CITICORP
------------------------------
------------------------------
INDENTURE
Dated as of December 17, 1996
------------------------------
WILMINGTON TRUST COMPANY
as Trustee
------------------------------
SUBORDINATED DEBT SECURITIES
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
December 17, 1996 between Citicorp and Wilmington Trust Company, Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1) 6.09
(a)(2) 6.09
310(a)(3) N.A.
(a)(4) N.A.
310(b) 6.08; 6.10(a)(b) and (d)
310(c) N.A.
311(a) and (b) 6.13
311(c) N.A.
312(a) 4.01; 4.02(a)
312(b) and (c) 4.02(b) and (c)
313(a) 4.04(a)
313(b)(1) N.A.
313(b)(2) 4.04(b)
313(c) 4.04(c)
313(d) 4.04(d)
314(a) 4.03
314(b) N.A.
314(c)(1) and (2) 13.05
314(c)(3) N.A.
314(d) N.A.
314(e) 13.05
314(f) N.A.
315(a)(c) and (d) 6.01
315(b) 5.08
315(e) 5.09
316(a)(1) 5.01; 5.07
316(a)(2) Omitted
316(a) last sentence 7.04
316(b) 5.04
317(a) 5.02
317(b) 3.04(a)
318(a) 13.07
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
TABLE OF CONTENTS*
Page
Parties 1
Recitals 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions 1
Affiliate 2
Authenticating Agent 2
Bankruptcy Law 2
Board of Directors 2
Board Resolution 2
Business Day 2
Citicorp Capital Trust 2
Common Securities 3
Common Securities Guarantee 3
Common Stock 3
Company 3
Company Request 3
Company Order 3
Custodian 3
Declaration 4
Default 4
Depositary 4
Event of Default 4
Global Security 4
Indenture 4
Institutional Trustee 4
Interest 4
Interest Payment Date 4
____________________
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
i
Mortgage 4
Officers' Certificate 5
Opinion of Counsel 5
Original Issue Date 5
Original Issue Discount Security 5
outstanding 5
Person 6
Predecessor Security 6
Preferred Securities 6
Preferred Securities Guarantee 6
Principal office of the Trustee 6
Responsible Officer 6
Security 7
Securities 7
Securityholder 7
holder of Securities 7
Senior Indebtedness 7
Subsidiary 7
Trade Credit 8
Trustee 8
Trust Indenture Act of 1939 8
Trust Securities 8
U.S. Government Obligations 8
Vice President 8
Yield to Maturity 8
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally 9
SECTION 2.02. Form of Trustee's Certificate of
Authentication 9
SECTION 2.03. Amount Unlimited; Issuable in Series 10
SECTION 2.04. Authentication and Dating 12
SECTION 2.05. Date and Denomination of Securities 13
SECTION 2.06. Execution of Securities 16
SECTION 2.07. Exchange and Registration of Transfer of
Securities 16
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen
Securities 17
SECTION 2.09. Temporary Securities 18
SECTION 2.10. Cancellation of Securities Paid, etc. 19
SECTION 2.11. Global Securities 19
ii
SECTION 2.12. CUSIP Numbers 21
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest 21
SECTION 3.02. Offices for Notices and Payments, etc. 21
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office 22
SECTION 3.04. Provision as to Paying Agent 22
SECTION 3.05. Certificate to Trustee 23
SECTION 3.06. Compliance with Consolidation Provisions 24
SECTION 3.07. Limitation on Dividends 24
SECTION 3.08. Covenants as to Citicorp Capital Trusts 24
SECTION 3.09 Calculation of Original Issue Discount 25
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists 25
SECTION 4.02. Preservation and Disclosure of Lists 26
SECTION 4.03. Reports by Company 28
SECTION 4.04. Reports by the Trustee 29
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default 30
SECTION 5.02. Payment of Securities on Default;
Suit Therefor 33
SECTION 5.03. Application of Moneys Collected by Trustee 35
SECTION 5.04. Proceedings by Securityholders 36
SECTION 5.05. Proceedings by Trustee 37
SECTION 5.06. Remedies Cumulative and Continuing 37
iii
SECTION 5.07. Direction of Proceedings and Waiver of Defaults
by Majority of Securityholders 37
SECTION 5.08. Notice of Defaults 39
SECTION 5.09. Undertaking to Pay Costs 39
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee 40
SECTION 6.02. Reliance on Documents, Opinions, etc. 41
SECTION 6.03. No Responsibility for Recitals, etc. 43
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar
May Own Securities 43
SECTION 6.05. Moneys to be Held in Trust 44
SECTION 6.06. Compensation and Expenses of Trustee 44
SECTION 6.07. Officers' Certificate as Evidence 45
SECTION 6.08. Conflicting Interest of Trustee 45
SECTION 6.09. Eligibility of Trustee 45
SECTION 6.10. Resignation or Removal of Trustee 46
SECTION 6.11. Acceptance by Successor Trustee 48
SECTION 6.12. Succession by Merger, etc. 49
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor 49
SECTION 6.14. Authenticating Agents 50
SECTION 6.15. Co-trustees and Separate Trustees 51
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders 53
SECTION 7.02. Proof of Execution by Securityholders 54
SECTION 7.03. Who Are Deemed Absolute Owners 54
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding 54
SECTION 7.05. Revocation of Consents; Future Holders
Bound 55
iv
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings 55
SECTION 8.02. Call of Meetings by Trustee 56
SECTION 8.03. Call of Meetings by Company or
Securityholders 56
SECTION 8.04. Qualifications for Voting 57
SECTION 8.05. Regulations 57
SECTION 8.06. Voting 58
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders 58
SECTION 9.02. Supplemental Indentures with Consent of
Securityholders 60
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures 62
SECTION 9.04. Notation on Securities 62
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee 63
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on
Certain Terms 63
SECTION 10.02. Successor Corporation to be Substituted
for Company 64
SECTION 10.03. Opinion of Counsel to be Given Trustee 64
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture 65
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust
by Trustee 65
SECTION 11.03. Paying Agent to Repay Moneys Held 66
SECTION 11.04. Return of Unclaimed Moneys 66
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations 66
v
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations 69
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors 69
SECTION 13.02. Official Acts by Successor Corporation 69
SECTION 13.03. Surrender of Company Powers 69
SECTION 13.04. Addresses for Notices, etc. 70
SECTION 13.05. Governing Law 71
SECTION 13.06. Evidence of Compliance with Conditions
Precedent 71
SECTION 13.07. Legal Holidays 71
SECTION 13.08. Trust Indenture Act to Control 72
SECTION 13.09. Table of Contents, Headings, etc 72
SECTION 13.10. Execution in Counterparts 72
SECTION 13.11. Separability 72
SECTION 13.12. Assignment 72
SECTION 13.13. Acknowledgement of Rights 73
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article 73
SECTION 14.02. Notice of Redemption; Selection of
Securities 73
SECTION 14.03. Payment of Securities Called for Redemption 75
SECTION 14.04. Mandatory and Optional Sinking Fund 75
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate 78
SECTION 15.02. Default on Senior Indebtedness 78
SECTION 15.03. Liquidation; Dissolution; Bankruptcy 79
SECTION 15.04. Subrogation 80
vi
SECTION 15.05. Trustee to Effectuate Subordination 82
SECTION 15.06. Notice by the Company 82
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness 83
SECTION 15.08. Subordination May Not Be Impaired 84
Testimonium 85
Signatures 85
vii
THIS INDENTURE, dated as of December 17, 1996, between
Citicorp, a Delaware corporation (hereinafter sometimes called the "Company"),
and Wilmington Trust Company, a Delaware banking corporation duly organized and
existing under the laws of the State of Delaware, as trustee (hereinafter
sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue from time to time of its subordinated unsecured
debentures, notes or other evidence of indebtedness to be issued in one or more
series (the "Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture and,
to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture
a valid agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of a series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings
specified in this Section 1.01. All other terms used in this Indenture which are
defined in the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), or which are by reference therein defined in the Securities Act of 1933,
as amended (the "Securities Act"), shall (except as herein otherwise expressly
provided or unless the context otherwise requires) have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture as originally executed. All accounting terms used
herein and not expressly defined shall have the meanings assigned to such terms
in accordance with generally accepted accounting principles and the term
"generally accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
"Affiliate " means, with respect to a specified Person, (a)
any Person directly or indirectly owning, controlling or holding with power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified Person,
(c) any Person directly or indirectly controlling, controlled by, or under
common control with the specified Person, (d) a partnership in which the
specified Person is a general partner, (e) any officer or director of the
specified Person, and (f) if the specified Person is an individual, any entity
of which the specified Person is an officer, director or general partner.
"Authenticating Agent " shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law " shall mean Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors.
"Board of Directors " shall mean either the Board of Directors
of the Company or any duly authorized committee of that board.
2
"Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day " shall mean, with respect to any series of
Securities, any day other than Saturday, Sunday or any other day on which
banking institutions in New York City are permitted or required by any
applicable law to close.
"Citicorp Capital Trust " shall mean each of Citicorp Capital
I, Citicorp Capital II, Citicorp Capital III and Citicorp Capital IV, each, a
Delaware business trust or any other similar trust created for the purpose of
issuing preferred securities in connection with the issuance of Securities under
this Indenture.
"Common Securities " shall mean undivided beneficial interests
in the assets of a Citicorp Capital Trust which rank pari passu with Preferred
Securities issued by such Citicorp Capital Trust; provided, however, that if an
Event of Default has occurred and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, redemption or otherwise with
respect to, the Common Securities shall be made until the holders of the
Preferred Securities shall be paid in full the Distributions and the
liquidation, redemption and other payments to which they are entitled.
"Common Securities Guarantee " shall mean any guarantee that
the Company may enter into with any Person or Persons that operate directly or
indirectly for the benefit of holders of Common Securities of a Citicorp Capital
Trust.
"Common Stock " shall mean the Common Stock, par value $1.00
per share, of the Company or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
Subject to the anti-dilution provisions of any convertible Security, however,
shares of Common Stock issuable upon conversion of a Security shall include only
shares of the class designated as Common Stock of the Company at the date of the
supplemental indenture, Board
3
Resolution or other instrument authorizing such Security or shares of any class
or classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of the payment of dividends or the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption
by the Company, provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
such classes resulting from all such reclassifications.
"Company " shall mean Citicorp, a Delaware corporation, and,
subject to the provisions of Article Ten, shall include its successors and
assigns.
"Company Request " or "Company Order " shall mean a written
request or order signed in the name of the Company by the Chairman, the
President, a Vice Chairman, a Vice President, the Chief Auditor, the Treasurer,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Custodian " shall mean any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
"Declaration ", with respect to a Citicorp Capital Trust,
shall mean the Amended and Restated Declaration of Trust of such Citicorp
Capital Trust.
"Default " means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Depositary " shall mean, with respect to Securities of any
series, for which the Company shall determine that such Securities will be
issued as a Global Security, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency under
the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or
other applicable statute or regulation, which, in each
4
case, shall be designated by the Company pursuant to either Section 2.04 or
2.11.
"Event of Default " shall mean any event specified in Section
5.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Global Security " means, with respect to any series of
Securities, a Security executed by the Company and delivered by the Trustee to
the Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
"Indenture " shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, or both, and shall include the form and terms of particular series
of Securities established as contemplated hereunder.
"Institutional Trustee " has the meaning set forth in the
Declaration of the applicable Citicorp Capital Trust.
"Interest " shall mean, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Interest Payment Date ", when used with respect to any
installment of interest on a Security of a particular series, shall mean the
date specified in such Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series is due and
payable.
"Mortgage " shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Officers' Certificate " shall mean a certificate signed by
the Chairman, a Vice Chairman, a Vice President, the Chief Auditor, the
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
5
"Opinion of Counsel " shall mean a written opinion of counsel,
who may be an employee of the Company, and who shall be acceptable to the
Trustee.
"Original Issue Date " of any Security (or any portion
thereof) shall mean the earlier of (a) the date of such Security or (b) the date
of any Security (or portion thereof) for which such Security was issued
(directly or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security " shall mean any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 5.01.
The term "outstanding " (except as otherwise provided in
Section 6.08), when used with reference to Securities, shall, subject to the
provisions of Section 7.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee or the Authenticating Agent under
this Indenture, except
(a) Securities theretofore cancelled by the Trustee
or the Authenticating Agent or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment
or redemption of which moneys in the necessary amount
shall have been deposited in trust with the Trustee
or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by
the Company (if the Company shall act as its own
paying agent); provided that, if such Securities, or
portions thereof, are to be redeemed prior to
maturity thereof, notice of such redemption shall
have been given as in Article Fourteen or provision
satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities paid pursuant to Section 2.08 or in
lieu of or in substitution for which other Securities
shall have been authenticated and
6
delivered pursuant to the terms of Section 2.08
unless proof satisfactory to the Company and the
Trustee is presented that any such Securities are
held by bona fide holders in due course.
In determining whether the holders of the requisite
principal amount of outstanding Securities have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be outstanding for
such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.01.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt and as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 2.08 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Preferred Securities" shall mean undivided beneficial
interests in the assets of a Citicorp Capital Trust which rank pari passu with
Common Securities issued by such Citicorp Capital Trust; provided, however, that
if an Event of Default has occurred and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, redemption or otherwise with
respect to, the Common Securities shall be made until the holders of the
Preferred Securities shall be paid in full the Distributions and the
liquidation, redemption and other payments to which they are entitled.
7
"Preferred Securities Guarantee" shall mean any guarantee
that the Company may enter into with Wilmington Trust Company or other Persons
that operate directly or indirectly for the benefit of holders of Preferred
Securities of such Citicorp Capital Trust.
"Principal office of the Trustee", or other similar term,
shall mean the principal office of the Trustee, at which at any particular time
its corporate trust business shall be administered.
"Responsible Officer", when used with respect to the Trustee,
shall mean any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Security" or "Securities" shall have the meaning stated in
the first recital of this Indenture and more particularly means any security or
securities, as the case may be, authenticated and delivered under this
Indenture.
"Securityholder", "holder of Securities", or other similar
terms, shall mean any person in whose name at the time a particular Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
"Senior Indebtedness" shall mean any obligation of the
Company to its creditors, whether now outstanding or subsequently incurred,
except for (w) any other Securities issued under this Indenture, (x) all other
debt securities, and guarantees in respect of those debt securities, issued to
any other trust, or a trustee of such trust, partnership or other entity
affiliated with the Company that is a financing vehicle of the Company (a
"financing entity") in connection with the issuance by such financing entity of
equity securities or other securities guaranteed by the Company pursuant to an
instrument that ranks pari passu with or junior in right of payment to the
Preferred Securities Guarantee, (y) Trade Credit and (z) any other obligations
as to which, in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such obligation is not Senior
Indebtedness.
8
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of whose outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned by
such Person, or by one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries and (iii) any limited partnership of which such Person
or any of its Subsidiaries is a general partner. For the purposes of this
definition, "voting stock" means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of the occurrence of a
contingency.
"Trade Credit " means any obligation incurred or assumed by
the Company in the ordinary course of business in connection with the obtaining
of materials or services, and all obligations of the Company in respect of any
guarantees of such obligations of subsidiaries of the Company; provided that
Trade Credit shall not include any obligations of the Company in respect of
travelers checks or other unsubordinated financial instruments issued by the
Company.
"Trustee " shall mean the Person identified as "Trustee" in
the first paragraph hereof, and, subject to the provisions of Article Six
hereof, shall also include its successors and assigns as Trustee hereunder. The
term "Trustee" as used with respect to a particular series of the Securities
shall mean the trustee with respect to that series.
"Trust Indenture Act of 1939 " shall mean the Trust Indenture
Act of 1939 as in force at the date of execution of this Indenture, except as
provided in Section 9.03.
"Trust Securities " shall mean Common Securities and Preferred
Securities of a Citicorp Capital Trust.
9
"U.S. Government Obligations " shall mean securities that are
(i) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Vice President ", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Yield to Maturity " shall mean the yield to maturity on a
series of Securities, calculated at the time of issuance of such series of
Securities, or if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the
form as shall be established by or pursuant to a Board Resolution and as set
forth in an Officers' Certificate of the
10
Company or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with any law or with any rules made pursuant thereto
or with any rules of any securities exchange, all as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
In the event the Securities are issued in definitive form
pursuant to this Indenture, such Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of
Authentication .
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Wilmington Trust Company
as Trustee
By____________________
Authorized Signatory
SECTION 2.03. Amount Unlimited; Issuable in Series .
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series up to the
aggregate principal amount of securities of that series from time to time
authorized by or pursuant to a Board Resolution
11
of the Company. There shall be established in or pursuant to a Board Resolution
and, subject to Sections 2.04, 2.05 and 2.06, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from
all other Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series
pursuant to Section 2.07, 2.08, 2.09, 9.04 or 14.03);
(3) the date or dates on which the principal of and
premium, if any, on the Securities of the series is
payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by
which such interest may be determined, the date or
dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall
be payable or the manner of determination of such
Interest Payment Dates and the record dates for the
determination of holders to whom interest is payable
on any such Interest Payment Dates;
(5) the place or places where the principal of, and
premium, if any, and any interest on Securities of
the series shall be payable;
(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
12
(7) the right, if any, to extend or shorten the
maturity date of Securities of the series;
(8) the price or prices at which, the period or
periods within which and the terms and conditions
upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant
to any sinking fund or analogous provisions or at the
option of a Securityholder thereof and the price or
prices at which and the period or periods within
which the price or prices at which, and the terms and
conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the
portion of the principal amount of Securities of the
series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to
Section 5.01 or provable in bankruptcy pursuant to
Section 5.02;
(12) any Events of Default with respect to the
Securities of a particular series, if not set forth
herein;
(13) the form of the Securities of the series
including the form of the Certificate of
Authentication of such series;
13
(14) any trustee, authenticating or paying agents,
warrant agents, transfer agents or registrars with
respect to the Securities of such series;
(15) whether the Securities of the series shall be
issued in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary
for such Global Security or Securities, and whether
beneficial owners of interests in any such Global
Securities may exchange such interests for other
Securities of such series in the manner provided in
Section 2.07, and the manner and the circumstances
under which and the place or places where any such
exchanges may occur if other than in the manner
provided in Section 2.07, and any other terms of the
series relating to the global nature of the Global
Securities of such series and the exchange,
registration or transfer thereof and the payment of
any principal thereof, or interest or premium, if
any, thereon; and
(16) any other terms of the series (which terms shall
not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution referred to above and (subject to Section
2.04) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
14
SECTION 2.04. Authentication and Dating .
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon:
(1) a copy of any Board Resolution or
Resolutions relating thereto and, if applicable, an
appropriate record of any action taken pursuant to
such resolution, in each case certified by the
Secretary or an Assistant Secretary of the Company;
(2) an executed supplemental indenture, if
any;
(3) an Officers' Certificate setting forth
the form and terms of the Securities as required
pursuant to Sections 2.01 and 2.03, respectively; and
(4) an Opinion of Counsel prepared in
accordance with Section 13.06 which shall also state:
(a) that the form of such
Securities has been duly authorized and
established by or pursuant to a resolution
of the Board of Directors or by a
supplemental indenture as permitted by
Section 2.01 in conformity with the
provisions of this Indenture;
(b) that the terms of such
Securities have been duly authorized and
established by or pursuant to a resolution
of the Board of Directors or by a
supplemental indenture as permitted by
Section 2.03 in conformity with the
provisions of this Indenture;
15
(c) that such Securities,
when authenticated and delivered by the
Trustee and issued by the Company in the
manner and subject to any conditions
specified in such Opinion of Counsel, will
constitute valid and legally binding
obligations of the Company;
(d) that all laws and
requirements in respect of the execution and
delivery by the Company of the Securities
have been complied with and that
authentication and delivery of the
Securities by the Trustee will not violate
the terms of the Indenture; and
(e) such other matters as
the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or vice presidents shall determine
that such action would expose the Trustee to personal liability to existing
holders, or if the form or terms of the Securities of any series had been
established by or pursuant to a Board Resolution as permitted hereunder and the
Trustee determines in good faith that the issuance of such Securities pursuant
to this Indenture would materially or adversely affect the Trustee's rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner that is not reasonably acceptable to the Trustee.
SECTION 2.05. Date and Denomination of Securities.
The Securities shall be issuable as registered Securities
without coupons and in such denominations as shall be specified as contemplated
by Section 2.03. In the absence of any such specification with respect to the
Securities of any series, the Securities of such Series shall be issuable in the
denominations of $1,000 and any multiple thereof. The Securities shall be
numbered, lettered, or otherwise distinguished in such
16
manner or in accordance with such plans as the officers of the Company executing
the same may determine with the approval of the Trustee as evidenced by the
execution and authentication thereof.
Every Security shall be dated the date of its authentication,
shall bear interest, if any, from such date and shall be payable on such dates,
in each case, as contemplated by Section 2.03. The interest installment on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Securities of that series shall be paid to the Person
in whose name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such interest
installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon presentation
and surrender of such Security as provided in Section 3.3.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Security
of the same series (herein called "Defaulted Interest") shall forthwith cease to
be payable to the registered holder on the relevant regular record date by
virtue of having been such holder; and such Defaulted Interest shall be paid by
the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed
payment (which date shall be sufficiently in advance of such notice to
permit the Trustee timely to take the actions contemplated by this
Section 2.05), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
17
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall not be more than
15 nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first class
postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register (as hereinafter defined), not less
than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered on such special record date and
shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustees of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the
Company or one or more indentures supplemental hereto establishing the terms of
any series of Securities pursuant to Section 2.01 hereof, the term "regular
record date" as used in this Section with respect to a series of Securities with
respect to any Interest Payment Date for such series shall mean either the
fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or the last
day of the month immediately preceding the month in
18
which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, that were carried by such
other Security.
SECTION 2.06. Execution of Securities.
The Securities shall be signed in the name and on behalf of
the Company by the manual or facsimile signature of its Chairman, one of its
Vice Chairmen or one of its Vice Presidents, under its corporate seal which may
be affixed thereto or printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise, and which need not be attested. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee or the Authenticating Agent, shall
be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee or the Authenticating Agent upon any
Security executed by the Company shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any
of the Securities shall cease to be such officer before the Securities so signed
shall have been authenticated and delivered by the Trustee or the Authenticating
Agent, or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Securities had not ceased to be such officer of the Company; and any Security
may be signed on behalf of the Company by such persons as, at the actual date of
the execution
19
of such Security, shall be the proper officers of the Company, although at the
date of the execution of this Indenture any such person was not such an officer.
SECTION 2.07. Exchange and Registration of Transfer
of Securities.
Subject to Section 2.03, Securities of any series may be
exchanged for a like aggregate principal amount of Securities of the same series
of other authorized denominations. Securities to be exchanged may be surrendered
at the principal corporate trust office of the Trustee or at any office or
agency to be maintained by the Company for such purpose as provided in Section
3.02, and the Company or the Trustee shall execute and register and the Trustee
or the Authenticating Agent shall authenticate and make available for delivery
in exchange therefor the Security or Securities which the Securityholder making
the exchange shall be entitled to receive. Upon due presentment for registration
of transfer of any Security of any series at the principal corporate trust
office of the Trustee or at any office or agency of the Company maintained for
such purpose as provided in Section 3.02, the Company or the Trustee shall
execute and register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Security or Securities of the same series for a like aggregate
principal amount. Registration or registration of transfer of any Security by
the Trustee or by any agent of the Company appointed pursuant to Section 3.02,
and delivery of such Security, shall be deemed to complete the registration or
registration of transfer of such Security.
The Company or the Trustee shall keep, at the principal
corporate trust office of the Trustee, a register for each series of Securities
issued hereunder in which, subject to such reasonable regulations as it may
prescribe, the Company or the Trustee shall register all Securities and shall
register the transfer of all Securities as in this Article Two provided. Such
register shall be in written form or in any other form capable of being
converted into written form within a reasonable time.
All Securities presented for registration of transfer or for
exchange or payment shall (if so required by the Company
20
or the Trustee or the Authenticating Agent) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee or the Authenticating Agent duly
executed by, the holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Securities, but the Company or the Trustee may
require payment of a sum sufficient to cover any tax, fee or other governmental
charge that may be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange
or register a transfer of (a) any Security for a period of 15 days next
preceding the date of selection of Securities of such series for redemption, or
(b) any Securities of any series selected, called or being called for redemption
in whole or in part, except in the case of any Securities of any series to be
redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen
Securities.
In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company shall execute, and upon
its request the Trustee shall authenticate and deliver, a new Security of the
same series bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
The Trustee may authenticate any such substituted Security and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, the Company may require
the payment
21
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. In case
any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless and, in case of destruction, loss or theft, evidence satisfactory
to the Company and to the Trustee of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to
the provisions of this Section 2.08 by virtue of the fact that any such Security
is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder. All Securities shall be held and owned upon
the express condition that, to the extent permitted by applicable law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.09. Temporary Securities.
Pending the preparation of definitive Securities of any series
the Company may execute and the Trustee shall authenticate and make available
for delivery temporary Securities (printed or lithographed). Temporary
Securities shall be issuable in any authorized denomination, and substantially
in the form of the definitive Securities but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as
22
may be determined by the Company. Every such temporary Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. Without unreasonable delay the Company will execute
and deliver to the Trustee or the Authenticating Agent definitive Securities and
thereupon any or all temporary Securities of such series may be surrendered in
exchange therefor, at the principal corporate trust office of the Trustee or at
any office or agency maintained by the Company for such purpose as provided in
Section 3.02, and the Trustee or the Authenticating Agent shall authenticate and
make available for delivery in exchange for such temporary Securities a like
aggregate principal amount of such definitive Securities. Such exchange shall be
made by the Company at its own expense and without any charge therefor except
that in case of any such exchange involving a registration of transfer the
Company may require payment of a sum sufficient to cover any tax, fee or other
governmental charge that may be imposed in relation thereto. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same series
authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Securities Paid, etc.
All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer, shall, if surrendered to the
Company or any paying agent, be surrendered to the Trustee and promptly
cancelled by it, or, if surrendered to the Trustee or any Authenticating Agent,
shall be promptly cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. All Securities cancelled by any Authenticating Agent shall be
delivered to the Trustee. The Trustee shall deliver all cancelled Securities to
the Company. If the Company shall acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation.
23
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section 2.03
that the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 2.04, authenticate and deliver, a Global Security that (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Securities of such series, (ii)
shall be registered in the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Except as otherwise provided in Section 2.11 of the Indenture, this Security
may be transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary."
(b) Notwithstanding the provisions of Section 2.07, the
Global Security of a series may be transferred, in whole but not in part and in
the manner provided in Section 2.07, only to another nominee of the Depositary
for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act, or
other applicable statute or regulation, and a successor Depositary for such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Securities of such series and the
Company will execute, and subject to Section 2.07, the Trustee will authenticate
and make available for delivery the Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. In addition, the Company
may at any time determine that the Securities of any series shall no
24
longer be represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Securities of such series. In such
event the Company will execute and subject to Section 2.07, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and make available for delivery the Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be cancelled by the Trustee. Such for the Global Security
pursuant to this Section 2.11(c) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Depositary for delivery to the
Persons in whose names such Securities are so registered.
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Securityholders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
25
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid
the principal of and premium, if any, and interest on each of the Securities of
that series at the place, at the respective times and in the manner provided in
such Securities. Each installment of interest on the Securities of any series
may be paid by mailing checks for such interest payable to the order of the
holders of Securities entitled thereto as they appear on the registry books of
the Company.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remains outstanding, the
Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency where the Securities of each series may be presented for
payment, an office or agency where the Securities of that series may be
presented for registration of transfer and for exchange as in this Indenture
provided and an office or agency where notices and demands to or upon the
Company in respect of the Securities of that series or of this Indenture may be
served. The Company will give to the Trustee written notice of the location of
any such office or agency and of any change of location thereof. Until otherwise
designated from time to time by the Company in a notice to the Trustee, or
specified as contemplated by Section 2.03, any such office or agency for all of
the above purposes shall be the office or agency of Citibank, N.A. at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. In case the Company shall fail to maintain any
such office or agency in the Borough of Manhattan, The City of New York, or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
principal corporate trust office of the Trustee.
26
In addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside the Borough of
Manhattan, The City of New York, where the Securities may be presented for
registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in the Borough of Manhattan,
The City of New York, for the purposes above mentioned. The Company will give to
the Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying
agent other than the Trustee with respect to the
Securities of any series, it will cause such paying
agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the
Trustee, subject to the provision of this Section
3.04,
(1) that it will hold all
sums held by it as such agent for the
payment of the principal of and premium, if
any, or interest, if any, on the Securities
of such series (whether such sums have been
paid to it by the Company or by any other
obligor on the Securities of such series) in
trust for the benefit of the holders of the
Securities of such series; and
(2) that it will give the
Trustee notice of any failure by the Company
(or by any other
27
obligor on the Securities of such series) to
make any payment of the principal of and
premium, if any, or interest, if any, on the
Securities of such series when the same
shall be due and payable.
(b) If the Company shall act as its own
paying agent, it will, on or before each due date of
the principal of and premium, if any, or interest, if
any, on the Securities of any series, set aside,
segregate and hold in trust for the benefit of the
holders of the Securities of such series a sum
sufficient to pay such principal, premium or interest
so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the
Company (or by any other obligor under the Securities
of such series) to make any payment of the principal
of and premium, if any, or interest, if any, on the
Securities of such series when the same shall become
due and payable.
(c) Anything in this Section 3.04 to the
contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series
of Securities hereunder, or for any other reason, pay
or cause to be paid to the Trustee all sums held in
trust for any such series by the Company or any
paying agent hereunder, as required by this Section
3.04, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.04 to the
contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 3.04 is subject
to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee .
The Company will deliver to the Trustee on or before 120 days
after the end of each fiscal year, so long as Securities
28
of any series are outstanding hereunder, a Certificate stating that in the
course of the performance by the signers of their duties as officers of the
Company they would normally have knowledge of any default by the Company in the
performance of any covenants contained herein, stating whether or not they have
knowledge of any such default and, if so, specifying each such default of which
the signers have knowledge and the nature thereof and the steps taken to remedy
such default.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell or
convey all or substantially all of its property to any other company unless the
provisions of Article Ten hereof are complied with.
SECTION 3.07. Limitation on Dividends.
If Securities are issued to a Citicorp Capital Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Citicorp Capital Trust and (i) there shall have occurred any event that
would constitute an Event of Default, (ii) the Company shall be in default with
respect to its payment of any obligations under the Preferred Securities
Guarantee or the Common Securities Guarantee relating to such Citicorp Capital
Trust or (iii) the Company has exercised its option to defer interest on the
Securities, then (a) the Company shall not declare or pay any dividends on, make
any distributions with respect to, or redeem, purchase, acquire for value or
make a liquidation payment with respect to, any of its capital stock (other than
(i) purchases or acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plans
or other contractual obligations of the Company (other than a contractual
obligation ranking pari passu with or junior in right of payment to the
Securities) entered into prior to the date of issuance of the Securities, (ii)
as a result of a reclassification of the Company's capital stock or the exchange
or conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock or (iii) the purchase of
29
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank pari passu with or junior in
right of payment to such Securities.
SECTION 3.08. Covenants as to Citicorp Capital Trusts.
In the event Securities are issued to a Citicorp Capital Trust
or a trustee of such trust in connection with the issuance of Trust Securities
by such Citicorp Capital Trust, for so long as such Trust Securities remain
outstanding, the Company will (i) directly or indirectly maintain 100% ownership
of the Common Securities of such Citicorp Capital Trust; provided, however, that
any successor of the Company, permitted pursuant to Article Ten, may succeed to
the Company's ownership of such Common Securities, (ii) use its reasonable
efforts to cause such Citicorp Capital Trust (a) to remain a business trust,
except in connection with a distribution of Securities, the redemption of all of
the Trust Securities of such Citicorp Capital Trust or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of such
Citicorp Capital Trust, and (b) to otherwise continue to be treated as a grantor
trust and not as an association taxable as a corporation or partnership for
United States federal income tax purposes; (iii) use its reasonable efforts to
cause each holder of Trust Securities to be treated as owning an undivided
beneficial interest in the Securities; and (iv) if at any time such Citicorp
Capital Trust or the Institutional Trustee of such Citicorp Capital Trust shall
be required to pay any taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States or
any other taxing authority, pay as additional interest such additional amounts
as shall be required so that the net amounts received and retained by such
Citicorp Capital Trust or the Institutional Trustee of such Citicorp Capital
Trust, after paying any such taxes, duties, assessments or other governmental
charges will be not less than the amounts such Citicorp Capital Trust and the
Institutional Trustee of such Citicorp Capital Trust would have received had no
such taxes, duties, assessments or other governmental charges been imposed.
30
SECTION 3.09 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on outstanding
Securities as of the end of such year.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
.
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause
to be furnished to the Trustee:
(a) on each regular record date for each
series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and
addresses of the Securityholders of such series of
Securities as of such record date (and on dates to be
determined pursuant to Section 2.03 for non-interest
bearing securities in each year); and
(b) at such other times as the Trustee may
request in writing, within 30 days after the receipt
by the Company, of any such request, a list of
similar form and content as of a date not more than
15 days prior to the time such list is furnished,
except that no such lists need be furnished so long
as the Trustee is in possession thereof by reason of
its acting as Security registrar for such series.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all
information as to the names and addresses of the
holders of each
31
series of Securities (1) contained in the most recent
list furnished to it as provided in Section 4.01 or
(2) received by it in the capacity of Securities
registrar (if so acting) hereunder. The Trustee may
destroy any list furnished to it as provided in
Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more holders of
Securities of any series (hereinafter referred to as
"applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each
such applicant has owned a Security of such series
for a period of at least six months preceding the
date of such application, and such application states
that the applicants desire to communicate with other
holders of Securities of such series or with holders
of all Securities with respect to their rights under
this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other
communication which such applicants propose to
transmit, then the Trustee shall within 5 business
days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of
this Section 4.02, or
(2) inform such applicants as to the
approximate number of holders of such series or all
Securities, as the case may be, whose names and
addresses appear in the information preserved at the
time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.02, and as to the
approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any,
specified in such application.
32
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee
shall, upon the written request of such applicants,
mail to each Securityholder of such series or all
Securities, as the case may be, whose name and
address appear in the information preserved at the
time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.02 a copy of the
form of proxy or other communication which is
specified in such request with reasonable promptness
after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment,
of the reasonable expenses of mailing, unless within
five days after such tender, the Trustee shall mail
to such applicants and file with the Securities and
Exchange Commission, together with a copy of the
material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of
the holders of Securities of such series or all
Securities, as the case may be, or would be in
violation of applicable law. Such written statement
shall specify the basis of such opinion. If said
Commission, after opportunity for a hearing upon the
objections specified in the written statement so
filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order
sustaining one or more of such objections, said
Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained
have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all
such Securityholders with reasonable promptness after
the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting
their application.
(c) Each and every holder of Securities, by
receiving and holding the same, agrees with Company
and the
33
Trustee that neither the Company nor the
Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such
information as to the names and addresses of the
holders of Securities in accordance with the
provisions of subsection (b) of this Section 4.02,
regardless of the source from which such information
was derived, and that the Trustee shall not be held
accountable by reason of mailing any material
pursuant to a request made under said subsection (b).
SECTION 4.03. Reports by Company.
(a) The Company covenants and agrees to file
with the Trustee, within 15 days after the Company is
required to file the same with the Securities and
Exchange Commission, copies of the annual reports and
of the information, documents and other reports (or
copies of such portions of any of the foregoing as
said Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with said Commission pursuant to
Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports
pursuant to either of such sections, then to file
with the Trustee and said Commission, in accordance
with rules and regulations prescribed from time to
time by said Commission, such of the supplementary
and periodic information, documents and reports which
may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and
registered on a national securities exchange as may
be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees to file
with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and
regulations prescribed from time to time by said
34
Commission, such additional information, documents
and reports with respect to compliance by the Company
with the conditions and covenants provided for in
this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to
transmit by mail to all holders of Securities, as the
names and addresses of such holders appear upon the
Security register, within 30 days after the filing
thereof with the Trustee, such summaries of any
information, documents and reports required to be
filed by the Company pursuant to subsections (a) and
(b) of this Section 4.03 as may be required by rules
and regulations prescribed from time to time by the
Securities and Exchange Commission.
(d) Delivery of such reports, information
and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information
contained therein or determinable from information
contained therein, including the Company's compliance
with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to
Securityholders such reports concerning the Trustee
and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture
Act, the Trustee shall, within sixty days after each
May 15 following the date of this Indenture deliver
to Securityholders a brief report, dated as of such
May 15, which complies with the provisions of such
Section 313(a).
35
(b) A copy of each such report shall, at the
time of such transmission to Securityholders, be
filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the
Commission and with the Company. The Company will
promptly notify the Trustee when the Securities are
listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
.
SECTION 5.01. Events of Default.
One or more of the following events of default with respect to
Securities of any series or such other events as may be established with respect
to the Securities of that series as contemplated by Section 2.03 hereof shall
constitute an Event of Default hereunder:
(a) default in the payment of any interest
upon any Securities of that series when it becomes
due and payable, and continuance of such default for
a period of 30 days; provided, however, that a valid
extension of an interest payment period by the
Company in accordance with the terms of any indenture
supplemental hereto, shall not constitute a default
in the payment of interest for this purpose; or
(b) default in the payment of all or any
part of the principal of (or premium, if any, on) any
Securities of that series as and when the same shall
become due and payable either at maturity, upon
redemption (including redemption for the sinking
fund), by declaration or otherwise; provided,
however, that a valid extension of the maturity of
such Securities in accordance with the terms of any
indenture supplemental hereto shall
36
not constitute a default in the payment of principal
or premium, if any; or
(c) default in the performance, or breach,
of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in whose performance or whose breach is
elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a
period of 90 days after there has been given, by
registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the
holders of at least 25% in principal amount of the
outstanding Securities a written notice specifying
such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) a court having jurisdiction in the
premises shall enter a decree or order for relief in
respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or
for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or
(e) the Company shall commence a voluntary
case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent
to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the
Company or of any substantial part of its property,
or shall make any general assignment for the benefit
of creditors, or shall
37
fail generally to pay its debts as they become due;
or
(f) in the event Securities are issued to a
Citicorp Capital Trust or a trustee of such trust in
connection with the issuance of Trust Securities by
such Citicorp Capital Trust, such Citicorp Capital
Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise
terminated its existence except in connection with
(i) the distribution of Securities to holders of
Trust Securities in liquidation of their interests in
such Citicorp Capital Trust, (ii) the redemption of
all of the outstanding Trust Securities of such
Citicorp Capital Trust or (iii) certain mergers,
consolidations or amalgamations, each as permitted by
the Declaration of such Citicorp Capital Trust.
If (i) an Event of Default pursuant to Section 5.01(a) or (b)
with respect to Securities of any series at the time outstanding occurs and is
continuing, then, in every such case, the Trustee or the holders of not less
than 25% in principal amount of the Securities of all series affected thereby
then outstanding may declare the principal amount (or, if any of the Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms thereof) of all Securities of
that series to be due and payable immediately or (ii) an Event of Default
pursuant to Section 5.01(c), (d), (e) or (f) occurs and is continuing, then, in
every such case, the Trustee or the holders of not less than 25% in principal
amount of all Securities then outstanding (treated as one class) may declare the
principal amount (or, if any of the Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms thereof) of all Securities to be due and payable immediately, in each case
such declaration being made by a notice in writing to the Company (and to the
Trustee if given by the holders of the outstanding Securities of that series or
all series, as the case may be), and upon any such declaration the same shall
become immediately due and payable.
38
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, (i) the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay (A) all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of and premium, if any, on any and all
Securities of such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series (or at the
respective rates of interest or Yields to Maturity of all the Securities, as the
case may be) to the date of such payment or deposit) and (B) such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith, and
(ii) any and all Events of Default under the Indenture shall have been cured,
waived or otherwise remedied as provided herein, then, in every such case, the
holders of a majority in aggregate principal amount of the Securities of such
series (or of all the Securities, as the case may be) then outstanding, by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences, but no such rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely
39
to the Trustee, then and in every such case the Company, the Trustee and the
holders of the Securities shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the holders of the Securities shall continue as though
no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit
Therefor.
The Company covenants that (a) in case default shall be made
in the payment of any installment of interest upon any of the Securities of any
series as and when the same shall become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be made in
the payment of the principal of or premium, if any, on any of the Securities of
any series as and when the same shall have become due and payable, whether at
maturity of the Securities of that series or upon redemption or by declaration
or otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of that series, the
whole amount that then shall have become due and payable on all such Securities
of that series for principal and premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal and premium, if any, and
(to the extent that payment of such interest is enforceable under applicable law
and, if the Securities are held by a Citicorp Capital Trust or a trustee of such
trust, without duplication of any other amounts paid by a Citicorp Capital Trust
or trustee in respect thereof) upon the overdue installments of interest at the
rate or Yield to Maturity (in the case of Original Issue Discount Securities)
borne by the Securities of that series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder other
than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions or proceedings
at law or in equity for the
40
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor on such Securities and
collect in the manner provided by law out of the property of the Company or any
other obligor on such Securities wherever situated the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor on the Securities
of any series under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any other applicable law,
or in case a receiver or trustee shall have been appointed for the property of
the Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Securities of any
series, or to the creditors or property of the Company or such other obligor,
the Trustee, irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and interest (or, if the
Securities of that series are Original Issue Discount Securities such portion of
the principal amount as may be specified in the terms of that series) owing and
unpaid in respect of the Securities of such series and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of negligence or
bad faith) and of the Securityholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Securities of any series, or
to the creditors or property of the Company or such other obligor, unless
prohibited by applicable law and regulations, to vote on behalf of the holders
of the Securities or any series in any election of a trustee or a standby
trustee in arrangement,
41
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and to collect
and receive any moneys or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Securityholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be construed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the Trustee
without the possession of any of the Securities, or the production thereof on
any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of
the holders of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Securities, and it shall not be necessary to make any holders
of the Securities parties to any such proceedings.
42
SECTION 5.03. Application of Moneys Collected by
Trustee.
Any moneys collected by the Trustee shall be applied in the
order following, at the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection
applicable to such series and reasonable compensation to the Trustee, its
agents, attorneys and counsel, and of all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article Fifteen;
Third: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any), and interest on
the Securities of such series, in respect of which or for the benefit of which
money has been collected, ratably, without preference of priority of any kind,
according to the amounts due on such Securities for principal (and premium, if
any) and interest, respectively.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Security of any series shall have any right
by virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Securities of that series then outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as
43
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action, suit or proceeding, it being understood and intended, and being
expressly covenanted by the taker and holder of every Security with every other
taker and holder and the Trustee, that no one or more holders of Securities of
any series shall have any right in any manner whatever by virtue of or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of the applicable
series.
Notwithstanding any other provisions in this Indenture,
however, the right of any holder of any Security to receive payment of the
principal of (premium, if any) and interest, if any, on such Security, on or
after the same shall have become due and payable, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without the
consent of such holder and by accepting a Security hereunder it is expressly
understood, intended and covenanted by the taker and holder of every Security of
such series with every other such taker and holder and the Trustee, that no one
or more holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other such
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
44
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to Securities
of any series and is continuing, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as otherwise provided in Section 2.08, all powers and
remedies given by this Article Five to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of
any other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such series, and no delay or omission of
the Trustee or of any holder of any of the Securities to exercise any right or
power accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of
Section 5.04, every power and remedy given by this Article Five or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of
Defaults by Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any or all series affected (voting as one class) at the time
outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any
45
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee; provided, however, that (subject to the provisions of Section 6.01)
the Trustee shall have the right to decline to follow any such direction if the
Trustee shall determine that the action so directed would be unjustly
prejudicial to the holders not taking part in such direction or if the Trustee
being advised by counsel determines that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceedings so directed would involve the Trustee in personal liability. Prior
to any declaration accelerating the maturity of any series of the Securities, or
of all the Securities, as the case may be, the holders of a majority in
aggregate principal amount of the Securities of that series at the time
outstanding may on behalf of the holders of all of the Securities of such series
waive any past default or Event of Default including any default established
pursuant to Section 2.03 and its consequences except a default (a) in the
payment of principal of, premium, if any, or interest on any of the Securities,
(b) in respect of covenants or provisions hereof which cannot be modified or
amended without the consent of the holder of each Security affected, or (c) a
default of the covenants contained in Section 3.06; provided, however, that if
the Securities of such series are held by a Citicorp Capital Trust or a trustee
of such trust, such waiver or modification to such waiver shall not be effective
until the holders of a majority in liquidation preference of Trust Securities of
the applicable Citicorp Capital Trust shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of the Holder
of each outstanding Security is required, such waiver shall not be effective
until each holder of the Trust Securities of the applicable Citicorp Capital
Trust shall have consented to such waiver. Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon. Upon any such waiver the Company, the Trustee and the
holders of the Securities of that
46
series (or of all Securities, as the case may be) shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 5.07, said default or Event
of Default shall for all purposes of the Securities of that series (or of all
Securities, as the case may be) and this Indenture be deemed to have been cured
and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities of any series, mail to all
Securityholders of that series, as the names and addresses of such holders
appear upon the Security register, notice of all defaults with respect to that
series known to the Trustee, unless such defaults shall have been cured before
the giving of such notice (the term "defaults" for the purpose of this Section
5.08 being hereby defined to be the events specified in clauses (a), (b), (c),
(d), (e) and (f) of Section 5.01, not including periods of grace, if any,
provided for therein, and irrespective of the giving of written notice specified
in clause (c) of Section 5.01); and provided that, except in the case of default
in the payment of the principal of, premium, if any, or interest on any of the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Securityholders of such series; and provided further, that in the case of any
default of the character specified in Section 5.01(c) no such notice to
Securityholders of such series shall be given until at least 60 days after the
occurrence thereof but shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs .
All parties to this Indenture agree, and each holder of any
Security by his acceptance thereof shall be deemed to have
47
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 5.09 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders of any series, holding in the
aggregate more than 10% in principal amount of the Securities of that series
outstanding, or to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any
Security against the Company on or after the same shall have become due and
payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to securities of that series and after the curing or waiving of all
Events of Default which may have occurred, with respect to securities of that
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action,
48
its own negligent failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of
Default with respect to Securities of a series and
after the curing or waiving of all Events of Default
with respect to that series which may have occurred
(1) the duties and
obligations of the Trustee with respect to
Securities of a series shall be determined
solely by the express provisions of this
Indenture, and the Trustee shall not be
liable except for the performance of such
duties and obligations with respect to such
series as are specifically set forth in this
Indenture, and no implied covenants or
obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad
faith on the part of the Trustee, the
Trustee may conclusively rely, as to the
truth of the statements and the correctness
of the opinions expressed therein, upon any
certificates or opinions furnished to the
Trustee and conforming to the requirements
of this Indenture; but, in the case of any
such certificates or opinions which by any
provision hereof are specifically required
to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
49
(c) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith, in accordance with the direction of
the Securityholders pursuant to Section 5.07,
relating to the time, method and place of conducting
any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
bond, note, debenture or other paper or document
believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand
of the Company mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be
evidenced to the Trustee by a copy thereof certified
by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel of
its selection and any advice or Opinion of Counsel
50
shall be full and complete authorization and
protection in respect of any action taken or suffered
omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it
by this Indenture at the request, order or direction
of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred
therein or thereby;
(e) the Trustee shall not be liable for any
action taken or omitted by it in good faith and
believed by it to be authorized or within the
discretion or rights or powers conferred upon it by
this Indenture; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default with respect to
a series of the Securities (that has not been cured
or waived) to exercise with respect to Securities of
that series such of the rights and powers vested in
it by this Indenture, and to use the same degree of
care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the
conduct of his own affairs;
(f) the Trustee shall not be bound to make
any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
approval, bond, debenture, coupon or other paper or
document, unless requested in writing to do so by the
holders of not less than a majority in principal
amount of the outstanding Securities of the series
affected thereby; provided, however, that if the
payment within a
51
reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable
indemnity against such expense or liability as a
condition to so proceeding;
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents
(including any Authenticating Agent) or attorneys,
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such
agent or attorney appointed by it with due care; and
(h) the Trustee shall not be charged with
knowledge of any default or Event of Default with
respect to the Securities of any series for which it
is acting as Trustee unless a Responsible Officer of
the Trustee shall have actual knowledge of the
default or Event of Default.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in
the certificate of authentication of the Trustee or the Authenticating Agent)
shall be taken as the statements of the Company, and neither the Trustee nor the
Authenticating Agent assumes any responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee and
the Authenticating Agent shall not be accountable for the use or application by
the Company of any Securities or the proceeds of any Securities authenticated
and delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
52
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar
May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or
any transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent, transfer
agent or Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Sections 6.06 and 11.04, all
moneys received by the Trustee or any paying agent shall, until used or applied
as herein provided, be held in trust for the purpose for which they were
received, but need not be segregated from other funds except to the extent
required by law. The Trustee and any paying agent shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed in
writing with the Company. So long as no Event of Default shall have occurred and
be continuing, all interest allowed on any such moneys shall be paid from time
to time upon the written order of the Company, signed by the Chairman of the
Board of Directors, the President or a Vice President or the Treasurer or an
Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation as shall
be agreed to in writing between the Company and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence
53
or bad faith. The Company also covenants to indemnify each of the Trustee or any
predecessor Trustee (and its officers, agents, directors and employees) for, and
to hold it harmless against, any and all loss, damage, claim, liability or
expense including taxes (other than taxes based on the income of the Trustee)
incurred without negligence or bad faith on the part of the Trustee and arising
out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim of
liability in the premises. The obligations of the Company under this Section
6.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien
prior to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the holders
of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d), Section
5.01(e) or Section 5.01(f), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action
54
taken or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia or a corporation
or other Person permitted to act as trustee by the Commission authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 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 aforesaid supervising or
examining authority, then for the purposes of this Section 6.09 the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with
respect to
55
one or more or all series of Securities by giving
written notice of such resignation to the Company and
the Company shall promptly give notice thereof to the
holders of the applicable series of Securities at
their addresses as they shall appear on the Security
register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor
trustee or trustees with respect to the applicable
series by written instrument, in duplicate, executed
by order of its Board of Directors, one copy of which
instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed with
respect to any series of Securities and have accepted
appointment within 30 days after the mailing of such
notice of resignation to the affected
Securityholders, the resigning Trustee may petition
any court of competent jurisdiction for the
appointment of a successor trustee, or any
Securityholder who has been a bona fide holder of a
Security or Securities of the applicable series for
at least 6 months may, subject to the provisions of
Section 5.09, on behalf of himself and all others
similarly situated, petition any such court for the
appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following
shall occur --
(1) the Trustee shall fail
to comply with the provisions of Section
6.08 after written request therefor by the
Company or by any Securityholder who has
been a bona fide holder of a Security or
Securities for at least six months, or
(2) the Trustee shall cease
to be eligible in accordance with the
provisions of Section
56
6.09 and shall fail to resign after written
request therefor by the Company or by any
such Securityholder, or
(3) the Trustee shall
become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property
shall be appointed, or any public officer
shall take charge or control of the Trustee
or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation
then, in any such case, the Company may remove the
Trustee and appoint a successor trustee by written
instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, subject to the
provisions of Section 5.09, any Securityholder who
has been a bona fide holder of a Security or
Securities of the applicable series for at least six
months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint
a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities of any series at
the time outstanding may at any time remove the
Trustee with respect to such series and nominate a
successor trustee with respect to the applicable
series of Securities which shall be deemed appointed
as successor trustee with respect to the applicable
series unless within 10 days after such nomination
the Company objects thereto, in which case the
Trustee so removed or any Securityholder of the
applicable series, upon the terms and
57
conditions and otherwise as in subsection (a) of this
Section 6.10 provided, may petition any court of
competent jurisdiction for an appointment of a
successor trustee with respect to such series.
(d) Any resignation or removal of the
Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section
6.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in
Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10
shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee with respect to all or any
applicable series shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee,
the trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring trustee thereunder. Upon
request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Company, the retiring
trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an
58
indenture supplemental hereto which shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring trustee with respect to the Securities of any series as
to which the predecessor trustee is not retiring shall continue to be vested in
the predecessor trustee, and shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trustee hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such trustee.
No successor trustee shall accept appointment as provided in
this Section 6.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as
provided in this Section 6.11, the Company shall mail notice of the succession
of such trustee hereunder to the holders of Securities of any applicable series
at their addresses as they shall appear on the Security register. If the Company
fails to mail such notice within 10 days after the acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
59
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Securities so authenticated; and in case at that time
any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor trustee; and in all
such cases such certificates shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or authenticate
Securities of any series in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by
the Trustee upon the request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of Securities of any
series issued upon exchange or transfer thereof as fully to all intents and
purposes as though any such Authenticating Agent had been expressly authorized
to authenticate and deliver Securities of such series; provided, that the
Trustee shall have no liability to the Company for any acts or omissions of the
Authenticating Agent with respect to the authentication and delivery of
Securities of any series. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the
60
laws of the United States or of any state or territory thereof or of the
District of Columbia authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of at least $50,000,000 and being subject
to supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.14 without the execution or filing of any paper or
any further act on the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect
to one or more or all series of Securities by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to one or more or
all series of Securities by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may, and upon the request of the Company promptly shall, appoint a
successor Authenticating Agent with respect to the applicable series eligible
under this Section 6.14 and shall give written notice of such appointment to the
Company, and the Company shall mail notice of such appointment to all holders of
the applicable series of Securities
61
as the names and addresses of such holders appear on the Security register. Any
successor Authenticating Agent with respect to all or any series upon acceptance
of its appointment hereunder shall become vested with all rights, powers, duties
and responsibilities with respect to such series of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent herein.
The Company agrees to pay to any Authenticating Agent from
time to time reasonable compensation for its services. Any Authenticating Agent
shall have no responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
SECTION 6.15. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee shall
have power to appoint, and, upon the written request of the Trustee or of the
holders of at least 25% in principal amount of the Securities then outstanding,
the Company shall for such purpose join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper to appoint, one
or more Persons approved by the Trustee either to act as co-trustee, jointly
with the Trustee, or to act as separate trustee, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such Person
or Persons, in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Company does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default shall have
occurred and be continuing, the Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Company
be required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company.
62
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
conditions:
(a) the Securities shall be authenticated
and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of
securities, cash and other personal property held by,
or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and
obligations hereby conferred or imposed upon the
Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by
the Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee,
except to the extent that under any law of any
jurisdiction in which any particular act is to be
performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or
separate trustee;
(c) the Trustee at any time, by an
instrument in writing executed by it, with the
concurrence of the Company, may accept the
resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, if an
Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the
Company. Upon the written request of the Trustee, the
Company shall join with the Trustee in the execution
and delivery of all instruments and agreements,
necessary or proper to effectuate such resignation or
removal. A successor to any co-
63
trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this
Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of any
act or omission of the Trustee, or any other such
trustee hereunder; and
(e) any notice from the holders of
Securities delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee and
separate trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of
a specified percentage in aggregate principal amount of the Securities of any or
all series may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action)
the fact that at the time of taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Securityholders
in person or by agent or proxy appointed in writing, or (b) by the record of
such holders of Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of
64
Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders .
Subject to the provisions of Section 6.01, 6.02 and 8.05,
proof of the execution of any instrument by a Securityholder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Securities shall be proved by the
Security register or by a certificate of the Security registrar. The Trustee may
require such additional proof of any matter referred to in this Section as it
shall deem necessary.
The record of any Securityholders' meeting shall be proved in
the manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners .
Prior to due presentment for registration of transfer of any
Security, the Company, the Trustee, any Authenticating Agent, any paying agent,
any transfer agent and any Security registrar may deem the person in whose name
such Security shall be registered upon the Security register to be, and may
treat him
65
as, the absolute owner of such Security (whether or not such Security shall be
overdue) for the purpose of receiving payment of or on account of the principal
of, premium, if any, and interest on such Security and for all other purposes;
and neither the Company nor the Trustee nor any Authenticating Agent nor any
paying agent nor any transfer agent nor any Security registrar shall be affected
by any notice to the contrary. All such payments so made to any holder for the
time being or upon his order shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company or any
other obligor on the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Securities shall be disregarded and deemed
not to be outstanding for the purpose of any such determination; provided that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities which the
Trustee actually knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 7.04 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such Securities and that the pledgee
is not the Company or any such other obligor or person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In the case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
66
SECTION 7.05. Revocation of Consents; Future Holders
Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Security specified in
this Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor) the
serial number of which is shown by the evidence to be included in the Securities
the holders of which have consented to such action may, by filing written notice
with the Trustee at its principal office and upon proof of holding as provided
in Section 7.02, revoke such action so far as concerns such Security (or so far
as concerns the principal amount represented by any exchanged or substituted
Security). Except as aforesaid any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, and of any Security issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Security or any Security issued in exchange or
substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders of any or all series may be
called at any time and from time to time pursuant to the provisions of this
Article Eight for any of the following purposes:
(a) to give any notice to the Company or to
the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any default
as permitted hereunder and its consequences, or to
take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of
Article Five;
(b) to remove the Trustee and nominate a
successor trustee pursuant to the provisions of
Article Six;
67
(c) to consent to the execution of an
indenture or indentures supplemental hereto pursuant
to the provisions of Section 9.02; or
(d) to take any other action authorized to
be taken by or on behalf of the holders of any
specified aggregate principal amount of such
Securities under any other provision of this
Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders
of any or all series to take any action specified in Section 8.01, to be held at
such time and at such place in the Borough of Manhattan, The City of New York,
as the Trustee shall determine or with the approval of the Company at any other
place. Notice of every meeting of the Securityholders of any or all series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to holders of
Securities of each series affected at their addresses as they shall appear on
the Securities of each series affected register. Such notice shall be mailed not
less than 20 nor more than 180 days prior to the date fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or
Securityholders.
In case at any time the Company pursuant to a resolution of
the Board of Directors, or the holders of at least 10% in aggregate principal
amount of the Securities of any or all series, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting of
Securityholders of any or all series, as the case may be, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such Securityholders
may determine the time and the place in said Borough of Manhattan for such
meeting and may call such meeting to take any action authorized in Section 8.01,
by mailing notice thereof as provided in Section 8.02.
68
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a
person shall (a) be a holder of one or more Securities with respect to which the
meeting is being held or (b) a person appointed by an instrument in writing as
proxy by a holder of one or more such Securities. The only persons who shall be
entitled to be present or to speak at any meeting of Securityholders shall be
the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 8.05. Regulations .
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Securities and
of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.04, at any meeting each
holder of Securities with respect to which such meeting is being held or proxy
therefor shall be entitled to one vote for each $1,000 principal amount (in the
case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition "outstanding") of Securities held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not outstanding and ruled
by the chairman of the
69
meeting to be not outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of Securities held by him or instruments in writing
as aforesaid duly designating him as the person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called pursuant to the
provisions of Section 8.02 or 8.03 may be adjourned from time to time by a
majority of those present, whether or not constituting a quorum, and the meeting
may be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of
holders of Securities with respect to which such meeting is being held shall be
by written ballots on which shall be subscribed the signatures of such holders
or of their representatives by proxy and the serial number or numbers of the
Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the serial numbers of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
70
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without
Consent of Securityholders.
The Company, when authorized by a resolution of the Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without the consent of
the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another
corporation to the Company, or successive
successions, and the assumption by the successor
corporation of the covenants, agreements and
obligations of the Company pursuant to Article Ten
hereof;
(b) to add to the covenants of the Company
such further covenants, restrictions or conditions
for the protection of the holders of all or any
series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities
stating that such covenants are expressly being
included for the benefit of such series) as the Board
of Directors and the Trustee shall consider to be for
the protection of the holders of such Securities, and
to make the occurrence, or the occurrence and
continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an
Event of Default permitting the enforcement of all or
any of the several remedies provided in this
Indenture as herein set forth; provided, however,
that in respect of any such additional covenant,
restriction or condition such supplemental indenture
may provide for a particular period of grace after
default (which period may be shorter or longer than
that allowed in the case of other
71
defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available
to the Trustee upon such default;
(c) to provide for the issuance under this
Indenture of Securities in coupon form (including
Securities registrable as to principal only) and to
provide for exchangeability of such Securities with
the Securities issued hereunder in fully registered
form and to make all appropriate changes for such
purpose;
(d) to cure any ambiguity or to correct or
supplement any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained
herein or in any supplemental indenture, or to make
such other provisions in regard to matters or
questions arising under this Indenture; provided that
any such action shall not adversely affect the
interests of the holders of the Securities;
(e) to add to, delete from, or revise the
terms of Securities of any series as permitted by
Section 2.01 and 2.03, including, without limitation,
any terms relating to the issuance, exchange,
registration or transfer of Securities issued in
whole or in part in the form of one or more global
Securities and the payment of any principal thereof,
or interest or premium, if any, thereon;
(f) to evidence and provide for the
acceptance of appointment hereunder by a successor
trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the
requirements of Section 6.11;
72
(g) to make any change that does not
adversely affect the rights of any Securityholder in
any material respect; or
(h) to provide for the issuance of and
establish the form and terms and conditions of the
Securities of any series prior to the issuance of
such securities, to establish the form of any
certifications required to be furnished pursuant to
the terms of this Indenture or any series of
Securities, or to add to the rights of the holders of
any series of Securities.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any property thereunder, but
the Trustee shall not be obligated to, but may in its discretion, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 9.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent
of Securityholders.
With the consent (evidenced as provided in Section 7.01) of
the holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding of all series affected by such supplemental
indenture (voting as a class), the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
the rights
73
of the holders of the Securities of each series so affected;
provided, however, that no such supplemental indenture shall without the consent
of the holders of each security then outstanding and affected thereby (i) extend
the fixed maturity of any Security of any series, or reduce the rate or extend
the time of payment of interest thereon, or reduce the principal amount thereof
or any premium thereon, or reduce any amount payable on redemption thereof or
make the principal thereof or any interest or premium thereon payable in any
coin or currency other than that provided in the Securities, or reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to Section
5.01 or the amount thereof provable in bankruptcy pursuant to Section 5.02, or
impair or affect the right of any Securityholder to institute suit for payment
thereof or the right of repayment, if any, at the option of the holder, or (ii)
reduce the aforesaid percentage of Securities the holders of which are required
to consent to any such supplemental indenture, provided, however, that if the
Securities of such series are held by a Citicorp Capital Trust or a trustee of
such trust, such supplemental indenture shall not be effective until the holders
of a majority in liquidation preference of Trust Securities of the applicable
Trust shall have consented to such supplemental indenture; provided, further,
that if the consent of the Holder of each outstanding Security is required, such
supplemental indenture shall not be effective until each holder of the Trust
Securities of the applicable Citicorp Capital Trust shall have consented to such
supplemental indenture.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Securityholders of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture or the Securityholders of any other series.
Upon the request of the Company accompanied by a copy of a
resolution of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the
74
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture. The Trustee may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article is authorized or permitted by, and conforms to, the terms of this
Article and that it is proper for the Trustee under the provisions of this
Article to join in the execution thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice, prepared
by the Company, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders of all series affected thereby as
their names and addresses appear upon the Security register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section 9.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions
of this Article Nine shall comply with the Trust Indenture Act, as then in
effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Nine, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Securities of each series
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all
the terms
75
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities .
Securities of any series authenticated and delivered after the
execution of any supplemental indenture affecting such series pursuant to the
provisions of this Article Nine may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Securities of any series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and
6.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Nine.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on
Certain Terms .
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or into
any other corporation or corporations (whether or not affiliated with the
Company, as the case may be), or successive consolidations or mergers in which
the Company, as the case may be, or its successor or successors shall be a party
76
or parties, or shall prevent any sale, conveyance, transfer or other disposition
of the property of the Company, as the case may be, or its successor or
successors as an entirety, or substantially as an entirety, to any other
corporation (whether or not affiliated with the Company, as the case may be, or
its successor or successors) authorized to acquire and operate the same;
provided, that (a) upon any such consolidation, merger, sale, conveyance,
transfer or other disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all series in
accordance with the terms of each series, according to their tenor and the due
and punctual performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with respect to such
series to be kept or performed by the Company as the case may be, shall be
expressly assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act, as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the entity formed by
such consolidation, or into which the Company, as the case may be, shall have
been merged, or by the entity which shall have acquired such property, and (b)
after giving effect to such consolidation, merger, sale, conveyance, transfer or
other disposition, no Event of Default shall have occurred and be continuing.
SECTION 10.02. Successor Corporation to be
Substituted for Company.
In case of any such consolidation, merger, conveyance or
transfer and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and premium, if
any, and interest on all of the Securities and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, such successor corporation shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and the Company thereupon shall be
relieved of any further liability or obligation hereunder or upon the
Securities. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name
77
of Citicorp, any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee or the
Authenticating Agent; and, upon the order of such successor corporation instead
of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee or the Authenticating Agent shall authenticate
and deliver any Securities which previously shall have been signed and delivered
by the officers of the Company to the Trustee or the Authenticating Agent for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee or the Authenticating
Agent for that purpose. All the Securities so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Indentures had been issued at the date of the execution
hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and
6.02, may receive an Opinion of Counsel as conclusive evidence that any
consolidation, merger, conveyance or transfer, and any assumption, permitted or
required by the terms of this Article Ten complies with the provisions of this
Article Ten.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than any Securities
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.08) and not theretofore cancelled, or
(b) all the Securities not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
78
redemption, and the Company shall deposit with the Trustee, in trust, funds
sufficient to pay at maturity or upon redemption all of the Securities (other
than any Securities which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.08) not theretofore
cancelled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to such date of maturity or
redemption date, as the case may be, but excluding, however, the amount of any
moneys for the payment of principal of, and premium, if any, or interest on the
Securities (1) theretofore repaid to the Company in accordance with the
provisions of Section 11.04, or (2) paid to any state or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.05, 2.07, 2.08, 3.01, 3.02, 3.04,
6.06, 6.10 and 11.04 hereof shall survive until such Securities shall mature and
be paid. Thereafter, Sections 6.06, 6.10 and 11.04 shall survive, and the
Trustee, on demand of the Company accompanied by any Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture,
the Company, however, hereby agreeing to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and
U.S. Government Obligations deposited with the Trustee pursuant to Sections
11.01 or 11.05 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Company if acting as its own
paying agent), to the holders of the particular Securities for the payment of
which such moneys or U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest.
79
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.05 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the holders of outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held .
Upon the satisfaction and discharge of this Indenture all
moneys then held by any paying agent of the Securities (other than the Trustee)
shall, upon demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys .
Any moneys deposited with or paid to the Trustee or any paying
agent for payment of the principal of, and premium, if any, or interest on
Securities and not applied but remaining unclaimed by the holders of Securities
for 3 years after the date upon which the principal of, and premium, if any, or
interest on such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent on
written demand; and the holder of any of the Securities shall thereafter look
only to the Company for any payment which such holder may be entitled to collect
and all liability of the Trustee or such paying agent with respect to such
moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations.
The Company shall be deemed to have been (a) Discharged (as
defined below) from its respective obligations with respect to any series of
Securities and/or (b) released from its obligations under Article X, and, if
specified pursuant to Section 2.3, its obligation under any other covenant with
respect to any series of Securities, upon satisfaction of the applicable
conditions set forth below with respect to any series of Securities:
80
(1) The Company shall have deposited or
caused to be deposited irrevocably with the Trustee
or the Defeasance Agent (as defined below) as trust
funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the holders
of the Securities of such series (i) money in an
amount, or (ii) U.S. Government Obligations which
through the payment of interest and principal in
respect thereof in accordance with their terms will
provide, not later than one day before the due date
of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the
opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee and the Defeasance
Agent, if any, to pay and discharge each installment
of principal (including any mandatory sinking fund
payments) of, and interest and premium, if any, on,
the outstanding Securities of such series on the
dates such installments of principal, interest or
premium are due;
(2) if the Securities of such series are
then listed on any national securities exchange, the
Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to
the effect that the exercise of the option under this
Section 11.05 would not cause such Securities to be
delisted from such exchange;
(3) no Event of Default or event which with
notice or lapse of time would become an Event of
Default with respect to the Securities of such series
shall have occurred and be continuing on the date of
such deposit; and
(4) the Company shall have delivered to the
Trustee and the Defeasance Agent, if any, an Opinion
of Counsel to the effect that holders of the
Securities of such series will not recognize
81
income, gain or loss for United States federal income
tax purposes as a result of the exercise of the
option under this Section 11.05 and will be subject
to United States federal income tax on the same
amount and in the same manner and at the same times
as would have been the case if such option had not
been exercised, and, in the case of the Securities of
such series being Discharged, such opinion shall be
accompanied by a private letter ruling to that effect
received from the United States Internal Revenue
Service or a revenue ruling pertaining to a
comparable form of transaction to that effect
published by the United States Internal Revenue
Service.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Securities of such series and to have satisfied all the obligations
under this Indenture relating to the Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of holders of Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of and the interest and premium, if any, on such Securities when such
payments are due; (B) the Company's obligations with respect to such Securities
under Sections 2.07, 2.08, 5.02 and 11.04; and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution which
is eligible to act as Trustee hereunder and which assumes all of the obligations
of the Trustee necessary to enable the Trustee to act hereunder. In the event
such a Defeasance Agent is appointed pursuant to this section, the following
conditions shall apply:
1. The Trustee shall have approval rights
over the document appointing such Defeasance Agent
and the document setting forth such Defeasance
Agent's rights and responsibilities;
82
2. The Defeasance Agent shall provide
verification to the Trustee acknowledging receipt of
sufficient money and/or U. S. Government Obligations
to meet the applicable conditions set forth in this
Section 11.05;
3. The Trustee shall determine whether the
Company shall be deemed to have been Discharged from
its respective obligations with respect to any series
of Securities.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations.
No recourse for the payment of the principal of or premium, if
any, or interest on any Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture, or
in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation of the Company, either directly or through the Company or any
successor corporation of the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.
83
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in
this Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation .
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers .
The Company by instrument in writing executed by authority of
2/3 (two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company, as the case may be, and as
to any successor corporation.
SECTION 13.04. Addresses for Notices, etc.
Any request, demand, authorization, direction, notice,
consent, election, waiver or act of holders of Securities or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with, the Trustee by any holder of Securities or by the Company, or the
Company by the Trustee or by any holder of Securities, shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and delivered personally to an officer or other responsible employee of
the addressee, or transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic communications
address as the parties hereto shall from time to time designate,
84
or transmitted by certified or registered mail, charges prepaid, to the
applicable address set opposite such party's name below or to such other address
as either party hereto may from time to time designate:
If to the Trustee, to:
Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to:
Citicorp
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission or other direct written
electronic means (with transmission confirmed), on the date of transmission, and
if transmitted by registered mail, on the date of receipt.
SECTION 13.05. Governing Law .
This Indenture and each Security shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of said State,
without regard to conflicts of laws principles thereof.
85
SECTION 13.06. Evidence of Compliance with
Conditions Precedent.
Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that in the
opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.07. Legal Holidays.
In any case where the date of payment of interest on or
principal of the Securities will be in The City of New York, New York a legal
holiday or a day on which banking institutions are authorized by law to close,
the payment of such interest on or principal of the Securities need not be made
on such date but may be made on the next succeeding day not in the City a legal
holiday or a day on which banking institutions are authorized by law to close,
with the same force and effect as if made on the date of payment and no interest
shall accrue for the period from and after such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision
86
included in this Indenture which is required to be included in this Indenture by
any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such
required provision shall control.
SECTION 13.09. Table of Contents, Headings, etc .
The table of contents and the titles and headings of the
articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts .
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
SECTION 13.11. Separability .
In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12. Assignment .
The Company will have the right at all times to assign any of
its respective rights or obligations under this Indenture to a direct or
indirect wholly owned Subsidiary of the Company, provided that, in the event of
any such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the
benefit of the parties hereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties hereto.
87
SECTION 13.13. Acknowledgement of Rights .
The Company acknowledges that, with respect to any Securities
held by a Citicorp Capital Trust or a trustee of such a trust, if the
Institutional Trustee of such a Trust fails to enforce its rights under this
Indenture as the holder of the series of Securities held as the assets of such
Citicorp Capital Trust, any holder of Preferred Securities may institute legal
proceedings directly against the Company to enforce such Institutional Trustee's
rights under this Indenture without first instituting any legal proceedings
against such Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal on the applicable series of Securities on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), the Company acknowledges that a holder of Preferred Securities
may directly institute a proceeding against the Company for enforcement of
payment to such holder of the principal of or interest on the applicable series
of Securities having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such holder on or after the respective due
date specified in the applicable series of Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.03 for Securities of such series.
88
SECTION 14.02. Notice of Redemption; Selection of
Securities.
In case the Company shall desire to exercise the right to
redeem all, or, as the case may be, any part of the Securities of any series in
accordance with their terms, it shall fix a date for redemption and shall mail a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the holders of Securities of such series so to be
redeemed as a whole or in part at their last addresses as the same appear on the
Security register. Such mailing shall be by first class mail. The notice if
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the holder receives such notice. In any case, failure
to give such notice by mail or any defect in the notice to the holder of any
Security of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security
of such series.
Each such notice of redemption shall specify the CUSIP number
of the Securities to be redeemed, the date fixed for redemption, the redemption
price at which Securities of such series are to be redeemed, the place or places
of payment, that payment will be made upon presentation and surrender of such
Securities, that interest accrued to the date fixed for redemption will be paid
as specified in said notice, and that on and after said date interest thereon or
on the portions thereof to be redeemed will cease to accrue. If less than all
the Securities of such series are to be redeemed the notice of redemption shall
specify the numbers of the Securities of that series to be redeemed. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of that series in principal amount equal
to the unredeemed portion thereof will be issued.
Prior to the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with the
Trustee or with 1 or more paying agents an
89
amount of money sufficient to redeem on the redemption date all the Securities
so called for redemption at the appropriate redemption price, together with
accrued interest to the date fixed for redemption.
If all, or less than all, the Securities of a series are to be
redeemed, the Company will give the Trustee notice not less than 45 or 60 days,
respectively, prior to the redemption date as to the aggregate principal amount
of Securities of that series to be redeemed and the Trustee shall select, in
such manner as in its sole discretion it shall deem appropriate and fair, the
Securities of that series or portions thereof (in integral multiples of $1,000,
except as otherwise set forth in the applicable form of Security) to be redeemed
provided that if, at the time of redemption, the Securities are registered as a
Global Security, the Depositary shall determine the principal amount of such
Securities held by each Securityholder to be redeemed in accordance with its
procedures.
SECTION 14.03. Payment of Securities Called for
Redemption.
If notice of redemption has been given as provided in Section
14.02 or Section 14.04, the Securities or portions of Securities of the series
with respect to which such notice has been given shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Company shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities of
any series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities at a place of payment specified in said notice, the
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the holder
90
thereof, at the expense of the Company, a new Security or Securities of such
series of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented.
SECTION 14.04. Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". The last date on which any such payment may be
made is herein referred to as a "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any Securities of a series in cash, the Company may
at its option (a) deliver to the Trustee Securities of that series theretofore
purchased by the Company and (b) may apply as a credit Securities of that series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of optional sinking fund
payments pursuant to the next succeeding paragraph, in each case in satisfaction
of all or any part of any mandatory sinking fund payment, provided that such
Securities have not been previously so credited. Each such Security so delivered
or applied as a credit shall be credited at the sinking fund redemption price
for such Securities and the amount of any mandatory sinking fund shall be
reduced accordingly. If the Company intends so to deliver or credit such
Securities with respect to any mandatory sinking fund payment it shall deliver
to the Trustee at least 60 days prior to the next succeeding sinking fund
payment date for such series (a) a certificate signed by the Treasurer or an
Assistant Treasurer of the Company specifying the portion of such sinking fund
payment, if any, to be satisfied by payment of cash and the portion of such
sinking fund payment, if any, which is to be satisfied by delivering and
crediting such Securities and (b) any Securities to be so delivered. All
Securities so delivered to the Trustee shall be cancelled by the Trustee and no
Securities shall be authenticated in lieu thereof. If the Company fails to
deliver such certificate and Securities
91
at or before the time provided above, the Company shall not be permitted to
satisfy any portion of such mandatory sinking fund payment by delivery or credit
of Securities.
At its option the Company may pay into the sinking fund for
the retirement of Securities of any particular series, on or before each sinking
fund payment date for such series, any additional sum in cash as specified by
the terms of such series of Securities. If the Company intends to exercise its
right to make any such optional sinking fund payment, it shall deliver to the
Trustee at least 60 days prior to the next succeeding sinking fund payment date
for such Series a certificate signed by the Treasurer or an Assistant Treasurer
of the Company stating that the Company intends to exercise such optional right
and specifying the amount which the Company intends to pay on such sinking fund
payment date. If the Company fails to deliver such certificate at or before the
time provided above, the Company shall not be permitted to make any optional
sinking fund payment with respect to such sinking fund payment date. To the
extent that such right is not exercised in any year it shall not be cumulative
or carried forward to any subsequent year.
If the sinking fund payment or payments (mandatory or
optional) made in cash plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall
so request) with respect to the Securities of any particular series, it shall be
applied by the Trustee or 1 or more paying agents on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. The Trustee shall select, in the manner provided in Section 14.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and the
Trustee shall, at the expense and in the name of the Company, thereupon cause
notice of redemption of Securities of such series to be given in substantially
the manner and with the effect provided in Sections 14.02 and 14.03 for the
redemption of Securities of that series in part at the option of the Company,
except that the notice of redemption shall also state that the Securities of
such series are being redeemed for the sinking fund. Any sinking fund moneys not
so applied or
92
allocated by the Trustee or any paying agent to the redemption of Securities of
that series shall be added to the next cash sinking fund payment received by the
Trustee or such paying agent and, together with such payment, shall be applied
in accordance with the provisions of this Section 14.04. Any and all sinking
fund moneys held by the Trustee or any paying agent on the maturity date of the
Securities of any particular series, and not held for the payment or redemption
of particular Securities of such series, shall be applied by the Trustee or such
paying agent, together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of the principal of the Securities of
that series at maturity.
On or before each sinking fund payment date, the Company shall
pay to the Trustee or to 1 or more paying agents in cash a sum equal to all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any
Securities of a series with sinking fund moneys, and the Trustee shall not mail
any notice of redemption of Securities for such series by operation of the
sinking fund, during the continuance of a default in payment of interest on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph), except that if the notice of redemption of
any Securities shall theretofore have been mailed in accordance with the
provisions hereof, the Trustee or any paying agent shall redeem such Securities
if cash sufficient for that purpose shall be deposited with the Trustee or such
paying agent for that purpose in accordance with the terms of this Article
Fourteen. Except as aforesaid, any moneys in the sinking fund for such series at
the time when any such default or Event of Default shall occur and any moneys
thereafter paid into the sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of all such
Securities; provided, however, that in case such Event of Default or default,
shall have been cured or waived as provided herein, such moneys shall thereafter
be applied on the next succeeding sinking fund payment date on which such moneys
may be applied pursuant to the provisions of this Section 14.04.
93
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of
Securities issued hereunder and under any supplemental indenture or by any
resolutions by the Board of Directors ("Additional Provisions") by such
Securityholder's acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article Fifteen;
and each holder of a Security, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if
any, and interest on all Securities issued hereunder and under any Additional
Provisions shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment in full of all
amounts then due on Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article Fifteen shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness .
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment due
on any Senior Indebtedness of the Company, as the case may be, or in the event
that the maturity of any Senior Indebtedness of the Company, as the case may be,
has been accelerated because of a default, or if any judicial proceeding shall
be pending with respect to any such default then, in any such case, no payment
shall be made by the Company with respect to the principal (including redemption
and sinking fund payments) of, or premium, if any, or interest on the
Securities.
94
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 15.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company on
account of the principal (and premium, if any) or interest on the Securities;
and upon any such dissolution or winding-up or liquidation or reorganization,
any payment by the Company, or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the
Securityholders or the Trustee would be entitled to receive from the Company,
except for the provisions of this Article Fifteen, shall be paid by the Company
or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Securityholders or by the
Trustee under the Indenture if received by them or it, directly to the holders
of Senior Indebtedness of the Company (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
95
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of the
Company, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
Notwithstanding anything to the contrary contained in this
Article Fifteen, the holders of Senior Indebtedness shall not be entitled to
receive payment of any amounts which would otherwise (but for the provisions of
this Article Fifteen) be payable in respect of the Securities but for the fact
that any such Senior Indebtedness is by its terms subordinated in right of
payment to Trade Credit and, as a result of which, amounts otherwise payable in
respect of such Senior Indebtedness are to be paid to the holders of Trade
Credit.
For purposes of this Article Fifteen, the words "cash,
property or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is
96
subordinated at least to the extent provided in this Article Fifteen with
respect to the Securities to the payment of all Senior Indebtedness of the
Company, as the case may be, that may at the time be outstanding, provided that
(i) such Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Ten of this
Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.03 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Ten of this Indenture. Nothing in Section
15.02 or in this Section 15.03 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness of
the Company, the rights of the Securityholders shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments or distributions
of cash, property or securities of the Company, as the case may be, applicable
to such Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders or
the Trustee would be entitled except for the provisions of this Article Fifteen,
and no payment over pursuant to the provisions of this Article Fifteen to or for
the benefit of the holders of such Senior Indebtedness by Securityholders or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the Securities, be deemed
to be a payment by the
97
Company to or on account of such Senior Indebtedness.
Notwithstanding the foregoing, the rights of the Securityholders, to the extent
that amounts otherwise payable in respect of Senior Indebtedness are to be paid
to holders of Trade Credit due to the fact that such Senior Indebtedness is by
its terms subordinated in right of payment to such Trade Credit, shall not be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company. It is
understood that the provisions of this Article Fifteen are and are intended
solely for the purposes of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of such Senior Indebtedness on the
other hand.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture, any Additional Provisions or in the Securities is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Indebtedness of the Company, and the holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
holders of the Securities and creditors of the Company, as the case may be,
other than the holders of Senior Indebtedness of the Company, as the case may
be, nor shall anything herein or therein prevent the Trustee or the holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, subject to the rights, if any, under this
Article Fifteen of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, as the case may be, received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Fifteen, the Trustee, subject to the provisions of
Article Six of this Indenture, and the Securityholders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person
98
making such
payment or distribution, delivered to the Trustee or to the Securityholders, for
the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, as the case may be, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Fifteen.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance of his
or her Securities authorizes and directs the Trustee on such Securityholder's
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fifteen and appoints the Trustee such
Securityholder's attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Fifteen. Notwithstanding
the provisions of this Article Fifteen or any other provision of this Indenture
or any Additional Provisions, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article Fifteen, unless and until a Responsible Officer of
the Trustee shall have received written notice thereof from the Company or a
holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Article Six of this Indenture, shall be entitled in all respects
to assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 15.06 at least five
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of (or premium, if any) or interest on any Debenture), then,
anything herein contained to the contrary notwithstanding,
99
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within five
Business Days prior to such date.
The Trustee, subject to the provisions of Article Six of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company, as the case may be (or a trustee on behalf of such
holder), to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article Fifteen, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Fifteen, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness .
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Fifteen in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture or any Additional Provisions
shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article Fifteen,
and no implied covenants or obligations with respect to the holders of such
Senior
100
Indebtedness shall be read into this Indenture or any Additional Provisions
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Senior Indebtedness and, subject to the provisions of
Article Six of this Indenture, the Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall pay over or deliver to Securityholders, the
Company or any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article Fifteen or otherwise.
Nothing in this Article Fifteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company, as the case may be, or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company, as the
case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article
Fifteen or the obligations hereunder of the holders of the Securities to the
holders of such Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person
101
liable in any manner for the collection of such Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
Wilmington Trust Company hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
CITICORP
By _________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By _________________________
Name:
Title:
102