCIAL INC.
Underwriting
Agreement
Standard Provisions (Subordinated Debt Securities)
Dated November 17, 2015
From time to time, Ally Financial Inc., a Delaware corporation (the “Company”), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters named therein. The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an “Underwriting Agreement”). The
Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as this Agreement. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to
issue from time to time Subordinated Notes (the “Subordinated Debt Securities”) to be issued pursuant to the provisions of the Indenture to be dated as of November 20, 2015 (the “Indenture”), between the Company and The Bank
of New York Mellon, as trustee (in such capacity, the “Trustee”). The Subordinated Debt Securities will have varying designations, maturities, rates and times of payment of interest, selling prices and redemption terms. Particular terms of
any series of Subordinated Debt Securities will be contained in an Underwriting Agreement. The Subordinated Debt Securities identified in any particular Underwriting Agreement are herein referred to as “Securities.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (the file
number of which is contained in the Underwriting Agreement) relating to the Securities under the Securities Act of 1933, as amended (together with the rules and regulations of the Commission promulgated thereunder, the “Securities Act”),
and the offering thereof from time to time in accordance with Rule 415 of the Securities Act. Such registration statement (and any post-effective amendments thereto, if applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness, is referred to herein as the “Registration Statement” and the related prospectus covering the
Securities in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with the confirmation of sales of the Securities is referred to herein as the “Basic Prospectus.”
The Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with the
confirmation of sales of the Securities is hereinafter referred to as the “Prospectus” and the term “Preliminary Prospectus” means any preliminary form of the Prospectus. If the Company files a registration statement with the
Commission pursuant to Rule 462(b) of the Securities Act (the “Rule 462(b) Registration Statement”), then all references to “Registration Statement” shall also be deemed to include the Rule 462(b) Registration Statement. Any
references to the “Registration Statement,” the “Preliminary Prospectus” and the “Prospectus” shall also be deemed to include all documents incorporated therein by reference pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (together with the rules and regulations of the Commission promulgated thereunder, the “Exchange Act”) on or before the effective date of the Registration Statement or the
date of such Preliminary Prospectus or the Prospectus, as the case may be, and references to “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the Exchange Act after the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, that are deemed to be
incorporated by reference therein. The term “Permitted Free Writing Prospectus” as used herein means the documents identified as such in the applicable Underwriting Agreement.
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II.
The Company is advised by the Representative that the Underwriters propose to make a public offering of their respective portions of the
Securities as soon after this Agreement is entered into as in the Representative’s judgment is advisable. The terms of the public offering of the Securities are set forth in the Prospectus.
III.
Payment for the Securities
shall be made by wire transfer of immediately available funds, to the account specified by the Company to the Representative, on the Closing Date at the time and place set forth in the Underwriting Agreement, upon delivery to the Representative for
the respective accounts of the several Underwriters of the Securities registered in such names and in such denominations as the Representative shall request in writing not less than two full business days prior to the date of delivery. The time and
date of such payment and delivery with respect to the Securities are herein referred to as the Closing Date.
IV.
The several obligations of the Underwriters hereunder are subject, in the discretion of the Representative, to the following conditions:
(a) All representations, warranties and other statements of the Company contained in this Agreement are as of the date of this Agreement, and
at all times during the offering of the Securities will be, true and correct in all material respects, disregarding any qualifications contained therein regarding materiality.
(b) The statements contained in certificates delivered by the officers of the Company pursuant to the provisions of this Agreement will be
accurate as of the date of such certificates.
(c) The Representative shall have received on the Closing Date a certificate, dated the
Closing Date, of the Chief Financial Officer or Treasurer of the Company to the effect that: (i) the representations and warranties in this Agreement are true and correct in all material respects, disregarding any qualifications contained
herein regarding materiality, as if made on and as of the Closing Date and the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such date
(after giving effect to the offering of the Securities and the other transactions contemplated by the Disclosure Package), (ii) no stop order suspending the effectiveness of the Registration Statement shall be in effect, no proceedings for such
purpose shall be pending before or, to such officer’s knowledge, threatened by the Commission, and (iii) subsequent to the date as of which information is given in the Disclosure Package (as amended or supplemented), as of the date of such
certificate, there has not been any change in such information that would have 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, taken as a whole.
(d) The Representative shall have received on the Closing Date an opinion of Counsel of the Company, dated the Closing Date, substantially to
the effect set forth in Exhibit A.
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(e) The Representative shall have received on the Closing Date an opinion of Davis
Polk & Wardwell LLP, counsel to the Company, dated the Closing Date, substantially to the effect set forth in Exhibit B.
(f) The
Representative shall have received on the Closing Date an opinion of counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(g) The Company shall at all times during the offering of the Securities have performed in all material respects all of its obligations
hereunder and thereunder required to have been performed.
(h) No restraining order shall have been issued and no litigation shall have
been commenced or threatened with respect to the offering of the Securities or with respect to any of the transactions in connection with, or contemplated by, the offering of the Securities, the Disclosure Package, any other written communications
furnished by or with the written consent of the Company to potential investors in the Securities (each a “Company Supplemental Communication”) (in each case, as amended or supplemented, if amended or supplemented), or this Agreement before
any agency, court or other governmental body of any jurisdiction.
(i) As of the execution of this Agreement and at the Closing Date, the
Company shall have requested and caused Deloitte & Touche LLP to furnish to the Underwriters “comfort letters”, dated respectively as of the date of this Agreement and as of the Closing Date, in form and substance reasonably
satisfactory to the Representative.
(j) The Prospectus, and any supplement thereto, have been filed in the manner and within the time
period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act 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.
(k) Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Company or any of its subsidiaries, the Securities or any other debt or preferred stock issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced (other than an announcement with positive implications of a possible
upgrading or otherwise in connection with any upgrade) that it has under surveillance or review its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries (other
than any asset-backed security or mortgage-backed security issued or guaranteed by the Company or any of its subsidiaries).
(l) At the
Closing Date, the Representative shall have received an executed copy of this Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”), which all shall be in full force and effect.
(m) On or prior to the Closing Date, the Securities shall be eligible for clearance and settlement through the applicable Book-Entry Transfer
Facility.
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V.
(1) In further consideration of the agreements of the Underwriters contained in this Agreement, the Company covenants as follows:
(a) During the period beginning with the Applicable Time and ending on the later of the Closing Date or such date as the Prospectus is no
longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule 172) (the “Prospectus Delivery Period”), to
furnish to the Representative as many copies of any Permitted Free Writing Prospectus, any Company Supplemental Communication and the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto as the
Representative may reasonably request.
(b) During the Prospectus Delivery Period, before distributing any amendment or supplement to the
Registration Statement or the Prospectus with respect to the Securities, to furnish the Representative and counsel for the Underwriters a copy of the proposed Prospectus, amendment or supplement for review, and will not distribute any such proposed
Prospectus, amendment or supplement to which the Representative reasonably objects.
(c) If during the Prospectus Delivery Period, either
(i) any event shall have occurred as a result of which the Prospectus or the Disclosure Package, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they were made, not misleading, or (ii) for any other reason, as determined by the Company, it shall be necessary to amend or supplement the Registration Statement or the
Prospectus, as then amended or supplemented, in order to comply with applicable law, the Company will (A) notify the Representative on behalf of the Underwriters to suspend offers and sales of the Securities and if notified by the Company, you
shall forthwith suspend such solicitation and cease using the Prospectus as then amended or supplemented and (B) prepare and file with the Commission an amendment or supplement to the Registration Statement or the Prospectus which will correct
such statement or omission or effect such compliance, and will provide to you a copy thereof via electronic mail in “.pdf” format.
(d) To use its reasonable best efforts to cooperate with the Representative and counsel for the Underwriters in connection with the
qualification or registration of the Securities for offer and sale under the state securities, or “Blue Sky,” laws of such jurisdictions as the Representative may reasonably request and will maintain such qualification in effect for as
long as may be necessary to complete the sale of the Securities pursuant to this Agreement;
provided
, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation to do business, or to file a
general consent to service of process, in any jurisdiction, or to take any other action that would subject it to general service of process or to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(e) The Company will make generally available to its security holders and to the Underwriters as soon as practicable earning statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder covering twelve month periods beginning, in each case, not later than the first day of the Company’s fiscal quarter
next following the “effective date” (as defined in Rule 158(c) under the Securities Act) of the Registration Statement with respect to each sale of Securities. If such fiscal quarter is the last fiscal quarter of the Company’s fiscal
year, such earning statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
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(f) During the Prospectus Delivery Period, to notify you promptly (i) of the occurrence of
any event which could cause the Company to modify, withdraw or terminate the offering of the Securities, (ii) of any proposal or requirement to amend or supplement the Disclosure Package, the Prospectus or any Company Supplemental
Communications, (iii) of the filing of any amendment or supplement to the Registration Statement or Prospectus, (iv) the issuance of any order or the taking of any other action by any administrative or judicial tribunal or other
governmental agency or instrumentality concerning the offering of the Securities, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that
purpose or pursuant to Section 8A of the Securities Act, (vi) any litigation or administrative action or claim with respect to the offering of the Securities and (vii) any other information relating to the offering of the Securities
which you may from time to time reasonably request.
(g) The Company will (i) in respect of the Securities, promptly within the time
periods specified therein, effect the filings required of it pursuant to Rule 424 and/or Rule 433 under the Securities Act, and (ii) take such steps as it deems necessary to ascertain promptly whether the Permitted Free Writing Prospectus
transmitted for filing under Rule 433 of the Securities Act were received for filing by the Commission and, in the event that any was not, it will promptly file the relevant Permitted Free Writing Prospectus.
(h) Before making, preparing, using, authorizing, approving or referring to any Company Supplemental Communications, the Company will furnish
to the Representative and counsel for the Underwriters a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representative reasonably objects.
(i) During the period from the date hereof through and including the Closing Date, the Company will not, without prior written consent of
the Representative, offer, sell, contract to sell or otherwise dispose of in a capital markets transaction, any debt securities issued or guaranteed by the Company and having a tenor of more than one year.
(j) The Company will cooperate with the Representative and use commercially reasonable efforts to permit the Securities to be eligible for
clearance, settlement and trading through the facilities of DTC in the United States, Euroclear Bank, SA/NV, as operator of the Euroclear System and Clearstream Banking,
société anonyme
outside of the United States, as
applicable.
(k) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the
Prospectus under the caption “Use of Proceeds.”
VI.
(a) The Company represents and warrants to each Underwriter as of the date of the Underwriting Agreement and as of the Closing Date that:
(i) 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 Disclosure Package. 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.
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(ii) [Reserved].
(iii) the Company has all necessary corporate power and authority and it has taken all necessary corporate action to authorize the issuance
and sale of the Securities.
(iv) the Securities will be in the form contemplated by the Indenture and will conform in all material
respects to the descriptions thereof contained in the Prospectus; the Securities have been duly authorized by the Company and, when executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and when
delivered to the Underwriters in accordance with the terms hereof, will be duly executed, issued and delivered and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will
be entitled to the benefits of the Indenture, 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”).
(v) [Reserved].
(vi) the
Indenture and the Securities will conform in all material respects to the respective descriptions thereof contained in the Disclosure Package;
(vii) the Company is not and, after giving effect to the offering and the receipt of the proceeds therefrom, will not be, an “investment
company” or an entity “controlled” by an “investment company” as such terms are defined in the U.S. Investment Company Act of 1940, as amended.
(viii) this Agreement has been duly authorized, executed and delivered by the Company.
(ix) the Indenture has been duly authorized and, as of the Closing Date, will have been executed and delivered by the Company and will
constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by the Enforceability Exceptions.
(x) [Reserved].
(xi) each
document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Prospectus or any Permitted Free Writing Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the
rules and regulations thereunder.
(xii) as of the date hereof, at the respective effective date of the Registration Statement and each
amendment thereto and at each deemed effective date with respect to underwriters relating to the offering of the Securities contemplated by this Agreement pursuant to Rule 430B(f)(2) under the Securities Act (each a “Deemed Effective
Date”), the Registration Statement did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
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(xiii) as of the date of the Prospectus and at the Closing Date, the Prospectus did not contain
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(xiv) at the Applicable Time, the Disclosure Package 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 light of the circumstances under which they were made, not misleading.
(xv) no
issuer free writing prospectus (as defined in Rule 433 under the Securities Act) includes any information that conflicts in any material respect with the information contained in the Registration Statement or the Prospectus; notwithstanding the
foregoing, the representations and warranties herein shall not apply to statements in or omissions from the Prospectus or an issuer free writing prospectus (a) made in reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by any Underwriter expressly for use in such Prospectus or an issuer free writing prospectus, or (b) any information contained in any “free writing prospectus” (as defined under Rule 405 of the
Securities Act) (including any issuer free writing prospectus) prepared by or on behalf of any Underwriter(s), except to the extent such information has been accurately extracted from the Prospectus or any issuer free writing prospectus prepared by
or on behalf of the Company, or otherwise provided in writing by the Company and included in such free writing prospectus prepared by or on behalf of any Underwriter(s).
(xvi) the Registration Statement has become effective upon filing; 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.
(xvii) (A) (1) at the respective times the Registration Statement and each amendment thereto became effective, (2) at each Deemed
Effective Date, (3) as of the Applicable Time and (4) at the Closing Date, 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
Applicable Time, in all material respects with the Securities Act and the rules and regulations under the Securities Act; (C) the Prospectus will comply, as of the date that such document is filed with the Commission and as of the Closing Date,
in all material respects with the Securities Act and the rules and regulations under the Securities Act; and (D) the Indenture at each Deemed Effective Time and at the Closing 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.
(xviii) (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 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.
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(xix) (A) to the knowledge of the Company, 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 Securities or the other
transactions contemplated by this Agreement and (B) the Company has filed the Registration Statement with the Commission and such Registration Statement is effective under the Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are pending before, or, to the knowledge of the Company, threatened by, the Commission.
(xx) except as otherwise disclosed in the Disclosure Package or the Prospectus, subsequent to the respective dates as of which information is
given in the Disclosure Package or the Prospectus, there has been no Material Adverse Effect or any development involving a prospective Material Adverse Effect.
(xxi) no consent, approval, authorization or filing with or other order of any court, regulatory body administrative agency or other
government body is required on the part of the Company, except such as may already have been obtained, taken or made and except for the registration of the Securities under the Securities Act, any required filing with FINRA, compliance with the
securities or “Blue Sky” laws of various jurisdictions, and such other 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 Prospectus.
(xxii) neither the Company nor any of its subsidiaries is (A) in violation of its charter or bylaws or similar
organizational documents; (B) in default, and no event had 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 (C) 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.
(xxiii) the offer and sale of the Securities and all other actions
and transactions contemplated in the Disclosure Package and the Company Supplemental Communications (in each case, as amended or supplemented, if amended or supplemented) and the execution, delivery of, and the performance of the Company’s
obligations under the Transaction Documents, (x) 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 (y) 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 pursuant to (i) the certificate of
incorporation or bylaws of the Company, (ii) 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 (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company 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 (ii) or (iii) would reasonably be expected to have a Material Adverse Effect.
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(xxiv) 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.
(xxv) no events exist which would constitute an event of default under the Securities or the Indenture.
(xxvi) the Company has not used any free writing prospectus other than a Permitted Free Writing Prospectus nor used a Permitted Free Writing
Prospectus except in compliance with Rule 433 under the Securities Act and otherwise in compliance with the Securities Act.
(xxvii)
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 of the fiscal years ended 2014 and 2013 and for each of the
years in the three-year periods ending December 31 2014, 2013 and 2012 incorporated by reference in the Disclosure Package, 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.
(xxviii) the financial statements, together with the related schedules and notes, included or incorporated by reference in the Disclosure
Package and the 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 most recently ended fiscal year that has been filed with the Commission and the Company’s Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2015, June 30, 2015 and September 30, 2015, respectively, that have been filed with the Commission fairly present the information set forth therein on a basis consistent with that of the audited financial
statements included or incorporated by reference in the Disclosure Package and the Prospectus. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Disclosure Package and the Prospectus fairly
present the information called for in all material respects and are prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(xxix) (A) 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
(B) the Company’s internal control over financial reporting includes policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of
the assets of the Company; (ii) 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; (iii) 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 and (iv) provide reasonable assurance that the interactive data in eXtensible
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Business Reporting Language included or incorporated by reference in the Disclosure Package and the Prospectus fairly present the information called for in all material respects and are prepared
in accordance with the Commission’s rules and guidelines applicable thereto; 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.
(xxx) 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; 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.
(xxxi) 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.
(xxxii) none of the Company, any of
its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate 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.
(xxxiii) neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate 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 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.
(xxxiv) 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.
-10-
(xxxv) each of the representations and warranties set forth in this Agreement will be true and
correct on and as of the date hereof and the Closing Date, with the same effect as if made on each such date (except to the extent that a representation or warranty is by its terms made as of a specified date, in which case such representation shall
be true and correct only on and as of such date).
The representations, warranties and covenants of the Company shall survive the
execution and delivery of this Agreement and the issuance and sale of the Securities. The Company acknowledges that the Underwriters and, for purposes of the opinions to be delivered to the Underwriters pursuant to Article IV hereof, counsel for the
Company and counsel for the Underwriters, will rely upon the accuracy and truth of the representations contained in this Agreement and hereby consent to such reliance.
(b) Except as otherwise agreed by the Company and specified in an Underwriting Agreement with respect to the Securities, each of the
Underwriters, severally and not jointly, represents, warrants and covenants to the Company that:
(i) it has not made and will not make
any offer relating to the Securities that would constitute a free writing prospectus, as defined in Rule 405 under the Securities Act, other than a Permitted Free Writing Prospectus or a free writing prospectus which is not required to be filed by
the Company pursuant to Rule 433 under the Securities Act (including, for the avoidance of doubt, customary Bloomberg communication by the Underwriters to potential purchasers in connection with the preliminary pricing of the offering (or such other
Bloomberg communications by the Underwriters as may be approved in advance by the Company));
provided
, that, if so specified in the Underwriting Agreement or the Company shall otherwise so notify the Underwriters in writing, the Underwriter
will make no offer relating to the Securities that will constitute a free writing prospectus as defined in Rule 405 under the Securities Act, other than (1) a Permitted Free Writing Prospectus and (2) customary Bloomberg communication by
the Underwriters to potential purchasers in connection with the preliminary pricing of the offering or such other Bloomberg communications by the Underwriters as may be approved in advance by the Company (and not required to be filed by the Company
pursuant to Rule 433 under the Securities Act), without the prior written consent of the Company. Any free writing prospectus or Permitted Free Writing Prospectus prepared by or on behalf of such Underwriter will only be used by such Underwriter if
it complies in all material respects with the requirement of the Securities Act.
(ii) this Agreement has been duly authorized and validly
executed and delivered by such Underwriter.
(iii) the Underwriters shall make offers and sales of the Securities only to such persons and
in such manner as is contemplated by the Prospectus. Offers and sales of the Securities will be made only by the Underwriters or affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made. Each of the
Underwriters have and will comply with the applicable laws and regulations in each jurisdiction in which it offers, sells or delivers the Securities or distributes any Prospectus or Disclosure Package.
(iv) each of the Underwriters will deliver to each subsequent purchaser who buys Securities directly from an Underwriter or an affiliate of an
Underwriter, in connection with their original placement of the Securities, a copy of the Disclosure Package and the Prospectus, as amended and supplemented at the date of such delivery; and will not form contracts for sale with any prospective
investor prior to the delivery to such prospective investor of the final pricing term sheet in the form set forth in Schedule I
-11-
hereto and identified as a Permitted Free Writing Prospectus; provided that the delivery obligations under this paragraph (iv) shall be deemed to be satisfied if the Disclosure Package and
Prospectus are at such time filed with the Commission and available on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”).
VII.
The Company agrees to
indemnify and hold harmless each Underwriter, each person, if any, who controls (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) such Underwriter and each of such Underwriter’s and such
person’s officers and directors 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 Prospectus, any issuer free writing prospectus (as defined in Rule 433 under the Securities Act) or the Disclosure Package, or any amendment or supplement thereto, 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 Registration Statement, the Prospectus, any issuer free writing prospectus or the Disclosure Package or any amendment or supplement thereto;
provided
,
however
, that the foregoing indemnity agreement with respect to the Disclosure Package shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter where (i) a reasonable period of time prior to the Applicable Time the Company shall have notified such Underwriter that the Disclosure Package (as it existed prior to the Applicable Time)
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
corrected in the Disclosure Package or, where permitted by law, an issuer free writing prospectus (as defined in Rule 433 under the Securities Act) and such corrected Disclosure Package or issuer free writing prospectus was provided to such
Underwriter a reasonable amount of time in advance of the Applicable Time such that the corrected Disclosure Package or issuer free writing prospectus could have been provided to such person prior to the Applicable Time, (iii) such corrected
Disclosure Package or issuer free writing prospectus (excluding any document then incorporated or deemed incorporated therein by reference) was not conveyed to such person at or prior to the Applicable Time, and (iv) such loss, claim, damage or
liability would not have occurred had the corrected Disclosure Package or issuer free writing prospectus (excluding any document then incorporated or deemed incorporated therein by reference) been conveyed to such person as provided for in clause
(iii) above.
Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the Company, each person, if any,
who controls (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act), the Company, and the Company’s and such person’s officers and directors 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, any issuer free writing prospectus (as defined in Rule 433 under the
Securities Act), the Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of the Underwriter, or any amendment or supplement thereto, or any omission or alleged omission to state
-12-
therein a material fact necessary to make the statements therein not misleading, in each case as to the Registration Statement, any issuer free writing prospectus, the Disclosure Package, the
Prospectus, or any amendment or supplement thereto, only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the section of the Prospectus entitled “Underwriting” or any
amendment or supplement thereto, only with respect to the names of the underwriters appearing on the front and back cover page of the Preliminary Prospectus or the Prospectus, if any, the names of the Underwriters, amount of any selling concession
and reallowance and any discussion of any stabilization activities, over allotment activities, penalty bids or similar types of activities appearing under the heading “Underwriting” in the Preliminary Prospectus or the Prospectus, or was
otherwise made in reliance on and in conformity with written information furnished to the Company by you expressly for use in the Registration Statement, any issuer free writing prospectus, the Disclosure Package, the Prospectus, or is contained in
any free writing prospectus that is not a Permitted Free Writing Prospectus prepared by or on behalf of the Underwriter (except to the extent such information has been accurately extracted from the Prospectus or any issuer free writing prospectus
prepared by or on behalf of the Company), or any amendment or supplement thereto.
Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each director and officer of the Company and each person, if any, who controls (within the meaning of Section 15 of the Securities Act) the Company against any and all losses, claims, damages,
liabilities, expenses, actions and demands to which they or any of them may become subject (including all reasonable costs of investigating, disputing or defending any such claim, action or demand) under the law of any jurisdiction, or which may be
made against them arising out of, or in connection with, the breach of such Underwriter of any of the terms, conditions, agreements and representations of Section (b)(i) of Article VI of this Agreement.
If any claim, demand, action or proceeding (including any governmental investigation) shall be brought or alleged against an indemnified party
in respect of which indemnity is to be sought against an indemnifying party pursuant to the preceding paragraphs, the indemnified party shall promptly notify 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 indemnified 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 relating to the
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 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 local counsel where necessary) for all such indemnified parties. Such firm shall be designated in writing by the indemnified party. 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
-13-
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 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.
If the indemnification provided for in this Article VII 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 this Article VII, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party thereunder
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 on the one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company
on the one hand and the Underwriters on the other 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 on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total discounts
and commissions received by the Underwriters in connection therewith, as provided in this Agreement, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and the Underwriters on the other 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 by the Underwriters and
the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if such contribution were determined
by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to herein. The amount paid or payable by an
indemnified person as a result of the losses, claims, damages and liabilities referred to herein shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such indemnified person in connection
with any such action or claim. Notwithstanding the provisions of this paragraph, in no event shall an Underwriter be required to contribute an amount in excess of the amount by which the total discounts and commissions received by such Underwriter
with respect to the offering of the Securities exceeds to the amount of any damages that such Underwriter has otherwise been required to pay by reasons 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 paragraph are several in proportion to their respective purchase obligations hereunder and not joint.
The indemnity
agreements contained in this Article VII and the representations and warranties of the Company and the Underwriters 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 an indemnified party or on such party’s behalf or any person controlling an indemnified party or by or on behalf of the indemnifying party, its directors or officers or any person controlling the indemnifying
party; and (iii) acceptance of and payment for any of the Securities.
-14-
VIII.
The Representative on behalf of the Underwriters may terminate this Agreement (upon consultation with the Company) by notice to the Company,
at any time prior to the time on the Closing Date at which payment would otherwise be due under this Agreement to the Company if, since the time of execution of this Agreement or since the respective dates as of which information is given in the
Prospectus, (i) there has occurred any event or development that, individually or in the aggregate, has or could be reasonably likely to have a Material Adverse Effect, except as described in the Disclosure Package (exclusive of any amendment or
supplement thereto), which, in the sole judgment of the Representative, makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated in the Prospectus, or (ii) any condition specified in
Article IV hereof shall not have been fulfilled when and as required to be fulfilled, or (iii) there has occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation thereof or
any other calamity or crisis, or any change or development in political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative, impracticable to proceed with the offering,
sale or delivery of the Securities or to enforce contracts for the sale of the Securities, or (iv) trading in any securities of the Company has been suspended or limited by the Commission or the Nasdaq Global Market, or if trading generally on the
New York Stock Exchange or the Nasdaq Global Market has been suspended or limited, or 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, the Financial Industry Regulatory Authority (“FINRA”) or any other Governmental Entity, or (v) a banking moratorium has been declared by the United States or New York authorities or a material disruption has occurred
in commercial banking or securities settlement and clearance services in the United States.
IX.
The Company and each Underwriter acknowledge and agree that, except to the extent expressly set forth herein, each Underwriter is acting
solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of the Securities contemplated by this Agreement (including in connection with determining the terms of the offering) and not as a
fiduciary to, or an agent of, the Company or any other person. Each Underwriter represents and warrants to the Company that, except as previously disclosed in writing to the Company, neither the Underwriter nor any affiliate thereof, to the best of
their respective knowledge, has any current arrangement with any third party which would permit such Underwriter or any such affiliate to benefit financially, directly or indirectly, from the Underwriter’s participation in the determination of
the terms of the offering, including the pricing of the Securities. Additionally, each Underwriter is not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability
to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
X.
This Agreement shall be binding upon the Underwriters and the Company, and inure solely to the benefit of the Underwriters and the Company and
any other person expressly entitled to indemnification hereunder and the respective personal representatives, successors and assigns of each, and no other person shall acquire or have any rights under or by virtue of this Agreement.
-15-
XI.
Except as otherwise specifically provided herein, all statements, requests, notices and advices hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representative and shall be directed c/o the Representative at your address, or facsimile number
set forth below by your signature. Notices to the Company shall be directed to the Company at 200 Renaissance Center, Detroit, Michigan 48265, 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, Facsimile: (212) 701-5745. All such notices shall be effective on receipt.
XII.
If this Agreement shall be
terminated by the Underwriters or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform
its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all reasonable out-of-pocket expenses (including the reasonable
fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with the Securities.
XIII.
(a) If, at the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter,
the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons reasonably satisfactory to the non-defaulting Underwriters
to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full
business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Disclosure Package, the Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Disclosure Package or the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in the Underwriting Agreement that, pursuant to this Article XIII, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-ninth of the aggregate principal amount of all the Securities, then
the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount
of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
-16-
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-ninth of the aggregate
principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Article XIII shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as and to the extent set forth in Article XIV hereof and except that
the indemnification provisions hereof shall not terminate and shall remain in effect, provided that any defaulting Underwriter shall have no rights thereunder.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting
Underwriter for damages caused by its default.
XIV.
The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) all fees and
expenses related to the preparation, printing, mailing and publishing of the Registration Statement, the Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus (in each case, as amended or supplemented, if amended or
supplemented), (ii) all fees and expenses of the Company’s counsel and accountants, (iii) all advertising charges incurred with the prior consent of the Company, (iv) all expenses incident to the issuance and delivery of the
Securities (including printing and engraving costs), (v) all filing fees, including FINRA filing fees, attorneys’ fees and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) the Securities under the securities laws of the several states of the United States, the provinces of Canada or other jurisdictions reasonably designated by the Underwriters, (vi) the fees
and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vii) any fees payable in connection with the rating of the Securities with the rating agencies,
and (viii) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Securities by DTC in the United States, Euroclear and Clearstream outside the United States, as applicable,
for “book-entry” transfer, and the performance by the Company of its other obligations under this Agreement. DTC, Euroclear and Clearstream are referred to herein collectively as the “Book-entry Transfer Facilities” and,
individually as a “Book-entry Transfer Facility.” In the event that any Underwriter is authorized to incur and does actually incur any such fees and expenses on behalf of the Company, the Company will reimburse such Underwriter for such
fees, whether or not the transactions contemplated hereby are consummated.
If (i) this Agreement is terminated pursuant to Article
VIII, (ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters, or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company agrees to
reimburse the Underwriters for all out of pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
XV.
The Representative
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 Representative on
behalf of the Underwriters, and any such action taken by the Representative shall be binding upon the Underwriters.
-17-
XVI.
THIS AGREEMENT INCORPORATES THE ENTIRE UNDERSTANDING OF THE PARTIES AND (EXCEPT AS OTHERWISE PROVIDED HEREIN) SUPERSEDES ALL PREVIOUS
AGREEMENTS, AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED IN SUCH STATE. ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR PROCEEDING RELATED TO OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION OR CONDUCT IN CONNECTION HEREWITH, IS WAIVED.
XVII.
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, 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.
XVIII.
This Agreement may be signed in any number of counterparts and by the parties hereto in separate counterparts, and signature pages may be
delivered by facsimile or via e-mail in “.pdf” format, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
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UNDERWRITING AGREEMENT
November 17, 2015
Ally Financial Inc.
200 Renaissance Center
P.O. Box 200
Detroit, Michigan 48265
Dear Ladies and Gentlemen:
We (the “Underwriters”) understand that Ally Financial Inc., a Delaware corporation (the “Company”), proposes to issue and
sell $750,000,000 aggregate principal amount of 5.750% Subordinated Notes due 2025 (the “Securities”). Subject to the terms and conditions set forth herein or incorporated by reference herein, the Company hereby agrees to sell and we agree
to purchase the principal amounts of the Securities as set forth below opposite our names at 98.065% of their principal amount, and accrued interest, if any, from November 20, 2015 to the date of payment and delivery:
|
|
|
|
|
|
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Name of Underwriter
|
|
Principal Amount of
Securities
|
|
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Barclays Capital Inc.
|
|
$
|
135,000,000
|
|
|
Citigroup Global Markets Inc.
|
|
|
135,000,000
|
|
|
Deutsche Bank Securities Inc.
|
|
|
135,000,000
|
|
|
J.P. Morgan Securities LLC
|
|
|
135,000,000
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
135,000,000
|
|
|
BMO Capital Markets Corp.
|
|
|
11,250,000
|
|
|
CIBC World Markets Corp.
|
|
|
11,250,000
|
|
|
Credit Agricole Securities (USA) Inc.
|
|
|
11,250,000
|
|
|
Lloyds Securities Inc.
|
|
|
11,250,000
|
|
|
Scotia Capital (USA) Inc.
|
|
|
11,250,000
|
|
|
SG Americas Securities, LLC
|
|
|
11,250,000
|
|
|
Blaylock Beal Van, LLC
|
|
|
1,875,000
|
|
|
Drexel Hamilton, LLC
|
|
|
1,875,000
|
|
|
Lebenthal & Co., LLC
|
|
|
1,875,000
|
|
|
Mischler Financial Group, Inc.
|
|
|
1,875,000
|
|
|
Total
|
|
$
|
750,000,000
|
|
The Underwriters will pay for such Securities upon delivery thereof at the offices of Davis Polk &
Wardwell LLP, 450 Lexington Avenue, New York, NY 10017 at 10:00 a.m. (New York time) on November 20, 2015, or such later time not later than November 30, 2015, as shall be designated by the Representative (the “Closing Date”).
The Securities shall have the terms set forth in the Company’s Prospectus Supplement dated November 17, 2015 related to the Securities
and the Prospectus dated December 24, 2013 and the term sheet related to the Securities attached hereto as Schedule I. The File No. of the Registration Statement relating to the Securities is 333-193070.
-19-
“Applicable Time” shall mean 4:09 p.m. Eastern Time on the date of this Underwriting
Agreement.
“Disclosure Package” shall mean the Preliminary Prospectus Supplement dated November 17, 2015 related to the
Securities together with the Permitted Free Writing Prospectus (as defined pursuant to Rule 405 under the Securities Act) listed on Schedule II hereto.
All the provisions contained in the document entitled Underwriting Agreement Standard Provisions (Subordinated Debt Securities) dated
November 17, 2015 a copy of which we have previously received, are herein incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein.
The term “Representative” as used therein, for purposes of this Agreement, means each of Barclays Capital Inc., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
-2-
Please confirm your agreement by having an authorized officer sign a copy of this Agreement in
the space set forth below. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument.
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Very truly yours,
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On behalf of itself and the other
Underwriters named heretofore
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BARCLAYS CAPITAL INC.
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By:
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/s/ Justin D’Ercole
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Name: Justin D’Ercole
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Title: Managing Director
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Address: 745 7
th
Avenue
New York, NY 10019
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Facsimile: 646-834-8133
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Attention: Syndicate Registration
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[Signature Page to the Underwriting Agreement]
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CITIGROUP GLOBAL MARKETS INC.
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By:
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/s/ Jack D. McSpadden
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Name:
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Jack D. McSpadden
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|
Title:
|
|
Managing Director
|
|
|
|
Address:
|
|
388 Greenwich St, 33
rd
Fl.
New York, NY 10013
|
|
|
|
|
|
|
|
Facsimile:
|
|
(646) 291-1469
|
|
|
|
Attention:
|
|
General Counsel
|
[Signature Page to the Underwriting Agreement]
|
|
|
|
|
DEUTSCHE BANK SECURITIES INC.
|
|
|
|
|
By:
|
|
/s/ Anguel Zaprianov
|
|
Name:
|
|
Anguel Zaprianov
|
|
Title:
|
|
Managing Director
|
|
Address:
|
|
60 Wall St, 10005
|
|
|
|
|
Facsimile:
|
|
|
|
Attention:
|
|
N/A
|
|
|
|
|
|
By:
|
|
/s/ Adam Raucher
|
|
Name:
|
|
Adam Raucher
|
|
Title:
|
|
Director
|
|
Address:
|
|
60 Wall St, 10005
|
|
|
|
|
Facsimile:
|
|
|
|
Attention:
|
|
N/A
|
[Signature Page to the Underwriting Agreement]
Confidential
|
|
|
|
|
|
|
J.P. MORGAN SECURITIES LLC
|
|
|
|
|
By:
|
|
/s/ Stephen L. Sheiner
|
|
|
|
Name:
|
|
Stephen L. Sheiner
|
|
|
|
Title:
|
|
Executive Director
|
|
|
|
Address:
|
|
383 Madison Avenue
|
|
|
|
New York, New York 10179
|
|
|
|
|
|
|
Facsimile: 212-834-6081
Attention: High Grade Syndicate Desk
|
[Signature Page to the Underwriting Agreement]
|
|
|
|
|
|
|
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
|
|
|
|
|
By:
|
|
/s/ Randolph Randolph
|
|
|
|
Name:
|
|
Randolph Randolph
|
|
|
|
Title:
|
|
Managing Director
|
|
|
|
Address:
|
|
One Bryant Park
New York, NY
10036
|
|
|
|
|
|
|
|
Facsimile:
|
|
1-347-702-0862
|
|
|
|
Attention:
|
|
Randolph Randolph
|
[Signature Page to the Underwriting Agreement]
Accepted as of the date first written above,
|
|
|
|
|
|
|
ALLY FINANCIAL INC.
|
|
|
|
|
By:
|
|
/s/ Donna M. DiCicco
|
|
|
|
Name:
|
|
Donna M. DiCicco
|
|
|
|
Title:
|
|
Assistant Secretary
|
[Signature Page to Underwriting Agreement]
SCHEDULE I
Term Sheet
Term Sheet dated November 17, 2015
[Graphic]
5.750% Subordinated Notes due 2025
|
|
|
|
|
Issuer:
|
|
Ally Financial Inc. (“Ally”)
|
|
Expected Ratings:
|
|
[
intentionally omitted
]
|
|
Title of Securities:
|
|
5.750% Subordinated Notes due 2025 (the “Notes”)
|
|
Legal Format:
|
|
SEC Registered
|
|
Trade Date:
|
|
November 17, 2015
|
|
Settlement Date:
|
|
November 20, 2015 (T+3)
|
|
Final Maturity Date:
|
|
November 20, 2025
|
|
Aggregate Principal Amount:
|
|
$750,000,000
|
|
Gross Proceeds:
|
|
$742,987,500
|
|
Underwriting Discount:
|
|
1.000%
|
|
Net Proceeds to Ally before
|
|
|
|
Estimated Expenses:
|
|
$735,487,500
|
|
Coupon:
|
|
5.750%
|
|
Issue Price:
|
|
99.065%
|
|
Benchmark Treasury:
|
|
2.250% due November 15, 2025
|
|
Benchmark Treasury Yield:
|
|
2.264%
|
|
Spread to Benchmark Treasury:
|
|
361.1 bps
|
|
Yield to Maturity:
|
|
5.875%
|
|
Interest Payment Dates:
|
|
Semi-annually, in arrears on May 20 and November 20 of each year, until maturity, commencing May 20, 2016
|
|
Optional Redemption:
|
|
The Notes may be redeemed by us, (i) on or after October 21,
|
|
|
|
2025 (30 days prior to the maturity date of the Notes), in whole or in part or (ii) within 90 days following a Regulatory Capital Treatment Event (as such term is defined in the Preliminary Prospectus), in whole but not in part.
The redemption price for any redemption set forth above will be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date. No redemption or early redemption of
amounts owed under the Notes may be made without the prior written consent of the Board of Governors of the Federal Reserve System.
|
|
Day Count Convention:
|
|
30/360; Unadjusted, Following Business Day convention
|
|
Business Days:
|
|
New York
|
|
CUSIP/ISIN Numbers:
|
|
CUSIP: 02005N BF6
|
|
|
|
ISIN: US02005NBF69
|
|
Joint Book-Running Managers:
|
|
Barclays Capital Inc.
|
|
|
|
Citigroup Global Markets Inc.
|
|
|
|
Deutsche Bank Securities Inc.
J.P. Morgan
Securities LLC
|
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
|
|
|
|
Incorporated
|
|
|
|
|
|
Co-Managers:
|
|
BMO Capital Markets Corp.
|
|
|
|
CIBC World Markets Corp.
|
|
|
|
Credit Agricole Securities (USA) Inc.
Lloyds
Securities Inc.
|
|
|
|
Scotia Capital (USA) Inc.
|
|
|
|
SG Americas Securities, LLC
Blaylock Beal Van,
LLC
Drexel Hamilton, LLC
Lebenthal & Co.,
LLC
|
|
|
|
Mischler Financial Group, Inc.
|
|
|
|
|
Denominations:
|
|
$2,000 x $1,000
|
Note
: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or
withdrawal at any time.
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 Barclays Capital Inc. toll-free at 1-888-603-5847, Citigroup Global Markets Inc. toll-free at
1- 800-831-9146, Deutsche Bank Securities Inc. toll-free at 1-800-503-4611, J.P. Morgan Securities LLC toll-free at 1-212-834-4533 or Merrill Lynch, Pierce, Fenner & Smith Incorporated toll-free at 1-800-294-1322.
This communication should be read in conjunction with the preliminary prospectus supplement and the accompanying prospectus (together, the “Preliminary
Prospectus”). The information in this communication supersedes the information in the Preliminary Prospectus to the extent it is inconsistent with the information in such Preliminary Prospectus.
SCHEDULE II
Permitted Free Writing Prospectus
The Term Sheet Included In Schedule I Hereto Relating to the 5.750% Subordinated Notes due 2025.
EXHIBIT A
FORM OF OPINION OF COUNSEL TO THE COMPANY
Based
upon and subject to the foregoing and to the further limitations and qualifications set forth below, I am of the opinion that:
(1) The
execution and delivery by the Company of the Underwriting Agreement and the consummation by the Company of the transactions contemplated thereby, including the offer and sale of the Securities, will not constitute a violation of, or a breach or
default under, the terms of any Applicable Contract.
(2) The Company has taken all corporate action necessary to authorize the offer and
sale of the Securities and to execute, deliver and perform all of its obligations under the Underwriting Agreement.
(3) Each of the
Underwriting Agreement, the Indenture and the Securities to which it is a party has been duly authorized, executed and delivered by the Company.
A-1
EXHIBIT B
FORM OF OPINION OF DAVIS POLK & WARDWELL LLP, COUNSEL OF THE COMPANY
Based upon the foregoing, we are of the opinion that:
|
1.
|
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 issue the Securities, to enter into the Underwriting
Agreement and to perform its obligations thereunder.
|
|
2.
|
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 (w) enforceability of any waiver of rights under any usury
or stay law and (x) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above.
|
|
3.
|
The Securities have been duly authorized by the Company, and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will be 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 will be entitled to the benefits of the Indenture pursuant to which such Securities are to be issued; provided that we express no opinion as to the (w) enforceability of any
waiver of rights under any usury or stay law, and (x) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above.
|
|
4.
|
The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
|
|
5.
|
The Company is not, and after giving effect to the offering and sale of the 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.
|
|
6.
|
The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Indenture, the Securities 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.
|
|
7.
|
To our knowledge, 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
|
B-1
|
|
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.
|
We have considered
the statements included in the Prospectus under the captions “Description of Senior Notes” and “Description of Notes” insofar as they summarize provisions of the Indenture and the Securities. In our opinion, such statements
fairly summarize these provisions in all material respects.
The statements included in the Prospectus Supplement under the caption
“U.S. Federal Income Tax Consequences,” insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, and subject to the limitations and qualifications set forth therein,
accurately summarize the matters referred to therein in all material respects.
|
|
(i)
|
the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the
Commission thereunder; and
|
|
|
(ii)
|
nothing has come to our attention that causes us to believe that, insofar as relevant to the offering of the Securities:
|
|
|
(a)
|
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,
|
|
|
(b)
|
at 4:09 p.m. Eastern Time on November 17, 2015, 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
|
|
|
(c)
|
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.
|
B-2
Exhibit 4.1
EXECUTION VERSION
ALLY
FINANCIAL INC.
and
THE BANK
OF NEW YORK MELLON,
Trustee
INDENTURE
Dated as of
November 20, 2015
CROSS-REFERENCE SHEET*
between
Reconciliation and tie showing the
location in the Indenture of the provisions inserted pursuant to Sections 310 through 318(a), inclusive, of the Trust Indenture Act of 1939, unless otherwise indicated.
|
|
|
|
|
Section of Trust Indenture Act
|
|
Section of
Indenture
|
|
|
|
|
310(a)(1) and (2)
|
|
7.09
|
|
310(a)(3) and (4)
|
|
Not applicable
|
|
310(b)
|
|
7.08 and 7.10(b)
|
|
310(c)
|
|
Not applicable
|
|
311(a) and (b)
|
|
7.13
|
|
311(c)
|
|
Not applicable
|
|
312(a)
|
|
5.01 and 5.02(a)
|
|
312(b) and (c)
|
|
5.02(b) and (i)
|
|
313(a)
|
|
5.04(a)
|
|
313(b)(1)
|
|
Not applicable
|
|
313(b)(2)
|
|
5.04(b)
|
|
313(c)
|
|
5.04(c)
|
|
313(d)
|
|
5.04(d)
|
|
314(a)
|
|
5.03
|
|
314(b)
|
|
Not applicable
|
|
314(c)(1) and (2)
|
|
16.04
|
|
314(c)(3)
|
|
Not applicable
|
|
314(d)
|
|
Not applicable
|
|
314(e)
|
|
16.04
|
|
314(f)
|
|
Not applicable
|
|
315(a), (c) and (d)
|
|
7.01
|
|
315(b)
|
|
6.07
|
|
315(e)
|
|
6.08
|
|
316(a)(1)
|
|
6.01 and 6.06
|
|
316(a)(2)
|
|
Not applicable
|
|
316(a) last sentence
|
|
8.04
|
|
316(b)
|
|
6.04
|
|
317(a)
|
|
6.02
|
|
317(b)
|
|
4.03
|
|
318(a)
|
|
16.06
|
|
*
|
This Cross-Reference Sheet is not part of the Indenture.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
P
AGE
|
|
|
|
|
ARTICLE 1
|
|
|
D
EFINITIONS
|
|
|
|
|
|
|
Section 1.01.
|
|
Definitions
|
|
|
1
|
|
|
Section 1.02.
|
|
Incorporation by Reference of Trust Indenture Act
|
|
|
5
|
|
|
Section 1.03.
|
|
Trust Indenture Act to Control
|
|
|
5
|
|
|
|
|
ARTICLE 2
|
|
|
I
SSUE
, E
XECUTION
, R
EGISTRATION
AND
E
XCHANGE
OF
S
ECURITIES
|
|
|
|
|
|
|
Section 2.01.
|
|
Amount Unlimited; Issuable in Series
|
|
|
6
|
|
|
Section 2.02.
|
|
Form of Trustee’s Certificate of Authentication
|
|
|
6
|
|
|
Section 2.03.
|
|
Form and Delivery of Securities
|
|
|
6
|
|
|
Section 2.04.
|
|
Denominations; Record Date
|
|
|
9
|
|
|
Section 2.05.
|
|
Execution of Securities
|
|
|
9
|
|
|
Section 2.06.
|
|
Exchange and Registration of Transfer of Securities
|
|
|
10
|
|
|
Section 2.07.
|
|
Temporary Securities
|
|
|
12
|
|
|
Section 2.08.
|
|
Mutilated, Destroyed, Lost or Stolen Securities
|
|
|
13
|
|
|
Section 2.09.
|
|
Cancellation
|
|
|
14
|
|
|
Section 2.10.
|
|
CUSIP Numbers
|
|
|
14
|
|
|
Section 2.11.
|
|
Additional Securities
|
|
|
14
|
|
|
|
|
ARTICLE 3
|
|
|
R
EDEMPTION
O
F
S
ECURITIES
|
|
|
|
|
|
|
Section 3.01.
|
|
Redemption of Securities; Applicability of Section
|
|
|
14
|
|
|
Section 3.02.
|
|
Notice of Redemption; Selection of Securities
|
|
|
14
|
|
|
Section 3.03.
|
|
Payment of Securities Called for Redemption
|
|
|
15
|
|
|
|
|
ARTICLE 4
|
|
|
C
OVENANTS
OF
THE
C
OMPANY
|
|
|
|
|
|
|
Section 4.01.
|
|
Payment of Principal, Premium and Interest
|
|
|
16
|
|
|
Section 4.02.
|
|
Offices for Notices and Payments, etc
|
|
|
16
|
|
|
Section 4.03.
|
|
Provisions as to Paying Agent
|
|
|
17
|
|
|
Section 4.04.
|
|
Certificate to Trustee
|
|
|
17
|
|
|
|
|
ARTICLE 5
|
|
|
S
ECURITYHOLDER
L
ISTS
AND
R
EPORTS
BY
THE
C
OMPANY
AND
THE
T
RUSTEE
|
|
|
|
|
|
|
Section 5.01.
|
|
Securityholder Lists
|
|
|
18
|
|
|
Section 5.02.
|
|
Preservation and Disclosure of Lists
|
|
|
18
|
|
|
Section 5.03.
|
|
Reports by the Company
|
|
|
19
|
|
|
Section 5.04.
|
|
Reports by the Trustee
|
|
|
20
|
|
i
|
|
|
|
|
|
|
|
|
|
|
ARTICLE 6
|
|
|
R
EMEDIES
ON
D
EFAULT
|
|
|
|
|
|
|
Section 6.01.
|
|
Events of Default
|
|
|
20
|
|
|
Section 6.02.
|
|
Payment of Securities on Default; Suit Therefor
|
|
|
22
|
|
|
Section 6.03.
|
|
Application of Moneys Collected by Trustee
|
|
|
24
|
|
|
Section 6.04.
|
|
Proceedings by Securityholders
|
|
|
24
|
|
|
Section 6.05.
|
|
Remedies Cumulative and Continuing
|
|
|
25
|
|
|
Section 6.06.
|
|
Direction of Proceedings
|
|
|
26
|
|
|
Section 6.07.
|
|
Notice of Defaults
|
|
|
26
|
|
|
Section 6.08.
|
|
Undertaking to Pay Costs
|
|
|
26
|
|
|
|
|
ARTICLE 7
|
|
|
C
ONCERNING
THE
T
RUSTEE
|
|
|
|
|
|
|
Section 7.01.
|
|
Duties and Responsibilities of Trustee
|
|
|
27
|
|
|
Section 7.02.
|
|
Reliance on Documents, Opinions, etc
|
|
|
28
|
|
|
Section 7.03.
|
|
No Responsibility for Recitals, etc
|
|
|
29
|
|
|
Section 7.04.
|
|
Ownership of Securities
|
|
|
30
|
|
|
Section 7.05.
|
|
Moneys to be Held in Trust
|
|
|
30
|
|
|
Section 7.06.
|
|
Compensation and Expenses of Trustee
|
|
|
30
|
|
|
Section 7.07.
|
|
Officers’ Certificate as Evidence
|
|
|
31
|
|
|
Section 7.08.
|
|
Conflicting Interest of Trustee
|
|
|
31
|
|
|
Section 7.09.
|
|
Eligibility of Trustee
|
|
|
31
|
|
|
Section 7.10.
|
|
Resignation or Removal of Trustee
|
|
|
31
|
|
|
Section 7.11.
|
|
Acceptance by Successor Trustee
|
|
|
33
|
|
|
Section 7.12.
|
|
Successor by Merger, etc
|
|
|
34
|
|
|
Section 7.13.
|
|
Limitation on Rights of Trustee as a Creditor
|
|
|
34
|
|
|
|
|
ARTICLE 8
|
|
|
C
ONCERNING
THE
S
ECURITYHOLDERS
|
|
|
|
|
|
|
Section 8.01.
|
|
Action by Securityholders
|
|
|
34
|
|
|
Section 8.02.
|
|
Proof of Execution by Securityholders
|
|
|
35
|
|
|
Section 8.03.
|
|
Who Are Deemed Absolute Owners
|
|
|
35
|
|
|
Section 8.04.
|
|
Company-Owned Securities Disregarded
|
|
|
35
|
|
|
Section 8.05.
|
|
Revocation of Consents; Future Securityholders Bound
|
|
|
36
|
|
|
|
|
ARTICLE 9
|
|
|
S
ECURITYHOLDERS
’ M
EETINGS
|
|
|
|
|
|
|
Section 9.01.
|
|
Purposes of Meetings
|
|
|
36
|
|
|
Section 9.02.
|
|
Call of Meetings by Trustee
|
|
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36
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|
Section 9.03.
|
|
Call of Meetings by Company or Securityholders
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37
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Section 9.04.
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Qualification for Voting
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37
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Section 9.05.
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Regulations
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37
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Section 9.06.
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Voting
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37
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ii
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ARTICLE 10
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S
UPPLEMENTAL
I
NDENTURES
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Section 10.01.
|
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Supplemental Indentures without Consent of Securityholders
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38
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Section 10.02.
|
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Supplemental Indentures with Consent of Securityholders
|
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39
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Section 10.03.
|
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Compliance with Trust Indenture Act; Effect of Supplemental Indentures
|
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40
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Section 10.04.
|
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Notation on Securities
|
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40
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Section 10.05.
|
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Opinion of Counsel and Officers’ Certificate to be given to Trustee
|
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40
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Section 10.06.
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Subordination Unimpaired
|
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40
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ARTICLE 11
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C
ONSOLIDATION
, M
ERGER
, S
ALE
OR
C
ONVEYANCE
|
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|
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|
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Section 11.01.
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|
Company May Consolidate, etc., on Certain Terms
|
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41
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|
Section 11.02.
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|
Securities to be Secured in Certain Events
|
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41
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Section 11.03.
|
|
Opinion of Counsel to be given Trustee
|
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41
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|
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ARTICLE 12
|
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|
D
EFEASANCE
AND
C
OVENANT
D
EFEASANCE
|
|
|
|
|
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|
Section 12.01.
|
|
Applicability of Article
|
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|
42
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|
Section 12.02.
|
|
Defeasance Upon Deposit of Moneys or U.S. Government Obligations
|
|
|
42
|
|
|
Section 12.03.
|
|
Deposited Moneys and U.S. Government Obligations to be Held in Trust
|
|
|
44
|
|
|
Section 12.04.
|
|
Repayment to Company
|
|
|
45
|
|
|
Section 12.05.
|
|
Subordination Provisions Inapplicable
|
|
|
45
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|
|
|
|
ARTICLE 13
|
|
|
S
ATISFACTION
AND
D
ISCHARGE
OF
I
NDENTURE
; U
NCLAIMED
M
ONEYS
|
|
|
|
|
|
|
Section 13.01.
|
|
Discharge of Indenture
|
|
|
45
|
|
|
Section 13.02.
|
|
Deposited Moneys to be held in Trust by Trustee
|
|
|
45
|
|
|
Section 13.03.
|
|
Paying Agent to Repay Moneys Held
|
|
|
46
|
|
|
Section 13.04.
|
|
Return of Unclaimed Moneys
|
|
|
46
|
|
|
|
|
ARTICLE 14
|
|
|
I
MMUNITY
OF
I
NCORPORATORS
, S
TOCKHOLDERS
, O
FFICERS
AND
D
IRECTORS
|
|
|
|
|
|
|
Section 14.01.
|
|
Indenture and Securities Solely Corporate Obligations
|
|
|
46
|
|
|
|
|
ARTICLE 15
|
|
|
S
UBORDINATION
OF
S
ECURITIES
|
|
|
|
|
|
|
Section 15.01.
|
|
Agreement to Subordinate
|
|
|
46
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|
iii
|
|
|
|
|
|
|
|
|
Section 15.02.
|
|
Obligation of the Company Unconditional and Payment Permitted if no Default
|
|
|
48
|
|
|
Section 15.03.
|
|
Limitations on Duties to Holders of Senior Indebtedness
|
|
|
49
|
|
|
Section 15.04.
|
|
Notice to Trustee of Facts Prohibiting Payments
|
|
|
49
|
|
|
Section 15.05.
|
|
Application by Trustee of Moneys Deposited With It
|
|
|
49
|
|
|
Section 15.06.
|
|
Subrogation
|
|
|
49
|
|
|
Section 15.07.
|
|
Subordination Rights Not Impaired by Acts or Omissions of Company or Holders of Senior Indebtedness
|
|
|
50
|
|
|
Section 15.08.
|
|
Authorization of Trustee to Effectuate Subordination of Securities
|
|
|
50
|
|
|
Section 15.09.
|
|
Right of Trustee to Hold Senior Indebtedness
|
|
|
50
|
|
|
Section 15.10.
|
|
Article 15
Not to Prevent Defaults (Including Events of Default)
|
|
|
50
|
|
|
Section 15.11.
|
|
Trustee’s Rights to Compensation, Reimbursement of Expenses and Indemnification
|
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51
|
|
|
Section 15.12.
|
|
Article Applicable to Paying Agents
|
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|
51
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Section 15.13.
|
|
Trustee Not Fiduciary for Holders of Senior Indebtedness
|
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51
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ARTICLE 16
|
|
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|
|
|
M
ISCELLANEOUS
P
ROVISIONS
|
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|
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|
Section 16.01.
|
|
Benefits of Indenture Restricted to Parties and Securityholders
|
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|
51
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|
|
Section 16.02.
|
|
Provisions Binding on Company’s Successors
|
|
|
51
|
|
|
Section 16.03.
|
|
Addresses for Notices, Electronic Instructions, etc
|
|
|
51
|
|
|
Section 16.04.
|
|
Evidence of Compliance with Conditions Precedent
|
|
|
52
|
|
|
Section 16.05.
|
|
Legal Holidays
|
|
|
52
|
|
|
Section 16.06.
|
|
Trust Indenture Act to Control
|
|
|
53
|
|
|
Section 16.07.
|
|
Execution in Counterparts
|
|
|
53
|
|
|
Section 16.08.
|
|
New York Contract
|
|
|
53
|
|
|
Section 16.09.
|
|
Securities in a Foreign Currency
|
|
|
53
|
|
|
Section 16.10.
|
|
Judgment Currency
|
|
|
54
|
|
|
Section 16.11.
|
|
Effect of Headings and Table of Contents
|
|
|
54
|
|
|
Section 16.12.
|
|
Severability Clause
|
|
|
54
|
|
|
Section 16.13.
|
|
Waiver of Jury Trial
|
|
|
54
|
|
|
Section 16.14.
|
|
Force Majeure
|
|
|
55
|
|
|
Section 16.15.
|
|
FATCA
|
|
|
55
|
|
EXHIBITS
iv
THIS INDENTURE, dated as of the 20
th
day of
November, 2015 between Ally Financial Inc., a Delaware corporation (hereinafter sometimes called the “
Company
”), party of the first part, and The Bank of New York Mellon, a corporation duly organized and existing under the laws of
the State of New York (hereinafter sometimes called the “
Trustee
,
” which term shall include any successor trustee appointed pursuant to Article 7), party of the second part.
WITNESSETH:
WHEREAS, the
Company is entering this Indenture to establish the form and terms of its subordinated notes to be issued from time to time in one or more series (the “
Securities
”); and
WHEREAS, the Company represents that all acts and things necessary to constitute these presents a valid and binding indenture and agreement
according to its terms, have been done and performed, and the execution and delivery of this Indenture has in all respects been duly authorized;
NOW, THEREFORE:
In order to
declare the terms and conditions upon which the Securities (as defined below) are authenticated, issued and received, and in consideration of the premises, of the purchase and acceptance of the Securities by the Holders (as defined below) thereof
and for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Company covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Securities, as
follows:
ARTICLE 1
D
EFINITIONS
Section 1.01.
Definitions
. The terms defined in this Section (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939
or which are by reference therein defined in the Securities Act of 1933, as amended, shall have the meanings (except as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in said Trust Indenture Act
and in said Securities Act as in force at the date of this Indenture as originally executed.
“
Additional Securities
”
shall have the meaning provided in Section 2.11 hereof.
“
Affiliate
” of any specified Person shall mean any other
Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power
to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to
the foregoing.
“
Board of Directors
” shall mean the Board of Directors or the Board of
Managers of the Company, as applicable, or the Executive Committee of the Company or any other duly authorized Committee of the Company.
“
Board Resolution
” shall mean a resolution certified by the Secretary or Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day
” means any day that is not a Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by law to close.
“
Code
” shall mean the Internal
Revenue Code of 1986, as amended.
“
Commission
” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act of 1934, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such
duties on such date.
“
Company
” shall mean 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.
“
Corporate Trust Office
” shall mean the principal office of the Trustee at which at any time its corporate trust
business shall be administered, which office at the date hereof is located at 101 Barclay Street, Floor 7W, New York, New York 10286, Attention: Corporate Trust Administration, or such other address as the Trustee may designate from time to time by
notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“
CUSIP
” shall have the meaning provided in Section 2.10 hereof.
“
Depositary
” shall mean with respect to the Securities of any series issuable or issued in whole or in part in global
form, the Person designated as Depositary by the Company pursuant to Section 2.03, unless and until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Depositary
”
shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “
Depositary
” as used with respect to the Securities of any such series shall mean the
“
Depositary
” with respect to the Securities of that series.
2
“
ERISA
” shall mean the Employee Retirement Income Security Act of 1974, as
amended.
“
Event of Default
” shall mean any event specified as such in Section 6.01.
“
Exchange Act of 1934
” shall mean the Securities Exchange Act of 1934, as amended.
“
Federal Reserve
” shall mean the Board of Governors of the Federal Reserve System.
“
Holder,
” “
Holder of Securities,
” “
securityholder
” or other similar term shall mean
the registered holder of any Security.
“
Indebtedness for Money Borrowed
” shall mean, when used with
respect to the Company, (a) any obligation of the Company, or any obligation guaranteed by the Company, for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, (b) similar
obligations arising from off-balance sheet guarantees and direct credit substitutes, (c) obligations associated with derivative products, such as interest-rate and foreign- exchange-rate contracts, commodity contracts and similar arrangements,
and (d) any deferred obligations for the payment of the purchase price of property or assets.
“
Indebtedness
Ranking Junior to the Securities
” shall mean any Indebtedness for Money Borrowed of the Company, whether outstanding on the date of execution of this Indenture or thereafter created, assumed or incurred, which specifically by its terms
ranks junior to and not equally with or prior to the Securities (and any other Indebtedness Ranking on a Parity with the Securities) in right of payment upon the happening of any event of the kind specified in the first sentence of the second
paragraph of Section 15.01. The securing of any Indebtedness for Money Borrowed of the Company otherwise constituting Indebtedness Ranking Junior to the Securities shall not be deemed to prevent such Indebtedness for Money Borrowed from constituting
Indebtedness Ranking Junior to the Securities.
“
Indebtedness Ranking on a Parity with the Securities
”
shall mean Indebtedness for Money Borrowed of the Company, whether outstanding on the date of execution of the Indenture or thereafter created, assumed or incurred, which specifically by its terms ranks equally with and not prior to the Securities
in the right of payment upon the happening of any event of the kind specified in the first sentence of the second paragraph of Section 15.01. Indebtedness Ranking on a Parity with the Securities includes obligations to trade creditors created or
assumed by the Company in the ordinary course of business. The securing of any Indebtedness for Money Borrowed of the Company otherwise constituting Indebtedness Ranking on a Parity with the Securities shall not be deemed to prevent such
Indebtedness for Money Borrowed from constituting Indebtedness Ranking on a Parity with the Securities.
3
“
Indenture
” shall mean 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.
“
Officers’ Certificate
” shall mean a certificate signed by the Chairman of the Board or the President or any
Executive Vice President or any Vice President and by the Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary of the Company.
“
Opinion of Counsel
” shall mean an opinion in writing signed by legal counsel for the Company, who may be an employee
of or counsel to the Company.
“
Original Issue Discount Securities
” shall mean any Securities which are
initially sold at a discount from the principal amount thereof and which provide upon Event of Default for declaration of an amount less than the principal amount thereof to be due and payable upon acceleration thereof.
“
outstanding,
” when used with reference to Securities, shall, subject to the provisions of Section 7.08 and Section
8.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof,
for the payment at or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if
the Company shall act as its own paying agent),
provided
, that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article 3 provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in lieu of and in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.06, unless proof satisfactory to the Trustee is presented that any such Securities are held by bona fide holders in due course.
“
Paying Agent
” shall mean any Person authorized by the Company to pay the principal of, premium, if any, or interest
on any Securities on behalf of the Company.
“
Person
” shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“
record date
” as used with respect to any interest payment date shall have the meaning specified in Section 2.04.
4
“
Responsible Officer
” when used with respect to the Trustee shall mean
any vice president, officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“
Security Registrar
” shall have the meaning provided in Section 2.06 hereof.
“
Senior Indebtedness
” shall mean any Indebtedness for Money Borrowed of the Company, whether outstanding on the date
of execution of the Indenture or thereafter created, assumed or incurred, except Indebtedness Ranking on a Parity with the Securities or Indebtedness Ranking Junior to the Securities. Senior Indebtedness also includes any deferrals, renewals or
extensions of such Senior Indebtedness. The specific terms of any series of Senior Indebtedness shall be provided for in the applicable Board Resolution by or pursuant to which the terms of such series is approved.
“
Tier 2 Capital
” shall have the meaning given to it from time to time by the Federal Reserve.
Except as otherwise provided in Sections 10.01 and 10.02, the terms “
Trust Indenture Act of 1939
” or “
Trust
Indenture Act
” shall mean the Trust Indenture Act of 1939 as in force at the date of this Indenture as originally executed.
Section 1.02.
Incorporation by Reference of Trust Indenture Act.
The Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and made a part of the
Indenture. The following Trust Indenture Act terms have the following meanings:
“
Indenture Securities
” shall mean the
Securities.
“
Indenture to Be Qualified
” shall mean the Indenture.
“
Indenture Trustee or Institutional Trustee
” shall mean the Trustee.
“
Obligor
” with reference to Indenture Securities shall mean the Company.
All other terms in the Indenture that are defined by the Trust Indenture Act, defined by it by reference to another statute or defined by
Commission rule have the meanings assigned to them by such definitions.
Section 1.03.
Trust Indenture Act to Control
.
If any provision included in this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is
required to be included in the Indenture by the Trust Indenture Act, such required provision shall control.
5
ARTICLE 2
I
SSUE
, E
XECUTION
, R
EGISTRATION
AND
E
XCHANGE
OF
S
ECURITIES
Section 2.01.
Amount Unlimited; Issuable in Series
. Upon the execution of this Indenture, or
from time to time thereafter, Securities up to the aggregate principal amount and containing terms and conditions from time to time authorized by or pursuant to a Board Resolution (and set forth in an Officer’s Certificate or a Supplemental
Indenture), may be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Securities to or upon the written order of the Company, signed by its Chairman of the Board or
its President or an Executive Vice President or a Vice President and by its Treasurer or any Assistant Treasurer, without further action by the Company other than as required by Section 314(c) of the Trust Indenture Act and the Indenture.
The Securities may be issued in one or more series. The aggregate principal amount of Securities of all series which may be
authenticated and delivered and outstanding under this Indenture is not limited. The Securities of a particular series may be issued up to the aggregate principal amount of Securities for such series from time to time authorized by or pursuant to a
Board Resolution.
Section 2.02.
Form of Trustee’s Certificate of Authentication
. The Trustee’s certificate
of authentication shall be in the following form:
[FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein referred to in the within-mentioned indenture.
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|
THE BANK OF NEW YORK MELLON,
|
|
|
|
|
|
|
|
as Trustee
|
|
|
|
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|
|
Date:
|
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|
|
|
By:
|
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|
Name:
|
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|
|
Title:
|
|
Authorized Officer
|
|
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|
|
Date:
|
|
|
Section 2.03.
Form and Delivery of Securities
. The Securities shall be substantially in the
form of Exhibit A hereto or in the forms approved from time to time by or pursuant to a Board Resolution, and set forth in such Board Resolution, an Officer’s Certificate or a supplemental indenture and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, 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 the Securities may be listed, or to conform to usage.
6
If Securities of a series are issuable in whole or in part in global form, the global security
representing such Securities may provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of outstanding Securities represented thereby may from
time to time be reduced to reflect exchanges or increased to reflect the issuance of additional Securities.
The applicable Board
Resolution, Officer’s Certificate or supplemental indenture shall set forth: (a) the designation of the particular series (which shall distinguish such series from all other series); (b) the coin or currency in which the Securities of
that series are denominated and the aggregate principal amount of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration and transfer of, or in exchange for, or
in lieu of, other Securities of such series pursuant to this Indenture); (c) the date or dates on which the principal of the Securities of such series is payable; (d) the rate or rates, or the method to be used in ascertaining the rate or
rates, at which the Securities of such series shall bear interest, if any, the date or dates from which such interest shall accrue, the date or dates on which such interest shall be payable and the record date or dates for the interest payable;
(e) the place or places at which the principal of, premium, if any, and interest on the Securities of such series shall be payable; (f) the obligations, if any, of the Company to redeem or purchase Securities of such series pursuant to any
sinking fund thereof or other redemption provisions and the price or prices at which and the terms and conditions upon which Securities of such series shall be redeemed or purchased; (g) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series which shall be payable upon acceleration of the maturity thereof or which the Trustee shall be entitled to claim pursuant to Section 6.02; (h) if other than denominations of $1,000 and any
multiple thereof, the denominations in which Securities of that series shall be issuable; (i) if other than the coin or currency in which the Securities of that series are denominated, the coin or currency in which payment of the principal of,
premium, if any, and/or interest on the Securities of such series shall be payable; (j) if the principal of, premium, if any, or interest on the Securities of such series are to be payable, at the election of the Company or a Holder thereof,
the period or periods within which, and the terms and conditions upon which, such election may be made; (k) if the amount of payment of principal of, premium, if any, and interest on the Securities of the series may be determined with reference
to an index based on a coin or currency other than that in which the Securities of the series are denominated, the manner in which such amounts shall be determined; (l) if applicable, that the Securities of the series, in whole or any specified
part, shall not be defeasible or shall be defeasible in a manner varying from Section 12.02 and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced; and (m) any
other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such series of Securities which shall not be inconsistent with the provisions of this Indenture.
7
Prior to the delivery of any Security to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
(1) The Board Resolution by or pursuant to which the terms of such series and such form of Security
has been approved and the Officer’s Certificate or supplemental indenture setting forth the terms of such series;
(2) An
Officers’ Certificate concurrently dated stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Securities in such form have been complied with;
(3) A written order of the Company signed in the name of the Company by two officers for the authentication and delivery of such Securities,
specifying the principal amount of Securities to be authenticated and the date on which the issue of the Securities is to be authenticated; and
(4) An Opinion of Counsel stating that (a) the form and terms of such Securities have been established by or pursuant to a Board
Resolution in conformity with the terms of this Indenture; (b) Securities in such form, when completed by appropriate insertions and executed and delivered by the Company to the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture and sold in the manner specified in such Opinion of Counsel, will be valid and legally binding obligations of the Company and enforceable against the Company; (c) that
authentication and delivery of the Securities by the Trustee will not violate the terms of this Indenture and that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Securities have been complied
with; and (d) such other matters as the Trustee may reasonably request.
If the Company shall establish pursuant to this Section 2.03
that Securities of a series may be issued in whole or in part in global form, then the Company shall execute, and the Trustee shall (in accordance with this Section 2.03 and the authentication order with respect to such series) authenticate and
deliver, one or more Securities in global form that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the outstanding Securities of such series to be represented by such one or more
Securities in global form, (ii) shall be registered, in the name of the Depositary for such Security or Securities in global form, or in the name of a nominee of such Depositary, (iii) shall be delivered to such Depositary or pursuant to
such Depositary’s instruction, and (iv) shall bear a legend substantially as follows (with appropriate changes to the last sentence if DTC is not the Depositary):
“Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation
(“
DTC
”), to Ally financial Inc. or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.”
8
Each Depositary designated pursuant to this Section 2.03 for a Security in global form must, at
the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation.
Section 2.04.
Denominations; Record Date
. The Securities shall be issuable as registered Securities without coupons in denominations of
$1,000 and any multiple of $1,000 or in such other denominations as may be specified in the terms of Securities of any particular series. Every Security shall be dated the date of its authentication and may be issued at a discount without interest
or shall bear interest as set forth in the form of such Security.
The term “record date” as used with respect to an interest
payment date for any series shall mean such day or days as shall be specified as contemplated by Section 2.03;
provided
,
however
, that in the absence of any such provisions with respect to any series, such term shall mean the calendar
day immediately preceding such interest payment date.
The person in whose name any Security is registered at the close of business on the
record date with respect to an interest payment date shall be entitled to receive the interest payable on such interest payment date notwithstanding the cancellation of such Security upon any transfer or exchange thereof subsequent to such record
date and prior to such interest payment date;
provided
,
however
, that if and to the extent the Company shall default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid to the persons
in whose names the Securities are registered on a subsequent record date established by notice given by or on behalf of the Company to the Holders of Securities of the series in default not less than fifteen days preceding such subsequent record
date, such record date to be not less than one calendar day immediately preceding the date of payment of such defaulted interest.
At the
option of the Company interest may be paid by check mailed to the Holders of the Securities entitled thereto at their last addresses as they appear on the registry books.
Section 2.05.
Execution of Securities
. The Securities shall be signed on behalf of the Company by its Chairman, Vice Chairman,
President, an Executive Vice President or a Vice President and by its Treasurer or an Assistant Treasurer or its Secretary or an Assistant Secretary. Such signatures may be the manual or facsimile signatures of the present or any future such
officers.
Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited,
executed by the Trustee by manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Company
shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
9
In case any officer of the Company who shall have signed any of the Securities shall cease to be
such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security
had not ceased to be such officer of the Company, and any Security may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such officer.
On the date of the execution and delivery of this Indenture, the
Company shall deliver to the Trustee an Officers’ Certificate as to the incumbency and specimen signatures of officers authorized to give instructions under this Section and, as long as Securities are outstanding under this Indenture, shall
deliver a similar Officer’s Certificate each year on the anniversary of the date of the first such Officer’s Certificate. The Trustee may conclusively rely on the documents delivered pursuant to this Section and Section 2.03 hereof (unless
revoked by superseding comparable documents) as to the authorization of the Board of Directors of any Securities delivered hereunder, and the form thereof, and as to the authority of the instructing officers referred to in this Section so to act.
Section 2.06.
Exchange and Registration of Transfer of Securities
. Securities of any series may be exchanged for a like
aggregate principal amount of Securities of other authorized denominations of such series. Securities to be exchanged shall be surrendered at the office or agency to be designated and maintained by the Company for such purpose in the Borough of
Manhattan, The City of New York, in accordance with the provisions of Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Holder making the
exchange shall be entitled to receive.
The Company shall keep, at such office or agency, registry books in which, subject to such
reasonable regulations as it may prescribe, the Company shall register Securities and shall register the transfer of Securities as in this Article 2 provided. Such registry books shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times such registry books shall be open for inspection by the Trustee. Upon due presentment for registration of transfer of any Security of a particular series at such office or
agency, the Company shall execute and register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of such series for an equal aggregate principal amount. The Company may appoint a
“Security Registrar” to maintain the registry books, which person shall be the Trustee unless and until a successor Security Registrar is appointed by the Company.
All Securities presented for registration of transfer or for exchange, redemption or payment, as the case may be, shall (if so required by the
Company or the Trustee) be duly
10
endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized
in writing.
No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Company shall
not be required to exchange or register a transfer of (a) any Securities of any series for a period of fifteen days next preceding any selection of such Securities of such series to be redeemed, or (b) any such series selected, called or
being called for redemption except, in the case of any such series to be redeemed in part, the portion thereof not to be so redeemed.
Any
other provision of this Section 2.06 notwithstanding, unless and until it is exchanged in whole or in part for the individual Securities represented thereby, in definitive form, a Security in global form representing all or a portion of the
Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary, or by a nominee of such Depositary to such Depositary or another nominee of such Depositary, or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for
the Securities of a series represented by one or more Securities in global form notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series, or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 2.03 hereof, the Company shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 2.03 that such Securities be represented by one or more Securities in global form shall no longer
be effective with respect to the Securities of such series and the Company will execute, and the Trustee, upon receipt of an authentication order for the authentication and delivery of definitive Securities of such series, will authenticate and
deliver Securities of such series in definitive form, in authorized denominations, in an aggregate principal amount, and of like terms and tenor, equal to the principal amount of the Security or Securities in global form representing such series, in
exchange for such Security or Securities in global form.
The Company may at any time and in its sole discretion and subject to the
procedures of the Depositary determine that individual Securities of any series issued in global form shall no longer be represented by such Security or Securities in global form. In such event the Company will execute, and the Trustee, upon receipt
of an authentication order for the authentication and delivery of definitive Securities of such series and of the same terms and tenor, will authenticate and deliver Securities of such series in definitive form, in authorized denominations, and in
aggregate principal amount equal to the principal amount of the Security or Securities in global form representing such series in exchange for such Security or Securities in global form.
11
If provided for by the Company pursuant to Section 2.03 with respect to a series of Securities
issued in global form, the Depositary for such series of Securities may surrender a Security in global form for such series of Securities in exchange in whole or in part for Securities of such series in definitive form and of like terms and tenor on
such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee upon receipt of an authentication order for the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, without service charge:
(a) to each Person specified by such Depositary, a new definitive Security or
Securities of the same series and of the same tenor and terms, in authorized denominations, in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Security in global form; and
(b) to such Depositary, a new Security in global form in a denomination equal to the difference, if any, between the principal amount of the
surrendered Security in global form and the aggregate principal amount of the definitive Securities delivered to Holders pursuant to clause (a) above.
Upon the exchange of a Security in global form for Securities in definitive form, such Security in global form shall be canceled by the
Trustee or an agent of the Company or the Trustee. Securities issued in definitive form in exchange for a Security in global form pursuant to this Section 2.06 shall be registered in such names and in such authorized denominations as the Depositary
for such Security in global form, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the Trustee in writing. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are so registered or to the Depositary.
Section 2.07.
Temporary Securities
. Pending the preparation of definitive Securities of any series, the Company may execute and the Trustee shall authenticate and deliver temporary Securities of such series (printed or lithographed). Temporary Securities
of any series shall be issuable as registered Securities without coupons, of any denomination, and in the form approved from time to time by or pursuant to a Board Resolution but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Company. In the case of Securities of any series for which a temporary Security may be issued in global form, such temporary global security shall represent all of the outstanding Securities
of such series and tenor. Every temporary Security shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Except in the
case of temporary Securities in global form, which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are issued, the Company shall execute and shall furnish definitive Securities of such series
without unnecessary delay. After preparation of definitive Securities, temporary Securities of such series may be surrendered in exchange therefor without charge at the office or agency to be designated and maintained by the Company for such purpose
in the Borough of Manhattan, The City
12
of New York, in accordance with the provisions of Section 4.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations. Unless otherwise specified as contemplated by Section 2.03 with respect to a temporary Security in global form, until so exchanged the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 2.08.
Mutilated, Destroyed,
Lost or Stolen Securities
. In case any temporary or definitive Security of any series shall become mutilated or be destroyed, lost or stolen, the Company in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed
Security may in its discretion, execute, and upon its request the Trustee shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save
each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance of any substituted Security, 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 connected therewith and in addition a further sum not exceeding two dollars for each Security so issued in substitution. In
case any Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated Security) if the applicant for such payment shall furnish the Company with such security or indemnity as it may require to save it harmless and, in case of destruction, loss or theft, evidence to the satisfaction of the
Company of the destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security issued pursuant to
the provisions of this Section by virtue of the fact that any Security is destroyed, lost or stolen shall, with respect to such Security, constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen
Security shall be found at any time, and shall be entitled to all the benefits of this indenture equally and proportionately with any and all other Securities duly issued hereunder.
All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities and shall, to the extent permitted by law, preclude any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without their surrender.
13
Section 2.09.
Cancellation
. All Securities surrendered for payment, redemption,
exchange or registration of transfer, as the case may be, shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the Trustee and promptly cancelled by it or, if surrendered to the Trustee, be cancelled by
it, and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities in its customary manner or, if requested in writing to do so by the
Company, shall return such cancelled Securities to the Company.
Section 2.10.
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 advise the Trustee in writing of any change in the “
CUSIP
” numbers.
Section 2.11.
Additional Securities
. The Company may, from time to time, without the consent of the Holders of the Securities,
reopen any series and issue additional Securities (the “
Additional Securities
”) having the same ranking and the same interest rate, maturity and other terms as the outstanding Securities in such series, except for the public
offering price, the issue date and, if applicable, the initial interest payment date and initial interest accrual date. Any such Additional Securities, together with the initial Securities in such series, shall constitute a single series of
Securities under the Indenture; provided that if the Additional Securities are not fungible for U.S. federal income tax with the initial Securities in such series, the Additional Securities shall be issued under a separate CUSIP number.
ARTICLE 3
R
EDEMPTION
O
F
S
ECURITIES
Section 3.01.
Redemption of Securities; Applicability of Section
. Redemption of Securities of any series as permitted or required
by the terms thereof shall be made in accordance with such terms and this Section;
provided
,
however
, that if any provision of any series of Securities shall conflict with any provision of this Section, the provision of such series of
Securities shall govern.
Section 3.02.
Notice of Redemption; Selection of Securities
. In case the Company shall desire to
exercise the right to redeem all, or, as the case may be, any part of a series of Securities pursuant to Section 3.01, it shall fix a date for redemption and shall deliver, or at the Company’s request the Trustee shall deliver in the name and
at the expense of the Company, a notice of such redemption at least thirty and not more than sixty days prior to the date fixed for redemption to the Holders of such Securities so to be redeemed as a whole or in part at their last addresses as the
same appear on the registry books. Such mailing shall be by prepaid first class or, if applicable, electronically. The
14
notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice or
any defect in the notice to the Holder of any such Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other such Security.
Each such notice of redemption shall specify the date fixed for redemption, the redemption price at which such Securities are to be redeemed,
the place of payment, that payment will be made upon presentation and surrender of such Securities, that interest accrued to, but excluding, the date fixed for redemption will be paid as specified in said notice, and that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all of a series are to be redeemed the notice of redemption shall specify the numbers of the Securities to be redeemed. In case any Security is to be
redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed
portion thereof will be issued of the same series.
Prior to the redemption date specified in the notice of redemption given as provided
in this Section, the Company will deposit in trust with the Trustee or with one or more paying agents an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all of a series are to be redeemed, it will give the Trustee adequate notice in advance as to the aggregate principal amount of Securities to
be redeemed.
If less than all of a series are to be redeemed, the numbers of the Securities to be redeemed in whole or in part shall be
selected, pro rata or by lot or in such other manner as is in accordance with the procedures of the Depository or, if no Depositary’s procedures are applicable to such 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 such series or any integral multiple thereof) of the principal amount of Securities of such series in a denomination
larger than the minimum authorized denomination for Securities of such series. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
Section 3.03.
Payment of Securities Called for Redemption
. If notice of redemption
has been given as above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said date (unless the Company shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities
or portions of Securities so called for redemption shall cease to accrue. On presentation and surrender of such Securities subject to redemption at said place of payment in said notice specified,
15
the said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest payment date, the interest payable on such date shall be paid to the registered holder at the close of business on the applicable record date subject to the provisions of Section 2.03).
At the option of the Company payment may be made by check to the Holders of the Securities or other persons entitled thereto against presentation and surrender of such Securities.
Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Security so presented of the same series.
The Trustee shall have no duty to perform any calculations under this Article 3.
ARTICLE 4
C
OVENANTS
OF
THE
C
OMPANY
Section 4.01.
Payment of Principal, Premium and Interest
. The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on each of the Securities at the place, at the respective times and in the manner provided in the terms of the Securities and in this Indenture.
Section 4.02.
Offices for Notices and Payments, etc
. As long as any of the Securities remain outstanding, the Company will
designate and maintain, in the Borough of Manhattan, The City of New York, an office or agency where the Securities may be presented for registration of transfer and for exchange as in this Indenture provided, an office or agency where notices and
demands to or upon the Company in respect of the Securities or of this Indenture may be served, and an office or agency where the Securities may be presented for payment. The Company will give to the Trustee notice of the location of each such
office or agency and of any change in the location thereof. In case the Company shall fail to maintain any such office or agency in the Borough of Manhattan, The City of New York, or shall fail to give such notice of the location or of any change in
the location thereof, presentations may be made and notices and demands may be served at the Corporate Trust Office of the Trustee.
The
Company hereby initially designates the office of The Bank of New York Mellon located at 101 Barclay Street, Floor 7W, New York, New York 10286, as the office of the Company in the Borough of Manhattan, The City of New York, where the Securities may
be presented for payment, for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company in respect of the Securities or of this Indenture may be served.
16
Section 4.03.
Provisions as to Paying Agent
.
(a) Whenever the Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
(i) that it will hold sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on
the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series entitled thereto and will notify
the Trustee of the receipt of sums to be so held, and
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to make any payment of the principal of (or premium, if any) or interest on the Securities of such series when the same shall be due and payable.
(b) If the Company shall act as its own paying agent, it will, on or before each due date of the principal of (and premium, if any) or
interest on the Securities of any series set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming
due. The Company will promptly notify the Trustee of any failure to take such action.
(c) Anything in this Section to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held
in trust for such series by it or any paying agent hereunder as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 13.03 and 13.04.
(e) The Trustee is hereby appointed as the initial Paying Agent.
Section 4.04.
Certificate to Trustee
. On or before March 15, 2016, and on or before March 15 in each year thereafter,
the Company will deliver to the Trustee an Officers’ Certificate, stating that in the course of the performance by the signers of their duties as officers of the Company they would normally obtain knowledge of any default by the Company in the
performance of any covenant or agreement contained in Section 11.01, stating whether or not they have obtained knowledge of any such default, and if so, specifying each such default of which the signers have knowledge and the nature thereof.
The Company shall deliver to the Trustee, as soon as possible and in any event within five days after the Company becomes aware of the
occurrence of an Event of
17
Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default and the
action which the Company proposes to take with respect thereto.
ARTICLE 5
S
ECURITYHOLDER
L
ISTS
AND
R
EPORTS
BY
THE
C
OMPANY
AND
THE
T
RUSTEE
Section 5.01.
Securityholder Lists
. The
Company covenants and agrees that it will furnish or cause to be furnished to the Trustee at such times as the Trustee may request in writing, within thirty days after receipt by the Company of any such request, a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders of Securities of particular series specified by the Trustee as of a date not more than fifteen days prior to the time such information is furnished;
provided, however
, that if
and so long as the Trustee shall be the Security Registrar, such list shall not be required to be furnished.
Section 5.02.
Preservation and Disclosure of Lists
.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(b) In case three or more Holders
of Securities (hereinafter referred to as “
applicants
”) apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months
preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of a particular series (in which case the applicants must hold Securities of such series) or with Holders
of all Securities with respect to their rights under this Indenture or under such Securities and it is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its election, either:
(i) afford to such applicants access to the
information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of Holders of Securities of such series on all Securities, as the case
may be, whose names and addresses appear in the information preserved at the time by the Trustee, in accordance with the provisions of subsection (a) of this Section, and as to the approximate cost of mailing to such securityholders the form of
proxy or other communication, if any, specified in such application.
18
If the Trustee shall elect not to afford to such applicants access to such information, the
Trustee shall, upon the written request of such applicants, deliver to each securityholder of such series or all Securities, as the case may be, whose name and address appear in the information preserved at the time by the Trustee in accordance with
the provisions of subsection (a) of this Section a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be delivered and of payment, or
provision for the payment, of the reasonable expenses of mailing, if applicable, unless within five days after such tender, the Trustee shall deliver to such applicants a written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Securities of such series or all Securities, as the case may be, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If said
Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and opportunity for hearing that all the objections so sustained have been met, and shall enter an order so declaring, the Trustee shall deliver copies of such material to all such securityholders
with reasonable promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor any agent of the Company or of the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of
Securities in accordance with the provisions of subsection (b) of this Section, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a
request made under said subsection (b).
Section 5.03.
Reports by the Company
. The Company covenants:
(a) to file with the Trustee within fifteen days after the Company is required to file the same with the Securities and Exchange 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 said Commission may from time to time by rules and regulations prescribe) which the Company may be required to
file with said 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 such sections, then to file with
the Trustee and said Commission, in accordance with the rules and regulations prescribed from time to time by said 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;
19
(b) to file with the Trustee and the Securities and Exchange Commission, in accordance with the
rules and regulations prescribed from time to time by said Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required
from time to time by such rules and regulations; and
(c) to furnish to the Holders of Securities of each series and to prospective
investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act of 1933, as amended, for so long as any of the Securities remain outstanding during any period when it is not subject to the
reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, or otherwise permitted to furnish the Securities and Exchange Commission with certain information pursuant to Rule 12g3-2(b) of the Securities Exchange Act of
1934.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such 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 5.04.
Reports by the Trustee
.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313 (a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the date of the initial
issuance of Securities under this Indenture deliver to holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
ARTICLE 6
R
EMEDIES
ON
D
EFAULT
Section 6.01.
Events of Default
. In case one or more of the following Events of
Default shall have occurred and be continuing, that is to say:
(a) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(b) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect,
or shall consent to
20
the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or for any substantial part of its property, or shall make any general assignment for the benefit of creditors;
then either the Trustee or the Holders of not less than twenty-five percent in aggregate principal amount of all of the Securities then outstanding hereunder
(voting as one class), by notice in writing to the Company (and to the Trustee if given by securityholders) may declare the principal amount of all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be
specified in the terms of such Securities) affected thereby to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such
series contained to the contrary notwithstanding. The foregoing provisions, however, are subject to the condition that if, at any time after the principal of all the Securities shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities and
the principal of (and premium, if any, on) all the Securities (or, with respect to Original Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities), which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified in the
Securities (or, with respect to Original Issue Discount Securities at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption or acceleration of such series, as the case may be), to the
date of such payment or deposit), and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee
except as caused by its own negligence or willful misconduct, and any and all defaults under the Indenture, other than the non-payment of the principal of the Securities shall have been remedied, then and in every such case the Holders of a majority
in aggregate principal amount of all of the Securities then outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect to all Securities, treated as a single class and rescind and annul such declaration and
its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and the Holders, as the case may be, shall be restored
respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Holders, as the case may be, shall continue as though no such proceedings had been taken.
21
Section 6.02.
Payment of Securities on Default; Suit Therefor
.
“
default
,” wherever used herein, means any one of the following events (whatever the reason for such default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body) with respect to any series of Securities under this Indenture:
(a) default in the payment of the principal of (or premium, if any, on) any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of
interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of thirty days; or
(c) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the
Securities or in this Indenture contained for a period of thirty days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least twenty-five percent in aggregate principal amount of the Securities at the time outstanding.
The
Company covenants that (1) in case default shall be made in the payment of any installment of interest on any of the Securities of any series, as and when the same shall become due and payable, and such default shall have continued for a period
of thirty days, or (2) in case default shall be made in the payment of the principal of (or premium, if any, on) any of the Securities of any series, as and when the same shall have become due and payable, whether upon maturity of such series
or upon redemption or upon declaration or otherwise—then upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and
payable on all such Securities of such series for principal (and premium, if any) or interest, or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments of interest at the same rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms
of such Securities for interest on overdue principal thereof upon maturity, redemption or acceleration), and, in addition thereto, such further amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as caused by its own negligence or willful misconduct.
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 proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to
22
judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon such Securities and collect in the manner provided by law out of the property
of the Company or other obligor upon such Securities wherever situated the money adjudged or decreed to be payable.
In case there shall
be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor upon Securities of any series under Title 11 of the United States Code or any other applicable law, or in case a receiver or trustee shall have
been appointed for the property of the Company or such other obligor, or in case of any other judicial proceedings relative to the Company or such other obligor, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and interest (and premium, if any) (or, with respect to Original Issue Discount
Securities, such portion of the principal amount as may be specified in the terms of that series) owing and unpaid in respect of the Securities of such series, and to file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee except as caused
by its own negligence or willful misconduct) and of the securityholders of such series allowed in any such judicial proceedings relative to the Company or other obligor upon the Securities of such series, or to the creditors or property of the
Company or such other obligor, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the securityholders of such series and of the
Trustee on their behalf; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the securityholders of such series to make payments to the Trustee and, in the event that the Trustee shall consent to the
making of payments directly to the securityholders of such series, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as caused by its own negligence or willful misconduct.
All rights of action and of
asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof on any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities.
In case of a default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture,
subject to the limitations herein, by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise,
23
whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 6.03.
Application of Moneys Collected by
Trustee
. Any moneys collected by the Trustee pursuant to Section 6.02 shall be applied in the order following, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any)
or interest, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses applicable to such series of collection, reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as caused by its negligence or willful misconduct;
SECOND: In case the principal of the Securities in respect of which moneys have been collected shall not have become due, 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 same
rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity,
redemption or acceleration), such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities in respect of which moneys have been collected 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 upon 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 same rate as the rate of interest specified in the Securities of such series (or, with respect to Original Issue Discount Securities, at the rate specified in
the terms of such Securities for interest on overdue principal thereof upon maturity, redemption or acceleration); and in case such moneys shall be insufficient to pay in full the whole amount 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; and
FOURTH: To the Company or as a court of competent jurisdiction shall direct in writing.
Section 6.04.
Proceedings by Securityholders
. No Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to
24
institute any action or proceedings at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than twenty-five percent in aggregate
principal amount of all the Securities at the time outstanding (voting as one class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee
indemnity reasonably satisfactory to it as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty days after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue or by availing himself of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities. For the protection and enforcement of the provisions of this Section, each and every securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security to receive payment of
the principal of (and premium, if any) and interest on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
The Holders of each series of Securities shall vote as a separate class from the
Holders of the other Securities with respect to any defaults or remedies relating thereto as a result of any covenants, obligations or provisions affecting only the Securities of such series and no other series of Securities.
Section 6.05.
Remedies Cumulative and Continuing
. All powers and remedies given by this Article 6 to the Trustee or to the
securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any default occurring and
continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article 6 or by
law to the Trustee or to the securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the securityholders.
25
Section 6.06.
Direction of Proceedings
. The Holders of a majority in aggregate
principal amount of the Securities of any or all series affected (voting as one class) at the time outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee;
provided, however
, that (subject to the provisions of Section 7.01) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action or proceedings so directed may not lawfully be taken or if the Trustee in good faith by a committee of Responsible Officers shall determine that the action or proceedings so directed may involve the Trustee in personal
liability.
Section 6.07.
Notice of Defaults
. The Trustee shall, within ninety days after the occurrence of a
default with respect to any series, give to the securityholders of such series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term “
default
” or “
defaults
” for the purposes of this Section being hereby defined to be any event or events, as the case may be, specified in
clauses (a) and (b) of Section 6.01 and clauses (a), (b) and (c) of Section 6.02, not including periods of grace, if any, provided for therein and irrespective of the giving of the notice specified in clause (c) of Section 6.02);
provided
that, except in the case of default in the payment of the principal of (or premium, if any) or interest on any of the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as a committee
of Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the securityholders of such series.
Section 6.08.
Undertaking to Pay Costs
. All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and reasonable and documented
expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any securityholder of any series, or group of such securityholders, holding in the aggregate more than ten percent in principal amount of the Securities of such series outstanding (or, in the case of any suit relating to or
arising under clause (a) or (b) of Section 6.01, ten percent in aggregate principal amount of all Securities (voting as one class)), or to any suit instituted by any securityholder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the due date expressed in such Security.
26
ARTICLE 7
C
ONCERNING
THE
T
RUSTEE
Section 7.01.
Duties and Responsibilities of Trustee
. The Trustee, prior to the occurrence of an Event of Default of a
particular series and after the curing of all Events of Default of such series which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect
to a particular series has occurred (which has not been cured), 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 its exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(a)
prior to the occurrence of an Event of Default with respect to a particular series and after the curing of all Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to such series shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations 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 the part of the Trustee, the 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 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) 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 bad faith; except that:
(i) the preceding subsection shall not be construed to limit the effect of subsection (a); and
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers, unless
it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
27
(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 Securities pursuant to Section 6.06 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; and
(iv) no provision of this Indenture shall be
construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(c) Whether or not herein expressly 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 7.01.
Section 7.02.
Reliance on Documents,
Opinions, etc
. Subject to the provisions of Section 7.01:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an instrument signed in the name of the Company by the President or any Executive Vice President or any Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary (unless other
evidence in respect thereof be herein specifically prescribed); and Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any Opinion of Counsel or advice of such counsel shall be full and complete
authorization and protection in aspect of any action taken or suffered by it hereunder in good faith and in accordance with such Opinion of Counsel or advice of such counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the securityholders, pursuant to the provisions of this Indenture, unless such securityholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) 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,
28
request, direction, consent, order, bond, debenture, note 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 sole cost of the Company
and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(f) 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;
(g) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith
and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(h) 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;
(i) in no event shall the Trustee be
responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether 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 deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture;
(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; and
(l) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture.
Section 7.03.
No Responsibility for Recitals, etc
. The
recitals contained herein and in the Securities, other than the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Securities,
provided
that the Trustee shall not be
29
relieved of its duty to authenticate Securities only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds
thereof.
Section 7.04.
Ownership of Securities
. The Trustee, the Security Registrar or any agent of the Company or of
the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, or an agent of the Company or of the Trustee.
Section 7.05.
Moneys to be Held in Trust
. Subject to the provisions of Section 13.04 hereof, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. Neither the Trustee nor
any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company to pay thereon. So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time as agreed between the Company and the Trustee.
Section 7.06.
Compensation and Expenses of Trustee
. The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation, and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as caused by its own
negligence or willful misconduct. If any property other than cash shall at any time be subject to the lien of this Indenture, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such Lien, shall be entitled to make advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon. The Company also covenants to
indemnify the Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or
administration of this Indenture, including the costs and expenses of defending itself against any claim (whether asserted by the Company, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its
powers or duties hereunder or in connection with enforcing the provisions of this Section. The obligations of the Company under this Section to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities. The provisions of this Section 7.06 shall survive termination of this Indenture and the resignation or removal of the Trustee.
30
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 7.07.
Officers’ Certificate as Evidence
. Subject to the provisions of Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or offering any action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08.
Conflicting Interest of Trustee
. If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 7.09.
Eligibility of Trustee
. 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 or of any State or Territory thereof or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, and (b) is subject to
supervision or examination by Federal, State, Territorial or District of Columbia authority and (c) shall have at all times a combined capital and surplus of not less than fifty million dollars. If such corporation publishes reports of
condition at least annually, pursuant to law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be
its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 7.10.
Section 7.10.
Resignation or Removal of Trustee
.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series by giving
written notice of resignation to the Company and by delivering notice thereof to all Holders of Securities of the applicable series as the names and addresses of such Holders appear on the registry books. Upon receiving such notice of resignation
the Company shall promptly appoint a successor trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor
31
trustee. If no successor trustee shall have been so appointed and have accepted appointment within thirty days after the delivery of such notice of resignation to the securityholders, the
resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor trustee, or any securityholder who has been a bona fide Holder of a Security or Securities of the applicable series
for at least six months may, subject to the provisions of Section 6.08, on behalf of himself and all others similarly situated petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur—
(i) the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 with respect to any series of
Securities after written request therefor by the Company or by any securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months, or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of
Securities and shall fail to resign after written request therefor by the Company or by any such securityholder, or
(iii)
the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a 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, the Company
may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed by order of the Board of Directors of the Company, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or subject to the provisions of Section 6.08, any securityholder of such series who has been a bona fide Holder of a Security or Securities of the
applicable series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Securities of all series (voting as one class) at the time outstanding may
at any time remove the Trustee with respect to Securities of all series and appoint a successor trustee with respect to the Securities of all series.
(d) If no successor trustee shall have been so appointed and have accepted appointment within sixty days after the removal of the Trustee
pursuant to the terms
32
hereof, the outgoing Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor trustee, or any securityholder who has been a bona
fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 6.08, on behalf of himself and all others similarly situated petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(e) Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
Section 7.11.
Acceptance by Successor Trustee
. Any successor trustee appointed as provided in Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein, but, nevertheless, on the written request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument provided to it transferring to such successor trustee all the rights and powers of the trustee so ceasing to
act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm to such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 7.06.
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 predecessor Trustee upon payment of its charges hereunder and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the 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.
No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.
33
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company
shall mail notice of the succession of such trustee hereunder to all Holders of Securities of any applicable series as the names and addresses of such Holders shall appear on the registry books. If the Company fails to deliver such notice in the
prescribed manner within ten days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be so mailed at the expense of the Company.
Section 7.12.
Successor by Merger, etc
. Any corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 7.13.
Limitation on Rights of
Trustee as a Creditor
. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act of 1939 regarding the collection of
claims against the Company (or any such other obligor).
ARTICLE 8
C
ONCERNING
THE
S
ECURITYHOLDERS
Section 8.01.
Action by Securityholders
. Whenever in this Indenture it is provided that the Holders of a specified
percentage in aggregate principal amount of the Securities of any or all series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the
time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of the Holders of Securities voting in favor thereof at any meeting of securityholders duly called and held in accordance with the provisions of Article 9 or (c) by a combination of such
instrument or instruments and any such record of such meeting of securityholders.
In determining whether the Holders of a
specified percentage in aggregate principal amount of the Securities have taken any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any over action) the principal amount of any
Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable upon an
Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking of such action is evidenced to the Trustee.
34
Section 8.02.
Proof of Execution by Securityholders
. Subject to the provisions
of Sections 7.01, 7.02 and 9.05, proof of the execution of any instrument by a securityholder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee.
The ownership of Securities shall be proved by the registry books or by a
certificate of the Security Registrar. The record of any securityholders’ meeting shall be proved in the manner provided in Section 9.06.
Section 8.03.
Who Are Deemed Absolute Owners
. The Company, the Trustee and any agent of the Company or of the Trustee may
deem the person in whose name such Security shall be registered upon the books of the Company to be, and may treat him as, the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon), for the purpose of receiving payment of or on account of the principal of (and premium, if any) and interest on such Security and for all other purposes and neither the Company nor the Trustee nor any agent of
the Company or of the Trustee shall be affected by any notice to the contrary. All such payments so made to any Holder for the time being, or upon his order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests and each of them may act or refrain from acting without liability on any information relating to such records provided by the Depositary.
Section 8.04.
Company-Owned Securities Disregarded
. In determining whether the Holders of the required aggregate principal
amount of Securities have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Company or any other obligor on the Securities, or by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on the Securities, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver only Securities which a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any such other obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
35
Section 8.05.
Revocation of Consents; Future Securityholders Bound
. At any
time prior to the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action, any Holder of a Security the identifying number of which is shown by
the evidence to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its office and upon proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Security issued in exchange or
substitution therefor irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities.
ARTICLE 9
S
ECURITYHOLDERS
’ M
EETINGS
Section 9.01.
Purposes of Meetings
. A meeting of securityholders of any or all series may be called at any time and from
time to time pursuant to the provisions of this Article for any of the following purposes:
(i) to give any notice
to the Company or to the Trustee, or to give any directions to the Trustee, or to waive any default hereunder and its consequences, or to take any other action authorized to be taken by securityholders pursuant to any of the provisions of Article 6;
(ii) to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article 7;
(iii) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of
Section 10.02; or
(iv) to take any other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Securities of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
Section 9.02.
Call of Meetings by Trustee
. The Trustee may at any time call a meeting of securityholders of any or all
series to take any action specified in Section 9.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting of the securityholders of any or all series,
setting forth the time and place of such meeting and in general terms the action proposed to be taken at such meeting, shall be delivered at the expense of the Company to all Holders of Securities of the applicable series as the names and addresses
of such Holders appear on the registry books not less than twenty nor more than one hundred and eighty days prior to the date fixed for the meeting.
36
Section 9.03.
Call of Meetings by Company or Securityholders
. In case at any
time the Company, pursuant to a Board Resolution, or the Holders of at least ten percent in aggregate principal amount of the Securities of any or all series, as the case may be, then outstanding, shall have requested the Trustee to call a meeting
of securityholders of any or all series to take any action authorized in Section 9.01, by written request setting in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have delivered the notice of such
meeting within thirty days after receipt of such request, then the Company or the Holders of such Securities in the amount above specified may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting
by mailing notice thereof as provided in Section 9.02.
Section 9.04.
Qualification for Voting
. To be entitled
to vote at any meeting of securityholders a person shall be a Holder of one or more Securities of a series with respect to which a meeting is being held or a person appointed by an instrument in writing as proxy by such a Holder. The only persons
who shall be entitled to be present or so speak at any meeting of the securityholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 9.05.
Regulations
. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the
Company or by securityholders as provided in Section 9.03, in which case the Company or the securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Sections 8.02 and 8.04, at any meeting each securityholder or proxy shall be entitled to one vote for each
$1,000 principal amount of Securities held or represented by him;
provided, however
, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote except as a securityholder or proxy. Any meeting of securityholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the
meeting may be held as so adjourned without further notice.
Section 9.06.
Voting
. The vote upon any resolution
submitted to any meeting of securityholders shall be by written ballot on which shall be subscribed the signatures of the securityholders or proxies and on which shall be inscribed the identifying number or
37
numbers or to which shall be attached a list of identifying numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall be signed and verified by the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE 10
S
UPPLEMENTAL
I
NDENTURES
Section 10.01.
Supplemental Indentures without Consent of Securityholders
. The Company, when authorized by Board
Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company, or successive
successions, and the assumption by any successor corporation of the covenants, agreements and obligations of the Company pursuant to Article 11 hereof;
(b) to add to the covenants such further covenants, restrictions, conditions or provisions as the Board of Directors and the Trustee shall
consider to be for the protection of the Holders of Securities;
(c) to provide for the issuance under this Indenture of Securities,
whether or not then outstanding, in coupon form (including Securities registrable as to principal only) and to provide for exchangeability of such Securities with Securities issued hereunder in fully registered form and to make all appropriate
changes for such purpose;
(d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; to convey, transfer, assign, mortgage or pledge any property to or with the Trustee; or to make such other provisions in
regard to matters or questions arising under this Indenture as shall not be inconsistent with any provision of this Indenture,
provided
that such other provisions shall not adversely affect the interests of the Holders of Securities;
38
(e) to evidence and provide for the acceptance and appointment hereunder by a successor trustee
with respect to the Securities of one or more series and to add or change any 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 Section
7.11; and
(f) to establish the form or forms or terms of Securities of any series as permitted by Section 2.03.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which
adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 10.02.
Section 10.02.
Supplemental Indentures with Consent of Securityholders
. With the consent (evidenced as provided in
Section 8.01) of the Holders of not less than 66 2/3% in aggregate principal amount of the Securities of all series at the time outstanding affected by such supplemental indenture (voting as one class), the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such
series;
provided, however
, that no such supplemental indenture shall (i) extend the fixed maturity of any Securities, or reduce the principal amount thereof or premium, if any, or reduce the rate or extend the time of payment of interest
thereon, without the consent of the Holder of each Security so affected, (ii) reduce the aforesaid percentage of Securities, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders
of all Securities then outstanding or (iii) make any change to the provisions of Article 16 of this Indenture that would adversely affect the Holders without the consent of the Holder of each Security so affected.
Upon the request of the Company, accompanied by a copy of a Board Resolution certified by the Secretary or an Assistant Secretary of the
Company authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of securityholders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.
39
It shall not be necessary for the consent of the securityholders under this section to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the
Company shall deliver a notice, setting forth in general terms the substance of such supplemental indenture, to all Holders of Securities of each series so affected. Any failure of the Company so to deliver such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 10.03.
Compliance with
Trust Indenture Act; Effect of Supplemental Indentures
. Any supplemental indenture executed pursuant to the provisions of this Article 10 shall comply with the Trust Indenture Act of 1939, as then in effect. Upon the exemption of any
supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes unless otherwise specified by such supplemental indenture.
Section 10.04.
Notation on Securities
. Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 10 may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. New Securities of any series so modified as to conform, in the
opinion of the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the securityholders,
in exchange for the Securities of such series then outstanding.
Section 10.05.
Opinion of Counsel and
Officers’ Certificate to be given to Trustee
. The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be given an Opinion of Counsel and an Officers’ Certificate as conclusive evidence that any supplemental indenture
complies with the provisions of this Article 10 and all conditions precedent have been met.
Section 10.06.
Subordination Unimpaired
. No supplemental indenture entered into under this Article 10 shall modify, directly or indirectly, the provisions of Article 15 or the definition of Senior Indebtedness in Section 1.01 in any manner that might alter
or impair the subordination of the Securities with respect to Senior Indebtedness then outstanding unless each holder of such Senior Indebtedness has consented thereto in writing.
40
ARTICLE 11
C
ONSOLIDATION
, M
ERGER
, S
ALE
OR
C
ONVEYANCE
Section 11.01.
Company May Consolidate, etc., on Certain Terms
. The Company covenants that it will not merge or consolidate
with any other corporation or sell or convey all or substantially all of its assets to any Person, firm or corporation, unless (i) either the Company shall be the continuing corporation, or the successor corporation (if other than the Company)
shall be a corporation organized and existing under the laws of the United States of America or a state thereof and such corporation shall expressly assume the due and punctual payment of the principal of (and premium, if any) and interest on all
the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation, and (ii) the Company or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any
such covenant or condition.
Section 11.02.
Securities to be Secured in Certain Events
. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of
the first part. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of Ally Financial Inc., any or all of the Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee, and upon the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall
deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or
conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
Section 11.03.
Opinion of Counsel to be given Trustee
. The Trustee, subject to the provisions of Sections 7.01 and 7.02,
shall be given an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale or conveyance, and any such assumption, complies with the provisions of this Article 11.
41
ARTICLE 12
D
EFEASANCE
AND
C
OVENANT
D
EFEASANCE
Section 12.01.
Applicability of Article
. If, pursuant to Section 2.01, provision is made for the defeasance of Securities
of a series and if the Securities of such series are Registered Securities, then the provisions of this Article 12 shall be applicable except as otherwise specified pursuant to Section 2.01 for Securities of such series.
Section 12.02.
Defeasance Upon Deposit of Moneys or U.S. Government Obligations
.
(a) Defeasance of amounts owed under the Securities shall be subject to the Company obtaining the prior approval of the Federal Reserve and
any additional requirements that the Federal Reserve may impose with respect to defeasance of the Securities. Notwithstanding the foregoing, if, due to a change in law, regulation or policy subsequent to the date of this Indenture, the Federal
Reserve does not require that defeasance of instruments be subject to Federal Reserve approval in order for such instruments to be accorded Tier 2 Capital treatment, then no such approval of the Federal Reserve will be required for defeasance of
amounts owed under the Securities.
(b) Subject to the preceding subsection (a), at the Company’s option, either
(x) the Company shall be deemed to have been Discharged (as defined below) from its obligations with respect to Securities of any series on
the 91st day after the applicable conditions set forth below have been satisfied; or
(y) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in Section 11.01 and Section 5.03 with respect to Securities of any series (and, if so specified pursuant to Section 2.01, any other restrictive covenant added for the benefit
of such series pursuant to Section 2.01), and any omission to comply with such term, provision or condition shall not constitute a Default or an Event of Default under the Indenture with respect to such series of Securities,
in each case, at any time after the applicable conditions set forth below have been satisfied:
(1) Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (i) money in an amount, or (ii) U.S. Government Obligations (as defined below) that through the payment of interest and principal
in respect thereof in accordance with their terms will provide, not later than one Business Day before the due date of any payment,
42
money in an amount or (iii) a combination of (i) and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and (premium, if any) and interest on, the outstanding Securities of such series on the dates such installments
of interest or principal and premium are due;
(2) if the Securities of such series are then listed on any “national
securities exchange” as such term is defined in the Securities Exchange Act of 1934, as amended, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Company’s exercise of its option under this
Section would not cause such Securities to be delisted;
(3) no Default or event (including such deposit) that, with
notice or lapse of time, or both, would become a Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such
series will not recognize income, gain or loss for Federal income tax purposes as a result of the Company’s exercise of its option under this Section and will be subject to Federal income tax on the same amounts and in the same manner and at
the same times as would have been the case if such option had not been exercised and accompanied by a ruling to that effect received from or published by the Internal Revenue Service; and
(5) the Company shall have delivered to the Trustee (A) an Officer’s Certificate and an Opinion of Counsel, each
stating that (i) all conditions precedent to the defeasance under the Indenture, including Section 12.02 have been complied with and (ii) the proposed defeasance is authorized and permitted under this Indenture and any applicable
supplemental indenture, and (B) an Opinion of Counsel to the effect that either (i) as a result of a deposit pursuant to subsection (1) above and the related exercise of the Company’s option under this Section 12.02, registration
is not required under the Investment Company Act of 1940, as amended, by the Company with respect to the trust funds representing such deposit or by the Trustee for such trust funds or (ii) all necessary registrations under the Investment
Company Act of 1940, as amended, have been effected.
43
Notwithstanding any other provisions of this Section 12.02, such defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations, which may be imposed on the Company in connection therewith pursuant to Section 2.01.
“
Discharged
” means that the Company shall be deemed to have paid and discharged the entire indebtedness represented
by, and obligations under, the Securities of such series and to have satisfied all the obligations under this Indenture relating to the Securities of such series (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except (A) the rights of Holders of Securities of such series to receive, from the trust fund described in clause (1) above, payment of the principal of (and premium, if any) and interest on such Securities when
such payments are due, (B) the Company’s obligations with respect to the Securities of such series under Section 2.07, Section 2.08 and Section 2.09 and (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder.
“
U.S. Government Obligations
” means securities that are (i) direct obligations of
the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States, that, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder
of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
Section 12.03.
Deposited Moneys and U.S. Government Obligations to be Held in Trust
. All moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 12.02(b) in respect of Securities of a series shall be held in trust and applied by it, in accordance with the provisions of such 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 Holders of such Securities, of all sums due and to become due thereon for principal (and premium, if any) and interest,
if any, but such money need not be segregated from other funds except to the extent required by law.
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 this Section 12.03 or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of such outstanding Securities.
44
Section 12.04.
Repayment to Company
. The Trustee and any Paying Agent shall
promptly pay or return to the Company upon Company request any moneys or U.S. Government Obligations held by them at any time which, in the opinion of a nationally recognized firm of independent public accountants as set forth in a written
certification thereof delivered to the Trustee, are in excess of the amount which would then be required to be deposited to effect a defeasance in accordance with this Article 12.
Section 12.05.
Subordination Provisions Inapplicable
. Notwithstanding anything contained herein by the contrary, any money
that shall have been deposited by the Company with the Trustee pursuant to this Article 12 shall not be subject to the provisions of Article 15 of this Indenture respecting subordination of the Securities.
ARTICLE 13
S
ATISFACTION
AND
D
ISCHARGE
OF
I
NDENTURE
; U
NCLAIMED
M
ONEYS
Section 13.01.
Discharge of Indenture
. If at any time (a) the Company shall have delivered
to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.07),
or (b) all such Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount (other than moneys repaid by the Trustee or any
paying agent to the Company in accordance with Section 13.04) sufficient to pay at maturity or upon redemption all Securities of such series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for redemption, as the case may be, and if in either case the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to such
series, then this Indenture shall cease to be of further effect with respect to the Securities of such series, and the Trustee, on demand of and at the cost and expense of the Company, and upon receipt of an Officers’ Certificate and Opinion of
Counsel confirming the conditions precedent have been met, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to the Securities of such series. The Company agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred by the Trustee in connection with this indenture or the Securities of such series.
Section 13.02.
Deposited Moneys to be held in Trust by Trustee
. All moneys deposited with the Trustee pursuant to
Section 13.01 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption
of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest (and premium, if any).
45
Section 13.03.
Paying Agent to Repay Moneys Held
. In connection with the
satisfaction and discharge of this Indenture with respect to securities of any series all moneys with respect to such Securities then held by any paying agent under the provisions of this Indenture shall, upon demand of the Company, be repaid to it
or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.
Section 13.04.
Return of Unclaimed Moneys
. Any moneys deposited with or paid to the Trustee or any paying agent for the
payment of the principal of (and premium, if any) or interest on any Security and not applied but remaining unclaimed for three years after the date upon which such principal (and premium, if any) or interest shall have become due and payable, shall
at the written direction of the Company received by a Responsible Officer of the Trustee be repaid to the Company by the Trustee or such paying agent on demand, and the Holder of such Security shall thereafter look only to the Company for any
payment which such Holder may be entitled to collect and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
ARTICLE 14
I
MMUNITY
OF
I
NCORPORATORS
, S
TOCKHOLDERS
, O
FFICERS
AND
D
IRECTORS
Section 14.01.
Indenture and Securities Solely Corporate Obligations
. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, or against any past, present or future stockholder, officer or
director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
ARTICLE 15
S
UBORDINATION
OF
S
ECURITIES
Section 15.01.
Agreement to Subordinate
. The Company, for itself, its successors and assigns, covenants and agrees, and
each Holder of a Security likewise covenants and agrees by his or her acceptance thereof, that the obligation of the Company to make any payment on account of the principal of (and premium, if any) and interest on each and all of the Securities
shall be subordinate and junior in right of payment to the Company’s obligations to the holders of Senior Indebtedness.
In
the case of any bankruptcy, insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshaling of assets and liabilities or similar proceedings or any liquidation or dissolution or winding-up of or relating to the Company as
a whole, whether voluntary or involuntary, all obligations of the Company to the Trustee pursuant to Section 7.06 and to holders of Senior Indebtedness shall be entitled to be paid in full before any payment, whether in cash, property or otherwise,
shall be made
46
on any account of the principal of, premium, if any, or interest on the Securities of any series. In the event of any such proceeding, after payment in full of all sums owing with respect to
Senior Indebtedness, the Holders, together with the holders of Indebtedness Ranking on a Parity with the Securities, shall be entitled ratably to be paid from the remaining assets of the Company the amounts at the time due and owing on account of
unpaid principal of, premium, if any, and interest, if any, on the Securities before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any Indebtedness Ranking Junior to the Securities or any
capital stock. In addition, in the event of any such proceeding, if any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all
Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), including any such payment or distribution that may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated to the payment of the Securities, shall be received by the Trustee or the Holders before all Senior Indebtedness is paid in full, such payment or distribution shall be held (in
trust if received by such Holders) for the benefit of and shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.
The Holders of Securities and the Trustee, in
respect of any claims of such Holders to payment of any principal, premium or interest in respect of any Securities, by their acceptance thereof, will be deemed to have irrevocably waived any rights they may have to counterclaim, set off or recoup
amounts they owe to the Company or its Affiliates (each, an “
Obligee
”) against, or otherwise reduce such amounts by, amounts owed to such Holders or (subject to Section 7.06) the Trustee by the Company under the Indenture or to
institute proceedings to give effect to or otherwise enforce any such rights. To the extent that any such counterclaim, setoff or recoupment takes place, whether by operation of law or otherwise, the Holder benefiting from such counterclaim, setoff
or recoupment shall immediately transfer an amount equal to such counterclaim, setoff or recoupment to the Obligee or, in the event of the Obligee’s winding up or administration (as the case may be), to the liquidator or the administrator (or
other relevant insolvency official) of the Obligee.
The Company shall give prompt written notice to the Trustee of any insolvency,
bankruptcy, receivership, conservatorship, reorganization, readjustment of debt, marshaling of assets and liabilities or similar proceedings or any liquidation, dissolution or winding-up or relating to the Company as a whole, whether voluntary or
involuntary, or of any default with respect to any Senior Indebtedness that would prevent the Trustee from making any payment in respect of the Securities under this Section. The Trustee,
47
subject to the provisions of Section 7.01, shall be entitled to assume that, and may act as if, no such event has occurred unless a Responsible Officer of the Trustee assigned to the Corporate
Trust Office has received at the Corporate Trust Office of the Trustee from the Company or any one or more holders of Senior Indebtedness or any trustee therefor (who shall have been certified or otherwise established to the satisfaction of the
Trustee to be such a holder or trustee) written notice thereof. Upon any distribution of assets of the Company referred to in this Article 15, the Trustee and Holders shall be entitled to rely conclusively upon a certificate of the liquidating
trustee or agent, or any order or decree entered by a court of competent jurisdiction, or other Person making any distribution to the Trustee or to the Holders for the purpose of ascertaining the Persons entitled to participate in such distribution,
the holders of the Senior Indebtedness, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article, and the Trustee, subject to the provisions of Article 6, and
the Holders of the Securities shall be entitled to rely upon a certificate of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders of the Securities for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent to this Article 15. In the
absence of any such liquidating trustee, agent or other Person, the Trustee, subject to Section 7.01, shall be entitled to rely conclusively upon a written notice by a Person representing himself or herself to be a holder of Senior Indebtedness (or
a trustee or representative on behalf of such holder) as evidence that such Person is a holder of such Senior Indebtedness (or is such a trustee or representative). In the event that the Trustee determines, in its discretion, that further evidence
is required with respect to the right of any Person, as a holder of Senior Indebtedness, to participate in any payment or distribution pursuant to this Section 15.01, 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, as to the extent to which such Person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such
Person under this Section 15.01, 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 15.02.
Obligation of the Company Unconditional and Payment Permitted if no Default
. Subject to the provisions of
this Article 15 and the terms of the Securities, nothing contained in this Article 15 or elsewhere in this Indenture is intended to or shall impair, as between the Company and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to such Holders the principal of (and premium, if any) and interest on the Securities when, where and as the same shall become due and payable, all in accordance with the terms of the Securities, or is intended to or shall
affect the relative rights of such Holders and creditors of the Company other than the holders of Senior Indebtedness, 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 this Indenture, subject to the rights, if any, under this Article 15 of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any
such remedy.
48
Section 15.03.
Limitations on Duties to Holders of Senior Indebtedness
. In the
event and during the continuation of any default in the payment of principal of, premium, if any, or interest on any Senior Indebtedness beyond any applicable grace period, or in the event that any event of default with respect to any Senior
Indebtedness shall have occurred and be continuing, or would occur as a result of the payment referred to hereinafter, permitting the holders of such Senior Indebtedness (or a trustee on behalf of the holders thereof) to accelerate the maturity
thereof, then, unless and until such default or event of default shall have been cured or waived or shall have ceased to exist, no payment of principal of, premium, if any, or interest on the Securities, or in respect of any redemption, exchange,
retirement, purchase or other acquisition of any of the Securities, shall be made by the Company.
Section 15.04.
Notice to Trustee of Facts Prohibiting Payments
. Notwithstanding any of the provisions of this Article 15 or any other provision of this Indenture, the Trustee shall not at any time be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of funds to or by the Trustee unless and until a Responsible Officer of the Trustee assigned to its Corporate Trust Division shall have received at the Corporate Trust Office written notice thereof from the
Company or from one or more holders of Senior Indebtedness or from any trustee therefor who shall have been certified by the Company or otherwise established to the reasonable satisfaction of the Trustee to be such a holder or trustee; and, prior to
the receipt of such written notice, the Trustee, subject to the provisions of Section 7.01, shall be entitled in all respects to assume that no such facts exist;
provided
that if prior to the fifth business day preceding the date upon which
by the terms hereof any such funds may become payable, or if prior to the third business day preceding the date of the execution of instruments pursuant to Article 12 acknowledging satisfaction and discharge of this Indenture, the Trustee shall not
have received with respect to such funds the notice provided for in this Section 15.04, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and/or apply the
same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it on or after such date; provided no such application shall affect the obligations under this Article 15 of the
Persons receiving such moneys from the Trustee.
Section 15.05.
Application by Trustee of Moneys Deposited With
It
. Anything in this Indenture to the contrary notwithstanding, any deposit of a sum by the Company with the Trustee or any agent (whether or not in trust) for any payment of the principal of (and premium, if any) or interest on any Securities
shall, except as provided in Section 15.04, is subject to the provisions of Section 15.01.
Section 15.06.
Subrogation
. Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or distributions of assets of the Company
applicable to such Senior Indebtedness until the Securities shall be paid in full, and none of the payments or distributions to the holders of such Senior Indebtedness to which the Holders of the Securities or the Trustee would be entitled except
for the provisions of this Article 15 or of payments over, pursuant to the provisions of this Article 15, to the holders of such Senior Indebtedness by the Holders of such Securities
49
or the Trustee shall, as among the Company, its creditors other than the holders of such Senior Indebtedness, and the Holders of such Securities, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness; it being understood that the provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of such Securities, on one hand, and the holders of the Senior
Indebtedness, on the other hand.
Section 15.07.
Subordination Rights Not Impaired by Acts or Omissions of Company or
Holders of Senior Indebtedness
. No right of any present or future holders of any Senior Indebtedness 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 or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof with which any such holder may
have or be otherwise charged. The holders of Senior Indebtedness may, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment, change or extend the time of payment of, or renew or alter, any
such Senior Indebtedness, or amend or supplement any instrument pursuant to which any such Senior Indebtedness is issued or by which it may be secured, or release any security therefor, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without limitation, the waiver of default thereunder, all without notice to or assent from the Holders or the Trustee and without affecting the obligations of the Company, the Trustee or the Holders
under this Article 15.
Section 15.08.
Authorization of Trustee to Effectuate Subordination of Securities
. Each
Holder of a Security, by his or her acceptance thereof, authorizes and expressly directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to effectuate, as between the Holders and the holders of Senior
Indebtedness, the subordination provided in this Article 15. If, in the event of any proceeding or other action relating to the Company referred to in the second paragraph of Section 15.01, a proper claim or proof of debt in the form
required in such proceeding or action is not filed by or on behalf of the Holders prior to fifteen days before the expiration of the time to file such claim or claims, then the holder or holders of Senior Indebtedness shall have the right to file
and are hereby authorized to file an appropriate claim for and on behalf of the Holders.
Section 15.09.
Right of
Trustee to Hold Senior Indebtedness
. The Trustee shall be entitled to all of the rights set forth in this Article 15 in respect of any Senior Indebtedness at any time held by it in its individual capacity to the same extent as any other holder
of such Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder.
Section 15.10. Article 15
Not to Prevent Defaults (Including Events of Default)
. The failure to make a payment pursuant to
the terms of the Securities by reason of any provision in this Article 15 shall not be construed as preventing the occurrence of a Default (including an Event of Default, if any).
50
Section 15.11.
Trustee’s Rights to Compensation, Reimbursement of Expenses
and Indemnification
. The Trustee’s rights to compensation, reimbursement of expenses and indemnification under Section 7.06 are not subordinated to the payment of Senior Indebtedness.
Section 15.12.
Article Applicable to Paying Agents
. The term “Trustee” as used in this Article 15 shall (unless
the context shall otherwise require) be construed as extending to and including each Paying Agent, Authenticating Agent and Security Registrar appointed by the Company or the Trustee, as the case may be, and acting hereunder within its meaning as
fully for all intents and purposes as if such Paying Agent or Security Registrar were named in this Article 15 in addition to the Trustee;
provided
that Section 15.04 and Section 15.09 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent or Security Registrar.
Section 15.13.
Trustee Not
Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article and no implied covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
ARTICLE 16
M
ISCELLANEOUS
P
ROVISIONS
Section 16.01.
Benefits of Indenture Restricted to Parties and Securityholders
. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 16.02.
Provisions Binding on Company’s Successors
. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 16.03.
Addresses for Notices, Electronic Instructions, etc
. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Company may be given or served by being deposited postage prepaid first class mail in a post office letter box addressed (until another
address is filed by the Company with the Trustee), as follows: Ally Financial Inc., 200 Renaissance Center, Detroit, Michigan 48265. Any notice,
51
direction, request or demand by any securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if received in writing at the Corporate Trust
Office of the Trustee.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by
unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods;
provided, however
, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions
and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee e-mail or
facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not
be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written
instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and
the risk or interception and misuse by third parties.
Section 16.04.
Evidence of Compliance with Conditions
Precedent
. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of
any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 16.05.
Legal Holidays
. In any case where the date of maturity of interest on or principal of the Securities or the date
fixed for redemption of any Securities shall be a Saturday or Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized by law or required by
52
executive order to close, then payment of interest or principal (and premium, if any) need not be made on such date but may be made on the next succeeding business day with the same force and
effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
Section 16.06.
Trust Indenture Act to Control
. If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 318(a), inclusive, of the Trust Indenture Act of 1939, such required provision shall control.
Section 16.07.
Execution in Counterparts
. This Indenture may be executed in any number of counterparts, each of which shall
be an original; but such counterparts shall together constitute but one and the same instrument.
Section 16.08.
New
York Contract
. This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State without giving
effect to its choice of law provisions.
Each of the Holders, the Company and Trustee hereby consent to the jurisdiction of a state
or federal court situated in New York City, New York in connection with any dispute arising hereunder. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the
laying of venue of any such proceeding brought in such a court and any claim that such proceeding brought in such a court has been brought in an inconvenient forum.
Section 16.09.
Securities in a Foreign Currency
. Unless otherwise specified in an Officer’s Certificate delivered pursuant to
Section 2.03 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series at
the time outstanding and, at such time, there are outstanding Securities of any series which are denominated in a coin or currency other than United States dollars, then the principal amount of Securities of such series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of United States dollars that could be obtained for such amount at the Market Exchange Rate. For purposes of this Section 16.09, Market Exchange Rate shall mean the noon United
States dollar buying rate for that currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York;
provided
,
however
, in the case of ECUs, Market Exchange Rate shall mean
the rate of exchange determined by the Commission of the European Communities (or any successor thereto) as published in the Official Journal of the European Communities (such publication or any successor publication, the
“
Journal
”). If such Market Exchange Rate is not available for any reason with respect to such currency, the Company or an agent of the Company appointed for such purposes (other than the Trustee) shall use, in its sole discretion
and without liability on its part, such quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as published in the
53
Journal, as of the most recent available data, or quotations or, in the case of ECUs, rates of exchange from one or more major banks in New York City or in the country of issue of the currency in
question, which for purposes of the ECU shall be Brussels, Belgium, or such other quotations or, in the case of ECUs, rates of exchange as the Company or an agent of the Company appointed for such purposes (other than the Trustee) shall deem
appropriate. The provisions of this paragraph shall apply in determining the equivalent number of votes which each securityholder or proxy shall be entitled to pursuant to Section 9.05 in respect of Securities of a series denominated in a currency
other than United States dollars.
The Trustee shall have no duty to perform any calculations under this Section 16.09.
Section 16.10.
Judgment Currency
. The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert any sum due in respect of the principal of, premium, if any, or interest on the Securities of any series (the “
Required
Currency
”) into United States dollars, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency on the New York Banking Day
preceding that on which final judgment is given and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt
shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “
New York
Banking Day
” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized by law or required by executive order to close.
Section 16.11.
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 16.12.
Severability 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 implied thereby.
Section 16.13.
Waiver of Jury Trial
. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
54
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 16.14.
Force Majeure
. In no event shall the Trustee be responsible or liable for any failure or delay in the performance
of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its 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 utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with
accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 16.15.
FATCA
. The Company hereby agrees (i) upon request, to provide to the Trustee information that is (A) within the Company’s possession or (B) directly available to the Company about the parties and/or Securities that is
reasonably necessary for such entity to determine whether it has tax related obligations under Sections 1471-1474 of the U. S. Internal Revenue Code of 1986, as amended, and Treasury regulations promulgated thereunder (“
Applicable
Law
”); and (ii) that the Trustee shall be entitled to make any withholding or deductions from payments under the Indenture (and shall not be required to pay any additional amounts with respect to any such withholding or deduction on or
in respect of the Securities) to the extent necessary to comply with Applicable Law.
55
IN WITNESS WHEREOF, Ally Financial Inc. and The Bank of New York Mellon have caused this
Indenture to be 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/ Barbara Taylor
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Name:
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Barbara Taylor
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Title:
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Assistant Secretary
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THE BANK OF NEW YORK MELLON,
as
Trustee
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By:
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/s/ Francine Kincaid
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Name:
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Francine Kincaid
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Title:
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Vice President
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A-1
EXHIBIT A
A-1
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a
New York corporation (“
DTC
”), to Ally financial Inc. or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
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No. [—]
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CUSIP: [—]
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ISIN: [—]
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[—]% Subordinated Note Due 20[—]
ALLY FINANCIAL INC.
promises to pay to
Cede& Co. or registered assigns,
the principal sum of on.
Interest Payment Dates: [—] (or, if any such day is not a Business Day, the next succeeding Business Day)
Record Dates: [—].
Dated: [—], 20[—]
[ADDITIONAL PROVISIONS OF THIS NOTE ARE SET FORTH ON THE
REVERSE SIDE OF THIS NOTE]
A-2
WITNESS THE SEAL OF THE COMPANY AND THE SIGNATURES OF ITS DULY AUTHORIZED OFFICERS.
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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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Name:
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Title:
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Dated: [—], 20[—]
A-3
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
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THIS IS ONE OF THE SECURITIES OF THE SERIES DESIGNATED THEREIN REFERRED TO 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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Name:
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Title:
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Authorized Signatory
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Dated: [—], 20[—]
A-4
[REVERSE SIDE OF NOTE]
[—]% Subordinated Note due 20[—]
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
Ally Financial Inc., a Delaware corporation (hereinafter called the “
Company
”, which term includes any successor under the
Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [—]($[—]) at the office or agency of the Company for such purpose in the Borough of
Manhattan, The City of New York, on [—], in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest on said principal sum at the rate
of [—]% per annum at the office or agency of the Company in the Borough of Manhattan, The City of New York, in like coin or currency on [—]and [—] (each, an “
Interest Payment Date
”) of each year, beginning on
[—]. Such interest will accrue from and including [—] or the most recent Interest Payment Date (whether or not such Interest Payment Date was a Business Day (as defined below)) for which interest had been paid or duly provided for to but
excluding the relevant Interest Payment Date. The first payment to be made on [—] is in respect of the period from and including [—] to but excluding [—]. The interest so payable on any Interest Payment Date will, subject to certain
exceptions provided in the Indenture referred to below, be paid to the person in whose name this [—]% Subordinated Note (as defined below) is registered at the close of business on the calendar day immediately preceding such Interest Payment
Date. At the option of the Company, interest may be paid by check to the registered holder hereof entitled thereto at his last address as it appears on the registry books, and principal may be paid by check to the registered holder hereof or other
person entitled thereto against surrender of this [—]% Subordinated Note.
If an Interest Payment Date falls on a day that is not a
Business Day, the interest payment will be postponed to the next succeeding Business Day, with the same force and effect as if made on the date such payment was due, and no interest will accrue as a result of such delay. “
Business
Day
” is any day which is not a Saturday or Sunday or a day on which banking institutions in New York, New York are authorized or obligated by law or executive order to close.
This [—]% Subordinated Note is not a savings or a deposit account or other obligation of any bank and is not insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental agency.
This [—]% Subordinated Note is one of a duly authorized
issue of subordinated debentures, notes, bonds or other evidences of indebtedness of the Company (hereinafter called the “
Securities
”) of the series hereinafter specified, all issued or to be issued under and pursuant to an
indenture dated as [—] (as may be supplemented from time to time, herein called the “
Indenture
”), duly executed and delivered by the Company to The
A-5
Bank of New York Mellon (herein called the “
Trustee
”, which term includes any successor trustee under the Indenture), to which the Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. The terms of this [—]% Subordinated Note
include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Securities are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement
of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this [—]% Subordinated Note and the terms of the Indenture, the terms of this [—]% Subordinated Note shall control. The
Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption
provisions (if any), and may otherwise vary as in the Indenture provided. This [—]% Subordinated Note is one of [—] global notes which together represent all of the Company’s [—]% Subordinated Notes Due [—] (the
“
[—]% Subordinated Notes
”, which term shall include any Additional Notes (as defined below)), limited in initial issuance to the aggregate principal amount of $[—]. The [—]% Subordinated Notes will bear interest,
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The [—]% Subordinated Notes are in registered
book-entry form without coupons in initial denominations of $2,000 and integral multiples of $1,000.
In case of an Event of Default, as
defined in the Indenture, with respect to the [—]% Subordinated Notes, shall have occurred and be continuing, the principal hereof 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. For the avoidance of doubt, the conditions to such a declaration upon the occurrence of an Event of Default described in the immediately preceding sentence shall be the same as the conditions for
such a declaration upon the occurrence of an Event of Default pursuant to clauses (a) and (b) of Section 6.01 of the Indenture. Holders of the [—]% Subordinated Notes shall vote as a separate class with respect to any defaults
(as defined in Section 6.02 of the Indenture) relating thereto as a result of any covenants, obligations, or provisions affecting only the [—]% Subordinated Notes.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than 66 2/3% in
aggregate principal amount of the Securities at the time outstanding (as defined in the Indenture) of all series to be affected by the execution of such supplemental indentures referred to in this sentence (voting as one class), evidenced as in the
Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of
the Securities of each such series;
provided
, that no such supplemental indenture shall (i) extend the fixed maturity of any Security, or reduce the principal amount thereof or premium, if any, or reduce the rate or extend the time of
payment of any interest thereon, without the consent of the Holder of each Security so affected, (ii)
A-6
reduce the aforesaid percentage of Securities, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of all Securities then
outstanding or (iii) make any change to the provisions of Article 16 of the Indenture that would adversely affect the Holders of the Securities without the consent of the Holder of each of the Securities so affected. Any such consent or waiver
by the Holder of this [—]% Subordinated Note shall be conclusive and binding upon such Holder and upon all future Holders of this [—]% Subordinated Note and of any [—]% Subordinated Note issued upon the registration of transfer hereof
or in lieu hereof, whether or not notation for such consent or waiver is made upon this [—]% Subordinated Note.
No reference herein
to the Indenture and no provision of this [—]% Subordinated Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest and Additional Interest, if any,
on this [—]% Subordinated Note at the place, at the respective times, at the rate, and in the coin or currency, herein prescribed.
The Company may from time to time, without notice to or the consent of the registered holders of the [—]% Subordinated Notes,
create and issue additional notes (the “
Additional Notes
”) ranking
pari passu
with the [—]% Subordinated Notes in all respects (or in all respects except for the payment of interest accruing prior to the
issue date of such Additional Notes or except for the first payment of interest following the issue date of such Additional Notes). Such Additional Notes may be consolidated and form a single series with the [—]% Subordinated Notes and have the
same terms as to status, redemption or otherwise as the [—]% Subordinated Notes,
provided
that if such Additional Notes of a series are not fungible with the [—]% Subordinated Notes for U.S. federal income tax
purposes, such Additional Notes will have a separate CUSIP number.
This [—]% Subordinated Note may not be redeemed prior to
maturity, except as set forth below.
The [—]% Subordinated Notes are subordinated and junior in right of payment to the
Company’s obligations under its Senior Indebtedness (as defined in the Indenture) on the terms and subject to the conditions set forth in the Indenture. To the extent provided in the Indenture, all obligations of the Company to holders of
Senior Indebtedness must be paid in full before any payment may be made to the Holders of the [—]% Subordinated Notes. The Company agrees, and each Holder by accepting an [—]% Subordinated Note agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give them effect. In the event of any inconsistency between the foregoing and the terms of the Indenture, the terms of Indenture shall control.
Upon due presentment for registration of transfer of this [—]% Subordinated Note at the office or agency designated and maintained by the
Company for such purpose in the Borough of Manhattan, The City of New York, pursuant to the provisions of the Indenture, a new [—]% Subordinated Note for an equal aggregate principal amount will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
A-7
The Company, the Trustee and any authorized agent of the Company or the Trustee may deem and
treat the Holder in whose name this [—]% Subordinated Note is registered upon the books of the Company to be, and may treat such Holder as, the absolute owner of this [—]% Subordinated Note (whether or not this [—]% Subordinated Note
shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof (and premium, if any) and interest hereon, and for all other purposes, and
neither the Company nor the Trustee nor any authorized agent of the Company or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement in the Indenture or any indenture supplemental thereto or in any Security, or
because of any indebtedness represented thereby, shall be had against any incorporator, or against any past, present or future stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the
Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by
the acceptance hereof and as part of the consideration for the issue hereof.
This [—]% Subordinated Note is governed by and
construed in accordance with the laws of the State of New York without giving effect to the choice of law provisions thereof.
This
[—]% Subordinated Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture.
A-8
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
Please print or typewrite name and address including postal zip code of assignee
the within [—]% Subordinated Note of Ally
Financial Inc. and hereby irrevocably constitutes and appoints
attorney to
transfer said [—]% Subordinated Note on the books of the within-named Company, with full power of substitution in the
premises.
Dated:
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Sign Here
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NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
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SIGNATURE GUARANTEED
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A-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $ . The following exchanges of
a part of this Global Note for an interest in another Global Note or for a Certificated Note, or exchanges of a part of another Global or Certificated Note for an interest in this Global Note, have been made:
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Date of Exchange
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Amount
of
decrease
in
Principal
Amount
of this
Global
Note
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Amount
of
Increase
in
Principal
Amount
of this
Global
Note
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Principal
Amount
of this
Global
Note
following
such
decrease
or
increase
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Signature
of
authorized
officer of
Trustee or
Custodian
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*
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This schedule should be included only if the Note is issued in global form.
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A-10
