Attached files
file | filename |
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8-K - CURRENT REPORT - CITIGROUP INC | v177577_8k.htm |
EX-1.1 - UNDERWRITING AGREEMENT - CITIGROUP INC | v177577_ex1-1.htm |
EX-99.1 - OPINION REGARDING CERTAIN TAX MATTERS - CITIGROUP INC | v177577_ex99-1.htm |
Exhibit
4.1
AMENDED
AND RESTATED DECLARATION
OF
TRUST
CITIGROUP
CAPITAL XII
Dated as
of March 17, 2010
TABLE OF
CONTENTS
ARTICLE
I INTERPRETATION AND DEFINITIONS
|
|
SECTION
1.1 Definitions.
|
1
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ARTICLE
II TRUST INDENTURE ACT
|
|
SECTION
2.1 Trust Indenture Act; Application.
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7
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SECTION
2.2 Lists of Holders of Securities.
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8
|
SECTION
2.3 Reports by the Institutional Trustee.
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8
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SECTION
2.4 Periodic Reports to Institutional Trustee.
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8
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SECTION
2.5 Evidence of Compliance with Conditions Precedent.
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8
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SECTION
2.6 Defaults; Waiver.
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9
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SECTION
2.7 Default; Notice.
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10
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ARTICLE
III ORGANIZATION
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SECTION
3.1 Name.
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11
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SECTION
3.2 Office.
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11
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SECTION
3.3 Purpose.
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11
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SECTION
3.4 Authority.
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11
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SECTION
3.5 Title to Property of the Trust.
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12
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SECTION
3.6 Powers and Duties of the Regular Trustees.
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12
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SECTION
3.7 Prohibition of Actions by the Trust and the Trustees.
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14
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SECTION
3.8 Powers and Duties of the Institutional Trustee.
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15
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SECTION
3.9 Certain Duties and Responsibilities of the Institutional
Trustee.
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17
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SECTION
3.10 Certain Rights of Institutional Trustee.
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18
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SECTION
3.11 Delaware Trustee.
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21
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SECTION
3.12 Execution of Documents.
|
21
|
SECTION
3.13 Not Responsible for Recitals or Issuance of
Securities.
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21
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SECTION
3.14 Duration of Trust.
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21
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SECTION
3.15 Mergers.
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21
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ARTICLE
IV SPONSOR
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|
SECTION
4.1 Sponsor's Purchase of Common Securities.
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23
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SECTION
4.2 Responsibilities of the Sponsor.
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23
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i
ARTICLE
V TRUSTEES
|
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SECTION
5.1 Number of Trustees.
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24
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SECTION
5.2 Delaware Trustee.
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24
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SECTION
5.3 Institutional Trustee; Eligibility.
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24
|
SECTION
5.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
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25
|
SECTION
5.5 Initial Trustees; Additional Powers of Regular
Trustees.
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25
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SECTION
5.6 Appointment, Removal and Resignation of Trustees.
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26
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SECTION
5.7 Vacancies among Trustees.
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28
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SECTION
5.8 Effect of Vacancies.
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28
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SECTION
5.9 Meetings.
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28
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SECTION
5.10 Delegation of Power.
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29
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SECTION
5.11 Merger, Conversion, Consolidation or Succession to
Business.
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29
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ARTICLE
VI DISTRIBUTIONS
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SECTION
6.1 Distributions.
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29
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ARTICLE
VII ISSUANCE OF SECURITIES
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SECTION
7.1 General Provisions Regarding Securities.
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30
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ARTICLE
VIII TERMINATION OF TRUST
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SECTION
8.1 Termination of Trust.
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31
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ARTICLE
IX TRANSFER OF INTERESTS
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SECTION
9.1 Transfer of Securities.
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32
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SECTION
9.2 Transfer of Certificates.
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33
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SECTION
9.3 Deemed Security Holders.
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33
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SECTION
9.4 Book Entry Interests.
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33
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SECTION
9.5 Notices to Clearing Agency.
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34
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SECTION
9.6 Appointment of Successor Clearing Agency.
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34
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SECTION
9.7 Definitive Capital Security Certificates.
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34
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SECTION
9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
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35
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ARTICLE
X LIMITATION OF LIABILITY OF HOLDERS
OF SECURITIES,
TRUSTEES
OR OTHERS
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SECTION
10.1 Liability.
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35
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SECTION
10.2 Exculpation.
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36
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SECTION
10.3 Fiduciary Duty.
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36
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SECTION
10.4 Indemnification.
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37
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SECTION
10.5 Outside Businesses.
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40
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ii
ARTICLE
XI ACCOUNTING
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SECTION
11.1 Fiscal Year.
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40
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SECTION
11.2 Certain Accounting Matters.
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40
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SECTION
11.3 Banking.
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41
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SECTION
11.4 Withholding.
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41
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ARTICLE
XII AMENDMENTS AND MEETINGS
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SECTION
12.1 Amendments.
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41
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SECTION
12.2 Meetings of the Holders of Securities; Action by Written
Consent.
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43
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ARTICLE
XIII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND
DELAWARE
TRUSTEE
|
|
SECTION
13.1 Representations and Warranties of Institutional
Trustee.
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44
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SECTION
13.2 Representations and Warranties of Delaware Trustee.
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45
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ARTICLE
XIV MISCELLANEOUS
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SECTION
14.1 Notices.
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46
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SECTION
14.2 Governing Law.
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47
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SECTION
14.3 Intention of the Parties.
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47
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SECTION
14.4 Headings.
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47
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SECTION
14.5 Successors and Assigns.
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47
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SECTION
14.6 Partial Enforceability.
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47
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SECTION
14.7 Counterparts
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47
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ANNEX
I
|
TERMS
OF SECURITIES
|
I-1
|
EXHIBIT
A-1
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FORM
OF CAPITAL SECURITY CERTIFICATE
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A1-1
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EXHIBIT
A-2
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FORM
OF COMMON SECURITY CERTIFICATE
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A2-1
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EXHIBIT
B
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SPECIMEN
OF DEBENTURE
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B-1
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EXHIBIT
C
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UNDERWRITING
AGREEMENT
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C-1
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iii
CROSS-REFERENCE
TABLE*
Section
of
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||
Trust
Indenture Act
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||
of 1939, as amended
|
Section of Declaration
|
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310(a)
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5.3(a)
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310(c)
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Inapplicable
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311(c)
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Inapplicable
|
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312(a)
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2.2(a)
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312(b)
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2.2(b)
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313
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2.3
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314(a)
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2.4
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314(b)
|
Inapplicable
|
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314(c)
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2.5
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314(d)
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Inapplicable
|
|
314(f)
|
Inapplicable
|
|
315(a)
|
3.9(b)
|
|
315(c)
|
3.9(a)
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315(d)
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3.9(a)
|
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316(a)
|
Annex
I
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316(c)
|
3.6(e)
|
*
|
This
Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or
provisions.
|
iv
AMENDED
AND RESTATED
DECLARATION
OF TRUST
OF
CITIGROUP
CAPITAL XII
March
17, 2010
AMENDED
AND RESTATED DECLARATION OF TRUST ("Declaration") dated and effective as of
March 17, 2010, by the Trustees (as defined herein), the Sponsor (as defined
herein) and by the holders, from time to time, of undivided beneficial interests
in the assets of the Trust to be issued pursuant to this
Declaration;
WHEREAS,
the Trustees and the Sponsor established Citigroup Capital XII (the "Trust"), a
trust under the Statutory Trust Act (as defined herein) pursuant to a
Declaration of Trust dated as of December 7, 1998 (the "Original Declaration")
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on December 7, 1998, for the sole purpose of issuing and selling
certain securities representing undivided beneficial interests in the assets of
the Trust and investing the proceeds thereof in certain Debentures of the
Debenture Issuer;
WHEREAS,
as of the date hereof, no interests in the Trust have been issued;
WHEREAS,
all of the Trustees and the Sponsor, by this Declaration, amend and restate each
and every term and provision of the Original Declaration.
NOW,
THEREFORE, it being the intention of the parties hereto to continue the Trust as
a statutory trust under the Statutory Trust Act and that this Declaration
constitute the governing instrument of such statutory trust, the Trustees
declare that all assets contributed to the Trust will be held in trust for the
benefit of the holders, from time to time, of the securities representing
undivided beneficial interests in the assets of the Trust issued hereunder,
subject to the provisions of this Declaration.
ARTICLE
I
INTERPRETATION
AND DEFINITIONS
SECTION
1.1 Definitions.
Unless
the context otherwise requires:
(a) Capitalized
terms used in this Declaration but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) a
term defined anywhere in this Declaration has the same meaning
throughout;
(c) all
references to "the Declaration" or "this Declaration" are to this Declaration as
modified, supplemented or amended from time to time;
(d) all
references in this Declaration to Articles and Sections and Annexes and Exhibits
are to Articles and Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified;
(e) a
term defined in the Trust Indenture Act has the same meaning when used in this
Declaration unless otherwise defined in this Declaration or unless the context
otherwise requires; and
(f)
a reference to the singular includes the plural and vice
versa.
"Affiliate" has the
same meaning as given to that term in Rule 405 of the Securities Act or any
successor rule thereunder.
"Authorized Officer"
of a Person means any Person that is authorized to bind such
Person.
"Book Entry Interest"
means a beneficial interest in a Global Certificate, ownership and transfers of
which shall be maintained and made through book entries by a Clearing Agency as
described in Section 9.4.
"Business Day" means
any day other than a Saturday, Sunday or a day on which banking institutions in
the City of New York, New York are permitted or required by any applicable law
to close.
"Capital Securities
Guarantee" means the guarantee agreement dated as of March 17, 2010, of
the Sponsor in respect of the Capital Securities.
"Capital Security" has
the meaning specified in Section 7.1.
"Capital Security Beneficial
Owner" means, with respect to a Book Entry Interest, a Person who is the
beneficial owner of such Book Entry Interest, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing
Agency).
"Capital Security
Certificate" means a certificate representing a Capital Security
substantially in the form of Exhibit A-1.
"Certificate" means a
Common Security Certificate or a Capital Security Certificate.
"Citigroup" means
Citigroup Inc., a Delaware corporation.
2
"Clearing Agency"
means an organization registered as a "Clearing Agency" pursuant to Section 17A
of the Exchange Act that is acting as depositary for the Capital Securities and
in whose name or in the name of a nominee of that organization shall be
registered a Global Certificate and which shall undertake to effect book entry
transfers and pledges of the Capital Securities.
"Clearing Agency
Participant" means a broker, dealer, bank, other financial institution or
other Person for whom from time to time the Clearing Agency effects book entry
transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means
March 17, 2010.
"Code" means the
Internal Revenue Code of 1986, as amended from time to time, or any successor
legislation.
"Commission" means the
Securities and Exchange Commission.
"Common Security" has
the meaning specified in Section 7.1.
"Common Security
Certificate" means a definitive certificate in fully registered form
representing a Common Security substantially in the form of Exhibit
A-2.
"Company Indemnified
Person" means (a) any Regular Trustee; (b) any Affiliate of any Regular
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Regular Trustee; or (d) any officer,
employee or agent of the Trust or its Affiliates.
"Corporate Trust
Office" means the office of the Institutional Trustee at which the
corporate trust business of the Institutional Trustee shall, at any particular
time, be principally administered, which office at the date of execution of this
Declaration is located at 101 Barclay Street-8W, New York, New York
10286.
"Covered Person"
means: (a) any officer, director, shareholder, partner, member, representative,
employee or agent of (i) the Trust or (ii) the Trust's Affiliates; and (b) any
Holder of Securities.
"Debenture Issuer"
means Citigroup Inc. (or the Sponsor) in its capacity as issuer of the
Debentures under the Indenture.
"Debenture Trustee"
means The Bank of New York Mellon, as trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such successor
trustee.
"Debentures" means the
series of Debentures to be issued by the Debenture Issuer under the Indenture to
be held by the Institutional Trustee, a specimen certificate for such series of
Debentures being Exhibit B.
"Default" in respect
of the Securities means a Default (as defined in the Indenture) has occurred and
is continuing in respect of the Debentures.
3
"Definitive Capital Security
Certificates" has the meaning set forth in Section 9.4.
"Delaware Trustee" has
the meaning set forth in Section 5.2.
"Distribution" has the
meaning set forth in Section 6.1.
"DTC" means the
Depository Trust Company, the initial Clearing Agency.
"Exchange" has the
meaning set forth in Section 6.2(a).
"Exchange Act" means
the Securities Exchange Act of 1934, as amended from time to time, or any
successor legislation.
"Fiduciary Indemnified
Person" has the meaning set forth in Section 10.4(b).
"Global Certificate"
has the meaning set forth in Section 9.4.
"Holder" means a
Person in whose name a Certificate representing a Security is registered, such
Person being a beneficial owner within the meaning of the Statutory Trust
Act.
"Indemnified Person"
means a Company Indemnified Person or a Fiduciary Indemnified
Person.
"Indenture" means the
Indenture, dated as of July 23, 2004 (as supplemented from time to time),
between the Debenture Issuer and the Debenture Trustee, pursuant to which the
Debentures are to be issued.
"Institutional
Trustee" means the Trustee meeting the eligibility requirements set forth
in Section 5.3.
"Institutional Trustee
Account" has the meaning set forth in Section 3.8(c).
"Investment Company"
means an investment company as defined in the Investment Company
Act.
"Investment Company
Act" means the Investment Company Act of 1940, as amended from time to
time, or any successor legislation.
"Investment Company
Event" has the meaning set forth in Annex I hereto.
"Legal Action" has the
meaning set forth in Section 3.6(g).
"Majority in liquidation
amount of the Securities" means, except as provided in the terms of the
Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities voting together as a single class or, as the context may require,
Holders of outstanding Capital Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of an
aggregate liquidation amount representing more than 50% of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid Distributions
to the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
4
"Officers'
Certificate" means, with respect to any Person, a certificate signed by
two Authorized Officers of such Person; provided that only one Authorized
Officer of the Trust is required to sign on behalf of the Trust any Officers’
Certificate delivered pursuant to Section 2.5 of this
Declaration. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Declaration shall
include:
(a) a
statement that each officer signing the Officers' Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a
brief statement of the nature and scope of the examination or investigation
undertaken by each officer in rendering the Officers' Certificate;
(c) a
statement that each such officer has made such examination or investigation as,
in such officer's opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a
statement as to whether, in the opinion of each such officer, such condition or
covenant has been complied with.
"Paying Agent" has the
meaning specified in Section 3.8(h).
"Payment Amount" has
the meaning specified in Section 6.1.
"Person" means a legal
person, including any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Quorum" means any one
Regular Trustee or, if there is only one Regular Trustee, such Regular
Trustee.
"Regular Trustee" has
the meaning specified in Section 5.1.
"Regulatory Capital
Event" has the meaning set forth in Annex I hereto.
"Related Party" means,
with respect to the Sponsor, any direct or indirect wholly owned subsidiary of
the Sponsor or any other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor.
"Responsible Officer"
means, with respect to the Institutional Trustee, any officer within the
Corporate Trust Office of the Institutional Trustee with direct responsibility
for the administration of this Declaration and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
5
"Rule 3a-5" means Rule
3a-5 under the Investment Company Act.
"Securities" means the
Common Securities and the Capital Securities.
"Securities Act" means
the Securities Act of 1933, as amended from time to time, or any successor
legislation.
"Special Event" has
the meaning set forth in Annex I hereto.
"Sponsor" means
Citigroup Inc. or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
"Sponsor Affiliated
Holder" has the meaning set forth in Section 6.2(a).
"Statutory Trust Act"
means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code §3801 et seq.,
as it may be amended from time to time, or any successor
legislation.
"Successor Delaware
Trustee" has the meaning set forth in Section 5.6.
"Successor Entity" has
the meaning set forth in Section 3.15(b).
"Successor Institutional
Trustee" has the meaning set forth in Section 5.6.
"Successor Securities"
has the meaning set forth in Section 3.15(b).
"Super Majority" has
the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the
meaning set forth in Annex I hereto.
"10% in liquidation amount of
the Securities" means, except as provided in the terms of the Capital
Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities
voting together as a single class or, as the context may require, Holders of
outstanding Capital Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of an aggregate
liquidation amount representing 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
6
"Three-month
LIBOR" means, with respect to any quarterly interest period, the rate (expressed
as a percentage per annum) for deposits in United States dollars for a
three-month period, as applicable, commencing on the first day of that quarterly
interest period that appears on the Reuters Screen LIBOR as of 11:00 a.m.
(London time) on the LIBOR determination date for that quarterly interest
period, as the case may be. If such rate does not appear on Reuters Screen
LIBOR, three-month LIBOR will be determined on the basis of the rates at which
deposits in United States dollars for a three-month period commencing on the
first day of that quarterly interest period, as applicable, and in a principal
amount of not less than $1 million are offered to prime banks in the London
interbank market by four major banks in the London interbank market selected by
the calculation agent (after consultation with Citigroup), at approximately
11:00 a.m., London time, on the LIBOR determination date for that quarterly
interest period. The calculation agent will request the principal London office
of each of such banks to provide a quotation of its rate. If at least two such
quotations are provided, three-month LIBOR with respect to that quarterly
interest period, as applicable, will be the arithmetic mean (rounded upward if
necessary to the nearest whole multiple of 0.00001%) of such quotations. If
fewer than two quotations are provided, three-month LIBOR with respect to that
quarterly interest period, as applicable, will be the arithmetic mean (rounded
upward if necessary to the nearest whole multiple of 0.00001%) of the rates
quoted by three major banks in New York City selected by the calculation agent,
at approximately 11:00 a.m., New York City time, on the first day of that
quarterly interest period, as applicable, for loans in United States dollars to
leading European banks for a three-month period, as applicable, commencing on
the first day of that quarterly interest period and in a principal amount of not
less than $1 million. However, if fewer than three banks selected by the
calculation agent to provide quotations are quoting as described above,
three-month LIBOR for that quarterly interest period, as applicable, will be the
same as three-month LIBOR as determined for the previous interest period or, in
the case of the quarterly interest period beginning on March 30, 2015, 0.25563%.
The establishment of three-month LIBOR for each quarterly interest period, as
applicable, by the calculation agent shall (in the absence of manifest error) be
final and binding.
"Treasury Regulations"
means the income tax regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such regulations
may be amended from time to time (including corresponding provisions of
succeeding regulations).
"Trustee" or "Trustees" means each
Person who has signed this Declaration as a trustee, so long as such Person
shall continue in office in accordance with the terms hereof, and all other
Persons who may from time to time be duly appointed, qualified and serving as
Trustees in accordance with the provisions hereof, and references herein to a
Trustee or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"Trust Indenture Act"
means the Trust Indenture Act of 1939, as amended from time to time, or any
successor legislation.
"Underwriting
Agreement" means the Underwriting Agreement for the offering and sale of
Capital Securities in the form of Exhibit C.
ARTICLE
II
TRUST
INDENTURE ACT
SECTION
2.1 Trust Indenture
Act; Application.
(a) This
Declaration is subject to the provisions of the Trust Indenture Act that are
required to be part of this Declaration and shall, to the extent applicable, be
governed by such provisions.
(b) The
Institutional Trustee shall be the only Trustee that is a Trustee for the
purposes of the Trust Indenture Act.
7
(c) If
and to the extent that any provision of this Declaration limits, qualifies or
conflicts with the duties imposed by §§ 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(d) The
application of the Trust Indenture Act to this Declaration shall not affect the
nature of the Securities as equity securities representing undivided beneficial
interests in the assets of the Trust.
SECTION
2.2 Lists of Holders
of Securities.
(a) Each
of the Sponsor and the Regular Trustees on behalf of the Trust shall provide the
Institutional Trustee (i) within 14 days after each record date for payment of
Distributions, a list, in such form as the Institutional Trustee may reasonably
require, of the names and addresses of the Holders of the Securities ("List of
Holders") as of such record date, provided, that neither the Sponsor nor the
Regular Trustees on behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Institutional Trustee by the Sponsor and the
Regular Trustees on behalf of the Trust, and (ii) at any other time, within 30
days of receipt by the Trust of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the
Institutional Trustee. The Institutional Trustee shall preserve, in
as current a form as is reasonably practicable, all information contained in
Lists of Holders given to it or which it receives in the capacity as Paying
Agent (if acting in such capacity), provided, that the Institutional Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The
Institutional Trustee shall comply with its obligations under §§ 311(a), 311(b)
and 312(b) of the Trust Indenture Act.
SECTION
2.3 Reports by the
Institutional Trustee.
Within 60
days after May 15 of each year (commencing with the year of the first
anniversary of the Closing Date), the Institutional Trustee shall provide to the
Holders of the Capital Securities such reports as are required by § 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by § 313 of
the Trust Indenture Act. The Institutional Trustee shall also comply
with the requirements of § 313(d) of the Trust Indenture Act.
SECTION
2.4 Periodic Reports
to Institutional Trustee.
Each of
the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Institutional Trustee such documents, reports and information as required by §
314 of the Trust Indenture Act (if any) and the compliance certificate required
by § 314 of the Trust Indenture Act in the form, in the manner and at the times
required by § 314 of the Trust Indenture Act.
SECTION
2.5 Evidence of
Compliance with Conditions Precedent.
Each of
the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Institutional Trustee such evidence of compliance with any conditions precedent
provided for in this Declaration that relate to any of the matters set forth in
§ 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to § 314(c)(1) of the Trust
Indenture Act may be given in the form of an Officers'
Certificate.
8
SECTION
2.6 Defaults;
Waiver.
(a) The
Holders of a Majority in liquidation amount of Capital Securities may, by vote,
on behalf of the Holders of all of the Capital Securities, waive any past
Default in respect of the Capital Securities and its consequences, provided,
that if the underlying Default under the Indenture:
(i)
is not waivable under the Indenture, the Default under the
Declaration shall also not be waivable; or
(ii) is
waivable only with the consent of holders of more than a majority in principal
amount of the Debentures (a "Super Majority") affected thereby, only the Holders
of at least the proportion in aggregate liquidation amount of the Capital
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding may waive such Default in respect
of the Capital Securities under the Declaration.
The
foregoing provisions of this Section 2.6(a) shall be in lieu of § 316(a)(1)(B)
of the Trust Indenture Act and such § 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Upon such waiver, any such default shall
cease to exist, and any Default with respect to the Capital Securities arising
therefrom shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or a Default with respect to the Capital Securities or impair any right
consequent thereon. Any waiver by the Holders of the Capital
Securities of a Default with respect to the Capital Securities shall also be
deemed to constitute a waiver by the Holders of the Common Securities of any
such Default with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the Holders of the
Common Securities.
(b) The
Holders of a Majority in liquidation amount of the Common Securities may, by
vote, on behalf of the Holders of all of the Common Securities, waive any past
Default with respect to the Common Securities and its consequences, provided,
that if the underlying Default under the Indenture:
(i)
is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Default under
the Declaration as provided in this Section 2.6(b), the Default under the
Declaration shall also not be waivable; or
(ii) is
waivable only with the consent of a Super Majority, except where the Holders of
the Common Securities are deemed to have waived such Default under the
Declaration as provided in this Section 2.6(b), only the Holders of at least the
proportion in aggregate liquidation amount of the Common Securities that the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding may waive such Default in respect of the Common
Securities under the Declaration;
9
provided,
further each Holder of Common Securities will be deemed to have waived any such
Default and all Defaults with respect to the Common Securities and its
consequences until all Defaults with respect to the Capital Securities have been
cured, waived or otherwise eliminated, and until such Defaults with respect to
the Capital Securities have been so cured, waived or otherwise eliminated, the
Institutional Trustee will be deemed to be acting solely on behalf of the
Holders of the Capital Securities and only the Holders of the Capital Securities
will have the right to direct the Institutional Trustee in accordance with the
terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of §§ 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such §§ 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture
Act are hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon the waiver of a Default by the Holders
of a Majority in liquidation amount of the Common Securities, any such default
shall cease to exist and any Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Default with respect to the Common Securities or impair any right consequent
thereon.
(c) A
waiver of a Default under the Indenture by the Institutional Trustee at the
direction of the Holders of the Capital Securities, constitutes a waiver of the
corresponding Default under this Declaration. The foregoing
provisions of this Section 2.6(c) shall be in lieu of § 316(a)(1)(B) of the
Trust Indenture Act and such § 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act.
SECTION
2.7 Default;
Notice.
(a) The
Institutional Trustee shall, within 90 days after the occurrence of a Default,
transmit by mail, first class postage prepaid, to the Holders of the Securities,
notices of (i) all defaults with respect to the Securities actually known to a
Responsible Officer of the Institutional Trustee, unless such defaults have been
cured before the giving of such notice (the term "defaults" for the purposes of
this Section 2.7(a) being hereby defined to be a Default as defined in the
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein) and (ii) any notice
of default received from the Indenture Trustee with respect to the Debentures,
which notice from the Institutional Trustee to the Holders shall state that a
Default under the Indenture also constitutes a Default with respect to the
Securities; provided that, except for a default in the payment of principal of
(or premium, if any) or interest on any of the Debentures or in the payment of
any sinking fund installment established for the Debentures, the Institutional
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Institutional Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Securities.
(b) The
Institutional Trustee shall not be deemed to have knowledge of any default
except:
10
(i) a
default under Sections 5.7(b) and 5.7(c) of the Indenture; or
(ii) any
default as to which the Institutional Trustee shall have received written notice
or of which a Responsible Officer of the Institutional Trustee charged with the
administration of the Declaration shall have actual knowledge.
ARTICLE
III
ORGANIZATION
SECTION
3.1 Name.
The Trust is named "Citigroup Capital
XII," as such name may be modified from time to time by the Regular Trustees
following written notice to the Institutional Trustee, the Delaware Trustee and
the Holders of Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION
3.2 Office.
The
address of the principal office of the Trust is c/o Citigroup Inc., 399 Park
Avenue, New York, NY 10043. On ten Business Days written notice to
the Institutional Trustee, the Delaware Trustee and the Holders of Securities,
the Regular Trustees may designate another principal office.
SECTION
3.3 Purpose.
The
exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Debentures, and
(b) except as otherwise limited herein, to engage in only those other activities
necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, take any action or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION
3.4 Authority.
Subject
to the limitations provided in this Declaration and to the specific duties of
the Institutional Trustee, the Regular Trustees shall have exclusive and
complete authority to carry out the purposes of the Trust. An action
taken by the Regular Trustees in accordance with their powers shall constitute
the act of and serve to bind the Trust and an action taken by the Institutional
Trustee on behalf of the Trust in accordance with its powers shall constitute
the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Declaration.
11
SECTION
3.5 Title to Property
of the Trust.
Except as
provided in Section 3.8 with respect to the Debentures and the Institutional
Trustee Account or as otherwise provided in this Declaration, legal title to all
assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION
3.6 Powers and Duties
of the Regular Trustees.
The
Regular Trustees shall have the exclusive power, duty and authority to cause the
Trust to engage in the following activities:
(a) to
issue and sell the Capital Securities and the Common Securities in accordance
with this Declaration; provided, however, that the
Trust may issue no more than one series of Capital Securities and no more than
one series of Common Securities, and, provided further, that there
shall be no interests in the Trust other than the Securities, and the issuance
of Securities shall be limited to a simultaneous issuance of both Capital
Securities and Common Securities on the Closing Date;
(b) in
connection with the issue and sale of the Capital Securities, at the direction
of the Sponsor, to:
(i)
execute and file with the Commission on behalf of the
Trust a registration statement on Form S-3 or on another appropriate form, or a
registration statement under Rule 462(b) of the Securities Act, in each case
prepared by the Sponsor, including any pre-effective or post-effective
amendments thereto, relating to the registration under the Securities Act of the
Capital Securities;
(ii) execute
and file any documents prepared by the Sponsor, or take any acts as determined
by the Sponsor to be necessary in order to qualify or register all or part of
the Capital Securities in any State in which the Sponsor has determined to
qualify or register such Capital Securities for sale;
(iii) execute
and file an application, prepared by the Sponsor, to the New York Stock
Exchange, Inc. or any other national stock exchange for listing upon notice of
issuance of any Capital Securities;
(iv) execute
and file with the Commission on behalf of the Trust a registration statement on
Form 8-A, prepared by the Sponsor, including any pre-effective or post-effective
amendments thereto, relating to the registration of the Capital Securities under
Section 12(b) of the Exchange Act; and
(v) deliver
the Underwriting Agreement providing for the sale of the Capital
Securities;
(c) to
acquire the Debentures with the proceeds of the sale of the Capital Securities
and the Common Securities; provided, however, that the Regular Trustees shall
cause legal title to the Debentures to be held of record in the name of the
Institutional Trustee for the benefit of the Holders of the Capital Securities
and the Holders of Common Securities;
12
(d) to
give the Sponsor and the Institutional Trustee prompt written notice of the
occurrence of a Special Event; provided, that the Regular Trustees shall consult
with the Sponsor and the Institutional Trustee before taking or refraining from
taking any ministerial action in relation to a Special Event;
(e) to
establish a record date with respect to all actions to be taken hereunder that
require a record date be established, including and with respect to, for the
purposes of §316(c) of the Trust Indenture Act, Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the Holders of
Capital Securities and Holders of Common Securities as to such actions and
applicable record dates;
(f) to
take all actions and perform such duties as may be required of the Regular
Trustees pursuant to the terms of the Securities;
(g) to
bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or
otherwise adjust claims or demands of or against the Trust ("Legal Action"),
unless pursuant to Section 3.8(e), the Institutional Trustee has the exclusive
power to bring such Legal Action;
(h) to
employ or otherwise engage employees and agents (who may be designated as
officers with titles) and managers, contractors, advisors, and consultants and
pay reasonable compensation for such services;
(i)
to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j)
to give the certificate required by
§ 314(a)(4) of the Trust Indenture Act to the Institutional Trustee, which
certificate may be executed by any Regular Trustee;
(k) to
incur expenses that are necessary or incidental to carry out any of the purposes
of the Trust;
(l)
to act as, or appoint another Person to act as,
registrar and transfer agent for the Securities;
(m) to
give prompt written notice to the Holders of the Securities of any notice
received from the Debenture Issuer of its election to defer payments of interest
on the Debentures by extending the interest payment period under the
Indenture;
(n) to
take all action that may be necessary or appropriate for the preservation and
the continuation of the Trust's valid existence, rights, franchises and
privileges as a statutory trust under the laws of the State of Delaware and of
each other jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Capital Securities or to enable the
Trust to effect the purposes for which the Trust was created;
(o) to
take any action, not inconsistent with this Declaration or with applicable law,
that the Regular Trustees determine in their discretion to be necessary or
desirable in carrying out the activities of the Trust as set out in this Section
3.6, including, but not limited to:
13
(i) causing
the Trust not to be deemed to be an Investment Company required to be registered
under the Investment Company Act;
(ii) causing
the Trust to be classified for United States federal income tax purposes as a
grantor trust; and
(iii) cooperating
with the Debenture Issuer to ensure that the Debentures will be treated as
indebtedness of the Debenture Issuer for United States federal income tax
purposes;
provided, that any such
action does not adversely affect the interests of Holders;
(p) to
take all action necessary to cause all applicable tax returns and tax
information reports that are required to be filed with respect to the Trust to
be duly prepared and filed by the Regular Trustees, on behalf of the Trust;
and
(q) to
execute all documents or instruments, perform all duties and powers, and do all
things for and on behalf of the Trust in all matters necessary or incidental to
the foregoing.
The
Regular Trustees must exercise the powers set forth in this Section 3.6 in a
manner that is consistent with the purposes and functions of the Trust set out
in Section 3.3, and the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set forth in Section
3.3.
Subject
to this Section 3.6, the Regular Trustees shall have none of the powers or the
authority of the Institutional Trustee set forth in Section 3.8.
Any
expenses incurred by the Regular Trustees pursuant to this Section 3.6 shall be
reimbursed by the Debenture Issuer.
SECTION
3.7 Prohibition of
Actions by the Trust and the Trustees.
(a) The
Trust shall not, and the Trustees (including the Institutional Trustee) shall
not cause the Trust to, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall
not:
(i)
invest any proceeds
received by the Trust from holding the Debentures, but shall promptly distribute
all such proceeds to Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire
any assets other than as expressly provided herein;
(iii) possess
Trust property for other than a Trust purpose;
(iv) make
any loans or incur any indebtedness;
14
(v) possess
any power or otherwise act in such a way as to vary the Trust assets or the
terms of the Securities in any way whatsoever;
(vi) issue
any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Securities; or
(vii) other
than as provided in this Declaration or Annex I, (A) direct the time, method and
place of exercising any trust or power conferred upon the Debenture Trustee with
respect to the Debentures, (B) waive any past Default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration that the
principal of all the Debentures shall be due and payable or (D) consent to any
amendment, modification or termination of the Indenture or the Debentures where
such consent shall be required unless the Trust shall have obtained an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that as a result of such action, the Trust will not fail to be
classified as a grantor trust for United States federal income tax
purposes.
SECTION
3.8 Powers and Duties
of the Institutional Trustee.
(a) The
legal title to the Debentures shall be owned by and held of record in the name
of the Institutional Trustee in trust for the benefit of the Holders of the
Securities. The right, title and interest of the Institutional
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance with Section
5.6. Such vesting and cessation of title shall be effective whether
or not conveyancing documents with regard to the Debentures have been executed
and delivered.
(b) The
Institutional Trustee shall not transfer its right, title and interest in the
Debentures to the Regular Trustees or to the Delaware Trustee (if the
Institutional Trustee does not also act as Delaware Trustee).
(c) The
Institutional Trustee shall:
(i)
establish and
maintain a segregated non-interest bearing trust account (the "Institutional
Trustee Account") in the name of and under the exclusive control of the
Institutional Trustee on behalf of the Holders of the Securities and, upon the
receipt of payments of funds made in respect of the Debentures held by the
Institutional Trustee, deposit such funds into the Institutional Trustee Account
and make payments to the Holders of the Capital Securities and Holders of the
Common Securities from the Institutional Trustee Account in accordance with
Section 6.1. Funds in the Institutional Trustee Account shall be held
uninvested until disbursed in accordance with this Declaration. The
Institutional Trustee Account shall be an account that is maintained with a
banking institution the rating on whose long-term unsecured indebtedness
assigned by a "nationally recognized statistical rating organization," as that
term is defined for purposes of Rule 436(g)(2) under the Securities Act, is at
least equal to the rating assigned to the Capital Securities by a nationally
recognized statistical rating organization;
15
(ii) engage
in such ministerial activities as shall be necessary or appropriate to effect
the redemption of the Capital Securities and the Common Securities to the extent
the Debentures are redeemed or mature and to effect the Exchange of Capital
Securities and Common Securities for Debentures to the extent a Sponsor
Affiliated Holder elects to effect such Exchange pursuant to Section 6.2 hereof;
and
(iii) upon
written notice of distribution issued by the Regular Trustees in accordance with
the terms of the Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the Debentures to Holders
of Securities upon the occurrence of certain Special Events or other specified
circumstances pursuant to the terms of the Securities.
(d) The
Institutional Trustee shall take all actions and perform such duties as may be
specifically required of the Institutional Trustee pursuant to the terms of the
Securities.
(e) Subject
to Section 2.6, the Institutional Trustee shall take any Legal Action which
arises out of or in connection with a Default of which a Responsible Officer of
the Institutional Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust Indenture
Act.
(f) The
Institutional Trustee shall not resign as a Trustee unless either:
(i)
the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a
Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 5.6.
(g) The
Institutional Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a holder of Debentures under the Indenture and, if a
Default actually known to a Responsible Officer of the Institutional Trustee
occurs and is continuing, the Institutional Trustee shall, for the benefit of
Holders of the Securities, enforce its rights as holder of the Debentures
subject to the rights of the Holders pursuant to the terms of such Securities,
this Declaration, the Statutory Trust Act and the Trust Indenture
Act.
(h) The
Institutional Trustee may authorize one or more Persons (each, a "Paying Agent")
to pay Distributions, redemption payments or liquidation payments on behalf of
the Trust with respect to all securities and any such Paying Agent shall comply
with § 317(b) of the Trust Indenture Act. Any Paying Agent may
be removed by the Institutional Trustee at any time and a successor Paying Agent
or additional Paying Agents may be appointed at any time by the Institutional
Trustee.
(i)
Subject to this Section 3.8, the Institutional
Trustee shall have none of the duties, liabilities, powers or the authority of
the Regular Trustees set forth in Section 3.6.
The
Institutional Trustee must exercise the powers set forth in this Section 3.8 in
a manner that is consistent with the purposes and functions of the Trust set out
in Section 3.3, and the Institutional Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
3.3.
16
SECTION
3.9 Certain Duties and
Responsibilities of the Institutional Trustee.
(a) The
Institutional Trustee, before the occurrence of any Default and after the curing
of all Defaults that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Declaration and no implied
covenants shall be read into this Declaration against the Institutional
Trustee. In case a Default has occurred (that has not been cured or
waived pursuant to Section 2.6) of which a Responsible Officer of the
Institutional Trustee has actual knowledge, the Institutional Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in the exercise of such rights and powers, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No
provision of this Declaration shall be construed to relieve the Institutional
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior
to the occurrence of a Default and after the curing or waiving of all such
Defaults that may have occurred:
(A) the
duties and obligations of the Institutional Trustee shall be determined solely
by the express provisions of this Declaration and the Institutional Trustee
shall not be liable except for the performance of such duties and obligations as
are specifically set forth in this Declaration, and no implied covenants or
obligations shall be read into this Declaration against the Institutional
Trustee; and
(B) in
the absence of willful misconduct on the part of the Institutional Trustee, the
Institutional Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Institutional Trustee and conforming to the
requirements of this Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Institutional Trustee, the Institutional Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Declaration (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the
Institutional Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Institutional Trustee, unless it shall be
proved that the Institutional Trustee was negligent in ascertaining the
pertinent facts;
(iii) the
Institutional Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a Majority in liquidation amount of the Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under this
Declaration;
17
(iv) no
provision of this Declaration shall require the Institutional Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it under the terms of this
Declaration or indemnity reasonably satisfactory to the Institutional Trustee
against such risk or liability is not reasonably assured to it;
(v) the
Institutional Trustee's sole duty with respect to the custody, safe keeping and
physical preservation of the Debentures and the Institutional Trustee Account
shall be to deal with such property in a similar manner as the Institutional
Trustee deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Institutional Trustee
under this Declaration and the Trust Indenture Act;
(vi) the
Institutional Trustee shall have no duty or liability for or with respect to the
value, genuineness, existence or sufficiency of the Debentures or the payment of
any taxes or assessments levied thereon or in connection therewith;
(vii) the
Institutional Trustee shall not be liable for any interest on any money received
by it except as it may otherwise agree with the Sponsor. Money held
by the Institutional Trustee need not be segregated from other funds held by it
except in relation to the Institutional Trustee Account maintained by the
Institutional Trustee pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law; and
(viii) the
Institutional Trustee shall not be responsible for monitoring the compliance by
the Regular Trustees or the Sponsor with their respective duties under this
Declaration, nor shall the Institutional Trustee be liable for any default or
misconduct of the Regular Trustees or the Sponsor.
SECTION
3.10 Certain Rights of
Institutional Trustee.
(a)
Subject to the provisions of Section
3.9:
(i)
the Institutional Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any
direction or act of the Sponsor or the Regular Trustees contemplated by this
Declaration shall be sufficiently evidenced by an Officers'
Certificate;
18
(iii) whenever
in the administration of this Declaration, the Institutional Trustee shall deem
it desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Institutional Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon receipt
of such request, shall be promptly delivered by the Sponsor or the Regular
Trustees;
(iv) the
Institutional Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or registration thereof;
(v) the
Institutional Trustee may consult with counsel or other experts and the advice
or opinion of such counsel and experts with respect to legal matters or advice
within the scope of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion,
such counsel may be counsel to the Sponsor or any of its Affiliates, and may
include any of its employees. The Institutional Trustee shall have
the right at any time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(vi) the
Institutional Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the Institutional Trustee
security and indemnity, reasonably satisfactory to the Institutional Trustee,
against the costs, expenses (including attorneys' fees and expenses and the
expenses of the Institutional Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Institutional Trustee provided that nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Institutional Trustee, upon the
occurrence of a Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) the
Institutional Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Institutional Trustee, in its discretion and after prior consultation with the
Sponsor, may make such further inquiry or investigation into such facts or
matters as it may see fit at the expense of the Sponsor and shall incur no
liability of any kind by reason of such inquiry or investigation;
(viii) the
Institutional Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
custodians, nominees or attorneys and the Institutional Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) the
rights, privileges, protections, immunities and benefits given to the
Institutional Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforced by, the Institutional
Trustee in each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder by the Institutional Trustee and appointed with
due care by it;
19
(x) any
action taken by the Institutional Trustee or its agents hereunder shall bind the
Trust and the Holders of the Securities, and the signature of the Institutional
Trustee or its agents alone shall be sufficient and effective to perform any
such action and no third party shall be required to inquire as to the authority
of the Institutional Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such
action;
(xi) whenever
in the administration of this Declaration the Institutional Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Institutional Trustee (i) may
request instructions from the Holders of the Securities which instructions may
only be given by the Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Institutional Trustee under the
terms of the Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and (iii) shall be protected in conclusively
relying on or acting in or accordance with such instructions;
(xii) except
as otherwise expressly provided by this Declaration, the Institutional Trustee
shall not be under any obligation to take any action that is discretionary under
the provisions of this Declaration;
(xiii) in
no event shall the Institutional Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Institutional Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action;
and
(xiv) in
no event shall the Institutional Trustee be responsible or liable for any
failure or delay in the performance of its obligations under this Declaration
arising out of or caused by, directly or indirectly, forces beyond its
reasonable control, including without limitation strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of
third party utilities, communications or computer (software or hardware)
services.
(b) No
provision of this Declaration shall be deemed to impose any duty or obligation
on the Institutional Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Institutional Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the
Institutional Trustee shall be construed to be a duty.
20
SECTION
3.11 Delaware
Trustee.
The
Delaware Trustee is appointed to serve as the trustee of the Trust in the State
of Delaware for the sole purpose of satisfying the requirement of Section
3807(a) of the Statutory Trust Act that the Trust have at least one
trustee with a principal place of business in the State of
Delaware. It is understood and agreed by the parties hereto that the
Delaware Trustee shall have none of the duties or liabilities of the Regular
Trustees or the Institutional Trustee. The duties of the Delaware
Trustee shall be limited to (i) accepting legal process served on the Trust in
the State of Delaware and (ii) the execution of any certificates required to be
filed with the Delaware Secretary of State which the Delaware Trustee is
required to execute under Section 3811 of the Statutory Trust Act. To
the extent that, at law or in equity, the Delaware Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or the Holders,
it is hereby understood and agreed by the other parties hereto that such duties
and liabilities are replaced by the duties and liabilities of the Delaware
Trustee expressly set forth in this Declaration. The Delaware trustee
shall have no liability for the acts or omissions of the Regular Trustees or the
Institutional Trustee. The Delaware Trustee shall be entitled to all of the same
rights, protections, indemnities and immunities under this Declaration and with
respect to the Trust as the Institutional Trustee.
SECTION
3.12 Execution of
Documents.
Unless
otherwise determined by the Regular Trustees, and except as otherwise required
by the Statutory Trust Act, any Regular Trustee is authorized to execute on
behalf of the Trust any documents that the Regular Trustees have the power and
authority to execute pursuant to Section 3.6; provided, that the registration
statement referred to in Section 3.6(b)(i), including any amendments
thereto, shall be signed by all of the Regular Trustees.
SECTION
3.13 Not Responsible
for Recitals or Issuance of Securities.
The
recitals contained in this Declaration and the Securities shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the
value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
SECTION
3.14 Duration of
Trust.
The
Trust, unless dissolved and terminated pursuant to the provisions of Article
VIII hereof, shall have existence for sixty (60) years from the Closing
Date.
SECTION
3.15 Mergers.
(a) The
Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to any corporation or other body, except as described in Section 3.15(b) and
(c).
(b) The
Trust may, with the consent of the Regular Trustees or, if there are more than
two, a majority of the Regular Trustees and without the consent of the Holders
of the Securities, the Delaware Trustee or the Institutional Trustee,
consolidate, amalgamate, merge with or into, or be replaced by a trust organized
as such under the laws of any State; provided, that:
21
(i) such
successor entity (the "Successor Entity") either:
(A) expressly
assumes all of the obligations of the Trust under the Securities;
or
(B) substitutes
for the Securities other securities having substantially the same terms as the
Capital Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Capital Securities rank with respect to
Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the
Debenture Issuer expressly acknowledges a trustee of the Successor Entity that
possesses the same powers and duties as the Institutional Trustee in its
capacity as the Holder of the Debentures;
(iii) the
Capital Securities or any Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or with any other organization on which the Capital
Securities are then listed or quoted;
(iv) such
merger, consolidation, amalgamation or replacement does not cause the Capital
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization;
(v) such
merger, consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect (other than with respect to
any dilution of such Holders' interests in the new entity as a result of such
merger, consolidation, amalgamation or replacement);
(vi) such
Successor Entity has a purpose identical to that of the Trust;
(vii) prior
to such merger, consolidation, amalgamation or replacement, the Trust has
received an opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such
merger, consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect (other than with respect to
any dilution of the Holders' interest in the new entity); and
(B) following
such merger, consolidation, amalgamation or replacement, neither the Trust nor
the Successor Entity will be required to register as an Investment Company;
and
22
(C) following
such merger, consolidation, amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a grantor trust for United
States federal income tax purposes; and
(viii) the
Sponsor guarantees the obligations of such Successor Entity under the Successor
Securities at least to the extent provided by the Capital Securities
Guarantee.
(c) Notwithstanding
Section 3.15(b), the Trust shall not, except with the consent of Holders of 100%
in liquidation amount of the Securities, consolidate, amalgamate, merge with or
into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it, if in the opinion of
a nationally recognized independent tax counsel experienced in such matters,
such consolidation, amalgamation, merger or replacement would cause the Trust or
the Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE
IV
SPONSOR
SECTION
4.1 Sponsor's Purchase
of Common Securities.
On the
Closing Date, the Sponsor will purchase all of the Common Securities issued by
the Trust at the same time as the Capital Securities are sold.
SECTION
4.2 Responsibilities
of the Sponsor.
In
connection with the issue and sale of the Capital Securities, the Sponsor shall
have the exclusive right and responsibility to engage in the following
activities:
(a) to
prepare for filing by the Trust with the Commission a registration statement on
Form S-3 or on another appropriate form, or a registration statement under Rule
462(b) of the Securities Act, including any pre-effective or post-effective
amendments thereto, relating to the registration under the Securities Act of the
Capital Securities;
(b) to
determine the States in which to take appropriate action to qualify or register
for sale all or part of the Capital Securities and to do any and all such acts,
other than actions which must be taken by the Trust, and advise the Trust of
actions it must take, and prepare for execution and filing any documents to be
executed and filed by the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such States;
(c) to
prepare for filing by the Trust an application to the New York Stock Exchange,
any other national stock exchange or the Nasdaq National Market for listing upon
notice of issuance of any Capital Securities;
(d) to
prepare for filing by the Trust with the Commission a registration statement on
Form 8-A, including any pre-effective or post-effective amendments thereto,
relating to the registration of the Capital Securities under Section 12(b) of
the Exchange Act, including any amendments thereto; and
23
(e) to
negotiate the terms of the Underwriting Agreement providing for the sale of the
Capital Securities.
ARTICLE
V
TRUSTEES
SECTION
5.1 Number of
Trustees.
The
number of Trustees initially shall be five (5), and:
(a) at
any time before the issuance of any Securities, the Sponsor may, by written
instrument, increase or decrease the number of Trustees; and
(b) after
the issuance of any Securities, the number of Trustees may be increased or
decreased by vote of the Holders of a majority in liquidation amount of the
Common Securities voting as a class at a meeting of the Holders of the Common
Securities,
provided, however, that the
number of Trustees shall in no event be less than two (2); provided further that
(1) one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, shall be an
entity which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); (2) there shall be at least one Trustee who is an employee
or officer of, or is affiliated with the Sponsor (a "Regular Trustee"); and (3)
one Trustee shall be the Institutional Trustee for so long as this Declaration
is required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION
5.2 Delaware
Trustee.
If
required by the Statutory Trust Act, the Delaware Trustee shall be:
(a) a
natural person who is a resident of the State of Delaware; or
(b) if
not a natural person, an entity which has its principal place of business in the
State of Delaware, and otherwise meets the requirements of applicable
law,
provided, that if the
Institutional Trustee has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law, then the
Institutional Trustee shall also be the Delaware Trustee and Section 3.11 shall
have no application.
SECTION
5.3 Institutional
Trustee; Eligibility.
(a) There
shall at all times be one Trustee that shall act as Institutional Trustee which
shall:
(i)
not be an
Affiliate of the Sponsor;
24
(ii) be
a corporation organized and doing business under the laws of the United States
of America or any State or Territory thereof or of the District of Columbia, or
a corporation or Person permitted by the Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.3(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published;
and
(iii) if
the Trust is excluded from the definition of an Investment Company solely by
means of Rule 3a-7 and to the extent Rule 3a-7 requires a trustee having certain
qualifications to hold title to the "eligible assets" of the Trust, the
Institutional Trustee shall possess those qualifications.
(b) If
at any time the Institutional Trustee shall cease to be eligible to so act under
Section 5.3(a), the Institutional Trustee shall immediately resign in the manner
and with the effect set forth in Section 5.6(c).
(c) If
the Institutional Trustee has or shall acquire any "conflicting interest" within
the meaning of § 310(b) of the Trust Indenture Act, the Institutional Trustee
and the Holders of the Common Securities (as if such Holders were the obligor
referred to in § 310(b) of the Trust Indenture Act) shall in all respects comply
with the provisions of § 310(b) of the Trust Indenture Act, subject to the
penultimate paragraph thereof.
(d) The
Capital Securities Guarantee shall be deemed to be specifically described in
this Declaration for purposes of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
(e) The
initial Institutional Trustee shall be as set forth in Section 5.5
hereof.
SECTION
5.4 Qualifications of
Regular Trustees and Delaware Trustee Generally.
Each
Regular Trustee and the Delaware Trustee (unless the Institutional Trustee also
acts as Delaware Trustee) shall be either a natural person who is at least 21
years of age or a legal entity that shall act through one or more Authorized
Officers.
SECTION
5.5 Initial Trustees;
Additional Powers of Regular Trustees.
(a) The
initial Regular Trustees shall be:
Charles
E. Wainhouse
Michael
Verdeschi
Jeffrey
R. Walsh
25
The
initial Delaware Trustee shall be:
BNY
Mellon Trust of Delaware
100 White
Clay Center, Suite 102
Newark,
DE 19711
Attention:
Corporate Trust Administration
The
initial Institutional Trustee shall be:
The Bank
of New York Mellon
101
Barclay Street-8W
New York,
New York 10286
Attention:
Corporate Trust Administration
(b) Except
as expressly set forth in this Declaration and except if a meeting of the
Regular Trustees is called with respect to any matter over which the Regular
Trustees have power to act, any power of the Regular Trustees may be exercised
by, or with the consent of, any one such Regular Trustee.
(c) Unless
otherwise determined by the Regular Trustees, and except as otherwise required
by the Statutory Trust Act or applicable law, any Regular Trustee is authorized
to execute on behalf of the Trust any documents which the Regular Trustees have
the power and authority to cause the Trust to execute pursuant to Section 3.6,
provided, that the registration statement referred to in Section 3.6, including
any amendments thereto, shall be signed by all of the Regular Trustees;
and
(d) a
Regular Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or her power for the
purposes of signing any documents which the Regular Trustees have power and
authority to cause the Trust to execute pursuant to Section 3.6.
SECTION
5.6 Appointment,
Removal and Resignation of Trustees.
(a) Subject
to Section 5.6(b), Trustees may be appointed or removed without cause at any
time:
(i) until
the issuance of any Securities, by written instrument executed by the Sponsor;
and
(ii) in
the case of the Regular Trustees, after the issuance of any Securities, by vote
of the Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities;
(iii) in
the case of the Institutional Trustee and the Delaware Trustee, unless a Default
shall have occurred and be continuing after the issuance of any Securities, by a
vote of the Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities;
and
(iv) in
the case of the Institutional Trustee and the Delaware Trustee, if a Default
shall have occurred and be continuing after the issuance of
the Securities, by a vote of the Holders of a Majority in liquidation
amount of the Capital Securities voting as a class at a meeting of the Holders
of the Capital Securities.
26
(b) (i)
The Trustee that acts as Institutional Trustee shall not be removed in
accordance with Section 5.6(a) until a successor Trustee possessing the
qualifications to act as Institutional Trustee under Section 5.3 (a "Successor
Institutional Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Institutional Trustee and
delivered to the Regular Trustees and the Sponsor; and
(ii) the
Trustee that acts as Delaware Trustee shall not be removed in accordance with
Section 5.6(a) until a successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has
been appointed and has accepted such appointment by written instrument executed
by such Successor Delaware Trustee and delivered to the Regular Trustees and the
Sponsor.
(c) A
Trustee appointed to office shall hold office until his successor shall have
been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i)
No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until
a Successor Institutional Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Institutional Trustee and
delivered to the Trust, the Sponsor and the resigning Institutional Trustee;
or
(B) until
the assets of the Trust have been completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no
such resignation of the Trustee that acts as the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware
Trustee.
(d) The
Holders of the Common Securities shall use their best efforts to promptly
appoint a Successor Delaware Trustee or Successor Institutional Trustee as the
case may be if the Institutional Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.6.
(e) If
no Successor Institutional Trustee or Successor Delaware Trustee shall have been
appointed and accepted appointment as provided in this Section 5.6 within 60
days after delivery to the Sponsor and the Trust of an instrument of
resignation, the resigning Institutional Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction at the expense of
the Sponsor for appointment of a Successor Institutional Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper and prescribe, appoint a Successor
Institutional Trustee or Successor Delaware Trustee, as the case may
be.
27
(f)
No Institutional
Trustee or Delaware Trustee shall be liable for the acts or omissions to act of
any Successor Institutional Trustee or Successor Delaware Trustee, as the case
may be.
SECTION
5.7 Vacancies among
Trustees.
If a
Trustee ceases to hold office for any reason and the number of Trustees is not
reduced pursuant to Section 5.1, or if the number of Trustees is increased
pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.6.
SECTION
5.8 Effect of
Vacancies.
The
death, resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION
5.9 Meetings.
If there
is more than one Regular Trustee, meetings of the Regular Trustees shall be held
from time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place fixed by
resolution of the Regular Trustees. Notice of any in-person meetings
of the Regular Trustees shall be hand delivered or otherwise delivered in
writing (including by facsimile, with a hard copy by overnight courier) not less
than 48 hours before such meeting. Notice of any telephonic meetings
of the Regular Trustees or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees. In the event there is only one Regular Trustee, any
and all action of such Regular Trustee shall be evidenced by a written consent
of such Regular Trustee.
28
SECTION
5.10 Delegation of
Power.
(a) Any
Regular Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section 3.6, including any
registration statement or amendment thereto filed with the Commission, or making
any other governmental filing; and
(b) the
Regular Trustees shall have power to delegate from time to time to such of their
number or to officers of the Trust the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the Regular
Trustees or otherwise as the Regular Trustees may deem expedient, to the extent
such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein; and
(c) any
delegation of power by a Regular Trustee under Section 3.6(g) (and Section
3.6(o) insofar as it applies to Section 3.6(g)) or by the Institutional Trustee
under Section 3.8(e) shall be to a U.S. Person (as defined under Section
7701(a)(30) of the Code).
SECTION
5.11 Merger,
Conversion, Consolidation or Succession to Business.
Any
corporation into which the Institutional Trustee or the Delaware Trustee, as the
case may be, may be merged or converted or with which either may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE
VI
DISTRIBUTIONS;
EXCHANGES
SECTION
6.1 Distributions.
Holders
shall receive Distributions (as defined herein) in accordance with the
applicable terms of the relevant Holder's Securities. Distributions
shall be made on the Capital Securities and the Common Securities in accordance
with the preferences set forth in their respective terms. If and to
the extent that the Debenture Issuer makes a payment of interest (including
Compounded Interest (as defined in the Indenture) and Additional Interest (as
defined in the Indenture)), premium and/or principal on the Debentures held by
the Institutional Trustee (the amount of any such payment being a "Payment
Amount"), the Institutional Trustee shall and is directed to make a distribution
(a "Distribution") of the Payment Amount to Holders.
29
SECTION
6.2 Exchanges.
(a) If
at any time the Sponsor or any of its Affiliates (in any such case, a "Sponsor
Affiliated Holder") is the Holder of any Capital Securities or is a Capital
Security Beneficial Owner, such Sponsor Affiliated Holder shall have the right
to deliver to the Institutional Trustee all or such portion of its Capital
Securities as it elects and, subject to the terms of the Indenture, receive, in
exchange therefor, Debentures having an aggregate principal amount equal to the
aggregate Liquidation Amount of the Capital Securities exchanged therefor (such
an exchange being referred to herein as an "Exchange"). Such election
(i) shall be exercisable, and shall be effective on any Business Day, provided
that such Business Day is not a record date or any date falling between a record
date and a date on which the related Distribution is payable, by such Sponsor
Affiliated Holder delivering to the Institutional Trustee a written notice of
such election specifying the aggregate Liquidation Amount of Capital Securities
with respect to which such election is being made and the date on which such
Exchange shall occur, which date shall be not less than three (3) Business Days
after the date of receipt by the Institutional Trustee of such election notice
and (ii) shall be conditioned upon such Sponsor Affiliated Holder having
delivered or caused to be delivered to the Institutional Trustee or its designee
the Capital Securities which are the subject of such election by 10:00 a.m. New
York City time, on the date on which such Exchange is to occur. After
the Exchange, such Capital Securities shall be cancelled and shall no longer be
deemed to be outstanding and all rights of the Sponsor Affiliated Holder with
respect to such Capital Securities shall cease. So long as the
Capital Securities are in book-entry-only form, the delivery and the
cancellation of the Capital Securities pursuant to this Section 6.2 shall be
made in accordance with the customary procedures for the Clearing Agency for the
Capital Securities.
(b) In
the case of an Exchange described in Section 6.2(a), the Trust shall, at the
written request of the Sponsor, on the date of such Exchange, exchange
Debentures having a principal amount equal to a proportional amount of the
aggregate Liquidation Amount of the outstanding Common Securities, such
proportional amount determined by multiplying the aggregate Liquidation Amount
of the outstanding Common Securities by the ratio of the aggregate Liquidation
Amount of the Capital Securities exchanged pursuant to Section 6.2(a) to the
aggregate Liquidation Amount of the Capital Securities outstanding immediately
prior to such Exchange, for such proportional amount of Common Securities held
by the Sponsor (which contemporaneously shall be cancelled and no longer be
deemed to be outstanding); provided, that the Sponsor delivers or causes to be
delivered to the Institutional Trustee or its designee the required amount of
Common Securities to be exchanged by 10:00 a.m., New York City time, on the date
on which such Exchange is to occur.
ARTICLE
VII
ISSUANCE
OF SECURITIES
SECTION
7.1 General Provisions
Regarding Securities.
(a) The
Regular Trustees shall on behalf of the Trust issue one class of capital
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I (the "Capital Securities")
and one class of common securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in Annex I (the
"Common Securities"). The Trust shall issue no securities or other
interests in the assets of the Trust other than the Capital Securities and the
Common Securities.
30
(b) The
Certificates shall be signed on behalf of the Trust by a Regular
Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case any Regular
Trustee of the Trust who shall have signed any of the Securities shall cease to
be such Regular Trustee before the Certificates so signed shall be delivered by
the Trust, such Certificates nevertheless may be delivered as though the person
who signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Security, shall be the Regular Trustees of the
Trust, although at the date of the execution and delivery of the Declaration any
such person was not such a Regular Trustee. Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation of any stock exchange on which Securities may be listed, or to
conform to usage.
(c) The
consideration received by the Trust for the issuance of the Securities shall
constitute a contribution to the capital of the Trust and shall not constitute a
loan to the Trust.
(d) Upon
issuance of the Securities as provided in this Declaration, the Securities so
issued shall be deemed to be validly issued, fully paid and
non-assessable.
(e) Every
Person, by virtue of having become a Holder or a Capital Security Beneficial
Owner in accordance with the terms of this Declaration, shall be deemed to have
expressly assented and agreed to the terms of, and shall be bound by, this
Declaration.
ARTICLE
VIII
DISSOLUTION
OF TRUST
SECTION
8.1 Dissolution of
Trust.
(a) The
Trust shall dissolve:
(i)
upon the
bankruptcy of any Holder of the Common Securities or the Sponsor;
(ii) upon
the filing of a certificate of dissolution or its equivalent with respect to any
Holder of the Common Securities or the Sponsor; the filing of a certificate of
cancellation with respect to the Trust or the revocation of the Holder of the
Common Securities or the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) upon
the entry of a decree of judicial dissolution of any Holder of the Common
Securities, the Sponsor or the Trust;
(iv) subject
to obtaining any required regulatory approval, when all of the Securities have
been called for redemption and the amounts necessary for redemption thereof have
been paid to the Holders in accordance with the terms of the
Securities;
31
(v) subject
to obtaining any required regulatory approval, upon the Exchange of all of the
then-outstanding Capital Securities pursuant to Section 6.2;
(vi) subject
to obtaining any required regulatory approval, when the Trust shall have been
dissolved in accordance with the terms of the Securities upon election by the
Sponsor of its right to terminate the Trust and distribute all of the Debentures
to the Holders of Securities in exchange for all of the Securities and all of
the Debentures shall have been distributed to the Holders of Securities in
accordance with such election;
(vii) before
the issuance of any Securities, with the consent of all of the Regular Trustees
and the Sponsor; or
(viii) upon
the expiration of the term of the Trust set forth in Section 3.14.
(b) As
soon as is practicable after the occurrence of an event referred to in Section
8.1(a), and after satisfaction of the claims and obligations of the Trust as
required by applicable law, including Section 3808 of the Statutory Trust Act,
and subject to the terms set forth in Annex I, the Delaware Trustee, when
notified in writing of the completion of the winding up of the Trust in
accordance with the Statutory Trust Act, shall terminate the Trust by filing, at
the expense of the Sponsor, a certificate of cancellation with the Secretary of
State of the State of Delaware.
(c) The
provisions of Section 3.9, Section 3.10 and Article X shall survive the
termination of the Trust.
ARTICLE
IX
TRANSFER
OF INTERESTS
SECTION
9.1 Transfer of
Securities.
(a) Securities
may only be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Declaration and in the terms of the
Securities. Any transfer or purported transfer of any Security not
made in accordance with this Declaration shall be null and void.
(b) Subject
to this Article IX, Capital Securities shall be freely
transferable.
(c) Subject
to this Article IX, the Sponsor and any Related Party may only transfer Common
Securities to the Sponsor or a Related Party of the Sponsor; provided, that any
such transfer is subject to the condition precedent that the transferor obtain
the written opinion of nationally recognized independent counsel experienced in
such matters that such transfer would not cause more than an insubstantial risk
that:
(i)
the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the
Trust would be an Investment Company or the transferee would become an
Investment Company.
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SECTION
9.2 Transfer of
Certificates.
The
Regular Trustees shall provide for the registration of Certificates and of
transfers of Certificates, which will be effected without charge but only upon
payment (with such indemnity as the Regular Trustees may require) in respect of
any tax or other government charges that may be imposed in relation to
it. Upon surrender for registration of transfer of any Certificate,
the Regular Trustees shall cause one or more new Certificates to be issued in
the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer
shall be canceled by the Regular Trustees. A transferee of a
Certificate shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee shall be
deemed to have agreed to be bound by this Declaration.
SECTION
9.3 Deemed Security
Holders.
The
Trustees may treat the Person in whose name any Certificate shall be registered
on the books and records of the Trust as the sole holder of such Certificate and
of the Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust shall have actual or other notice
thereof.
SECTION
9.4 Book Entry
Interests.
Unless
otherwise specified in the terms of the Capital Securities, the Capital
Securities Certificates, on original issuance, will be issued in the form of one
or more, fully registered, global Capital Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Certificates shall initially be
registered on the books and records of the Trust in the name of Cede & Co.,
the nominee of DTC, and no Capital Security Beneficial Owner will receive a
definitive Capital Security Certificate representing such Capital Security
Beneficial Owner's interests in such Global Certificates, except as provided in
Section 9.7. Unless and until definitive, fully registered Capital
Security Certificates (the "Definitive Capital Security Certificates") have been
issued to the Capital Security Beneficial Owners pursuant to Section
9.7:
(a) the
provisions of this Section 9.4 shall be in full force and effect;
(b) the
Trust and the Trustees shall be entitled to deal with the Clearing Agency for
all purposes of this Declaration (including the payment of Distributions on the
Global Certificates and receiving approvals, votes or consents hereunder) as the
Holder of the Capital Securities and the sole holder of the Global Certificates
and shall have no obligation to the Capital Security Beneficial
Owners;
(c) to
the extent that the provisions of this Section 9.4 conflict with any other
provisions of this Declaration, the provisions of this Section 9.4 shall
control; and
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(d) the
rights of the Capital Security Beneficial Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such Capital Security Beneficial Owners and the Clearing
Agency and/or the Clearing Agency Participants and receive and transmit payments
of Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing
Agency Participants.
SECTION
9.5 Notices to
Clearing Agency.
Whenever
a notice or other communication to the Capital Security Holders is required
under this Declaration, unless and until Definitive Capital Security
Certificates shall have been issued to the Capital Security Beneficial Owners
pursuant to Section 9.7, the Regular Trustees shall give all such notices and
communications specified herein to be given to the Capital Security Holders to
the Clearing Agency, and shall have no notice obligations to the Capital
Security Beneficial Owners.
SECTION
9.6 Appointment of
Successor Clearing Agency.
If any
Clearing Agency elects to discontinue its services as a securities depositary
with respect to the Capital Securities, the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to such Capital
Securities.
SECTION
9.7 Definitive Capital
Security Certificates.
If:
(a) a
Clearing Agency elects to discontinue its services as a securities depositary
with respect to the Capital Securities and a successor Clearing Agency is not
appointed within 90 days after such discontinuance pursuant to Section 9.6;
or
(b) the
Regular Trustees elect after consultation with the Sponsor and subject to the
procedures of the Clearing Agency to terminate the book entry system through the
Clearing Agency with respect to the Capital Securities,
then:
(c) Definitive
Capital Security Certificates shall be prepared by the Regular Trustees on
behalf of the Trust with respect to such Capital Securities; and
(d) upon
surrender of the Global Certificates by the Clearing Agency, accompanied by
registration instructions, the Regular Trustees shall cause Definitive
Certificates to be delivered to Capital Security Beneficial Owners in accordance
with the instructions of the Clearing Agency. Neither the Trustees
nor the Trust shall be liable for any delay in delivery of such instructions and
each of them may conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Capital Security
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Capital Securities may be listed, or
to conform to usage.
34
SECTION
9.8 Mutilated,
Destroyed, Lost or Stolen Certificates.
If:
(a) any
mutilated Certificates should be surrendered to the Regular Trustees, or if the
Regular Trustees shall receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and
(b) there
shall be delivered to the Regular Trustees such security or indemnity as may be
required by them to keep each of them harmless.
then, in
the absence of notice that such Certificate shall have been acquired by a bona
fide purchaser, any Regular Trustee on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like denomination. In
connection with the issuance of any new Certificate under this Section 9.8, the
Regular Trustees may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE
X
LIMITATION
OF LIABILITY OF HOLDERS OF
SECURITIES,
TRUSTEES OR OTHERS
SECTION
10.1 Liability.
(a) Except
as expressly set forth in this Declaration, the Capital Securities Guarantee and
the terms of the Securities, the Sponsor shall not be:
(i) personally
liable for the return of any portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall be made solely from assets
of the Trust; and
(ii) required
to pay to the Trust or to any Holder of Securities any deficit upon dissolution
of the Trust or otherwise.
(b) The
Holder of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant
to § 3803(a) of the Statutory Trust Act, the Holders of the Capital Securities
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
35
SECTION
10.2 Exculpation.
(a) No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Trust and upon such information, opinions, reports or statements
presented to the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional or expert
competence and who, if selected by such Person, has been selected with
reasonable care by such Person, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be
paid.
SECTION
10.3 Fiduciary
Duty.
(a) To
the extent that, at law or in equity, an Indemnified Person has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
any other Covered Person, an Indemnified Person acting under this Declaration
shall not be liable to the Trust or to any other Covered Person for its good
faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict or eliminate the duties
and liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Institutional Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person.
(b) Unless
otherwise expressly provided herein:
(i)
whenever a conflict of interest exists or arises between any Covered Persons;
or
(ii) whenever
this Declaration or any other agreement contemplated herein or therein provides
that an Indemnified Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of Securities,
the
Indemnified Person shall resolve such conflict of interest, take such action or
provide such terms, considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided by
the Indemnified Person shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
36
(c) Whenever
in this Declaration an Indemnified Person is permitted or required to make a
decision:
(i)
in its "discretion" or under a grant of similar authority, the Indemnified
Person shall be entitled to consider such interests and factors as it desires,
including its own interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust or any other
Person; or
(ii) in
its "good faith" or under another express standard, the Indemnified Person shall
act under such express standard and shall not be subject to any other or
different standard imposed by this Declaration or by applicable
law.
SECTION
10.4 Indemnification.
(a) (i) The
Debenture Issuer shall indemnify, to the full extent permitted by law, any
Company Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The
Debenture Issuer shall indemnify, to the full extent permitted by law, any
Company Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Trust to procure a judgment in its favor by reason of the fact that he is
or was a Company Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust
and except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that the Court
of Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.
37
(iii) To
the extent that a Company Indemnified Person shall be successful on the merits
or otherwise (including dismissal of an action without prejudice or the
settlement of an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a), or in defense of any claim, issue or matter therein, he shall
be indemnified, to the full extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(iv) Any
indemnification under paragraphs (i) and (ii) of this Section 10.4(a)
(unless ordered by a court) shall be made by the Debenture Issuer only as
authorized in the specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the Regular Trustees by
a majority vote of a quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(v) Expenses
(including attorneys' fees) incurred by a Company Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall
be paid by the Debenture Issuer in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such Company Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Debenture Issuer as
authorized in this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Debenture Issuer if a determination is reasonably
and promptly made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii) the Common Security
Holder of the Trust, that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such determination is made,
such Company Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where
the Regular Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to the
Trust or its Common or Capital Security Holders.
(vi) The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other paragraphs of this Section 10.4(a) shall not be deemed exclusive of
any other rights to which those seeking indemnification and advancement of
expenses may be entitled under any agreement, vote of stockholders or
disinterested directors of the Debenture Issuer or Capital Security Holders of
the Trust or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to be provided by a
contract between the Debenture Issuer and each Company Indemnified Person who
serves in such capacity at any time while this Section 10.4(a) is in
effect. Any repeal or modification of this Section 10.4(a) shall not
affect any rights or obligations then existing.
38
(vii) The
Debenture Issuer may purchase and maintain insurance on behalf of any person who
is or was a Company Indemnified Person against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Debenture Issuer would have the power to indemnify him
against such liability under the provisions of this Section
10.4(a).
(viii) For
purposes of this Section 10.4(a), references to "the Trust" shall include, in
addition to the resulting or surviving entity, any constituent entity (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another entity,
shall stand in the same position under the provisions of this Section 10.4(a)
with respect to the resulting or surviving entity as he would have with respect
to such constituent entity if its separate existence had continued.
(ix) The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Section 10.4(a) shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a Company Indemnified
Person and shall inure to the benefit of the heirs, executors and administrators
of such a person.
(b) The
Debenture Issuer agrees to indemnify the (i) Institutional Trustee, (ii) the
Delaware Trustee, (iii) any Affiliate of the Institutional Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Institutional Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any and all loss,
liability, claim damage or expense incurred without negligence, or bad
faith or willful misconduct on its part, arising out of or in connection with
the acceptance or administration or the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 10.4(b) shall survive the
resignation or removal of the Institutional Trustee or the Delaware Trustee, as
the case may be, and the termination of this Declaration. The Debenture Issuer
agrees to pay the Institutional Trustee and the Delaware Trustee from time to
time such compensation for all services rendered by the Institutional Trustee
and the Delaware Trustee hereunder as may be mutually agreed upon in writing by
the Debenture Issuer and the Institutional Trustee or the Delaware Trustee, as
the case may be, and, except as otherwise expressly provided therein or herein,
to reimburse the Institutional Trustee and the Delaware Trustee upon its or
their request for all reasonable expenses (including reasonable counsel fees and
expenses), disbursements and advances incurred or made by the Institutional
Trustee or the Delaware Trustee, as the case may be, in accordance with the
provisions of this Declaration, except any such expense, disbursement or advance
as may be attributable to its or their negligence, bad faith or willful
misconduct. The provisions of this sentence shall survive the resignation or
removal of the Delaware Trustee or the Institutional Trustee or the termination
of this Declaration.
39
SECTION
10.5 Outside
Businesses.
Any
Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee
may engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the Holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or
the Institutional Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee
shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the
Institutional Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE
XI
ACCOUNTING
SECTION
11.1 Fiscal
Year.
The
fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or such
other year as is required by the Code.
SECTION
11.2 Certain
Accounting Matters.
(a) At
all times during the existence of the Trust, the Regular Trustees shall keep, or
cause to be kept, full books of account, records and supporting documents, which
shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method
of accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books
of account and the records of the Trust shall be examined by and reported upon
as of the end of each Fiscal Year of the Trust by a firm of independent
certified public accountants selected by the Regular Trustees.
(b) The
Regular Trustees shall cause to be prepared and delivered to each of the Holders
of Securities, to the extent, if any, required by the Trust Indenture Act,
within 90 days after the end of each Fiscal Year of the Trust, annual financial
statements of the Trust, including a balance sheet of the Trust as of the end of
such Fiscal Year, and the related statements of income or loss;
40
(c) The
Regular Trustees shall cause to be duly prepared and delivered to each of the
Holders of Securities, any annual United States federal income tax information
statement required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust.
(d) The
Regular Trustees shall cause to be duly prepared and filed with the appropriate
taxing authority, an annual United States federal income tax return, on a Form
1041 or such other form required by United States federal income tax law, and
any other annual income tax returns required to be filed by the Regular Trustees
on behalf of the Trust with any state or local taxing authority.
SECTION
11.3 Banking.
The Trust
shall maintain one or more bank accounts in the name and for the sole benefit of
the Trust; provided, however, that all payments of funds in respect of the
Debentures held by the Institutional Trustee shall be made directly to the
Institutional Trustee Account and no other funds of the Trust shall be deposited
in the Institutional Trustee Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however, that
the Institutional Trustee shall designate the signatories for the Institutional
Trustee Account.
SECTION
11.4 Withholding.
The Trust
and the Regular Trustees shall comply with all withholding requirements under
United States federal, state and local law. The Trust shall request,
and the Holders shall provide to the Trust, such forms or certificates as are
necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required
forms with applicable jurisdictions and, unless an exemption from withholding is
properly established by a Holder, shall remit amounts withheld with respect to
the Holder to applicable jurisdictions. To the extent that the Trust
is required to withhold and pay over any amounts to any authority with respect
to distributions or allocations to any Holder, the amount withheld shall be
deemed to be a distribution in the amount of the withholding to the
Holder. In the event of any claimed overwithholding, Holders shall be
limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions made,
the Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE
XII
AMENDMENTS
AND MEETINGS
SECTION
12.1 Amendments.
(a) Except
as otherwise provided in this Declaration or by any applicable terms of the
Securities, this Declaration may only be amended by a written instrument
approved and executed by:
41
(i) the
Regular Trustees (or, if there are more than two Regular Trustees a majority of
the Regular Trustees);
(ii) if
the amendment affects the rights, powers, duties, obligations or immunities of
the Institutional Trustee, the Institutional Trustee; and
(iii) if
the amendment affects the rights, powers, duties, obligations or immunities of
the Delaware Trustee, the Delaware Trustee;
(b) no
amendment shall be made, and any such purported amendment shall be void and
ineffective:
(i) unless,
in the case of any proposed amendment, the Institutional Trustee shall have
first received an Officers' Certificate from each of the Trust and the Sponsor
that such amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
(ii) unless,
in the case of any proposed amendment which affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the Institutional
Trustee shall have first received:
(A) an
Officers' Certificate from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this Declaration (including the
terms of the Securities); and
(B) an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(iii) to
the extent the result of such amendment would be to:
(A) cause
the Trust to fail to continue to be classified for purposes of United States
federal income taxation as a grantor trust;
(B) reduce
or otherwise adversely affect the powers of the Institutional Trustee in
contravention of the Trust Indenture Act; or
(C) cause
the Trust to be deemed to be an Investment Company required to be registered
under the Investment Company Act;
(c) at
such time after the Trust has issued any Securities that remain outstanding, any
amendment that would adversely affect the rights, privileges or preferences of
any Holder of Securities may be effected only with such additional requirements
as may be set forth in the terms of such Securities;
(d) Section
9.1(c) and this Section 12.1 shall not be amended without the consent of all of
the Holders of the Securities;
42
(e) Article
IV shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities and;
(f)
the rights of the Holders of the Common Securities under Article V to
increase or decrease the number of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in liquidation amount
of the Common Securities; and
(g) subject
to Section 12.1(c), this Declaration may be amended without the consent of the
Holders of the Securities to:
(i)
cure any ambiguity or manifest error;
(ii) correct
or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration;
(iii) add
to the covenants, restrictions or obligations of the Sponsor;
(iv) to
conform to any change in Rule 3a-5 or written change in interpretation or
application of Rule 3a-5 by any legislative body, court, government agency or
regulatory authority which amendment does not have a material adverse effect on
the right, preferences or privileges of the Holders; and
(v) to
modify, eliminate and add to any provision of the Declaration to such extent as
may be reasonably necessary to effectuate any of the foregoing or to otherwise
comply with applicable law.
SECTION
12.2 Meetings of the
Holders of Securities; Action by Written Consent.
(a) Meetings
of the Holders of any class of Securities may be called at any time by the
Regular Trustees (or as provided in the terms of the Securities) to consider and
act on any matter on which Holders of such class of Securities are entitled to
act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Capital Securities are listed or
admitted for trading. The Regular Trustees shall call a meeting of
the Holders of such class if directed to do so by the Holders of Securities
representing at least 10% in liquidation amount of such class of
Securities. Such direction shall be given by delivering to the
Regular Trustees one or more calls in a writing stating that the signing Holders
of Securities wish to call a meeting and indicating the general or specific
purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Security Certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Except
to the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of Securities:
43
(i)
notice of any such meeting shall be given to all the Holders of Securities
having a right to vote thereat at least 7 days and not more than 60 days before
the date of such meeting. Whenever a vote, consent or approval of the
Holders of Securities is permitted or required under this Declaration or the
rules of any stock exchange on which the Capital Securities are listed or
admitted for trading, such vote, consent or approval may be given at a meeting
of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in liquidation
amount that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall
be given to the Holders of Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any written ballot
submitted to the Security Holder for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the Regular
Trustees;
(ii) each
Holder of a Security may authorize any Person to act for it by proxy on all
matters in which a Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11 months
from the date thereof unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the Holder of Securities executing
it. Except as otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and the
Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each
meeting of the Holders of the Securities shall be conducted by the Regular
Trustees or by such other Person that the Regular Trustees may designate;
and
(iv) unless
the Statutory Trust Act, this Declaration, the terms of the Securities, the
Trust Indenture Act or the listing rules of any stock exchange on which the
Capital Securities are then listed or trading, otherwise provides, the Regular
Trustees, in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of any such
right to vote.
ARTICLE
XIII
REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE
AND
DELAWARE TRUSTEE
SECTION
13.1 Representations
and Warranties of Institutional Trustee.
The
Trustee that acts as initial Institutional Trustee represents and warrants to
the Trust and to the Sponsor at the date of this Declaration, and each Successor
Institutional Trustee represents and warrants to the Trust and the Sponsor at
the time of the Successor Institutional Trustee's acceptance of its appointment
as Institutional Trustee that:
44
(a) the
Institutional Trustee is a banking corporation or association with trust powers,
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation, with trust power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, this Declaration;
(b) the
execution, delivery and performance by the Institutional Trustee of the
Declaration has been duly authorized by all necessary corporate action on the
part of the Institutional Trustee. The Declaration has been duly
executed and delivered by the Institutional Trustee, and it constitutes a legal,
valid and binding obligation of the Institutional Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law);
(c) the
execution, delivery and performance of the Declaration by the Institutional
Trustee does not conflict with or constitute a breach of the Articles of
Organization or By-laws of the Institutional Trustee; and
(d) no
consent, approval or authorization of, or registration with or notice to, any
State or Federal banking authority is required for the execution, delivery or
performance by the Institutional Trustee, of the Declaration.
SECTION
13.2 Representations
and Warranties of Delaware Trustee.
The
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The
Delaware Trustee is a banking corporation or association with trust powers, duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation, with trust power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration.
(b) The
Delaware Trustee has been authorized to perform its obligations under the
Certificate of Trust and the Declaration. The Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c)
No consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration.
45
(d) The
Delaware Trustee is an entity which maintains its principal place of business in
the State of Delaware.
ARTICLE
XIV
MISCELLANEOUS
SECTION
14.1 Notices.
All
notices provided for in this Declaration shall be in writing, duly signed by the
party giving such notice, and shall be delivered, telecopied or mailed by
registered or certified mail, as follows:
(a) if
given to the Trust, in care of the Regular Trustees at the Trust's mailing
address set forth below (or such other address as the Trust may give notice of
to the Holders of the Securities and the Institutional Trustee):
Citigroup
Capital XII
c/o
Citigroup Inc.
153 East
53rd Street, 5th Floor
New York,
New York 10043
Attention:
Treasury
Department
(b) if
given to the Delaware Trustee, at the mailing address set forth below (or such
other address as Delaware Trustee may give notice of to the Holders of the
Securities):
BNY
Mellon Trust of Delaware
100 White
Clay Center, Suite 102
Newark,
DE 19711
Attention:
Corporate Trust Administration
(c) if
given to the Institutional Trustee, at the mailing address set forth below (or
such other address as the Institutional Trustee may give notice of to the
Holders of the Securities and the Sponsor):
The Bank
of New York Mellon
101
Barclay Street-8W
New York,
New York 10286
Attention:
Corporate Trust Administration
(d) if
given to the Holder of the Common Securities, at the mailing address of the
Sponsor set forth below (or such other address as the Holder of the Common
Securities may give notice of to the Trust):
Citigroup
Inc.
153 East
53rd Street
New York,
NY 10043
Attention:
Charles E. Wainhouse
46
(e) if
given to any other Holder, at the address set forth on the books and records of
the Trust.
All such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
SECTION
14.2 Governing
Law.
This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to the principles of conflict of laws.
SECTION
14.3 Intention of the
Parties.
It is the
intention of the parties hereto that the Trust be classified for United States
federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the
parties.
SECTION
14.4 Headings.
Headings
contained in this Declaration are inserted for convenience of reference only and
do not affect the interpretation of this Declaration or any provision
hereof.
SECTION
14.5 Successors and
Assigns.
Whenever
in this Declaration any of the parties hereto is named or referred to, the
successors and assigns of such party shall be deemed to be included, and all
covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
SECTION
14.6 Partial
Enforceability.
If any
provision of this Declaration, or the application of such provision to any
Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected
thereby.
SECTION
14.7 Counterparts.
This
Declaration may contain more than one counterpart of the signature page and this
Declaration may be executed by the affixing of the signature of each of the
Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
47
IN
WITNESS WHEREOF, the undersigned have caused these presents to be executed as of
the day and year first above written.
/s/ Michael Verdeschi | |
Name: Michael
Verdeschi
|
|
Title: Regular
Trustee
|
|
/s/ Charles E. Wainhouse | |
Name: Charles
E. Wainhouse
|
|
Title: Regular
Trustee
|
|
/s/ Jeffrey R. Walsh | |
Name: Jeffrey
R. Walsh
|
|
Title: Regular
Trustee
|
|
BNY
MELLON TRUST OF DELAWARE,
|
|
as
Delaware Trustee
|
|
By:
|
/s/ Kristine K. Gullo |
Name:
Kristine K. Gullo
|
|
Title:
Vice President
|
|
THE
BANK OF NEW YORK MELLON, as Institutional Trustee
|
|
By:
|
/s/ Timothy W. Casey |
Name:
Timothy W. Casey
|
|
Title:
Senior Associate
|
|
CITIGROUP
INC., as Sponsor
|
|
By:
|
/s/ Martin A. Waters |
Name: Martin
A. Waters
|
|
Title: Assistant
Treasurer
|
ANNEX
I
TERMS
OF
8.500%
FIXED RATE/FLOATING RATE CAPITAL SECURITIES
8.500%
FIXED RATE/FLOATING RATE COMMON SECURITIES
Pursuant
to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of
March 17, 2010 (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities and the Common Securities are set out below
(each capitalized term used but not defined herein has the meaning set forth in
the Declaration or, if not defined in such Declaration, as defined in the
Prospectus referred to below):
1. Designation and
Number.
(a) Capital Securities.
92,000,000 Capital Securities of the Trust with an aggregate liquidation amount
with respect to the assets of the Trust of TWO BILLION AND THREE HUNDRED MILLION
dollars ($2,300,000,000), and a liquidation amount with respect to the assets of
the Trust of $25 per capital security, are hereby designated for the purposes of
identification only as "8.500% Fixed Rate/Floating Rate Trust Preferred
Securities" (TruPS®) (the "Capital
Securities"). The Capital Security Certificates evidencing the
Capital Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Capital Securities are listed.
(b) Common Securities.
1,000 Common Securities of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of TWENTY-FIVE THOUSAND dollars ($25,000),
and a liquidation amount with respect to the assets of the Trust of $25 per
common security, are hereby designated for the purposes of identification only
as "8.500% Fixed Rate/Floating Rate Common Securities" (the "Common
Securities"). The Common Security Certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-2 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
2.
Distributions.
(a) Distributions
will be cumulative and will be payable on each Security until redemption (i)
from March 17, 2010 to but excluding March 30, 2015, at an annual rate of 8.500%
payable quarterly in arrears on March 30, June 30, September 30 and December 30
of each year, beginning June 30, 2010, and (ii) from and including March 30,
2015 to but excluding March 30, 2040, at an annual rate equal to three-month
LIBOR plus 5.870% payable quarterly in arrears on March 30, June 30, September
30 and December 30 of each year, beginning June 30, 2015 (the "Coupon Rates"),
these rates being the rates payable on the Debentures to be held by the
Institutional Trustee. The amount of Distributions payable (i) from March 17,
2010 to but excluding March 30, 2015 shall be computed on the basis of a
360-day year consisting of twelve 30-day months, and (ii) from and including
March 30, 2015 to but excluding March 30, 2040 shall be computed on the basis of
a 360-day year and the actual number of days elapsed. Distributions
in arrears beyond the first date such Distributions are payable (or would be
payable, if not for any Extension Period (as defined below) or default by the
Debenture Issuer on the Debentures) will bear interest thereon compounded
quarterly at the applicable Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Institutional Trustee and to
the extent the Institutional Trustee has funds available
therefor.
I-1
(b) When,
as and if available for payment, Distributions will be made by the Institutional
Trustee, except as otherwise described below. The Debenture Issuer
has the right under the Indenture to defer payments of interest on the
Debentures by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures, provided, that no Extension Period may extend beyond
the date of maturity or earlier redemption of the Debentures. As a
consequence of the Debenture Issuer's extension of the interest payment period,
quarterly Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the applicable Coupon Rate compounded
quarterly during any such Extension Period. In the event that the
Debenture Issuer exercises its right to extend the interest payment period, then
(a) the Debenture Issuer and any subsidiary of the Debenture Issuer shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Debenture Issuer's capital stock or make any guarantee payment with respect
thereto (other than (i) purchases, redemptions or other acquisitions of shares
of capital stock of the Debenture Issuer in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit of
employees, officers, directors or consultants, (ii) purchases of shares of
common stock of the Debenture Issuer pursuant to a contractually binding
requirement to buy stock existing prior to the commencement of the Extension
Period, including under a contractually binding stock repurchase plan, (iii) as
a result of an exchange or conversion of any class or series of the Debenture
Issuer's capital stock for any other class or series of the Debenture Issuer's
capital stock, (iv) the purchase of fractional interests in shares of the
Debenture Issuer's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
or (v) the purchase of the Debenture Issuer's capital stock in connection with
the distribution thereof); and (b) the Debenture Issuer and any subsidiary of
the Debenture Issuer will not make any payment of interest, principal or premium
on, or repay, repurchase or redeem, any debt securities or guarantees issued by
the Debenture Issuer that rank pari passu with or junior to the Debentures
(other than pro rata payments of accrued and unpaid interest on the Debentures
and any other debt securities or guarantees issued by the Debenture Issuer that
rank equally with the Debentures, except and to the extent the terms of any such
debt securities would prohibit the Debenture Issuer from making such pro rata
payment). The foregoing, however, will not apply to any stock dividends paid by
the Debenture Issuer where the dividend stock is the same stock as that on which
the dividend is being paid. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such Extension Period;
provided, that such Extension Period, together with all such previous Extension
Periods, may not exceed 20 consecutive quarters; provided further, that no
Extension Period may extend beyond the maturity or earlier redemption of the
Debentures. Payments of deferred Distributions and accrued interest
thereon will be payable to Holders as they appear on the books and records of
the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements. The Regular Trustees will
give notice to each Holder of any Extension Period upon their receipt of notice
thereof from the Debenture Issuer.
I-2
(c) Distributions
on the Securities will be payable to the Holders thereof as they appear on the
books and records of the Trust at the close of business on the relevant record
dates. While the Capital Securities remain in book-entry only form,
the relevant record dates shall be one Business Day prior to the relevant
payment dates which payment dates shall correspond to the interest payment dates
on the Debentures. Subject to any applicable laws and regulations and
the provisions of the Declaration, each such payment in respect of the Capital
Securities will be made as described under the heading "Description of the
Capital Securities — Book-Entry Only
Issuance" in the Prospectus, dated March 10, 2010 (the "Prospectus"), of the
Trust included in the Registration Statement on Form S-3 of the Sponsor, the
Trust and certain other statutory trusts. The relevant record dates
for the Common Securities shall be the same record date as for the Capital
Securities. If the Capital Securities shall not continue to remain in
book-entry only form, the relevant record dates for the Capital Securities shall
conform to the rules of any securities exchange on which the securities are
listed and, if none, shall be selected by the Regular Trustees, which dates
shall be more than 14 days but less than 60 days prior to the relevant payment
dates, which payment dates shall correspond to the interest payment dates on the
Debentures. Distributions payable on any Securities that are not
punctually paid on any Distribution payment date, as a result of the Debenture
Issuer having failed to make a payment under the Debentures, will cease to be
payable to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will instead be payable to
the Person in whose name such Securities are registered on the special record
date or other specified date determined in accordance with the
Indenture. If any date on which
Distributions are payable on the Securities on or before March 30, 2015 is not a
Business Day, then payment of the Distribution payable on such date shall be
made or be made available for payment on the next succeeding day that is a
Business Day, and without any interest or other payment in respect of any such
delay. If any date on which Distributions are payable on the Securities after
March 30, 2015 is not a Business Day, then payment of the Distribution payable
on such date shall be made or be made available for payment on the next
succeeding day that is a Business Day and interest will accrue to but excluding
the date interest is paid. However, if such Business Day is in the
next succeeding calendar month, such payment shall be made on, and interest will
accrue to but excluding, the immediately preceding Business
Day.
(d) In
the event that there is any money or other property held by or for the Trust
that is not accounted for hereunder, such property shall be distributed Pro Rata
(as defined herein) among the Holders of the Securities.
I-3
3.
Liquidation Distribution
Upon Dissolution.
(a) In
the event of any voluntary or involuntary liquidation, dissolution, winding-up
or termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of claims and obligations of the Trust pursuant to
applicable law, distributions in an amount equal to the aggregate of the stated
liquidation amount of $25 per Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution, winding-up or
termination, Debentures in an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate equal to the Coupon Rate,
and bearing accrued and unpaid interest in an amount equal to the accumulated
and unpaid Distributions on, such Securities outstanding at such time, have been
distributed on a Pro Rata basis to the Holders of the Securities in exchange for
such Securities. Prior to any such Liquidation Distribution, the
Debenture Issuer will obtain any required regulatory approval.
(b) If,
upon any such dissolution, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on the
Securities shall be paid on a Pro Rata basis.
4.
Redemption and
Distribution.
(a) Upon
the repayment of the Debentures in whole or in part, whether at maturity or
earlier on the dates and to the extent the Debentures are redeemed (either at
the option of the Debenture Issuer or pursuant to a Special Event as described
below), the proceeds from such repayment or payment shall be simultaneously
applied to redeem Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so repaid or redeemed at a
redemption price of $25 per Security plus an amount equal to accumulated and
unpaid Distributions thereon at the date of the redemption, payable in cash (the
"Redemption Price"). Holders shall be given not less than 30 nor more
than 60 days' notice of such redemption. Prior to any such
redemption, the Debenture Issuer will obtain any required regulatory
approval.
(b) If
fewer than all the outstanding Securities are to be so redeemed, the Securities
will be redeemed Pro Rata and the Capital Securities to be redeemed will be as
described in Section 4(g)(ii) below.
(c) Subject
to obtaining any required regulatory approval, the Debenture Issuer may redeem
the Debentures, in whole or in part, at any time on or after March 30, 2015 at
the Redemption Price.
I-4
(d) Subject
to obtaining any required regulatory approval, if, at any time, a Tax Event, an
Investment Company Event or a Regulatory Capital Event (each as defined below,
and each a "Special Event") shall occur and be continuing, the Debenture Issuer
shall have the right, upon not less than 30 nor more than 60 days' notice, to
redeem the Debentures, in whole or in part, for cash within 90 days following
the occurrence of such Special Event, and, following such redemption, Capital
Securities and Common Securities with an aggregate liquidation amount equal to
the aggregate principal amount of the Debentures so redeemed shall be redeemed
by the Trust at the Redemption Price on a Pro Rata basis; provided, however,
that if at the time there is available to the Debenture Issuer or the Trust the
opportunity to eliminate, within such 90-day period, the Special Event by taking
some ministerial action, such as filing a form or making an election or pursuing
some other similar reasonable measure that will have no adverse effect on the
Trust, the Debenture Issuer or the holders of the Capital Securities or the
Debentures, then the Debenture Issuer or the Trust will pursue such measure in
lieu of redemption and, provided further, that in the case of a Regulatory
Capital Event, where a result of which is that only a portion of the Capital
Securities will not qualify as Tier 1 capital of the Debenture Issuer or any
bank holding company of which the Debenture Issuer is a subsidiary (or its
equivalent) for purposes of the capital adequacy guidelines or policies of the
Board of Governors of the Federal Reserve or the governmental agency with
primary oversight of regulatory capital for the Debenture Issuer or the
bank holding company of which the Debenture Issuer is a subsidiary (the "Capital
Regulator"), the Debenture Issuer may redeem an amount of the Debentures up to
the amount that corresponds to the Capital Securities that would no longer
qualify as Tier 1 capital as a result of such Regulatory Capital Event
.
"Tax
Event" means that the Regular Trustees shall have received an opinion of a
nationally recognized independent tax counsel experienced in such matters (a
"Tax Event Opinion") to the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws or associated
regulations of the United States or any political subdivision or taxing
authority of the United States on or after the date of the Prospectus or (b) any
amendment to, or change in, an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the publication of any
judicial decision, regulatory determination or administrative pronouncement on
or after the date of the Prospectus), there is more than an insubstantial risk
that (i) the Trust would be subject to United States federal income tax with
respect to interest accrued or received on the Debentures, (ii) the Trust would
be subject to more than a de minimis amount of other taxes, duties or other
governmental charges, or (iii) interest payable to the Trust on the Debentures
would not be deductible, in whole or in part, by the Debenture Issuer for United
States federal income tax purposes.
"Investment
Company Event" means that the Regular Trustees shall have received an opinion of
a nationally recognized independent counsel experienced in such matters (an
"Investment Company Event Opinion") to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is a more than an insubstantial risk that the Trust is or will be
considered an Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after the date of the Prospectus.
"Regulatory
Capital Event" means a determination by the Debenture Issuer, based on an
opinion of counsel experienced in such matters (who may be an employee of the
Debenture Issuer or any of its Affiliates), that, as a result of (a) any
amendment to, clarification of or change (including any announced prospective
change) in applicable laws or regulations or official interpretations thereof or
policies with respect thereto or (b) any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment, clarification, change, pronouncement or decision is announced or is
effective after the date of the Prospectus, there is more than an insubstantial
risk that the Capital Securities, or a portion thereof, will no longer
constitute Tier I Capital of the Debenture Issuer or any bank holding company of
which the Debenture Issuer is a subsidiary (or its equivalent) for purposes of
the capital adequacy guidelines or policies of the Capital Regulator, provided,
however that the distribution of the Debentures in connection with the
liquidation of the Trust shall not in and of itself constitute a Regulatory
Capital Event unless such liquidation shall have occurred in connection with a
Tax Event or an Investment Company Event.
I-5
On and
from the date fixed by the Regular Trustees for any distribution of
the Debentures and dissolution of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) DTC or its nominee (or any successor
Clearing Agency or its nominee), as the record Holder of the Capital Securities,
will receive a registered global certificate or certificates representing the
Debentures to be delivered upon such distribution and (iii) any certificates
representing Securities, except for certificates representing Capital Securities
held by DTC or its nominee (or any successor Clearing Agency or its nominee),
will be deemed to represent beneficial interests in the Debentures having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Coupon Rate of, and accrued and unpaid
interest equal to accumulated and unpaid Distributions on such Securities until
such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
(e) The
Trust may not redeem fewer than all the outstanding Securities unless all
accumulated and unpaid Distributions have been paid on all Securities for all
quarterly Distribution periods terminating on or before the date of
redemption.
(f)
If the Debentures are distributed to the Holders
of the Securities, pursuant to the terms of the Indenture, the Debenture Issuer
will use its best efforts to cause the Debentures to be listed on the New York
Stock Exchange or on such other exchange as the Capital Securities were listed
immediately prior to the distribution of the Debentures.
(g) Redemption
or Distribution procedures will be as follows:
(i)
Notice of any redemption of, or notice of distribution of Debentures
in exchange for the Securities (a "Redemption/Distribution Notice") will be
given by the Trust by mail to the Institutional Trustee and the Delaware Trustee
and to each Holder of the Securities to be redeemed or exchanged not fewer than
30 nor more than 60 days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 4(g)(i), a Redemption/ Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail, postage prepaid, to
the Holders of the Securities. Each Redemption/Distribution Notice
shall be addressed to the Holders of the Securities at the address of each such
Holder appearing in the books and records of the Trust. No defect in
the Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In
the event that fewer than all the outstanding Securities are to be redeemed, the
Securities to be redeemed shall be redeemed Pro Rata from each Holder of Capital
Securities, it being understood that, in respect of Capital Securities
registered in the name of and held of record by DTC or its nominee (or any
successor Clearing Agency or its nominee), the distribution of the proceeds of
such redemption will be made to each Clearing Agency Participant (or Person on
whose behalf such nominee holds such securities) in accordance with the
procedures applied by such agency or nominee.
I-6
(iii) If
Securities are to be redeemed and the Trust gives a Redemption/Distribution
Notice, which notice may only be issued if the Debentures are redeemed as set
out in this Section 4 (which notice will be irrevocable), then (A) while the
Capital Securities are in book-entry only form, with respect to the Capital
Securities, by 12:00 noon, New York City time, on the redemption date, provided,
that the Debenture Issuer has paid to the Institutional Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Debentures, the Institutional Trustee will deposit irrevocably with DTC or its
nominee (or successor Clearing Agency or its nominee) funds sufficient to pay
the applicable Redemption Price with respect to the Capital Securities and will
give DTC (or any successor Clearing Agency) irrevocable instructions and
authority to pay the Redemption Price to the Holders of the Capital Securities,
and (B) with respect to Capital Securities issued in definitive form and Common
Securities, provided, that the Debenture Issuer has paid the Institutional
Trustee a sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Institutional Trustee will pay the relevant
Redemption Price to the Holders of such Securities by check mailed to the
address of the relevant Holder appearing on the books and records of the Trust
on the redemption date. If a Redemption/Distribution Notice shall
have been given and funds deposited as required, if applicable, then immediately
prior to the close of business on the date of such deposit, or on the redemption
date, as applicable, distributions will cease to accrue on the Securities so
called for redemption and all rights of the Holders of such Securities so called
for redemption will cease, except the right of the Holders of such Securities to
receive the Redemption Price, but without interest on such Redemption
Price. Neither the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of any Securities that have
been so called for redemption. If any date fixed for redemption of
Securities is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of
the Redemption Price in respect of any Securities is improperly withheld or
refused and not paid either by the Institutional Trustee or by the Sponsor as
guarantor pursuant to the relevant Securities Guarantee, Distributions on such
Securities will continue to accrue from the original redemption date to the
actual date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption
Price.
(iv) Redemption/Distribution
Notices shall be sent by the Regular Trustees on behalf of the Trust to (A) in
respect of the Capital Securities, DTC or its nominee (or any successor Clearing
Agency or its nominee) if the Global Certificates have been issued or, if
Definitive Capital Security Certificates have been issued, to the Holder thereof
and (B) in respect of the Common Securities to the Holder thereof.
I-7
(v) Subject
to the foregoing and applicable law (including, without limitation, United
States federal securities laws), the Debenture Issuer or its affiliates may at
any time and from time to time purchase outstanding Capital Securities by
tender, in the open market or by private agreement.
5.
Voting Rights -
Capital Securities.
(a) Except
as provided under Sections 5(b) and 7 and as otherwise required by law and the
Declaration, the Holders of the Capital Securities will have no voting
rights.
(b) Subject
to the requirements set forth in this paragraph, the Holders of a Majority in
aggregate liquidation amount of the Capital Securities, voting separately as a
class, may direct the time, method, and place of conducting any proceeding for
any remedy available to the Institutional Trustee, or direct the exercise of any
trust or power conferred upon the Institutional Trustee under the Declaration,
including the right to direct the Institutional Trustee, as holder of the
Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercise any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past Default (as defined in the Indenture) that is
waivable under Section 5.6 of the Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required; provided,
however, that, where a consent or action under the Indenture would require the
consent or act of the Holders of greater than a majority in principal amount of
Debentures affected thereby (a “Super Majority”), the Institutional Trustee may
only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Capital
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided, further, that the
Institutional Trustee shall have the right to refrain from following any such
direction that violates the Declaration or conflicts with any applicable rule of
law or would involve it in personal liability against which indemnity would, in
the opinion of the Institutional Trustee, not be adequate, and the Institutional
Trustee may take any other action deemed proper by it that is not inconsistent
with such direction. The Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the Capital
Securities. Except with respect to directing the time, method and
place of conducting a proceeding for a remedy available to the Institutional
Trustee, the Institutional Trustee, as holder of the Debentures, shall not take
any of the actions described in clauses (i), (ii), (iii) or (iv) above unless
the Institutional Trustee has obtained an opinion of a nationally recognized
independent tax counsel experienced in such matters to the effect that as a
result of such action, the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes. If the
Institutional Trustee fails to enforce its rights under the Debentures, any
Holder of Capital Securities may directly institute a legal proceeding against
the Debenture Issuer to enforce the Institutional Trustee's rights under the
Debentures without first instituting a legal proceeding against the
Institutional Trustee or any other Person or entity. If a Default
under the Declaration has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), then a holder of Capital
Securities may also directly institute a proceeding for enforcement of payment
to such holder (a "Direct Action") of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Capital Securities of such holder on or after the respective due date
specified in the Debentures without first (i) directing the Institutional
Trustee to enforce the terms of the Debentures or (ii) instituting a legal
proceeding directly against the Debenture Issuer to enforce the Institutional
Trustee's rights under the Debentures. Except as provided in the
preceding sentence, the Holders of Capital Securities will not be able to
exercise directly any other remedy available to the holders of the
Debentures. In connection with such Direct Action, the Debenture
Issuer will be subrogated to the rights of such Holder of Capital Securities
under the Declaration to the extent of any payment made by the Debenture Issuer
to such holder of Capital Securities in such Direct Action.
I-8
Any
required approval or direction of Holders of Capital Securities may be given at
a separate meeting of Holders of Capital Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Capital Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Capital Securities. Each such
notice will include a statement setting forth (i) the date of such meeting or
the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote
or consent of the Holders of the Capital Securities will be required for the
Trust to redeem and cancel Capital Securities or to distribute the Debentures in
accordance with this Declaration and the terms of the Securities.
Notwithstanding
that Holders of Capital Securities are entitled to vote or consent under any of
the circumstances described above, any of the Capital Securities that are owned
by the Sponsor or any Affiliate of the Sponsor shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if they
were not outstanding.
6.
Voting Rights -
Common Securities.
(a)
Except as provided under Sections 6(b), (c) and 7
and as otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The
Holders of the Common Securities are entitled, in accordance with and subject to
Article V of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
I-9
(c) Subject
to Section 2.6 of the Declaration and only after the Default with respect to the
Capital Securities has been cured, waived, or otherwise eliminated and subject
to the requirements of the second to last sentence of this paragraph, the
Holders of a Majority in liquidation amount of the Common Securities, voting
separately as a class, may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or direct the
exercise of any trust or power conferred upon the Institutional Trustee under
the Declaration, including (i) directing the time, method, place of conducting
any proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waiving any past Default (as defined in the Indenture) that is
waivable under Section 5.6 of the Indenture, or (iii) exercising any right
to rescind or annul a declaration that the principal of all the Debentures shall
be due and payable, provided that, where a consent or action under the Indenture
would require the consent or act of the Holders of a Super Majority of the
Debentures affected thereby, the Institutional Trustee may only give such
consent or take such action at the written direction of the Holders of at least
the proportion in liquidation amount of the Common Securities which the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall have the
right to refrain from following any such direction that violates the Declaration
or conflicts with any applicable rule of law or would involve it in personal
liability against which indemnity would, in the opinion of the Institutional
Trustee, not be adequate, and the Institutional Trustee may take any other
action deemed proper by it that is not inconsistent with such
direction. Pursuant to this Section 6(c), the Institutional Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Capital Securities. Other than with respect to
directing the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action in accordance with
the directions of the Holders of the Common Securities under this paragraph
unless the Institutional Trustee has obtained an opinion of nationally
recognized tax counsel experienced in such matters to the effect that for the
purposes of United States federal income tax the Trust will not be classified as
other than a grantor trust on account of such action. If the
Institutional Trustee fails to enforce its rights under the Declaration, any
Holder of Common Securities may institute a legal proceeding directly against
any Person to enforce the Institutional Trustee's rights under the Declaration,
without first instituting a legal proceeding against the Institutional Trustee
or any other Person.
Any
approval or direction of Holders of Common Securities may be given at a separate
meeting of Holders of Common Securities convened for such purpose, at a meeting
of all of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote
or consent of the Holders of the Common Securities will be required for the
Trust to redeem and cancel Common Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the
Securities.
I-10
7.
Amendments to Declaration
and Indenture.
(a) In
addition to any requirements under Section 12.1 of the Declaration, if any
proposed amendment to the Declaration provides for, or the Regular Trustees
otherwise propose to effect, (i) any action that would adversely affect the
powers, preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up
or termination of the Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Securities as a class, will be
entitled to vote on such amendment or proposal (but not on any other amendment
or proposal) and such amendment or proposal shall not be effective except with
the approval of the Holders of at least a Majority in liquidation amount of the
Securities, voting together as a single class; provided, however, if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Capital Securities or only the Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
Majority in liquidation amount of such class of Securities.
(b) In
the event the consent of the Institutional Trustee as the holder of the
Debentures is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting or consenting together
as a single class; provided, however, that where a consent under the Indenture
would require the consent of the holders of greater than a majority in aggregate
principal amount of the Debentures (a "Super Majority"), the Institutional
Trustee may only give such consent at the direction of the Holders of at least
the proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Securities
under this Section 7(b) unless the Institutional Trustee has obtained an opinion
of nationally recognized tax counsel experienced in such matters to the effect
that for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust on account of such action.
8.
Pro
Rata.
A
reference in these terms of the Securities to any payment, distribution or
treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, a Default under the
Declaration has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Capital Securities
pro rata according to the aggregate liquidation amount of Capital Securities
held by the relevant Holder relative to the aggregate liquidation amount of all
Capital Securities outstanding, and only after satisfaction of all amounts owed
to the Holders of the Capital Securities, to each Holder of Common Securities
pro rata according to the aggregate liquidation amount of Common Securities held
by the relevant Holder relative to the aggregate liquidation amount of all
Common Securities outstanding.
I-11
9.
Ranking.
The
Capital Securities rank pari passu and payment thereon shall be made Pro Rata
with the Common Securities except that, where a Default (as defined in the
Indenture) occurs and is continuing under the Indenture in respect of the
Debentures held by the Institutional Trustee, the rights of Holders of the
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to payment
of the Holders of the Capital Securities.
10. Listing.
The
Regular Trustees shall use their best efforts to cause the Capital Securities to
be listed on the New York Stock Exchange.
11. Acceptance of Securities
Guarantee and Indenture.
Each
Holder of Capital Securities and Common Securities, by the acceptance thereof,
agrees to the provisions of the Capital Securities Guarantee, including the
subordination provisions therein and to the provisions of the
Indenture.
12. No Preemptive
Rights.
The
Holders of the Securities shall have no preemptive rights to subscribe for any
additional securities.
13. Miscellaneous.
These
terms constitute a part of the Declaration.
The
Sponsor will provide a copy of the Declaration or the Capital Securities
Guarantee, and the Indenture to a Holder without charge on written request to
the Sponsor at its principal place of business.
I-12
EXHIBIT
A-1
FORM
OF CAPITAL SECURITY CERTIFICATE
THIS
CAPITAL SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE DECLARATION
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS
CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS CAPITAL
SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS
THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (55 WATER STREET, NEW YORK, NEW YORK) TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
Certificate
Number
|
Number
of Capital
Securities
|
CUSIP
NO. 17315D204
Certificate
Evidencing Capital Securities
of
CITIGROUP
CAPITAL XII
8.500%
Fixed Rate/Floating Rate Trust Preferred Securities (TRUPS®)
(Liquidation
Amount $25 per Capital Security)
CITIGROUP
CAPITAL XII, a statutory trust formed under the laws of the State of Delaware
(the "Trust"), hereby certifies that ___________ (the "Holder") is the
registered owner of ________ (____) capital securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the 8.500%
Fixed Rate/Floating Rate Trust Preferred Securities (TRUPS®) (the
"Capital Securities"). The Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities are set
forth in, and this certificate and the Capital Securities represented hereby are
issued and shall in all respects be subject to, the provisions of the Amended
and Restated Declaration of Trust of the Trust dated as of March 17, 2010, as
the same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Capital Securities as set forth in Annex I
thereto. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the
benefits of the Capital Securities Guarantee to the extent provided
therein. The Sponsor will provide a copy of the Declaration, the
Capital Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
A1-1
The
Holder of this certificate, by accepting this certificate, is deemed to have (i)
agreed to the terms of the Indenture and the Debentures, including that the
Debentures are subordinate and junior in right of payment to all Senior
Indebtedness (as defined in the Indenture) and (ii) agreed to the terms of the
Capital Securities Guarantee, including that the Capital Securities Guarantee is
(A) subordinate and junior in right of payment to all other liabilities of the
Debenture Issuer, (B) pari passu with the most senior preferred or preference
stock now or hereafter issued by the Debenture Issuer and with any guarantee now
or hereafter issued by Citigroup with respect to preferred or preference stock
of the Debenture Issuer's affiliates and (C) senior to the Debenture Issuer's
common stock.
Upon
receipt of this certificate, the Holder is bound by the Declaration and is
entitled to the benefits thereunder.
By
acceptance, the Holder agrees to treat, for United States federal income tax
purposes, the Debentures as indebtedness and the Capital Securities as evidence
of indirect beneficial ownership in the Debentures.
A1-2
IN
WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
_______, ____.
Name:
|
Title: Regular
Trustee
|
A1-3
ASSIGNMENT
FOR VALUE
RECEIVED, the undersigned assigns and transfers this Capital Security
Certificate to:
___________________________________________________________________________________________
___________________________________________________________________________________________
_______________________________________
(Insert
assignee's social security or tax identification number)
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
_______________________________________
(Insert
address and zip code of assignee)
and
irrevocably appoints
____________________________________________________________________________
____________________________________________________________________________
___________________________________________________________
agent to transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or
her.
Date:
_______________________
Signature:
__________________
(Sign
exactly as your name appears on the other side of this Capital Security
Certificate)
A1-4
EXHIBIT
A-2
FORM
OF COMMON SECURITY CERTIFICATE
TRANSFER
OF THIS CERTIFICATE
IS
SUBJECT TO THE CONDITIONS
SET FORTH
IN THE DECLARATION
REFERRED
TO BELOW
Certificate
Number
|
Number
of Common Securities
|
Certificate
Evidencing Common Securities
of
CITIGROUP
CAPITAL XII
8.500%
Fixed Rate/Floating Rate Common Securities
(Liquidation
Amount $25 per Common Security)
CITIGROUP
CAPITAL XII, a statutory trust formed under the laws of the State of Delaware
(the "Trust"), hereby certifies that Citigroup Inc., a Delaware corporation (the
"Holder"), is the registered owner of __________ (________) common securities of
the Trust representing undivided beneficial interests in the assets of the Trust
designated the 8.500% Fixed Rate/Floating Rate Common Securities (the "Common
Securities"). The Common Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer and
satisfaction of the other conditions set forth in the Declaration (as defined
below), including, without limitation, Section 9.1 thereof. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of March 17, 2010, as the same may be
amended from time to time (the "Declaration"), including the designation of the
terms of the Common Securities as set forth in Annex I
thereto. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Sponsor will provide a
copy of the Declaration and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon
receipt of this certificate, the Holder is bound by the Declaration and is
entitled to the benefits thereunder.
The
Holder of this certificate, by accepting this certificate, is deemed to have
agreed to the terms of the Indenture and the Debentures, including that the
Debentures are subordinate and junior in right of payment to all Senior
Indebtedness (as defined in the Indenture) as and to the extent provided in the
Indenture.
A2-1
By
acceptance, the Holder agrees to treat, for United States federal income tax
purposes, the Debentures as indebtedness and the Common Securities as evidence
of indirect beneficial ownership in the Debentures.
A2-2
IN WITNESS WHEREOF, the Trust has
executed this certificate this ___ day of _______, ____.
Name:
|
Title: Regular
Trustee
|
A2-3
ASSIGNMENT
FOR VALUE RECEIVED, the
undersigned assigns and transfers this Common Security Certificate to:
___________________________________________________________________________________________
___________________________________________________________________________________________
________________________________________
(Insert
assignee's social security or tax identification number)
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
_____________________
(Insert
address and zip code of assignee)
and
irrevocably appoints _______________________________________________
___________________________________________________________________________________________
____________________________
agent to transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or
her.
Date:
_______________________
Signature:
__________________
(Sign
exactly as your name appears on the other side of this Common Security
Certificate)
A2-4
EXHIBIT
B
SPECIMEN
OF DEBENTURE
B-1
EXHIBIT
C
UNDERWRITING
AGREEMENT
C-1