Common use of Capital Payments Clause in Contracts

Capital Payments. (a) Capital Payments on the Trust Preferred Securities shall be due and payable to the extent Capital Payments on the Class B Preferred Securities have been declared and paid (or have been deemed declared, even if the deemed declared Capital Payments on the Class B Preferred Securities were not authorized to be paid due to a lack of Operating Profits at the Company). Holders of the Trust Preferred Securities shall be entitled to receive due and payable Capital Payments in cash on the Trust Preferred Securities held by them, on a non-cumulative basis, payable quarterly in arrears on each Payment Date. Capital Payments on the Trust Preferred Securities payable on each Payment Date shall accrue for the related Payment Period. (b) For each Payment Period, Capital Payments shall accrue on the Liquidation Preference Amount of each Trust Preferred Security at a fixed rate per annum equal to the Stated Rate, calculated on the basis of a 360-day year of twelve 30-day months. (c) If any Payment Date or redemption date falls on a day that is not a Business Day, the amounts payable on such Payment Date or redemption date will be paid on the next succeeding Business Day, without adjustment, interest or further payment as a result of such delay in payment. (d) Capital Payments and other distributions on the Trust Preferred Securities shall be paid out of, and amounts available to the Trust for such payments shall be limited to, amounts received by the Trust from the Company with respect to the Class B Preferred Securities pursuant to the provisions of the LLC Agreement and from the Guarantor pursuant to the Class B Preferred Guarantee or the Trust Preferred Guarantee (including payments by the Guarantor under the Trust Preferred Guarantee to fund Capital Payments on the Trust Preferred Securities in the event of non-payment of deemed declared Capital Payments on the Class B Preferred Securities due to a lack of Operating Profits at the Company). (e) Each Capital Payment shall be payable to the Holders of record as they appear on the Register on the corresponding record date. The record dates for the Trust Preferred Securities shall be (A) for Global Trust Preferred Certificates, the end of the Business Day immediately preceding the relevant Payment Date and (B) for Definitive Trust Preferred Certificates, the end of business of the 15th Business Day prior to the relevant Payment Date. (f) If and to the extent that the Company makes a distribution on the Class B Preferred Securities held by the Property Trustee or the Guarantor makes a payment under the Class B Preferred Guarantee (the amount of any such distribution or payment being a “Payment Amount”), the Holder of the Trust Common Security shall be entitled to receive a pro rata portion of such Payment Amount if, as and when funds are held by the Property Trustee in a Property Account; provided, however, upon the liquidation of the Trust and during the continuance of a default under the Initial Obligation or the Substitute Obligations or a failure by the Guarantor to perform any obligation under the Guarantees, holders of the Trust Preferred Securities will have a preference over the holder of the Trust Common Security with respect to payments of Capital Payments and other distributions and amounts upon redemption or liquidation of the Trust. (g) The payment of Capital Payments on the Trust Preferred Securities and any amount payable in liquidation or upon redemption thereof, shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed, levied or collected by or on behalf of the United States or Germany (or any jurisdiction from which payments are made) or, during any period in which any Substitute Obligations are outstanding, the jurisdiction of residence of any obligor on such Substitute Obligations (or any jurisdiction from which payments are made) (each, a “Relevant Jurisdiction”) or by or on behalf of any political subdivision or authority therein or thereof having the power to tax (collectively, “Withholding Taxes”), unless such deduction or withholding is required by law. In such event, the Trust will pay, as additional Capital Payments, such additional amounts (“Additional Amounts”) to the Holders of the Trust Preferred Securities as may be necessary in order that the net amounts received by the Holders of the Trust Preferred Securities after such deduction or withholding for or on account of Withholding Taxes shall equal the amounts that otherwise would have been received in respect of the Trust Preferred Securities had no such deduction or withholding been required; provided, however, that no such Additional Amounts shall be payable in respect of the Trust Preferred Securities: (i) if and to the extent that the Company is unable to pay corresponding amounts in respect of the Class B Preferred Securities because such payment would exceed the Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such Distributable Profits the aggregate amount of the Capital Payments on the Class B Preferred Securities to which such Additional Amounts relates and Capital Payments on the Class B Preferred Securities theretofore paid and capital payments or dividend or other distributions payable on Preferred Tier 1 Securities, if any, pro rata on the basis of such Distributable Profits); (ii) with respect to any Withholding Taxes that are payable by reason of a Holder or beneficial owner of the Trust Preferred Securities having some connection with any Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of the Trust Preferred Securities; (iii) with respect to any Withholding Taxes which are deducted or withheld pursuant to (A) European Council Directive 2003/48/EC or any other European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (B) any international treaty or understanding entered into for the purpose of facilitating cooperation in the reporting and collection of savings income and to which (x) the United States, and (y) the European Union or Germany is a party, or (C) any provision of law implementing, or complying with, or introduced to conform with, such Directive, Regulation, treaty or understanding; or (iv) to the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of the Trust Preferred Securities makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority; provided, however, that the exclusion set forth in this clause (iv) shall not apply if the certification, information documentation or other reporting requirement would be materially more onerous, in form (in form, procedure or substance of information required to be disclosed) to the Holder or beneficial owner of Trust Preferred Securities than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8 and W-9).

Capital Payments. (a) Capital Payments on the Trust Preferred Securities shall be due and payable to the extent Capital Payments on the Class B Preferred Securities have been declared and paid (or have been deemed declared, even if the deemed declared Capital Payments on the Class B Preferred Securities were not authorized to be paid due to a lack of Operating Profits at the Company). Holders of the Trust Preferred Securities shall be entitled to receive due and payable Capital Payments in cash on the Trust Preferred Securities held by them, on a non-cumulative basis, payable quarterly in arrears on each Payment Date. Capital Payments on the Trust Preferred Securities payable on each Payment Date shall accrue for the related Payment Period. (b) For each Payment Period, Capital Payments shall accrue on the Liquidation Preference Amount of each Trust Preferred Security at a fixed rate per annum equal to the Stated Rate, calculated on the basis of a 360-day year of twelve 30-day months. (c) If any Payment Date or redemption date falls on a day that is not a Business Day, the amounts payable on such Payment Date or redemption date will be paid on the next succeeding Business Day, without adjustment, interest or further payment as a result of such delay in payment. (d) Capital Payments and other distributions on the Trust Preferred Securities shall be paid out of, and amounts available to the Trust for such payments shall be limited to, amounts received by the Trust from the Company with respect to the Class B Preferred Securities pursuant to the provisions of the LLC Agreement and from the Guarantor pursuant to the Class B Preferred Guarantee or the Trust Preferred Guarantee (including payments by the Guarantor under the Trust Preferred Guarantee to fund Capital Payments on the Trust Preferred Securities in the event of non-payment of deemed declared Capital Payments on the Class B Preferred Securities due to a lack of Operating Profits at the Company). (e) Each Capital Payment shall be payable to the Holders of record as they appear on the Register on the corresponding record date. The record dates for the Trust Preferred Securities shall be (A) for Global Trust Preferred Certificates, the end of the Business Day immediately preceding the relevant Payment Date and (B) for Definitive Trust Preferred Certificates, the end of business of the 15th Business Day prior to the relevant Payment Date. (f) If and to the extent that the Company makes a distribution on the Class B Preferred Securities held by the Property Trustee or the Guarantor makes a payment under the Class B Preferred Guarantee (the amount of any such distribution or payment being a “Payment Amount”), the Holder of the Trust Common Security shall be entitled to receive a pro rata portion of such Payment Amount if, as and when funds are held by the Property Trustee in a Property Account; provided, however, upon the liquidation of the Trust and during the continuance of a default under the Initial Obligation or the Substitute Obligations or a failure by the Guarantor to perform any obligation under the Guarantees, holders of the Trust Preferred Securities will have a preference over the holder of the Trust Common Security with respect to payments of Capital Payments and other distributions and amounts upon redemption or liquidation of the Trust. (g) The payment of Capital Payments on the Trust Preferred Securities and any amount payable in liquidation or upon redemption thereof, shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed, levied or collected by or on behalf of the United States or Germany (or any jurisdiction from which payments are made) or, during any period in which any Substitute Obligations are outstanding, the jurisdiction of residence of any obligor on such Substitute Obligations (or any jurisdiction from which payments are made) (each, a “Relevant Jurisdiction”) or by or on behalf of any political subdivision or authority therein or thereof having the power to tax (collectively, “Withholding Taxes”), unless such deduction or withholding is required by law. In such event, the Trust will pay, as additional Capital Payments, such additional amounts (“Additional Amounts”) to the Holders of the Trust Preferred Securities as may be necessary in order that the net amounts received by the Holders of the Trust Preferred Securities after such deduction or withholding for or on account of Withholding Taxes shall equal the amounts that otherwise would have been received in respect of the Trust Preferred Securities had no such deduction or withholding been required; provided, however, that no such Additional Amounts shall be payable in respect of the Trust Preferred Securities: (i) if and to the extent that the Company is unable to pay corresponding amounts in respect of the Class B Preferred Securities because such payment would exceed the Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such Distributable Profits the aggregate amount of the Capital Payments on the Class B Preferred Securities to which such Additional Amounts relates and Capital Payments on the Class B Preferred Securities theretofore paid and capital payments or dividend or other distributions payable on Preferred Tier 1 I Securities, if any, pro rata on the basis of such Distributable Profits); (ii) with respect to any Withholding Taxes that are payable by reason of a Holder or beneficial owner of the Trust Preferred Securities having some connection with any Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of the Trust Preferred Securities; (iii) with respect to any Withholding Taxes which are deducted or withheld pursuant to (Ai) European Council Directive 2003/48/EC or any other European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (Bii) any international treaty or understanding entered into for the purpose of facilitating cooperation in the reporting and collection of savings income and to which (x) the United States, and (y) the European Union or Germany is a party, or (Ciii) any provision of law implementing, or complying with, or introduced to conform with, such Directive, Regulation, treaty or understanding; or (iv) to the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of the Trust Preferred Securities makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority; provided, however, that the exclusion set forth in this clause (iv) shall not apply if the certification, information documentation or other reporting requirement would be materially more onerous, in form (in form, procedure or substance of information required to be disclosed) to the Holder or beneficial owner of Trust Preferred Securities than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8 and W-9).

Capital Payments. (a) Capital Payments on the Trust Preferred Securities shall be due and payable to the extent Capital Payments on the Class B Preferred Securities have been declared and paid (or have been deemed declared, even if the deemed declared Capital Payments on the Class B Preferred Securities were not authorized to be paid due to a lack of Operating Profits at the Company)) and made by the Company and received by the Property Trustee as holder of the Class B Preferred Securities. Capital Payment on the Class B Preferred Securities will be made only when, as and if declared, or deemed declared, by the Company’s board of directors. Holders of the Trust Preferred Securities shall be entitled to receive due and payable Capital Payments in cash on the Trust Preferred Securities held by them, on a non-cumulative basis, payable quarterly in arrears on each Payment Date. Capital Payments on the Trust Preferred Securities payable on each Payment Date shall accrue for the related Payment Period. (b) For each Payment Period, Capital Payments shall accrue on the Liquidation Preference Amount of each the Trust Preferred Security at a fixed rate per annum equal to the Stated Rate, calculated on the basis of a 360-day year of twelve 30-day months. (c) If any Payment Date or redemption date Redemption Date falls on a day that is not a Business Day, the amounts payable on such Payment Date or redemption date Redemption Date will be paid on the next succeeding Business Day, without adjustment, interest or further payment as a result of such delay in payment. (d) Capital Payments and other distributions on the Trust Preferred Securities shall be paid out of, and amounts available to the Trust for such payments shall be limited to, amounts received by the Trust from the Company with respect to the Class B Preferred Securities pursuant to the provisions of the LLC Agreement and from the Guarantor pursuant to the Class B Preferred Guarantee or the Trust Preferred Guarantee (including payments by the Guarantor under the Trust Preferred Guarantee to fund Capital Payments on the Trust Preferred Securities in the event of non-payment of deemed declared Capital Payments on the Class B Preferred Securities due to a lack of Operating Profits at the Company). (e) Each Capital Payment shall be payable to the Holders of record as they appear on the Register on the corresponding record date. The record dates for the Trust Preferred Securities shall be (A) for Global Trust Preferred Certificates, the end of the Business Day immediately preceding the relevant Payment Date and (B) for Definitive Trust Preferred Certificates, the end of business of the 15th Business Day prior to the relevant Payment Date. (f) If and to the extent that the Company makes a distribution on the Class B Preferred Securities held by the Property Trustee or the Guarantor makes a payment under the Class B Preferred Guarantee (the amount of any such distribution or payment being a “Payment Amount”), the Holder of the Trust Common Security shall be entitled to receive a pro rata portion of such Payment Amount if, as and when funds are held by the Property Trustee in a Property Account; provided, however, upon the liquidation of the Trust and during the continuance of a default under the Initial Obligation or the Substitute Obligations or a failure by the Guarantor to perform any obligation under the Guarantees, holders of the Trust Preferred Securities will have a preference over the holder of the Trust Common Security with respect to payments of Capital Payments and other distributions and amounts upon redemption or liquidation of the Trust. (g) The payment of Capital Payments on the Trust Preferred Securities and any amount payable in liquidation or upon redemption thereof, shall be made without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed, levied or collected by or on behalf of the United States or Germany (or any jurisdiction from which payments are made) or, during any period in which any Substitute Obligations are outstanding, the jurisdiction of residence of any obligor on such Substitute Obligations (or any jurisdiction from which payments are made) (each, a “Relevant Jurisdiction”) or by or on behalf of any political subdivision or authority therein or thereof having the power to tax (collectively, “Withholding Taxes”), unless such deduction or withholding is required by law. In such event, the Trust will pay, as additional Capital Payments, such additional amounts (“Additional Amounts”) to the Holders of the Trust Preferred Securities as may be necessary in order that the net amounts received by the Holders of the Trust Preferred Securities after such deduction or withholding for or on account of Withholding Taxes shall equal the amounts that otherwise would have been received in respect of the Trust Preferred Securities had no such deduction or withholding been required; provided, however, that no such Additional Amounts shall be payable in respect of the Trust Preferred Securities: (i) if and to the extent that the Company is unable to pay corresponding amounts in respect of the Class B Preferred Securities because such payment would exceed the of insufficient Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such Distributable Profits the aggregate amount of the Capital Payments on the Class B Preferred Securities to which such Additional Amounts relates and Capital Payments on the Class B Preferred Securities theretofore paid and any capital payments or dividend dividends or other distributions payable on Preferred Tier 1 Securities, if any, pro rata any already paid on the basis of such Distributable ProfitsProfits on or prior to the date on which such Additional Amounts would otherwise be payable); (ii) with respect to any Withholding Taxes that are payable by reason of a Holder or beneficial owner of the Trust Preferred Securities having some connection with any Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of the Trust Preferred Securities; (iii) with respect to any Withholding Taxes which are deducted or withheld pursuant to (A) European Council Directive 2003/48/EC or any other European Union Directive or Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (B) any international treaty or understanding entered into for the purpose of facilitating cooperation in the reporting and collection of savings income and to which (x) the United States, and (y) the European Union or Germany is a partyare parties, or (C) any provision of law implementing, or complying with, or introduced to conform with, such Directive, Regulation, treaty or understanding; or (iv) to the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of the Trust Preferred Securities makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority; provided, however, that the exclusion set forth in this clause (iv) shall not apply if the certification, information information, documentation or other reporting requirement would be materially more onerous, in form onerous (in form, procedure or substance of information required to be disclosed) to the Holder or beneficial owner of Trust Preferred Securities than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8 and W-9).