EXHIBIT 4.28
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CITIGROUP INC.
TO
JPMORGAN CHASE BANK
Trustee
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INDENTURE
Dated as of July 23, 2004
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Providing for the issuance of Junior Subordinated Debt Securities
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EXHIBIT 4.28
TABLE OF CONTENTS
Page
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RECITALS OF THE COMPANY ....................................................... 1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION ............. 1
Section 1.1 Definitions ..................................................... 1
Section 1.2 Compliance Certificates and Opinions ............................ 9
Section 1.3 Form of Documents Delivered to Trustee .......................... 9
Section 1.4 Acts of Holders; Record Dates ................................... 10
Section 1.5 Notices, Etc., to Trustee and Company ........................... 11
Section 1.6 Notice to Holders; Waiver ....................................... 11
Section 1.7 Conflict with Trust Indenture Act ............................... 11
Section 1.8 Effect of Headings and Table of Contents ........................ 12
Section 1.9 Successors and Assigns .......................................... 12
Section 1.10 Separability Clause ............................................ 12
Section 1.11 Benefits of Indenture .......................................... 12
Section 1.12 Governing Law .................................................. 12
Section 1.13 Legal Holidays ................................................. 12
Section 1.14 Tax Characterization ........................................... 12
ARTICLE II SECURITY FORMS ..................................................... 13
Section 2.1 Forms Generally ................................................. 13
Section 2.2 Form of Face of Security ........................................ 13
Section 2.3 Form of Reverse of Security ..................................... 16
Section 2.4 Form of Trustee's Certificate of Authentication ................. 20
ARTICLE III THE SECURITIES .................................................... 20
Section 3.1 Amount Unlimited; Issuable in Series ............................ 20
Section 3.2 Denominations ................................................... 22
Section 3.3 Execution, Authentication, Delivery and Dating .................. 22
Section 3.4 Temporary Securities ............................................ 23
Section 3.5 Registration, Registration of Transfer and Exchange ............. 23
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities ................ 24
Section 3.7 Payment of Interest; Interest Rights Preserved .................. 25
Section 3.8 Persons Deemed Owners ........................................... 27
Section 3.9 Cancellation .................................................... 27
Section 3.10 Interest ....................................................... 27
Section 3.11 Form and Payment ............................................... 28
Section 3.12 Global Securities .............................................. 28
ARTICLE IV SATISFACTION AND DISCHARGE; DEFEASANCE ............................. 30
Section 4.1 Satisfaction and Discharge of Indenture ......................... 30
Section 4.2 Defeasance and Discharge ........................................ 31
Section 4.3 Covenant Defeasance ............................................. 32
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Section 4.4 Conditions to Defeasance or Covenant Defeasance ................. 32
Section 4.5 Application of Trust Money ...................................... 33
Section 4.6 Indemnity for U.S. Government Obligations ....................... 34
Section 4.7 Reinstatement ................................................... 34
ARTICLE V REMEDIES ............................................................ 34
Section 5.1 Events of Default ............................................... 34
Section 5.2 Acceleration of Maturity ........................................ 35
Section 5.3.Collection of Indebtedness and Suits for Enforcement by Trustee . 36
Section 5.4 Trustee to File Claims As Attorney-In-Fact ...................... 36
Section 5.5 Application of Money Collected .................................. 37
Section 5.6 Control by Holders; Waiver of Past Default ...................... 38
Section 5.7 Limitation on Suits; Default .................................... 38
Section 5.8 Costs and Attorneys' Fees in Legal Proceedings .................. 40
Section 5.9 Remedies Cumulative ............................................. 41
Section 5.10 Waiver of Stay or Extension Laws ............................... 41
ARTICLE VI THE TRUSTEE ........................................................ 41
Section 6.1 Certain Duties and Responsibilities ............................. 41
Section 6.2 Notice of Defaults .............................................. 42
Section 6.3 Certain Rights of Trustee ....................................... 43
Section 6.4 Not Responsible for Recitals or Issuance of Securities .......... 44
Section 6.5 May Hold Securities ............................................. 44
Section 6.6 Money Held in Trust ............................................. 44
Section 6.7 Compensation and Reimbursement .................................. 44
Section 6.8 Disqualification; Conflicting Interests ......................... 45
Section 6.9 Corporate Trustee Required; Eligibility ......................... 45
Section 6.10 Resignation and Removal; Appointment of Successor .............. 46
Section 6.11 Acceptance of Appointment by Successor ......................... 47
Section 6.12.Merger, Conversion, Consolidation or Succession to Business .... 48
Section 6.13 Preferential Collection of Claims Against Company .............. 49
Section 6.14 Appointment of Authenticating Agent ............................ 49
ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY .................. 51
Section ▇.▇.▇▇▇▇▇▇▇ to Furnish Trustee Names and Addresses of Holders ....... 51
Section 7.2 Preservation of Information; Communications to Holders .......... 51
Section 7.3 Reports by Trustee .............................................. 51
Section 7.4 Reports by Company .............................................. 52
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ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE ............. 53
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms ............ 53
Section 8.2 Successor Corporation Substituted ............................... 54
ARTICLE IX SUPPLEMENTAL INDENTURES ............................................ 54
Section 9.1 Supplemental Indentures Without Consent of Holders .............. 54
Section 9.2 Supplemental Indentures with Consent of Holders ................. 55
Section 9.3 Execution of Supplemental Indentures ............................ 56
Section 9.4 Effect of Supplemental Indentures ............................... 57
Section 9.5 Conformity with Trust Indenture Act ............................. 57
Section 9.6 Reference in Securities to Supplemental Indentures .............. 57
ARTICLE X COVENANTS ........................................................... 57
Section 10.1 Payment of Principal, Premium and Interest ..................... 57
Section 10.2 Maintenance of Office or Agency ................................ 57
Section 10.3 Money for Securities Payments to Be Held in Trust .............. 58
Section 10.4 Statement by Officers as to Default ............................ 59
Section 10.5 Covenants as to Citigroup Trusts ............................... 59
Section 10.6 Payment of Expenses ............................................ 60
Section 10.7 Listing on an Exchange ......................................... 61
Section 10.8 Future Issuance of Securities under this Indenture ............. 61
ARTICLE XI REDEMPTION OF SECURITIES ........................................... 61
Section 11.1 Applicability of Article; Federal Reserve Approval ............. 61
Section 11.2 Election to Redeem; Notice to Trustee .......................... 61
Section 11.3 Selection by Trustee of Securities to Be Redeemed .............. 62
Section 11.4 Notice of Redemption ........................................... 62
Section 11.5 Deposit of Redemption Price .................................... 63
Section 11.6 Securities Payable on Redemption Date .......................... 63
Section 11.7 Securities Redeemed in Part .................................... 64
Section 11.8 Tax Event Redemption............................................ 64
ARTICLE XII SINKING FUNDS ..................................................... 65
Section 12.1 Applicability of Article ....................................... 65
Section 12.2 Satisfaction of Sinking Fund Payments with Securities .......... 65
Section 12.3 Redemption of Securities for Sinking Fund ...................... 65
ARTICLE XIII EXTENSION OF INTEREST PAYMENT PERIOD ............................. 66
Section 13.1 Extension of Interest Payment Period ........................... 66
Section 13.2 Notice of Extension ............................................ 66
Section 13.3 Limitation of Transactions ..................................... 67
ARTICLE XIV SUBORDINATION OF SECURITIES ....................................... 68
Section 14.1 Agreement to Subordinate ....................................... 68
Section 14.2 Default on Senior Indebtedness ................................. 68
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Section 14.3 Liquidation; Dissolution; Bankruptcy ........................... 69
Section 14.4 Subrogation .................................................... 70
Section 14.5 Trustee to Effectuate Subordination ............................ 71
Section 14.6 Notice by the Company .......................................... 71
Section 14.7 Rights of the Trustee; Holders of Senior Indebtedness .......... 72
Section 14.8 Subordination May Not Be Impaired .............................. 72
Section 14.9 Trustee's Compensation Not Prejudiced .......................... 73
ARTICLE XV MISCELLANEOUS ...................................................... 73
Section 15.1 Acknowledgement of Rights ...................................... 73
IV
INDEX OF TERMS
Page
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Act .......................................................... 2, 11
Additional Interest .......................................... 2, 29
Affiliate .................................................... 2
Authenticating Agent ......................................... 2
Board of Directors ........................................... 2
Board Resolution ............................................. 2
Book Entry Interest .......................................... 2
Business Day ................................................. 2
Citigroup Trust .............................................. 2
Commission ................................................... 3
Common Securities ............................................ 3
Company ...................................................... 1, 3, 15
Company Order ................................................ 3
Company Request .............................................. 3
Compounded Interest .......................................... 3, 70
Corporate Trust Office ....................................... 3
Coupon Rate .................................................. 3, 29
Covenant Defeasance .......................................... 3, 34
Declaration .................................................. 3
Defaulted Interest ........................................... 3, 27
Defeasance ................................................... 3, 33
Deferred Interest ............................................ 4, 70
Delaware Trustee ............................................. 4
Depositary ................................................... 4
Direct Action ................................................ 4, 78
Dissolution Event ............................................ 4
Distributions ................................................ 4
Event of Default ............................................. 4
Exchange Act ................................................. 4
Extended Interest Payment Period ............................. 4, 19, 70
Floating or Adjustable Rate Provision ........................ 4
Floating or Adjustable Rate Security ......................... 4
generally accepted accounting principles ..................... 1
Global Security .............................................. 4
Holder ....................................................... 4
Indenture .................................................... 5, 17
Institutional Trustee ........................................ 5
Interest Payment Date ........................................ 5, 15, 29
mandatory sinking fund ....................................... 18
mandatory sinking fund payment ............................... 69
Maturity ..................................................... 5
Ministerial Action ........................................... 68
No Recognition Opinion ....................................... 5
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Non Book-Entry Preferred Securities .......................... 5, 30
Officers' Certificate ........................................ 5
Opinion of Counsel ........................................... 5
Optional Redemption .......................................... 17
Optional Redemption Price .................................... 17
optional sinking fund payment ................................ 69
Outstanding .................................................. 5
Paying Agent ................................................. 6
Person ....................................................... 6
Place of Payment ............................................. 6
Predecessor Security ......................................... 6
Preferred Securities ......................................... 6
Preferred Security Certificate ............................... 7
Redemption Date .............................................. 7
Redemption Option Date ....................................... 7
Redemption Price ............................................. 7, 17
Redemption Tax Opinion ....................................... 7
Regular Record Date .......................................... 7
Regular Trustees ............................................. 7
Responsible Officer .......................................... 7
Securities ................................................... 1, 7, 17
Security Beneficial Owner .................................... 7
Security Register ............................................ 8, 25
Security Registrar ........................................... 8, 25
Senior Indebtedness .......................................... 8
Special Event ................................................ 8
Special Record Date .......................................... 8
Stated Maturity .............................................. 8
Tax Event .................................................... 8
Tax Event Opinion ............................................ 9
Trust Indenture Act .......................................... 9
Trust Securities ............................................. 9
Trustee ...................................................... 1, 9, 17
U S Government Obligations .................................. 9, 34
Underwriting Agreement ....................................... 9
Vice President ............................................... 9
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Citigroup Inc.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of July 23, 2004
Trust Indenture
Act Section Indenture Section
Section 310 (a)(1) ................................... 6.9
(a)(2) ......................................... 6.9
(a)(3) ......................................... Not Applicable
(a)(4) ......................................... Not Applicable
(b) ...........................................: 6.8 6.10
Section 311 (a)......................................: 6.13(a)
(b)............................................. 6.13(b)
(b)(2) ......................................... 7.3(a)(2)
7.3(b)
Section 312(a) ....................................... 7.1 7.2(a)
(b) ............................................ 7.2(b)
(c) ............................................ 7.2(c)
Section 313 (a) ...................................... 7.3(a)
(b)............................................. 7.3(b)
(c)............................................. 7.3(a). 7.3(b)
(d)............................................. 7.3(c)
Section 314 (a) ...................................... 7.4
(b) ............................................ Not Applicable
(c)(1) ......................................... 1.2
(c)(2) ......................................... 1.2
(c)(3) ......................................... Not Applicable
(d) ............................................ Not Applicable
(e) ............................................ 1.2
Section 315 (a) ...................................... 6.1(a)
(b)............................................. 6.2
7.3(a)(6)
(c)............................................. 6.1(b)
(d)............................................. 6.1(c)
(d)(1) ......................................... 6.1(a)(1)
(d)(2) ......................................... 6.1(c)(2)
(d)(3) ......................................... 6.1(c)(3)
(e)............................................. 5.14
Section 316 (a) ...................................... 1.1
(a)(1)(A) ...................................... 5.2
5.12
(a)(1)(B) ...................................... 5.13
(a)(2) ......................................... Not Applicable
(b) ............................................ 5.8
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Section 317 (a)(1) ................................... 5.3
(a)(2).......................................... 5.4
(b)............................................. 10.3
Section 318 (a) ...................................... 1.7
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ix
INDENTURE, dated as of July 23, 2004, between CITIGROUP INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and JPMORGAN CHASE BANK, a New York banking
association duly organized and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured junior
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) 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.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder, has the meaning specified in
Section 1.4.
"Additional Interest" has the meaning specified in Section 3.10(c).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means 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.
"Book Entry Interest" means a beneficial interest in a Global Security,
ownership of which shall be maintained and transfers of which shall be made
through book entries by the Depositary.
"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in New York, New York are authorized or
obligated by any applicable law to close.
"Citigroup Trust" means each of Citigroup Capital II, Citigroup Capital
VI, Citigroup Capital VII, Citigroup Capital VIII, Citigroup Capital IX,
Citigroup Capital X, Citigroup Capital XI, Citigroup Capital XII and Citigroup
Capital XIII, each a Delaware statutory trust, or any other similar trust
created for the purpose of issuing preferred securities in connection with the
issuances of Securities under this Indenture.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
2
"Common Securities" means undivided beneficial interests in the assets of
a Citigroup Trust which rank, except upon the occurrence and continuation of an
Event of Default, pari passu with Preferred Securities issued by such Citigroup
Trust.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman or a Vice Chairman of the
Board, its President, a Vice President, its Chief Financial Officer or its Chief
Accounting Officer, and by its Treasurer, a Deputy Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Compounded Interest" has the meaning specified in Section 13.1.
"Corporate Trust Office" means the principal office of the Trustee in the
City of New York, New York at which at any particular time its corporate trust
business shall be principally administered, which at the date hereof is located
at 4 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Coupon Rate" has the meaning specified in Section 3.10(a).
"Covenant Defeasance" has the meaning specified in Section 4.3.
"Declaration" means, with respect to a Citigroup Trust, the amended and
restated declaration of trust or any other governing instrument of such
Citigroup Trust.
"Default" has the meaning specified in Section 5.7.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 4.2.
"Deferred Interest" has the meaning specified in Section 13.1.
"Delaware Trustee" has the meaning specified in the Declaration of the
applicable Citigroup Trust.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 3.1.
"Direct Action" has the meaning specified in Section 15.1.
3
"Dissolution Event" means, with respect to a Citigroup Trust, that as a
result of the occurrence and continuation of a Special Event with respect to
such Citigroup Trust, such Citigroup Trust is to be dissolved in accordance with
its Declaration.
"Distributions" on Trust Securities of a Citigroup Trust has the meaning
set forth in the Declaration of such Citigroup Trust.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 19344 as amended from
time to time, and any successor legislation.
"Extended Interest Payment Period" has the meaning specified in Section
13.1.
"Floating or Adjustable Rate Provision" means a formula or provision,
specified in a Board Resolution or an indenture supplemental hereto, providing
for the determination, whether pursuant to objective factors or pursuant to the
sole discretion of any Person (including the Company), and periodic adjustment
of the interest rate per annum borne by a Floating or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security which provides
for interest to be payable thereon at a rate per annum that may vary from time
to time over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 3.1.
"Institutional Trustee" has the meaning set forth in the Declaration of
the applicable Citigroup Trust.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
4
"No Recognition Opinion," with respect to a Citigroup Trust, has the
meaning specified in the Declaration of such Citigroup Trust.
"Non Book-Entry Preferred Securities" has the meaning specified in Section
3.12(a)(ii).
"Officers' Certificate" means a certificate signed by the Chairman or Vice
Chairman of the Board, the President, a Vice President, the Chief Financial
Officer or the Chief Accounting Officer, and by the Treasurer, a Deputy
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee. The officer signing an Officer's
Certificate pursuant to Section 10.4 shall be the principal executive, financial
or accounting officer of the Issuer or the Company, as the case may be.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a protected purchaser in whose hands such
Securities are valid obligations of the Company;
provided that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding; provided, however, that, in determining whether the Trustee shall
be protected in relying, upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded and
provided, further, that Securities held by the Institutional Trustee for the
benefit of the
5
holders of the Trust Securities shall not be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" means undivided beneficial interests in the assets
of a Citigroup Trust which rank, except upon the occurrence and continuation of
an Event of Default, pari passu with Common Securities issued by such Citigroup
Trust.
"Preferred Security Certificate" has the meaning specified in the
Declaration of the applicable Citigroup Trust.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Option Date" means, with respect to a series of Securities,
the date specified as contemplated by Section 3.1 on or after which, from time
to time, the Company, at its option, may redeem such series of Securities in
whole or in part.
"Redemption Price," when used with respect to any Security to be redeemed,
means such percentage of the principal amount of such Security that is specified
pursuant to Section 3.1 plus any accrued and unpaid interest thereon to the date
of redemption.
"Redemption Tax Opinion," with respect to a Citigroup Trust, has the
meaning set forth in the Declaration of the applicable Citigroup Trust.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified as such pursuant
to Section 3.1.
6
"Regular Trustees" has the meaning set forth in the Declaration of the
applicable Citigroup Trust.
"Responsible Officer" means, with respect to the Trustee, any officer
within the Corporate Trust Office of the Trustee having direct responsibility
for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Beneficial Owner" means, with respect to a Book Entry Interest,
a person who is the beneficial owner of such Book Entry Interest, as reflected
on the books of the Depositary, or on the books of a Person maintaining an
account with such Depositary (directly as a Depositary participant or as an
indirect participant, in each case in accordance with the rules of the
Depositary).
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Senior Indebtedness" means with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities, notes,
debentures, bonds or other similar instruments issued by the Company including
all indebtedness (whether now or hereafter outstanding) issued under the
Indenture, dated as of March 15, 1987, between the Company and The Bank of New
York, as trustee, in case as the same may be amended, modified or supplemented
from time to time, and the Indenture, dated as of April 12, 2001, between the
Company and ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association, as trustee, in case
as the same may be amended, modified or supplemented from time to time; (ii) all
capital lease obligations of the Company; (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
conditional sale or title retention agreement (but excluding trade accounts
payable in the ordinary course of business); (iv) all obligations, contingent or
otherwise, of the Company in respect of any letters of credit, banker's
acceptance, security purchase facilities and similar credit transactions; (v)
all obligations of the Company in respect of interest rate swap, cap or other
agreements, interest rate future or options contracts, currency swap agreements,
currency future or option contracts and other similar agreements; (vi) all
obligations of the type referred to in clauses (i) through (v) of other Persons
for the payment of which the Company is responsible or liable as obligor,
guarantor or otherwise ("guarantees"); and (vii) all obligations of the type
referred to in clauses (i) through (vi) of other Persons secured by any lien on
any property or asset of the Company (whether or not such obligation is assumed
by the Company), except that Senior Indebtedness does not include obligations in
respect of (1) any indebtedness issued under this Indenture (2) any indebtedness
issued to a Citigroup Trust before May 31, 2004 under the indenture dated as of
October 7, 1996, between the Company
7
(formerly known as Travelers Group Inc.) and JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), as trustee, as supplemented (the "1996 Junior
Subordinated Debt Indenture"), (3) any guarantee entered into by the Company
before May 31, 2004 in respect of any preferred securities, capital securities
or preference stock of a Citigroup Trust to which the Company issued any
indebtedness under the 1996 Junior Subordinated Debt Indenture, and (4) any
indebtedness or any guarantee that is by its terms subordinated to or pari passu
with the Securities and the issuance of which, in the case of this clause (4)
only, (x) has received the concurrence or approval of the staff of the Federal
Reserve Bank of New York or the staff of the Board of Governors of the Federal
Reserve System or (y) does not at the time of issuance prevent the Securities
from qualifying for tier 1 capital treatment (irrespective of any limits on the
amount of the Company's tier 1 capital) under the applicable capital adequacy
guidelines, regulations, policies or published interpretations of the Board of
Governors of the Federal Reserve System.
"Special Event," with respect to a Citigroup Trust, has the meaning
specified in the Declaration of such Citigroup Trust.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Tax Event," with respect to a Citigroup Trust, has the meaning set forth
in the Declaration of the applicable Citigroup Trust.
"Tax Event Opinion," with respect to a Citigroup Trust, has the meaning
set forth in the Declaration of the applicable Citigroup Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in force
at the date as of which this instrument was executed, except as provided in
Section 9.5.
"Trust Securities" means Common Securities and Preferred Securities of any
Citigroup Trust.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"Underwriting Agreement" has the meaning set forth in the Declaration of
the applicable Citigroup Trust.
8
"U.S. Government Obligations" has the meaning specified in Section 4.4.
"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."
Section 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel sating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, 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, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the
9
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders shall be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
10
Section 1.5. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention:
Institutional Trust Group; provided, however, that such instrument will be
considered properly given if submitted in an electronic format, i.e., by
facsimile, E-Mail or otherwise, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company; provided, however,
that such instrument will be considered properly given if submitted in an
electronic format, i.e., by facsimile, E-Mail or otherwise.
Section 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken-in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
11
Section 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
This Indenture and the Securities shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York, and all
rights and remedies shall be governed by such laws without regard for the
principles of its conflicts of laws.
Section 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date.
Section 1.14. Tax Characterization.
The Company, the Trustee and each Holder of a Security (by acceptance
thereof) agrees to treat the Securities as debt instruments for United States
federal, state and local
12
income and franchise tax purposes and agrees not to take any contrary position
before any taxing authority or on any tax return unless otherwise required by
law.
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution 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 the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of such Securities. If the form of Securities of any series is
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 Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities may be produced in any manner as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
Section 2.2. Form of Face of Security.
[IF THE SECURITY IS TO BE A GLOBAL SECURITY, INSERT - This Security is a
Global Security within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee of a Depositary. This
Security is exchangeable for Securities registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer of
this Security as a whole by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Security is presented by an authorized representative of The
Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the issuer or
its agent for registration of transfer, exchange or payment, and any Security
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
13
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.]
No. ________________
CITIGROUP INC.
[INSERT TITLE OF SERIES OF SECURITY]
CITIGROUP INC., a Delaware corporation (the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ___________or registered assigns, the
principal sum of _________Dollars ($__________) on ________________, ______, and
to pay interest on said principal sum from ______________, _____, or from the
most recent interest payment date (each such date, an "Interest Payment Date")
to which interest has been paid or duly provided for, [quarterly] [(subject to
deferral as set forth herein)] in arrears on [___________, ___________,
____________ and ___________] of each year commencing ______________, _____, at
[If the Security is to bear interest at a fixed rate, insert -a rate of ___% per
annum,] [If the Security is a Floating or Adjustable Rate Security, insert a
rate of ___% per annum [computed-determined] in accordance with the [insert
defined name of Floating or Adjustable Rate Provision] set forth below] until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded [quarterly]. The
amount of interest payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on this Security is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment, which shall be the close of business on the
Business Day next preceding such Interest Payment Date, [IF PURSUANT TO THE
PROVISIONS OF THE INDENTURE THE SECURITIES ARE NO LONGER REPRESENTED BY A GLOBAL
SECURITY -- which shall be the close of business on the ___ Business Day next
preceding such Interest Payment Date.] Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such regular record date and may be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this
14
series of Securities not less than 10 days prior to such special record date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Payments on this Global Security will be made to the
Depository Trust Company, or to a successor Depositary. [IF PURSUANT TO THE
PROVISIONS OF THE INDENTURE THE SECURITIES ARE NO LONGER REPRESENTED BY A GLOBAL
SECURITY --The principal of (and premium, if any) and the interest on this
Security shall be payable at the office or agency of the Trustee maintained for
that purpose in any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered Holder at such address as shall appear
in the Security Register. Notwithstanding the foregoing, so long as the Holder
of this Security is the Institutional Trustee of a Citigroup Trust, the payment
of the principal of (and premium, if any) and interest on this Security will be
made at such place and to such account as may be designated by such
Institutional Trustee.]
The Securities are not deposits or savings accounts. The Securities are
not insured by the Federal Deposit Insurance Corporation or any other
governmental agency or instrumentality.
[At this point in the Security Form of any series of Floating or
Adjustable Rate Securities, the text of the Floating or Adjustable Rate
Provision relating thereto should be inserted.]
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness of the Company, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be bound by, such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness of the Company, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Security are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
15
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: ____________
CITIGROUP INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized series of securities of the
Company (herein sometimes referred to as the "Securities"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of July 23, 2004 (the "Indenture"), duly executed and
delivered between the Company and JPMorgan Chase Bank, as Trustee (the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the respective rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities. By the terms of the Indenture, the
Securities are issuable in series that may vary as to amount, date of maturity,
rate of interest and in other respects as provided in the Indenture. This series
of Securities is limited in aggregate principal amount to $ _________(, plus up
to an additional $ __________ aggregate principal amount which may be issued
upon exercise of the over-allotment option contemplated by the Underwriting
Agreement).
Because of the occurrence and continuation of a Tax Event, in certain
circumstances, this Security may become due and payable at [specify redemption
prices] % of the principal amount thereof, together with any interest accrued
thereon (the "Redemption Price"). The Redemption Price shall be paid prior to
12:00 noon, New York City time, on the date of such redemption or at such
earlier time as the Company determines. The Company shall have the right to
redeem this Security at the option of the Company, without premium or penalty,
in whole or in part at any time on or after ___, ____ (an "Optional
Redemption"), or at any time in certain circumstances upon the occurrence of a
Tax Event, at a redemption price equal to (specify redemption prices) % of the
principal amount thereof, plus any accrued but unpaid interest to the date of
such redemption (the "Optional Redemption Price"). Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice, at the
16
Optional Redemption Price. If the Securities are only partially redeemed by the
Company pursuant to an Optional Redemption, the Securities will be redeemed pro
rata or by lot or by any other method utilized by the Trustee; 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 Security Beneficial Owner to be redeemed in accordance with its procedures.
Any redemption of the Securities of this series, in whole or in part,
prior to the stated maturity date is subject to receipt by the Company of prior
written approval from the Federal Reserve Bank of New York, if then required
under applicable capital adequacy guidelines, regulations or policies of the
Board of Governors of the Federal Reserve System.
[The Securities of this series are subject to redemption upon not less
than 30 days' nor, more than 60 days' notice by mail, (1) on ________ in any
year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at a Redemption Price of ___, (2)
at any time [on or after ________, 199__, as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as percentages of
the principal amount): If redeemed [on or before ____, ___, and if redeemed
during the 12-month period beginning ___________ of the years indicated, and
thereafter at a Redemption Price equal to ___% of the principal amount, together
in the case of any such redemption (whether through operation of the sinking
fund or otherwise) with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to ______,
redeem any Securities of this series as contemplated by Clause (2) of the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of monies borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than ___% per annum.]
[The sinking fund for this series provides for the redemption on ________
in each year beginning with the year _______ and ending with the year _________
of [not less than] $___________ ("mandatory sinking fund") and not more than
$_______ aggregate principal amount of Securities of this series. Securities of
this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made in the [inverse] order in
which they become due.]
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
17
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, without the consent of the Holder
of each Security so affected, or (ii) reduce the aforesaid percentage of
Securities, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Security then
outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding affected thereby, on behalf of
all of the Holders of the Securities of such series, to waive any past default
in the performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or premium, if
any, or interest on any of the Securities of such series. Any such consent or
waiver by the registered Holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and of any Security issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Security at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time during the term of the
Securities and from time to time to extend the interest payment period of such
Securities for up to 20 consecutive quarters (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Securities to the extent that payment of such interest is enforceable under
applicable law); provided, that no such Extended Interest Payment Period shall
extend beyond the maturity of the Securities; and provided further that during
any such Extended Interest Payment Period (a) the Company shall not declare or
pay any dividend on, make any distributions with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock or make any guarantee payment with respect thereto (other than (i)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Company in connection with any
18
employment contract, benefit plan or other similar arrangement with or for the
benefit of employees, officers, directors or consultants, (ii) as a result of an
exchange or conversion of any class or series of the Company's capital stock for
any other class or series of the Company's capital stock, or (iii) the purchase
of 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
convened or exchanged), and (b) the Company shall not make any payment of
interest on or principal of (or premium, if any, on), or repay, repurchase or
redeem, any debt securities issued by the Company which rank pari passu with or
junior to the Securities. The foregoing, however, will not apply to any stock
"dividends" paid by the Company where the dividend stock is the same stock as
that on which the dividend is being paid. Before the termination of any such
Extended Interest Payment Period, the Company may further extend such Extended
Interest Payment Period, provided that such Extended Interest Payment Period
together with all such further extensions thereof shall not exceed 20
consecutive quarters. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extended Interest
Payment Period.
As provided in the Indenture and subject to certain limitations therein
set forth, this Security is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Trustee in the City and
State of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company or the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Security,
the Company, the Trustee, any paying agent and the Security Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Security shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
19
[The Securities of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.]
[This Global Security is exchangeable for Securities in definitive form only
under certain limited circumstances set forth in the Indenture. Securities of
this series so issued are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations [herein and] therein set forth.
Securities of this series [so issued] are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Section 2.4. Form of Trustee's Certificate of Authentication.
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities described in the
within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------------
Authorized Officer
ARTICLE III
THE SECURITIES
Section 3.1. 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. There shall be
established in or pursuant to a Board Resolution, and set forth 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 Securities of any other
series);
(2) the date or dates on which the principal of the Securities of
the series is payable, and, if applicable to the series, the terms of any
sinking fund obligations with respect to such series;
20
(3) the rate or rates at which the Securities of the series
shall bear interest or the Floating or Adjustable Rate Provision
pursuant to which such rates shall be determined, the date or dates
from which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular
Record Date for the interest payable on any Interest Payment Date
(if such Interest Payment Dates or Regular Record Dates differ from
those provided herein);
(4) the place or places where the principal of (and any
premium, if any) and interest on Securities of the series shall be
payable;
(5) in addition to the redemption rights provided herein,
the period or periods within which (including the Redemption Option
Date for the series) and the price or prices at which any Securities
of the series may be redeemed, in whole or in part, at the option of
the Company;
(6) if other than denominations of $25 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(7) any other defaults applicable with respect to the
Securities of the series in addition to those provided in Section
5.7(a) through (f);
(8) any other covenant or warranty included for the benefit
of Securities of the series in addition to (and not inconsistent
with) those included in this Indenture for the benefit of Securities
of all series, or any other covenant or warranty included for the
benefit of Securities of the series in lieu of any covenant or
warranty included in this Indenture for the benefit of Securities of
all series, or any provision that any covenant or warranty included
in this Indenture for the benefit of Securities of all series shall
not be for the benefit of Securities of the series, or any
combination of such covenants, warranties or provisions;
(9) the subordination terms of the Securities of the series;
(10) the provisions of this Indenture, if any, that shall not
apply to the series; and
(11) any other terms of the series (which additional 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 and 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 Securities of a 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
21
Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of the Securities of such series.
Section 3.2. Denominations.
The Securities of each series shall be issuable in registered form
without coupons and in such denominations as shall be specified as
contemplated by Section 3.1. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $25 and any integral multiple
thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman or a Vice Chairman of the Board, its President, a Vice President,
the Chief Financial Officer or the Chief Accounting Officer, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
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. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive at the time of the initial delivery by the Company of Securities
of such series to the Trustee for authentication, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the form of such Securities has been established by
or pursuant to Board Resolution as permitted by Section 2.1, that
such form has been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.1, that
such terms have been established in conformity with the provisions
of this Indenture; and
(3) 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
enforceable in accordance with their terms, subject to
22
bankruptcy, insolvency, reorganization, and other laws of general
applicability relating to or affecting the enforcement or creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon receipt of a Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the directors
or officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a
Place of Payment for Securities of that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal
amount of definitive Securities of the same series and of like tenor of
authorized denominations. 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 such series.
Section 3.5. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities, or of Securities of a
23
particular series, and of transfers of Securities or of Securities of such
series. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Subject to Section 3.11, upon surrender for registration of transfer
of any Security of any series at the office or agency of the Company in a
Place of Payment for Securities of that series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of like
tenor of the same series, of any authorized denominations and of a like
aggregate principal amount.
Subject to Section 3.11, at the option of the Holder, Securities of
any series may be exchanged for other Securities of like tenor of the same
series, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar, duly executed
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security of any series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of such series selected for
redemption under Section 11.3 and ending at the close of business on the
day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the
24
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has
been acquired by a protected purchaser, the Company shall execute and upon
its written request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest.
Interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a
25
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 Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be 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 be not more than 15 days and not 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 Holder of
Securities of such series at his address as it appears in the Security
Register, 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 so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series 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 written notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee in its sole discretion.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
For the purposes of determining the Holders who are entitled to
participate in any distribution on the Securities in respect of which a
Regular Record Date or a Special Record Date is not otherwise provided for
in this Indenture, or for the purpose of any other action (unless provided
for pursuant to Section 3.1), the Company may from time to time fix a
date, not more than 90 days prior to the date of the payment of
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
26
Section 3.8. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Security is registered as the owner
of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 3.7) interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
Section 3.9. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. Unless otherwise
directed by a Company Order, delivery of which must be delivered in a
timely manner to prevent such destruction, all cancelled Securities held
by the Trustee shall be destroyed by it, and the Trustee, upon receipt of
a written request of the Company, shall deliver a certificate of such
destruction to the Company.
Section 3.10. Interest.
(a) Each Security will bear interest at the rate established for
the series of Securities of which such Security is a part pursuant to
Section 3.1 (the "Coupon Rate") from and including the original date of
issuance of such Security until the principal thereof becomes due and
payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded quarterly, payable
(subject to the provisions of Article Four) quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (or in such other
periodic installments on such other dates established as payment dates for
the series of Securities of which such Security is a part pursuant to
Section 3.1) (each, an "Interest Payment Date") commencing on the date
established for the series of Securities of which such Security is a part
pursuant to Section 3.1, to the Person in whose name such Security or any
Predecessor Security is registered, at the close of business on the
Regular Record Date for such interest installment, which, in respect of
any Securities of which the Institutional Trustee of any Citigroup Trust
is the Holder or a Global Security, shall be the close of business on the
Business Day next preceding that Interest Payment Date. Notwithstanding
the foregoing sentence, if the Preferred Securities of a Citigroup Trust
are no longer in book-entry only form or, except if the Securities
originally issued to such Citigroup Trust are held by the Institutional
Trustee of such Citigroup Trust, the Securities of any series are not
represented by a Global Security, the Company may select a Regular Record
Date for such interest
27
installment on such series of Securities which shall be any date more than 14
days but less than 60 days before an Interest Payment Date.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and will include
the first day but exclude the last day of such period. Except as provided
in the following sentence, the amount of interest payable for any period
shorter than a full quarterly period for which interest is computed, will
be computed on the basis of the actual number of days elapsed in each
30-day month. In the event that any date on which interest is payable on
the Securities of any series is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date.
(c) If, at any time while the Institutional Trustee of a Citigroup
Trust is the Holder of Securities of any series, such Citigroup Trust or
such Institutional Trustee is 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, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Securities of such series, such additional
amounts as shall be required so that the net amounts received and retained
by such Citigroup Trust and/or such Institutional Trustee, as the case may
be, after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts Citigroup Trust and/or such
Institutional Trustee, as the case may be, would have received had no such
taxes, duties, assessments or other government charges been imposed.
Section 3.11. Form and Payment.
Except as provided in Section 3.12, the Securities of each series
shall be issued in fully registered certificated form without interest
coupons. Principal and interest on the Securities issued in certificated
form will be payable, the transfer of such Securities will be registrable,
and such Securities will be exchangeable, for Securities of the same
series bearing identical terms and provisions at the office or agency of
the Trustee; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the Holders of such
Securities at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of all Securities of
any series is the Institutional Trustee of any Citigroup Trust, the
payment of the principal of and interest (including Compounded Interest
and Additional Interest, if any) on Securities of such series will be made
at such place and to such account as may be designated by the
Institutional Trustee.
Section 3.12. Global Securities.
(a) In connection with Dissolution Event with respect to any
Citigroup Trust,
28
(i) the Securities in non book-entry certificated form
held by such Citigroup Trust, or its Institutional Trustee, will be
presented to the Trustee by the Institutional Trustee of such Citigroup
Trust in exchange for a Global Security in an aggregate principal amount
equal to the aggregate principal amount of all outstanding Securities of
the series issued to such Citigroup Trust, to be registered in the name of
the Depositary, or its nominee, and delivered by the Trustee to the
Depositary for crediting to the accounts of its participants pursuant to
the instructions of the Regular Trustees of the relevant Citigroup Trust.
The Company upon any such presentation shall execute a Global Security in
such aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with this Indenture. Payments
on any Securities issued as a Global Security will be made to the
Depositary; and
(ii) if any Preferred Securities of a Citigroup Trust
are held in non book-entry certificated form, the Securities in non
book-entry certificated form held by such Citigroup Trust, or its
Institutional Trustee, may be presented to the Trustee by the
Institutional Trustee of such Citigroup Trust and any Preferred Security
Certificate which represents Preferred Securities of such Citigroup Trust
other than Preferred Securities held by the Depositary or its nominee
("Non Book-Entry Preferred Securities") will be deemed to represent
Securities presented to the Trustee by such Institutional Trustee having
an aggregate principal amount equal to the aggregate liquidation amount of
the Non Book-Entry Preferred Securities until such Preferred Security
Certificates are presented to the Security Registrar for transfer or
reissuance at which time such Preferred Security Certificates will be
cancelled and a Security, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the
Preferred Security Certificate cancelled, will be executed by the Company
and delivered to the Trustee for authentication and delivery in accordance
with this Indenture. On issue of such Securities, Securities with an
equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Trustee will be deemed to have been cancelled.
(b) A Global Security may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for any series of Securities
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, the Company
will execute, and, subject to this Article III, the Trustee, upon written
notice from the Company, will authenticate and deliver 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 in exchange for such Global Security. In
addition, the Company may at any time determine that the Securities of any
series shall no longer be represented by a Global Security. In such
29
event the Company will execute, and subject to Section 3.5, the Trustee, upon
receipt of an Officers Certificate evidencing such determination by the Company,
will authenticate and deliver 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
for 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 Securities in definitive registered form issued in exchange
for the Global Security 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.
ARTICLE IV
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
30
and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7, the
Company's obligation to pay the expenses of any Citigroup Trust under
Section 10.6 (except upon the application of subclauses 1(A) or 1(B)(i)
above), the obligations of the Trustee to any Authenticating Agent under
Section 6.14, and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2 and the last paragraph of Section 10.3
shall survive.
Section 4.2. Defeasance and Discharge.
The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant
to Section 3.1. In addition to discharge of this Indenture pursuant to
Sections 4.1 and 4.3, in the case of any series of Securities with respect
to which an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, as
certified pursuant to subparagraph (a) of Section 4.4 can be determined at
the time of making the deposit referred to in such subparagraph (a), the
Company shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such a series as provided in this
Section on and after the date the conditions set forth in Section 4.4 are
satisfied, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Securities of such
series, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (iii) rights of Holders of Securities of such
series to receive, solely from the trust fund described in subparagraph
(a) of Section 4.4, payments of principal thereof and interest, if any,
thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such
series to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v)
this Section 4.2, (vi) the rights of the Holders of Securities of such
series
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as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vii) the Company's obligation to pay
the expenses of any Citigroup Trust under Section 10.6) (hereinafter called
"Defeasance"), and the Trustee at the cost and expense of the Company, shall
execute proper instruments acknowledging the same.
Section 4.3. Covenant Defeasance.
In the case of any series of Securities with respect to which an
amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, as certified pursuant to
subparagraph (a) of Section 4.4 can be determined at the time of making
the deposit referred to in such subparagraph (a), (i) the Company shall be
released from its obligations under any covenants specified in or pursuant
to this Indenture (except as to (A) rights of registration of transfer and
exchange of Securities of such series, (B) substitution of mutilated,
defaced, destroyed, lost or stolen Securities of such series, (C) rights
of Holders of Securities of such series to receive, from the Company
pursuant to Section 10.1, payments of principal thereof and interest, if
any, thereon upon the original stated due dates therefor (but not upon
acceleration), the Holders of Securities of such series to receive
mandatory sinking fund payments, if any, (D) the rights, obligations,
duties and immunities of the Trustee hereunder, (E) the rights of the
Holders of Securities of such series as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or any of
them and (F) the Company's obligation to pay the expenses of any Citigroup
Trust under Section 10.6), and (ii) the occurrence of any event specified
in Sections 5.7(e) (with respect to any of the covenants specified in or
pursuant to this Indenture) and 5.7(f) shall be deemed not to be or result
in a Default, in each case with respect to the Outstanding Securities of
such series as provided in this Section on and after the date the
conditions set forth in Section 4.4 are satisfied (hereinafter called
"Covenant Defeasance"), and the Trustee, at the cost and expense of the
Company, shall execute proper instruments acknowledging the same. For
this purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition
or limitation set forth in any such covenant (to the extent so specified
in the case of Section 5.7(e)), whether directly or indirectly by reason
of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any
other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby.
Section 4.4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 4.2 or 4.3 to the Outstanding Securities:
(a) with reference to Section 4.2 or 4.3, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such
series (i) cash in an amount, or (ii) direct obligations of the United
32
States of America, backed by its full faith and credit ("U.S. Government
Obligations"), maturing as to principal and interest, if any, at such
times and in such amounts as will insure the availability of cash, or
(iii) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, (A) the principal of and interest, if any, on all Securities of
such series on each date that such principal or interest, if any, is due
and payable, and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of
this Indenture and the Securities of such series;
(b) in the case of Defeasance under Section 4.2, the Company has
delivered to the Trustee an Opinion of Counsel based on the fact that (x)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y), since the date hereof, there has
been a change in the applicable United States federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the
Holders of the Securities of such series will not recognize income, gain
or loss for United States federal income tax purposes as a result of such
deposit, Defeasance and discharge 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 deposit, Defeasance and
discharge had not occurred;
(c) in the case of Covenant Defeasance under Section 4.3, the
Company has delivered to the Trustee an Opinion of Counsel to the effect
that, and such opinion shall confirm that, the Holders of the Securities
of such series will not recognize income, gain or loss for United States
federal income tax purposes as a result of such deposit and Covenant
Defeasance 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 deposit and Covenant Defeasance had not occurred;
(d) such Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any agreement or
instrument to which the Company is a party or by which it is bound; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with.
Section 4.5. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations deposited with the Trustee pursuant
to Section 4.4 shall be held in trust, and such money and all money from
such U.S. Government Obligations shall be applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for
whose payment such money and U.S. Government Obligations has been
deposited with the Trustee.
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Section 4.6. Indemnity for U.S. Government Obligations.
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 4.4 or the principal or interest
received in respect of such obligations other than any such tax, fee or
other charge that by law is for the account of the Holders of Outstanding
Securities.
Section 4.7. Reinstatement.
If the Trustee is unable to apply any money or Government
Obligations in accordance with Section 4.4 by reason of any legal
preceding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 4.4, until such time as the Trustee or Paying
Agent is permitted to apply all such money or Government Obligations in
accordance with Section 4.4; provided that, if the Company has made any
payment of principal or interest on the Securities of any series because
of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment
from the money or Government Obligations held by the Trustee or Paying
Agent.
ARTICLE V
REMEDIES
Section 5.1. Events of Default.
The term "Event of Default" as used in this Indenture with respect
to Securities of any series shall mean one of the following described
events (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) failure to pay in full interest accrued upon any Security of
that series upon the conclusion of a period consisting of 20 consecutive
quarters, commencing with the earliest quarter for which interest
(including Deferred Interest) has not been paid in full, and continuance
of such failure to pay for a period of 30 days;
(b) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company in an involuntary
case under the Federal bankruptcy code, as now or hereafter constituted,
or any other applicable Federal or State bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for substantially all 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
34
(c) the commencement by the Company of a voluntary case under the
Federal bankruptcy code, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law
now or hereafter in effect, or the consent by the Company to the entry of
an order for relief in an involuntary case under any such law, or the
consent by the Company to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian or sequestrator (or
similar official) of the Company or for substantially all of its property,
or the making by it of an assignment for the benefit of creditors.
Section 5.2. Acceleration of Maturity.
If any one or more of the above-described Events of Default shall
happen with respect to Securities of any series at the time Outstanding,
then, and in each and every such case, during the continuance of any such
Event of Default, the Trustee or the Holders of 25% or more in principal
amount of the Securities of such series then Outstanding may declare the
principal amount of all the Securities of such series then Outstanding, if
not then due and payable, to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by such Holders),
and upon any such declaration the same shall become and be immediately due
and payable, anything in this Indenture or in the Securities of such
series contained to the contrary notwithstanding. This provision, however,
is subject to the condition that, if at any time after the principal of
all the Securities of such series shall have been so declared to be due
and payable, all arrears of interest, if any, upon all the Securities of
such series (with interest, to the extent that interest thereon shall be
legally enforceable, on any overdue installment of interest at the rate
borne by the Securities of such series) and all amounts owing the Trustee
and any predecessor trustee hereunder under Section 6.7 and all other sums
payable under this Indenture (except the principal of the Securities of
such series which would not be due and payable were it not for such
declaration) shall be paid by the Company, and every other Default under
this Indenture, other than the non-payment of the principal of Securities
of that series which have become due solely by such declaration of
acceleration, shall have been made good to the reasonable satisfaction of
the Trustee or of the Holders of a majority in principal amount of the
Securities of such series then Outstanding, or provision deemed by the
Trustee or by such Holders to be adequate therefor shall have been made,
then and in every such case the Holders of a majority in principal amount
of the Securities of such series then Outstanding may, on behalf of the
Holders of all the Securities of such series, waive the Event of Default
by reason of which the principal of the Securities of such series shall
have been so declared to be due and payable and may rescind and annul such
declaration and its consequences; but no such waiver, rescission or
annulment shall extend to or affect any subsequent Default or impair any
right consequent thereon. Any declaration by the Trustee pursuant to this
Section 5.2 shall be by written notice to the Company, and any declaration
or waiver by the Holders of Securities of any series pursuant to this
Section 5.2 shall be by written notice to the Company and the Trustee.
35
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
If the Company shall fail for a period of 30 days to pay any
installment of interest on the Securities of any series or shall fail to
pay the principal of and premium, if any, on any of the Securities of such
series when and as the same shall become due and payable, whether at
maturity, or by call for redemption (otherwise than pursuant to a sinking
fund) by declaration as authorized by this Indenture, or otherwise, or
shall fail for a period of 30 days to make any sinking fund payment as to
a series of Securities, then, upon demand of the Trustee, the Company will
pay to the Trustee for the benefit of the Holders of Securities of such
series then Outstanding the whole amount which then shall have become due
and payable on any such Security, with interest on the overdue principal
and premium, if any, and (so far as the same may be legally enforceable)
on the overdue installments of interest at the rate borne by the
Securities of such series, and all amounts owing the Trustee and any
predecessor trustee hereunder under Section 6.7.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceeding at law or in equity for the 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 upon the Securities of such series, and
collect the moneys adjudged or decreed to be payable out of the property
of the Company or any other obligor upon the Securities of such series,
wherever situated, in the manner provided by law. Every recovery of
judgment in any such action or other proceeding, subject to the payment to
the Trustee of all amounts owing the Trustee and any predecessor trustee
hereunder under Section 6.7, shall be for the ratable benefit of the
Holders of such series of Securities which shall be the subject of such
action or proceeding. All rights of action upon or under any of the
Securities or this Indenture may be enforced by the Trustee without the
possession of any of the Securities and without the production of any
thereof at any trial or any proceeding relative thereto.
If a Default, of which a Responsible Officer of the Trustee has
actual knowledge, with respect to any series of Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture, or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
Section 5.4. Trustee to File Claims As Attorney-In-Fact.
The Trustee is hereby appointed, and each and every Holder of the
Securities, by receiving and holding the same, shall be conclusively
deemed to have appointed the Trustee, the true and lawful attorney-in-fact
of such Holder, with authority to make or file (whether or not the Company
shall be in default in respect of the payment of the principal
36
of, or interest on, any of the Securities), in its own name and as trustee of an
express trust or otherwise as it shall deem advisable, in any receivership,
insolvency, liquidation, bankruptcy, reorganization or other judicial proceeding
relative to the Company or any other obligor upon the Securities or to their
respective creditors or property, any and all claims, proofs of claim, proofs of
debt, petitions, consents, other papers and documents and amendments of any
thereof, as may be necessary or advisable in order to have the claims of the
Trustee and any predecessor trustee hereunder and of the Holders of the
Securities allowed in any such proceeding and to collect and receive any moneys
or other property payable or deliverable on any such claim, and to execute and
deliver any and all other papers and documents and to do and perform any and all
other acts and things, as it may deem necessary or advisable in order to enforce
in any such proceeding any of the claims of the Trustee and any predecessor
trustee hereunder and of any of such Holders in respect of any of the
Securities; and any receiver, assignee, trustee, custodian or debtor in any such
proceeding is hereby authorized, and each and every taker or Holder of the
Securities, by receiving and holding the same, shall be conclusively deemed to
have authorized any such receiver, assignee, trustee, custodian or debtor, to
make any such payment or delivery only to or on the order of the Trustee, and to
pay to the Trustee any amount due it and any predecessor trustee hereunder under
Section 6.7; provided, however, that nothing herein contained shall be deemed to
authorize or empower the Trustee to consent to or accept or adopt, on behalf of
any Holder of Securities, any plan of reorganization or readjustment of the
Company affecting the Securities or the rights of any Holder thereof, or to
authorize or empower the Trustee to vote in respect of the claim of any Holder
of any Securities in any such proceeding.
Section 5.5. Application of Money Collected.
Any moneys collected by the Trustee with respect to a series of
Securities under this Article Five 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, and stamping
thereon the payment, if only partially paid, and upon surrender thereof,
if fully paid:
First: To the payment of all amounts due to the Trustee and
any predecessor trustee hereunder under Section 6.7.
Second: Subject to Article Fourteen, in case the principal of
the Outstanding Securities of such series shall not have become due
and be unpaid, to the payment of interest on the Securities of such
series, in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest
at the rate borne by such Securities, such payments to be made
ratably to the Persons entitled thereto.
Third: Subject to Article Fourteen, in case the principal of
the Outstanding Securities of such series shall have become due, by
declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon the Securities of such series for principal
and premium, if any, and interest, with interest on the
37
overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Securities of such series, and in case
such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and premium, if any, and interest without preference or priority
of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest over any
other installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal
and premium, if any, and accrued and unpaid interest.
Section 5.6. Control by Holders; Waiver of Past Default.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee
hereunder, or of exercising any trust or power hereby conferred upon the
Trustee with respect to the Securities of such series; provided, however,
that the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the
action so directed may not lawfully be taken or would be unduly
prejudicial to Holders not joining in such direction or would involve the
Trustee in personal liability. Prior to any declaration accelerating the
maturity of the Securities of any series, the Holders of a majority in
aggregate principal amount of such series of Outstanding Securities may on
behalf of the Holders of all of the Securities of such series waive any
past default hereunder and its consequences except a default not
theretofore cured in the payment of interest or any premium on or the
principal of the Securities of such series or in respect of any covenant
or provision hereof which under Article Nine cannot be modified or waived
without the consent of the Holder of each Outstanding Security of each
series affected thereby; provided, however, that if the Securities of such
series are held by a Citigroup Trust or a trustee of such trust, such
waiver or modification to such waiver shall not be effective until the
holders of Trust Securities representing a majority in liquidation
preference of Trust Securities of the applicable Citigroup Trust shall
have consented to such waiver or modification to such waiver; provided
further, that if the consent of the Holder of each Outstanding Securities
is required, such waiver shall not be effective until each holder of the
Trust Securities of the applicable Citigroup Trust shall have consented to
such waiver. Upon any such waiver 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. Whenever any default hereunder shall have been waived as
permitted by this Section 5.6, said default shall for all purposes of the
Securities of such series and this Indenture cease to exist, and any
Default or Event of Default arising therefrom shall be deemed to have been
cured and to be not continuing.
Section 5.7. Limitation on Suits; Default.
No Holder of any Security of any series shall have any right to
institute any action, suit or proceeding at law or in equity for the
execution of any trust hereunder or
38
for the appointment of a receiver or for any other remedy hereunder, in each
case with respect to a Default with respect to such series of Securities, unless
such Holder previously shall have given to the Trustee written notice of the
happening of one or more of the Defaults herein specified with respect to such
series of Securities, and unless also the Holders of 25% or more in principal
amount of the Securities of such series then Outstanding shall have requested
the Trustee in writing to take action in respect of the matter complained of,
and unless also there shall have been offered to the Trustee security and
indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after receipt of such
notification, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; and such notification, request
and offer of indemnity are hereby declared in every such case to be conditions
precedent to any such action, suit or proceeding by any Holder of any Security
of such series; it being understood and intended that no one or more of the
Holders of Securities of such series shall have any right in any manner
whatsoever by his or their action to enforce any right hereunder, except in the
manner herein provided, and that every action, suit or proceeding at law or in
equity shall be instituted, had and maintained in the manner herein provided and
for the equal and ratable benefit of all Holders of the Outstanding Securities
of such series; provided, however, that nothing contained in this Indenture or
in the Securities of such series shall affect or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, and
premium, if any, and interest on the Securities of such series to the respective
Holders of such Securities at the respective due dates in such Securities
stated, or affect or impair the right, which is also absolute and unconditional,
of such Holders to institute suit to enforce the payment thereof.
The following events shall be "Defaults" with respect to any series
of Securities under this Indenture:
(a) an Event of Default with respect to such series specified in
Section 5.1; or
(b) the failure of the Company to pay any installment of interest
on any Security of such series, when and as the same shall
become payable, which failure shall have continued unremedied
for a period of 30 days, it being understood that the
occurrence of an Extended Interest Payment Period in
accordance with the terms of such Security will not constitute
such a default; or
(c) the failure of the Company to pay the principal of (and
premium, if any, on) any Security of such series, when and as
the same shall become payable, whether at maturity as therein
expressed, by call for redemption (otherwise than pursuant to
a sinking fund), by declaration as authorized by this
Indenture or otherwise, whether or not permitted by Article
Fourteen; or
39
(d) the failure of the Company to pay a sinking fund installment,
if any, when and as the same shall become payable by the terms
of a Security of such series, which failure shall have
continued unremedied for a period of 30 days, whether or not
permitted by Article Fourteen; or
(e) the failure of the Company, subject to the provisions of
Section 8.1, to observe and perform any other of the covenants
or agreements on the part of the Company contained in this
Indenture (including any indenture supplemental hereto) (other
than a covenant or agreement which has been expressly included
in this Indenture solely for the benefit of a series of
Securities other than that series), which failure shall not
have been remedied for a period of 90 days after written
notice shall have been given to the Company by the Trustee or
shall have been given to the Company and the Trustee by
Holders of 25% or more in aggregate principal amount of the
Securities of such series then Outstanding, specifying such
failure and requiring the Company to remedy the same; or
(f) in the event Securities of a series are issued and sold to a
Citigroup Trust or a trustee of such trust in connection with
the issuance of Trust Securities by such Citigroup Trust, such
Citigroup 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 or
redemption of their interests in such Citigroup Trust upon a
Special Event with respect to such Citigroup Trust, (ii) the
redemption of all of the outstanding Trust Securities of such
Citigroup Trust or (iii) certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such
Citigroup Trust; or
(g) any other Default provided with respect to Securities of that
series.
Section 5.8. Costs and Attorneys' Fees in Legal Proceedings.
All parties to this Indenture and the Holders of the Securities
agree that the court may in its discretion require, in any action, suit or
proceeding for the enforcement of any right or remedy under this
Indenture, or in any action, suit or proceeding against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party
litigant in such action, suit or proceeding of an undertaking to pay the
costs of such action, suit or proceeding, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such action, suit or proceeding, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; provided, however, that the provisions of this Section 5.8
shall not apply to any action, suit or proceeding instituted by the
Trustee, to any action, suit or proceeding instituted by any one or more
Holders of Securities holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or to any action, suit or proceeding
instituted by any Holder of Securities for the enforcement of the payment
of
40
the principal of or premium, if any, or the interest on, any of the Securities,
on or after the respective due dates expressed in such Securities.
Section 5.9. Remedies Cumulative.
Except as provided in the last sentence of Section 3.6, no remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Securities of any series is intended to be exclusive of any other remedy
or remedies, and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of the
Trustee or of any Holder of the Securities of any series to exercise any
right or power accruing upon any Default shall impair any such right or
power or shall be construed to be a waiver of any such Default or an
acquiescence therein; and every power and remedy given by this Article
Five to the Trustee and to the Holders, respectively, may be exercised
from time to time and as often as may be deemed expedient by the Trustee
or by the Holders, as the case may be. In case the Trustee or any Holder
of Securities shall have proceeded to enforce any right under this
Indenture and the proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason or
shall have been adjudicated adversely to the Trustee or to such Holder,
then and in every such case the Company, the Trustee and the Holders shall
severally and respectively be restored to their former positions and
rights hereunder and thereafter all rights, remedies and powers of the
Trustee and the Holders shall continue as though no such proceedings had
been instituted, except as to any matters so waived or adjudicated.
Section 5.10. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power
as though no law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of a Default;
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
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(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon 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) In case a Default with respect to any series of Securities, of
which a Responsible Officer of the Trustee has actual knowledge, has
occurred and is continuing, 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.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
determined as provided in Section 5.6, 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 with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
indemnity, reasonably satisfactory to it, against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conductor affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of
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such series, as their names and addresses appear in the Security Register,
notice of such Default hereunder actually known to a Responsible Officer of the
Trustee, unless such Default shall have been cured or waived; provided that,
except in the case of a Default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities of such series; and
provided, further, that in the case of any Default of the character specified in
Section 5.7(e) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1
(a) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity,
reasonably satisfactory to it, against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(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, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee
43
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney; and
(g) the Trustee may execute any of the trust or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(h) the Trustee shall not be charged with knowledge of any Default
or Event of Default with respect to the Securities, unless either (1) a
Responsible Officer shall have actual knowledge of such Default or Event
of Default or (2) written notice of such Default or Event of Default shall
have been given to the Trustee by the Company or by any Holder of the
Securities; and
(i) the permissive rights of the Trustee enumerated herein shall
not be construed as duties.
Section 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 6.7. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation for all services rendered by it hereunder (which
compensation shall
44
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents, nominees, custodians and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trust hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of Holders of particular
Securities. The obligations of the Company under this Section shall
survive the removal or resignation of the Trustee and the satisfaction and
discharge of this Indenture.
When the Trustee incurs any expenses or renders any services after
the occurrence of an Event of Default specified in Section 5.1(b) or
Section 5.1(c), such expenses and the compensation for such services are
intended to constitute expenses of administration under the United States
Bankruptcy Code (Title 11 of the United States Code) or any similar
federal or state law for the relief of debtors.
Section 6.8. Disqualification; Conflicting Interests.
The Trustee shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act of 1939 during the period of time provided for
therein. In determining whether the Trustee has a conflicting interest as
defined in Section 310(b) of the Trust Indenture Act of 1939 with respect
to the Securities of any series, there shall be excluded for purposes of
the conflicting interest provisions of such Section 310(b) the Securities
of every other series issued under this Indenture. Nothing herein shall
prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act of 1939.
Section 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to
45
supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervision or examining authority,
then for the purposes of this Section, 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 the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 6.11 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8(a)
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged 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, (i) the Company, by a Board Resolution, may remove
the Trustee with respect to all Securities, or (ii) subject to
Section 5.8, any Holder who has been a bona fide Holder of a
Security 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 with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
Section 6.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 6.11, any Holder
who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute
47
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to the Securities of all series for which it is the
Trustee hereunder, 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 that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any mist or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
(e) The Trustee shall not be liable for the acts or omissions to
act of any successor Trustee.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
48
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against Company.
The Trustee shall comply with the Trust Indenture Act Section
311(a), excluding any creditor relationship listed in the Trust Indenture
Act Section 311(b). A Trustee who has resigned or been removed shall be
subject to the Trust Indenture Act Section 311(a) to the extent indicated
therein.
Section 6.14. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If
such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent 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,
such Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of
49
an Authenticating Agent by giving written notice thereof 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 such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
As Trustee
By: ______________________________
As Authenticating Agent
By: ______________________________
Authorized Officer
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually not more than 15 days after each Regular Record Date a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of the preceding March
1 or September 1, or as of such Regular Record Date, as the case may be, 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;
provided that if and so long as the Trustee shall be the Security Registrar for
such series, such list shall not be required to be furnished.
Section 7.2. Preservation of Information; Communications to Holders.
Holders may communicate pursuant to the Trust Indenture Act Section 312(b)
with other Holders with respect to their rights under this Indenture and the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of the Trust Indenture Act Section 312(c).
Section 7.3. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year
2005, the Trustee shall transmit by mail to all Holders of Securities for which
it is Trustee hereunder, as their names and addresses appear in the Security
Register, a brief report dated as of such May 15 with respect to:
(1) its eligibility under Section 6.9 and its qualifications under
Section 6.8, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of such Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of such
Securities Outstanding on the date of such report;
51
(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);
(4) the property and funds, if any, physically in the possession of
the Trustee as such on the date of such report;
(5) any additional issue of Securities for which it is Trustee
hereunder which the Trustee has not previously reported; and
(6) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects such Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders of Securities for
which it is Trustee hereunder, as their names and addresses appear in the
Security Register, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of such Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of such Securities Outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to
such Holders, be filed by the Trustee with each securities exchange upon which
any such Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any such Securities are listed on any
securities exchange.
Section 7.4. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the 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 the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the 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 said
Sections, then it shall file with the Trustee and the
52
Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in 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 paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such reports 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).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws
of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
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(2) immediately after giving effect to such transaction, no Default,
and no event which, after notice or lapse of time or both, would become a
Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Section 8.2. Successor Corporation Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
8.1, the successor corporation formed by such consolidation or into with the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
contained herein and in the Securities, pursuant to Article VIII; or
(2) to add to the covenants of the Company for the benefit 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 solely for the benefit of one
or more specified series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Defaults; or
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when
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there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(5) to secure the Securities; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(7) 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(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon (including any
change in the Floating or Adjustable Rate Provision pursuant to which such
rate is determined that would reduce that rate for any period) or any
premium payable upon the redemption thereof, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or modify the provisions of this Indenture with respect
to the subordination of the Securities in a manner adverse to the Holders,
or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any
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waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section or Section 5.6,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section or the deletion of this proviso, in
accordance with the requirements of Sections 6.11(b) and 9.1(8), or
(4) remove or impair the rights of any Holder of Securities to bring
a Direct Action in certain circumstances, as provided in Section 15.1;
provided, further, that if the Securities of such series are held by a Citigroup
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 Citigroup Trust shall have consented to such
supplemental indenture; provided, further, that if the consent of the Holder of
each Outstanding Securities is required, such supplemental indenture shall not
be effective until each holder of the Trust Securities of the applicable
Citigroup 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 the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
in addition to the documents required by Section 1.2, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
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Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall he modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby to the extent provided therein.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 10.1. 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 the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities of such series and this Indenture, and will duly comply
with all other terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
57
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 10.3. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities
of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
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The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 10.4. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 10.1 to 10.3, inclusive, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 10.5. Covenants as to Citigroup Trusts.
For so long as any Trust Securities of a Citigroup Trust remain
outstanding, the Company will (i) maintain 100% direct or indirect ownership of
the Common Securities of such Citigroup Trust; provided, however, that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities, (ii) not voluntarily dissolve, wind up or
terminate such Citigroup Trust, except in connection with a distribution of
Securities upon a Special Event, and in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration of the applicable
Citigroup Trust, (iii) timely perform its duties as Sponsor of the applicable
Citigroup Trust, (iv) use its reasonable efforts to cause such Citigroup Trust
to (a) remain a business trust, except in connection with a distribution of
Securities to the holders of Trust Securities as provided in the Declaration of
such Citigroup Trust, the redemption of all of
59
the Trust Securities and in connection with certain mergers, consolidations or
amalgamations permitted by the Declaration of such Citigroup Trust, and (b)
otherwise continue to be classified as a grantor trust for United States federal
income tax purposes and (v) not knowingly take any action that would cause such
Citigroup Trust to not be classified as a grantor trust for United States
federal income tax purposes.
Section 10.6. Payment of Expenses.
(a) In connection with the offering, sale and issuance of each series of
Securities to the Institutional Trustee of a Citigroup Trust and in connection
with the sale of Trust Securities by such Citigroup Trust, the Company, in its
capacity as borrower with respect to such Securities, shall:
(i) pay all costs and expenses relating to the offering, sale and
issuance of such Securities, including commissions to the underwriters payable
pursuant to the applicable Underwriting Agreement and compensation of the
Trustee under this Indenture in accordance with the provisions of Section 6.7;
(ii) pay all costs and expenses of such Citigroup Trust (including,
but not limited to, costs and expenses relating to the organization of the
trust, the offering, sale and issuance of the Trust Securities of such Citigroup
Trust (including commissions to the underwriters in connection therewith), the
fees and expenses of the Institutional Trustee, the Regular Trustees and the
Delaware Trustee of such Citigroup Trust, the costs and expenses relating to the
operation, maintenance and dissolution of such Citigroup Trust and the
enforcement by such Institutional Trustee of the rights of the holders of the
Preferred Securities of such Citigroup Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of
assets of such Citigroup Trust);
(iii) be primarily liable for any indemnification obligations
arising with respect to the Declaration of such Citigroup Trust;
(iv) pay any and all taxes (other than United States withholding
taxes in respect of amounts paid on the Securities held by such Citigroup Trust)
and all liabilities, costs and expenses with respect to such taxes of such
Citigroup Trust.
(b) Upon termination of this Indenture or any series of Securities or the
removal or resignation of the Trustee pursuant to Section 6.10, the Company
shall pay to the Trustee all amounts accrued and owing to the Trustee to the
date of such termination, removal or resignation. Upon termination of the
Declaration of any Citigroup Trust or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, pursuant to Section
5.6 of the Declaration of such Citigroup Trust, the Company shall pay to such
Delaware Trustee or such Institutional Trustee, as the case
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may be, all amounts accrued and owing to such Delaware Trustee or such
Institutional Trustee, as the case may be, to the date of such termination,
removal or resignation.
Section 10.7. Listing on an Exchange.
If Securities of any series are to be issued as a Global Security in
connection with the distribution of such Securities to the holders of the
Preferred Securities of a Citigroup Trust upon a Dissolution Event with respect
to such Citigroup Trust, the Company will use its best efforts to list such
series of Securities on the New York Stock Exchange, Inc. or on such other
securities exchange as the Preferred Securities of such Citigroup Trust are then
listed. The Company will promptly notify the Trustee in writing of any
Securities that will be listed on any securities exchange.
Section 10.8. Future Issuance of Securities under this Indenture.
Any Securities issued under this Indenture shall either (x) be issued with
the concurrence or approval of the staff of the Federal Reserve Bank of New York
or the staff of the Board of Governors of the Federal Reserve System or (y)
qualify at the time of issuance for tier 1 capital treatment (irrespective of
any limits on the amount of the Company's tier 1 capital) under the applicable
capital adequacy guidelines, regulations, policies or published interpretations
of the Board of Governors of the Federal Reserve System.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article; Federal Reserve Approval.
Securities of each series are redeemable before their respective Stated
Maturities in accordance with their respective terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article. Any redemption of any series of Securities, in
whole or in part, prior to their respective Stated Maturities shall be subject
to receipt by the Company of prior written approval from the Federal Reserve
Bank of New York, if then required under applicable capital adequacy guidelines,
regulations or policies of the Board of Governors of the Federal Reserve System.
Section 11.2. Election to Redeem; Notice to Trustee.
(a) Subject to the provisions of Section 11.2(b) and to the other
provisions of this Article XI, except as otherwise may be specified in this
Indenture or, with respect to any series of Securities, as otherwise specified
as contemplated by Section 3.1 for the Securities of such series, the Company
shall have the right to redeem any series of Securities, in whole or in part,
from time to time, on or after the Redemption Option Date for such series at the
Redemption Price. The election of the Company to redeem any Securities
redeemable at the election of the Company shall be evidenced by a Board
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Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 40 days
(unless a shorter period is acceptable to the Trustee), but not more than 60
days, prior to the Redemption Date fixed by the Company, notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
(b) If a partial redemption of any series of Securities would result in
the delisting of the Preferred Securities of the Citigroup Trust that purchased
such Securities from any national securities exchange or other organization on
which the Preferred Securities of such Citigroup Trust are then listed, the
Company shall not be permitted to effect such partial redemption and may only
redeem such series of Securities in whole.
Section 11.3. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series; provided, that, if at the
time of redemption such Securities are registered as a Global Security, the
Depositary shall determine, in accordance with its procedures, the principal
amount of such Securities held by each Security Beneficial Owner to be redeemed.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities of such series to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
The Redemption Price shall be paid prior to 12:00 noon, New York City
time, on the date of such redemption or such earlier time as the Company
determines, provided
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that the Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York City time, on the date such Redemption
Price is to be paid.
Section 11.7. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment for Securities of that series (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of like tenor
and of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
Section 11.8. Tax Event Redemption.
If a Tax Event with respect to any Citigroup Trust has occurred and is
continuing and:
(a) the Company has received a Redemption Tax Opinion with respect to such
Citigroup Trust; or
(b) after receiving a Tax Event Opinion, the Regular Trustees of such
Citigroup Trust shall have been informed by tax counsel rendering the Tax Event
Opinion that a No Recognition Opinion cannot be delivered to such Citigroup
Trust,
then, notwithstanding Section 11.2(a) but subject to Section 11.2(b) and Section
11.1, the Company shall have the right upon not less than 30 days nor more than
60 days notice to the Holders of Securities of the series issued to such
Citigroup Trust, or to its Institutional Trustee, to redeem such Securities, in
whole or in part, for cash within 90 days following the occurrence of such Tax
Event at the Redemption Price, provided that if at the time there is available
to the Company or such Citigroup Trust the opportunity to eliminate, within such
90-day period, the Tax Event by taking some ministerial action ("Ministerial
Action"), such as filing a form or making an election, or pursuing some other
similar reasonable measure which has no adverse effect on the Company, the Trust
or the holders of the Trust Securities of such Citigroup Trust, the Company or
such Citigroup Trust shall pursue such Ministerial Action in lieu of redemption,
and, provided further that the Company shall have no right to redeem such
Securities while the Company or such Citigroup Trust is pursuing any Ministerial
Action pursuant to its obligations under the Declaration of such Citigroup
Trust.
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ARTICLE XII
SINKING FUNDS
Section 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series.
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." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.2. Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
Unless the form or terms of any series of Securities shall provide
otherwise, the Company (1) may deliver to the Trustee Outstanding Securities of
a series (other than any previously called for redemption) and (2) may apply as
a credit Securities of a series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Securities; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities the Company will deliver to the Trustee an Officer
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. The Company shall deposit the
amount of cash, if any, required for such
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sinking fund payment with the Trustee in the manner provided in Section 11.5.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
EXTENSION OF INTEREST PAYMENT PERIOD
Section 13.1. Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to time during
the term of the Securities of any series, to defer payments of interest by
extending the interest payment period of all Securities of such series for a
period not exceeding 20 consecutive quarters (the "Extended Interest Payment
Period"), during which Extended Interest Payment Period no interest shall be due
and payable on Securities of such series; provided that no Extended Interest
Payment Period may extend beyond the Maturity of such Securities. To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of the extension of the interest payment period pursuant to this Section
13.1, will bear interest thereon at the Coupon Rate compounded quarterly for
each quarter of the Extended Interest Payment Period ("Compounded Interest"). At
the end of any Extended Interest Payment Period with respect to any series of
Securities, the Company shall pay all interest accrued and unpaid on such
Securities, including any Additional Interest and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of Securities of such
Series in whose names such Securities are registered in the Security Register on
the first record date after the end of such Extended Interest Payment Period.
Before the termination of any Extended Interest Payment Period, the Company may
further extend such period; provided that such period, together with all such
further extensions thereof, shall not exceed 20 consecutive quarters; and
provided further that no prepayment of interest during an Extended Interest
Payment Period shall allow the Company to extend such Extended Interest Payment
Period beyond 20 consecutive quarters. Upon the termination of any Extended
Interest Payment Period with respect to any series of Securities and upon the
payment of all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period with respect to such series of Securities,
subject to the foregoing requirements. No interest on a series of Securities
shall be due and payable during an Extended Interest Payment Period with respect
thereto, except at the end thereof, provided the Company may prepay at any time
all or any portion of the interest accrued during any Extended Interest Payment
Period.
Section 13.2. Notice of Extension.
(a) If the Institutional Trustee of a Citigroup Trust is the only Holder
of Securities of a series at the time the Company selects an Extended Interest
Payment Period with respect thereto, the Company shall give written notice to
the Regular Trustees and the Institutional Trustee of such Citigroup Trust and
to the Trustee of its selection of such Extended Interest Payment Period one
Business Day before the earlier of (i) the next succeeding date on which
Distributions on the Trust Securities issued by such Citigroup Trust would be
payable, if not for such Extended Interest Payment Period,
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or (ii) the date such Citigroup Trust is required to give notice of the record
date, or the date such Distributions are payable, to the New York Stock Exchange
or other applicable self-regulatory organization or to holders of the Preferred
Securities issued by such Citigroup Trust, but in any event at least one
Business Day before such record date.
(b) If the Institutional Trustee of a Citigroup Trust is not the only
Holder of Securities of a series at the time the Company selects an Extended
Interest Payment Period with respect thereto, the Company shall give written
notice to the Holders of Securities of such series and the Trustee of its
selection of such Extended Interest Payment Period 10 Business Days before the
earlier of (i) the next succeeding Interest Payment Date, or (ii) the date the
Company is required to give notice of the record or payment date of such
interest payment to the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of Securities of such series.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 13.2 shall be counted as one of the 20 quarters permitted in
the maximum Extended Interest Payment Period with respect to any series of
Securities permitted under Section 1.3.
Section 13.3. Limitation of Transactions.
If with respect to any series of Securities (i) the Company shall exercise
its right to defer payments of interest thereon as provided in Section 13.1 or
(ii) there shall have occurred any Default, then (a) the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock or make any guarantee payment with respect thereto (other than
(i) repurchases, redemptions or other acquisitions of shares of capital stock of
the Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors or
consultants, (ii) as a result of an exchange or conversion of any class or
series of the Company's capital stock for any other class or series of the
Company's capital stock, or (iii) the purchase of 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 on, principal of or premium, if
any, on, or repay, repurchase or redeem, any debt securities issued by the
Company which rank pari passu with or junior to the Securities of such series
(including the Securities of any other series), provided, however, the Company
may declare and pay a stock dividend where the dividend stock is the same stock
as that on which the dividend is being paid.
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ARTICLE XIV
SUBORDINATION OF SECURITIES
Section 14.1. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Securities issued
hereunder by such Holder's acceptance thereof likewise covenants and agrees,
that all Securities shall be issued subject to the provisions of this Article
Fourteen; 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 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 Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the occurrence of any
Default hereunder.
Section 14.2. 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, then, in either case, no payment shall be made
by the Company with respect to the principal (including redemption payments) of,
or premium, if any, or interest on, the Securities or to acquire any of the
Securities (except sinking fund payments made in Securities acquired by the
Company prior to such default):
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee, by any Holder or by any Paying Agent (or, if the
Company is acting as its own Paying Agent, money for any such payment is
segregated and held in trust) when such payment is prohibited by the preceding
paragraph of this Section 14.2, 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 shall be held in trust for the benefit of, and shall be
paid over or delivered to, the holders of Senior Indebtedness of the Company 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, ratably according to the
aggregate amount remaining unpaid on account of the principal, premium, interest
or any other payment due on the Senior Indebtedness held or represented by each,
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
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or for the benefit of the holders of such Senior Indebtedness, 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 14.3. 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 Holders of
the Securities or the Trustee would be entitled to receive, except for the
provisions of this Article Fourteen, 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 Holders of the Securities or by
the Trustee under this 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
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 Holders of Securities 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, by any Holder or by any Paying Agent (or, if the Company is acting as
its own Paying Agent, money for any such payment is segregated and held in
trust) 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 of such Senior Indebtedness may have been
issued, as their respective interests may appear, ratably according to the
aggregate amount remaining unpaid on account of the principal, premium, interest
or any other payment due on the Senior Indebtedness held or represented by each,
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,
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after giving effect to any concurrent payment or distribution to or for the
benefit of the holders of such Senior Indebtedness.
For purposes of this Article Fourteen, 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 subordinated at least to the extent provided in this Article Fourteen 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 VIII shall not
be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 14.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article VIII. Nothing in Section 14.2 or in this Section 14.3 shall apply
to-claims of, or payments to the Trustee under or pursuant to Section 6.7.
Section 14.4. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the Company,
the rights of the Holders of the Securities shall be subrogated to the rights of
the holders of such 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 Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article Fourteen,
and no payment over pursuant to the provisions of this Article Fourteen to or
for the benefit of the holders of such Senior Indebtedness by Holders of the
Securities 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 Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article
Fourteen 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 Fourteen or elsewhere in this Indenture
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
70
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 Fourteen 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 Fourteen, the Trustee, subject to the provisions of Section 6.1,
and the Holders of the Securities 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 making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, 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 Fourteen.
Section 14.5. Trustee to Effectuate Subordination.
Each Holder of Securities by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Fourteen and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
Section 14.6. 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 Fourteen. Notwithstanding the provisions of
this Article Fourteen or any other provision of this Indenture, 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 Fourteen, 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 their
representative or representatives or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 6.1 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 14.6 at least three 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 Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority
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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 three Business Days prior to such date.
The Trustee, subject to the provisions of Section 6.1, 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 Fourteen, 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 Fourteen,
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 14.7. 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 Fourteen 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 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 Fourteen, and no
implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture 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 Section 6.1, the Trustee shall
not be liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to Holders of Securities, 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 Fourteen or otherwise.
Section 14.8. 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.
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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 Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Fourteen 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 liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, as the case may be, and
any other Person.
Section 14.9. Trustee's Compensation Not Prejudiced.
Nothing in this Article Fourteen shall apply to amounts due to the Trustee
pursuant to Section 6.7 of this Indenture.
ARTICLE XV
MISCELLANEOUS
Section 15.1. Acknowledgement of Rights.
The Company acknowledges that, with respect to any Securities held by a
Citigroup Trust or a trustee of such Trust, if the Institutional Trustee of such
Citigroup Trust fails to enforce its rights under this Indenture as the Holder
of the series of Securities held as the assets of such Citigroup Trust, any
holder of Preferred Securities of such Citigroup Trust 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 a 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 Trust Securities issued by the
Citigroup Trust which is, or the Institutional Trustee of which is, the Holder
of such Securities may directly institute a proceeding 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 Trust Securities of such holder (a "Direct Action") on or after
the respective due date specified of such holder on or after the respective due
date specified in the applicable series of Securities. Notwithstanding any
payments made to such holder of Trust Securities by the Company in connection
with a Direct Action, the Company shall remain obligated to pay the principal of
or interest on the series of Securities held by a
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Citigroup Trust or the Institutional Trustee of a Citigroup Trust, and the
Company shall be subrogated to the rights of the holder of such Trust Securities
to the extent of any payments made by the Company to such holder in any Direct
Action.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CITIGROUP INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
JPMORGAN CHASE BANK,
As Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President