CITIFINANCIAL CREDIT COMPANY (FORMERLY COMMERCIAL CREDIT COMPANY), CITIGROUP INC., as Guarantor, and THE BANK OF NEW YORK MELLON, as Trustee FIFTH SUPPLEMENTAL INDENTURE Dated as of January 11, 2011 to Indenture Dated as of December 1, 1986
CITIFINANCIAL CREDIT COMPANY
(FORMERLY
COMMERCIAL CREDIT COMPANY),
as
Guarantor,
and
THE BANK
OF NEW YORK MELLON,
as
Trustee
Dated as
of January 11, 2011
to
Indenture
Dated as
of December 1, 1986
This
Fifth Supplemental Indenture, dated as of January 11, 2011 (this “Fifth Supplemental
Indenture”), among CitiFinancial Credit Company (formerly Commercial
Credit Company), a corporation organized and existing under the laws of the
State of Delaware (“CCC”), Citigroup
Inc., a corporation organized and existing under the laws of the State of
Delaware (“Citigroup”), as
guarantor, and The Bank of New York Mellon, as trustee (the “Trustee”);
WITNESSETH:
WHEREAS,
CCC has heretofore executed and delivered to the Trustee (i) an indenture dated
as of December 1, 1986 (the “Original Indenture”), providing for the issuance by
CCC from time to time of its senior debt securities, (ii) a first supplemental
indenture to the Original Indenture dated as of June 13, 1990 (the “First Supplemental
Indenture”), (iii) a second supplemental indenture to the Original
Indenture dated as of August 2, 1999 (the “Second Supplemental
Indenture”), (iv) a third supplemental indenture to the Original
Indenture dated as of October 18, 1999 (the “Third Supplemental
Indenture”) and (v) a fourth supplemental indenture to the Original
Indenture dated as of August 1, 2005 (the “Fourth Supplemental
Indenture;” the Original Indenture, as supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and the Fourth Supplemental Indenture, is hereafter
referred to as the “Indenture”);
WHEREAS,
Section 902 of
the Indenture provides that CCC and the Trustee, with the consent of the Holders
of at least 66 2/3% in aggregate principal amount of the outstanding 6.625%
Notes (as defined below), when authorized by a Board Resolution of CCC, may
amend or supplement the Indenture;
WHEREAS, in connection with an offer
(the “Exchange
Offer”) to certain Holders of any and all of CCC’s outstanding 6.625%
Notes due 2015 (the “6.625% Notes”), in
exchange for a specified principal amount of Citigroup’s 4.75% Notes due 2015
(the “New Citigroup
Notes”), as described in an Offering Memorandum, dated as of December 24,
2010 (the “Offering
Memorandum”), and a solicitation of consents (the “Consent
Solicitation”) of specified Holders of the 6.625% Notes, as described in
a Consent Solicitation Statement, dated as of December 24, 2010 (the “Consent Solicitation
Statement”), Citigroup and CitiFinancial Credit Company have solicited
the consents of Holders of the 6.625% Notes to certain proposed amendments to
the Indenture as described in the Offering Memorandum and Consent Solicitation
Statement (“the Proposed
Amendments”);
WHEREAS,
Holders of at least 66 2/3% in aggregate principal amount of the outstanding
6.625% Notes have provided their valid consent, in writing, to the Proposed
Amendments, and all conditions precedent provided for in the Indenture relating
to the execution of this Fifth Supplemental Indenture have been complied
with;
WHEREAS,
CCC and Citigroup, pursuant to the foregoing authority, propose in and by this
Fifth Supplemental Indenture to amend the Indenture and have requested that the
Trustee join in the execution of this Fifth Supplemental Indenture;
and
WHEREAS,
all acts and requirements necessary to make this Fifth Supplemental Indenture
the legal, valid and binding obligation of CCC and Citigroup have been
done.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, CCC, Citigroup and
the Trustee mutually covenant and agree for the equal and ratable benefit of the
Holders of the 6.625% Notes as follows:
ARTICLE
I
Definitions
SECTION
1.1 Defined
Terms. As used in this Fifth Supplemental Indenture, terms defined in the
Indenture or in the preamble or recital hereto are used herein as therein
defined. The words “herein,” “hereof” and “hereby” and other words of similar
import used in this Fifth Supplemental Indenture refer to this Fifth
Supplemental Indenture as a whole and not to any particular section
hereof.
ARTICLE
II
Amendments
SECTION
2.1 Effective as of the Amendment Effective Date (as defined
below):
(a)
Section 801 of the Indenture shall be deleted solely with respect to the 6.625%
Notes and any corresponding provision in the 6.625% Notes shall be deemed to be
deleted in its entirety and replaced with the phrase “Intentionally
Omitted.”
(b) Any
definitions used exclusively in Section 801 of the Indenture shall be deleted in
their entirety from the Indenture solely with respect to the 6.625% Notes and
from the 6.625% Notes, and all references to Section 801 shall be deleted in
their entirety from the Indenture solely with respect to the 6.625% Notes and
from the 6.625% Notes. Any provision contained in the 6.625% Notes
that relates to any provision of the Indenture as amended shall likewise be
amended so that any such provision contained in the 6.625% Notes will conform to
and be consistent with any provision of the Indenture as
amended.
SECTION
2.2 From and as of the Amendment Effective Date, no default related
to Section 801 shall constitute an Event of Default solely with respect to the
6.625% Notes.
ARTICLE
III
Effectiveness
SECTION
3.1 Effectiveness. This
Fifth Supplemental Indenture shall become effective upon execution by CCC,
Citigroup, and the Trustee. As used herein, the “Amendment Effective
Date” shall mean the date that CCC delivers written notice to the Trustee
that consents have been received from Holders of at least 66 2/3% of the then
outstanding aggregate principal amount of 6.625% Notes and the consent payment
described in the Offering Memorandum and the Consent Solicitation Statement has
been paid.
Miscellaneous
SECTION
3.2 Notices. All
notices and other communications to each party hereto shall be given as provided
in the Indenture.
SECTION
3.3 Parties. Nothing
expressed or mentioned herein is intended or shall be construed to give any
Person, firm or corporation, other than the Holders and the Trustee, any legal
or equitable right, remedy or claim under or in respect of this Fifth
Supplemental Indenture or the Indenture or any provision herein or therein
contained.
SECTION
3.4 Governing
Law. This Fifth Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New
York.
SECTION
3.5 Severability
Clause. In case any provision in this Fifth Supplemental
Indenture shall be invalid, illegal or unenforceable in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION
3.6 Ratification of Indenture;
Supplemental Indenture is Part of Indenture. Except as
expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. This Fifth Supplemental Indenture shall form a part of
the Indenture for all purposes, and every Holder of 6.625% Notes heretofore or
hereafter authenticated and delivered shall be bound hereby. The Trustee makes
no representation or warranty as to the validity or sufficiency of this Fifth
Supplemental Indenture.
SECTION
3.7 Counterparts. The
parties hereto may sign one or more copies of this Fifth Supplemental Indenture
in counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute one and the same agreement.
SECTION
3.8 Headings. The
headings of the Articles and the sections in this Fifth Supplemental Indenture
are for convenience of reference only, are not part of this Fifth Supplemental
Indenture and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
SECTION
3.9 Trustee. The
Trustee makes no representations as to the validity or sufficiency of this Fifth
Supplemental Indenture. The recitals and statements herein are deemed
to be those of CCC and Citigroup and not of the Trustee. The Trustee
shall not be responsible or liable for special, indirect or consequential loss
or damage of any kind (including, but not limited to, loss of
profit).
SECTION
3.10 Force
Majeure. In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war
or terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed and made effective as of the date first above
written.
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CITIFINANCIAL
CREDIT COMPANY
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By:
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/s/ ▇▇▇▇▇
▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
Executive Vice President and
Chief Financial
Officer
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THE
BANK OF NEW YORK MELLON,
as
Trustee
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By:
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Senior
Associate
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as
Guarantor
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By:
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/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title: Assistant
Treasurer
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