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Exhibit 4.6
ASSOCIATES CORPORATION OF NORTH AMERICA,
CITICORP,
AS GUARANTOR
AND
THE CHASE MANHATTAN BANK
(successor to The Chase Manhattan Bank (National Association)),
AS TRUSTEE
Supplemental Indenture
Dated as of December 1, 2000
to Indenture
Dated as of November 1, 1995
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THIS SUPPLEMENTAL INDENTURE dated as of December 1, 2000 (the
"Supplemental Indenture"), by and among Associates Corporation of North America,
a corporation organized and existing under the laws of the State of Delaware
("ACONA"), Citicorp, a corporation organized and existing under the laws of the
State of Delaware, as guarantor, and The Chase Manhattan Bank (successor to The
Chase Manhattan Bank (National Association)), a New York banking corporation, as
trustee (the "Trustee");
WHEREAS, ACONA has heretofore executed and delivered to the Trustee an
indenture dated as of November 1, 1995 (the "Indenture"), providing for the
issuance by ACONA from time to time of its subordinated securities;
WHEREAS, on the date hereof, ACONA will become an indirect wholly owned
subsidiary of Citicorp;
WHEREAS, Citicorp desires to fully and unconditionally guarantee the
payment obligations of ACONA with respect to ACONA's issued and outstanding
subordinated securities under the Indenture (the "Notes") as long as ACONA
remains an indirect wholly owned subsidiary of Citicorp and the Notes remain
outstanding; and
WHEREAS, the execution of the Supplemental Indenture is authorized and
permitted by Section 12.01(c) of the Indenture and all conditions precedent
provided for in the Indenture relating to the execution of the Supplemental
Indenture have been complied with;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: That in order
to effectuate the guarantee described in the preceding paragraph, Citicorp
agrees with the Trustee, for the equal and proportionate benefit of the
respective Holders from time to time of the Notes (the "Holders"), as follows:
ARTICLE I
Guarantee
Citicorp does hereby fully and unconditionally guarantee (the
"Guarantee") to the Holders the due and punctual payment of the principal of and
interest on all the Notes, according to their tenor, and the performance of
every covenant of the Indenture on the part of ACONA to be performed or observed
(the "Obligations") in accordance with the provisions of the Indenture, as
supplemented, as provided below:
(a) Notice of acceptance of the Guarantee and of default of
performance by ACONA is expressly waived, and payment under
the Guarantee shall be subject to no condition other than the
giving of a written request for payment in accordance with the
provisions of the Indenture, stating the fact of default of
performance, mailed to Citicorp at the following address:
Citicorp, Office of Corporate Finance, 000 Xxxx 00xx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer.
(b) The right of the Holders under any debt instrument of ACONA
that is outstanding as of the date hereof to claim payment
from Citicorp under the Citicorp Guarantee shall rank in
priority of payment with Citicorp's other obligations to
exactly the same extent that the Obligations of ACONA under
such debt instrument rank with ACONA's other obligations if
any.
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(c) The obligations of Citicorp under the Guarantee shall in no
way be impaired by: (1) any extension, amendment, modification
or renewal of the Obligations; (2) any waiver of any event of
default, extension of time or failure to enforce any of the
Obligations; or (3) any extension, moratorium or other relief
granted to ACONA pursuant to any applicable law or statute.
(d) The Guarantee shall be irrevocably valid until, and no claim
may be asserted under the Guarantee after, the earliest to
occur of: (1) the tenth business day following the maturity
date of all the Notes, either upon their respective stated
maturities, redemption or otherwise; (2) the date on which
ACONA ceases to be an indirect wholly owned subsidiary of
Citicorp, as set forth in an Officer's Certificate of Citicorp
delivered to the Trustee; and (3) the date on which Citicorp
ceases to be a reporting company under the Securities Exchange
Act of 1934, as amended, as set forth in an Officer's
Certificate of Citicorp delivered to the Trustee.
(e) Citicorp shall be obligated to make payment under the
Guarantee only by payment to the Trustee, for the benefit of
the Holders, at the same address as ACONA is obligated to make
payment, provided that such address must be in the United
States.
(f) Citicorp shall have no obligation to make payment or take
action under the Guarantee during any period when payment by
ACONA, in accordance with the provisions of the Indenture,
would constitute a violation of any applicable laws (other
than bankruptcy, liquidation, reorganization or similar laws
affecting the enforcement of the rights of creditors
generally).
(g) Citicorp may assign its obligations under the Guarantee to any
of its affiliates, upon providing written notice of such
assignment to the Trustee, whereupon such assignee shall be
substituted in lieu of Citicorp with respect to the
performance of the Obligations theretofore to be performed by
Citicorp as described in this Article One.
ARTICLE II
Section 6.02 (11) of the ACONA Standard Multiple-Series, Indenture
Provisions, which are incorporated by reference in the Indenture, is deleted in
its entirety. The following will be inserted as a new Section 6.04 of the
Standard Multiple-Series Indenture Provisions:
Financial Statements, etc.:
Beginning with the first November 30 which occurs no less than 60 days
following the first date of issuance of any series of Securities under this
Indenture,
(a) Citicorp will file with the Trustee within four months after the
close of each fiscal year (which, until Citicorp shall otherwise notify the
Trustee, shall be deemed to be the twelve months ending December 31 in each
year) a consolidated income statement, a consolidated statement of cash flows
and a consolidated balance sheet as of the end of such fiscal year, of Citicorp
and its Subsidiaries, all certified by independent public or certified
accountants selected by Citicorp (who may be the accountants who
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regularly audit the books of Citicorp and its Subsidiaries), accompanied by any
report or comments by said accountants made in connection with the certification
of such statements;
(b) Citicorp and the Company will each file with the Trustee
concurrently with the filing of the foregoing financial statements, and not less
often than annually, a certificate of the principal executive officer, the
principal financial officer or the principal accounting officer of Citicorp or
the Company, as the case may be, stating whether or not, to the knowledge of the
signer, Citicorp or the Company, as the case may be, has complied with all
conditions and covenants on its part contained in this Indenture, and if the
signer has obtained knowledge of any default by Citicorp or the Company, as the
case may be, in the performance, observance or fulfillment of any such condition
or covenant, specifying each such default and the nature thereof (provided that,
for purposes of this subsection (b), compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the
terms of this Indenture); and
(c) Citicorp will file with the Trustee concurrently with the filing of
financial statements, a written statement of the firm of public or certified
accountants who shall have certified such financial statements, addressed to
Citicorp, to the effect that in making the audit necessary to said
certification, they have obtained no knowledge of any default which is
continuing at the date of such written statement under the Securities or under
Sections 6.02 (3), (4), (5), (6) or (12) of this Indenture, except as
specifically indicated, provided, however, that such accountants shall not be
liable to any one by reason of any failure to obtain knowledge of any such
default.
All of the financial statements required by Section 6.04 to be filed
with the Trustee shall be open to inspection during business hours by Holders of
Securities.
ARTICLE III
Miscellaneous Provisions
SECTION III.1 Execution as Supplemental Indenture. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Indenture and, as provided in the Indenture, this Supplemental Indenture forms a
part thereof. Except as herein expressly otherwise defined, the use of the terms
and expressions herein is in accordance with the definitions, uses and
constructions contained in the Indenture. Except as expressly amended hereby,
the Indenture shall continue in full force and effect in accordance with the
provisions thereof and the Indenture is in all respects hereby ratified and
confirmed.
SECTION III.2 Responsibility for Recitals, etc. The recitals herein and
in the Notes (except in the Trustee's certificate of authentication) shall be
taken as the statements of ACONA, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representations as to the validity
or sufficiency of this Supplemental Indenture or of the Notes. The Trustee makes
no undertakings or representations in respect of, and shall not be responsible
in any manner whatsoever for and in respect of, the validity or sufficiency of
this Supplemental Indenture or the proper authorization or the due execution
hereof by ACONA or for or in respect of the recitals and statements contained
herein, all of which recitals and statements are made solely by ACONA.
SECTION III.3 Provisions Binding on ACONA's Successors. All of the
covenants, stipulations, premises and agreements made in this Supplemental
Indenture by ACONA and Citicorp shall bind their respective successors and
assigns whether so expressed or not.
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SECTION III.4 New York Contract. This Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of New York and for all
purposes shall be construed in accordance with the laws of said State.
SECTION III.5 Execution and Counterparts. This Supplemental Indenture
may be executed in any number of counterparts, each of which when 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 Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ASSOCIATES CORPORATION OF NORTH AMERICA
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
ATTEST:
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CITICORP, as Guarantor
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
ATTEST:
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
THE CHASE MANHATTAN BANK (successor to
The Chase Manhattan Bank (National
Association)), as Trustee
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Trust Officer
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxx III
----------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Assistant Treasurer
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STATE OF Texas )
) ss.:
COUNTY OF Dallas )
On this 30th day of November, 2000, before me personally came Xxxxxxxx
X. Xxxxxx, to me personally known, who, being by me duly sworn, did depose and
say that he resides in Dallas, Texas, that he is the Vice President of
Associates Corporation of North America, one of the corporations described in
and which executed the above instrument, that he knows the corporate seal of
said corporation, that the seal affixed to said instrument is such corporate
seal, that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Xxxxx Xxxx
--------------------------------------------
Notary Public
STATE OF New York )
) ss.:
COUNTY OF New York )
On this 1st day of December, 2000 before me personally came Xxxxxxx X.
Xxxxx, to me personally known, who, being by me duly sworn, did depose and say
that he resides in Ossining, New York, that he is an Assistant Treasurer of
Citicorp, one of the corporations described in and which executed the above
instrument, that he knows the corporate seal of said corporation, that the seal
affixed to said instrument is such corporate seal, that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
/s/ Xxxxx Xxxxxxx
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Notary Public
STATE OF New York )
) ss.:
COUNTY OF New York )
On this 10th day of November, 2000, before me personally came Xxxxxxx
Xxxxx, to me personally known, who, being by me duly sworn, did depose and say
that she resides in Lynbrook, New York, that she is a Trust Officer of The Chase
Manhattan Bank (successor to The Chase Manhattan Bank (National Association)),
one of the corporations described in and which executed the above instrument,
that she knows the corporate seal of said corporation, that the seal affixed to
said instrument is such corporate seal, that it was so affixed by authority of
the Board of Directors of said corporation, and that she signed her name thereto
by like authority.
[NOTARIAL SEAL]
/s/ Xxxxxx X. Xxxxxxxx
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Notary Public
