Exhibit 4.3
CITIGROUP INC.
AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
Trustee
5.00% SUBORDINATED NOTES DUE 2014
SECOND SUPPLEMENTAL INDENTURE
Dated as of September 16, 2004
Supplemental to Indenture dated as of April
12, 2001, as supplemented by the First
Supplemental Indenture thereto dated as
of August 2, 2004, providing for the
issuance of Subordinated Debt Securities
SECOND SUPPLEMENTAL INDENTURE, dated as of September 16, 2004
(the "Second Supplemental Indenture"), between CITIGROUP INC., a Delaware
corporation, and X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, a national
banking association (as successor-in-interest to Bank One Trust Company,
National Association), as trustee (the "Trustee"), supplementing the indenture
dated as of April 12, 2001, as amended and supplemented by the first
supplemental indenture, dated as of August 2, 2004 (as supplemented, the "Base
Indenture").
WHEREAS, the Base Indenture provides for the issuance from
time to time of subordinated bonds, debentures, notes and other obligations (the
"Securities");
WHEREAS, pursuant to Section 13.01(e) of the Base Indenture,
the Company and the Trustee may enter into one or more supplemental indentures
to establish the form or terms of its Securities of any series as permitted by
Sections 2.01 and 2.02 thereof;
WHEREAS, the Company has duly authorized the creation of a
series of its Securities denominated as the "5.00% Subordinated Notes due 2014"
(the "Notes");
WHEREAS, the entry into this Second Supplemental Indenture by
the parties hereto is in all respects authorized by the provisions of the Base
Indenture; and
WHEREAS the Company has duly authorized the execution and
delivery of this Second Supplemental Indenture, the issuance of the Notes as
provided for in this Second Supplemental Indenture, and the creation of this
Second Supplemental Indenture as a valid agreement of the Company.
NOW, THEREFORE, the Company covenants and agrees with the
Trustee as follows:
ARTICLE ONE
Definitions
Section 101 Definitions. Capitalized terms used but not
defined herein shall have the meanings ascribed thereto under the Base
Indenture. The words "herein," "hereof" and "hereby" and other words of similar
import used in this Second Supplemental Indenture refer to this Second
Supplemental Indenture as a whole and not to any particular section hereof.
Unless the context otherwise requires, the terms defined in this Section 101
shall for all purposes of this Second Supplemental Indenture have the meanings
hereinafter set forth, the following definitions to be equally applicable to
both the singular and the plural forms of any of the terms herein defined:
"Additional Note Board Resolutions" means a copy of a
resolution or resolutions certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of Directors of the
Company (or by the Funding Committee of the Board of Directors or any other
committee of the Board of Directors or committee of officers or other
representatives of the Company, to the extent that any such committee or
committees have been authorized by the Board of Directors to establish or
approve the matters contemplated by section
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206 hereof) and to be in full force and effect on the date of such certification
and delivered to the Trustee providing for the issuance of Additional Notes.
"Additional Note Supplemental Indenture" means a supplement to
this Indenture duly executed and delivered by the Company and the Trustee
pursuant to Article 13 of the Base Indenture providing for the issuance of
Additional Notes.
"Additional Notes" means the Subordinated Debt Securities
originally issued after the Issue Date pursuant to Section 207 hereof, including
any replacement Notes and any Exchange Notes as specified in the relevant
Additional Note Board Resolutions or Additional Note Supplemental Indenture
issued therefor in accordance with this Indenture.
"Agent Members" has the meaning assigned to it in Section 203
hereof.
"Certificated Note" means any Note issued in fully-registered
certificated form (other than a Global Note), which shall be substantially in
the form of Exhibit A hereto, with appropriate legends as specified in Section
204 hereof and Exhibit A hereto.
"Distribution Compliance Period" means, in respect of any
Regulation S Global Note, the 40 consecutive days beginning on and including the
later of (a) the day on which any Notes represented thereby are offered to
persons other than distributors (as defined in Regulation S) pursuant to
Regulation S and (b) the issue date for such Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means debt securities of the Company
substantially identical in all material respects to Notes originally issued
pursuant to an exemption from registration under the Securities Act (except that
the transfer restrictions pertaining thereto will be modified or eliminated, as
appropriate), to be issued pursuant to this Indenture pursuant to a Registered
Exchange Offer for a like principal amount of Notes originally issued pursuant
to an exemption from registration under the Securities Act, and any replacement
Notes issued therefor in accordance with this Indenture.
"Exchange Offer Registration Statement" shall have the meaning
assigned to such term in the Issue Date Registration Rights Agreement and any
other Registration Rights Agreement.
"Global Note" means, with respect to the Notes, any Note
issued in fully-registered certificated form to the Note Depositary for the
beneficial owners thereof, which shall be substantially in the form of Exhibit A
hereto, with appropriate legends as specified in Section 204 hereof and Exhibit
A hereto.
"Holder" means the Person in whose name a Note is registered
in the Note register.
"Indenture" means the Base Indenture as supplemented by this
Second Supplemental Indenture, including the terms of the Securities.
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"Interest Payment Date" means, with respect to the Notes, the
stated due date of an installment of interest on the Notes as specified in the
Form of Face of Note contained in Exhibit A hereto.
"Issue Date" means September 16, 2004.
"Issue Date Notes" means the $o aggregate principal amount of
Notes originally issued on the Issue Date, and any replacement Notes and
Exchange Notes issued therefor in accordance with this Indenture.
"Issue Date Registration Rights Agreement" means the
Registration Rights Agreement, dated as of September 16, 2004, between the
Company and Citigroup Global Markets Inc.
"Non-U.S. Person" means a person that is not a U.S. person,
as defined in Regulation S.
"Note Custodian" means the custodian with respect to any
Global Note appointed by the Note Depositary, or any successor Person thereto,
and shall initially be Citibank, N.A.
"Note Depositary" means, with respect to the Notes, The
Depository Trust Company, its nominees and their respective successors and
assigns, or such other depositary institution hereinafter appointed by the
Company that is a clearing agency registered under the Exchange Act.
"Notes" has the meaning assigned to it in the recitals hereto.
"Paying Agent" means the office or agency maintained by the
Company in the Borough of Manhattan, City of New York, where Notes may be
presented for payment as provided in Section 5.02 of the Base Indenture, which
shall initially be Citibank, N.A.
"Private Exchange Notes" shall have the meaning assigned to
such term in the Registration Rights Agreement.
"Private Placement Legend" has the meaning assigned to it in
Section 204(b) hereof.
"QIB" means a "qualified institutional buyer" as defined in
Rule l44A.
"Record Date" has the meaning, with respect to the Notes,
assigned to it in the Form of Face of Note contained in Exhibit A hereto.
"Registered Exchange Offer" means an exchange offer by the
Company registered under the Securities Act pursuant to which Notes originally
issued pursuant to an exemption from registration under the Securities Act are
exchanged for Notes of like principal amount not bearing the Private Placement
Legend.
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"Registrar" means the office or agency maintained by the
Company in the Borough of Manhattan, City of New York, where Notes may be
presented or surrendered for registration of transfer or for exchange, which
shall initially be Citibank, N.A.
"Registration Rights Agreement" means the registration rights
agreement between the Company and one or more investment banks acting as initial
purchasers in connection with any issuance of Notes under this Indenture,
including the Issue Date Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act (or
any successor rule).
"Regulation S Global Note" has the meaning assigned to it in
Section 202(e) hereof.
"Resale Restriction Termination Date" means, for any
Restricted Note (or beneficial therein), two years (or such other period
specified in Rule 144(k) of the Securities Act) from the Issue Date or, if any
Additional Notes that are Restricted Notes have been issued before the Resale
Restriction Termination Date for any Restricted Notes, from the latest original
issue date of such Additional Notes.
"Restricted Notes" means any Issue Date Note (or beneficial
interest therein) or any Additional Note (or beneficial interest therein) not
originally issued and sold pursuant to an effective registration statement under
the Securities Act or any Exchange Note, until such time as:
(i) such Note (or beneficial interest therein) or Additional
Note (or beneficial interest therein) has been exchanged for a
corresponding Exchange Note pursuant to an Exchange Offer Registration
Statement or transferred pursuant to a Shelf Registration Statement;
(ii) the Resale Restriction Termination Date therefor has
passed;
(iii) such Note is a Regulation S Global Note and the
Distribution Compliance Period has terminated; or
(iv) the Private Placement Legend thereon has otherwise been
removed pursuant to Section 205 hereof or, in the case of a beneficial interest
in a Global Note, such beneficial interest has been exchanged for an interest in
a Global Note not bearing a Private Placement Legend.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor rule).
"Rule 144A Global Note" has the meaning assigned to it in
Section 202(d) hereof.
"Second Supplemental Indenture" has the meaning assigned to it
in the recitals hereto.
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"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" shall have the meaning assigned
to such term in the Issue Date Registration Rights Agreement and any other
Registration Rights Agreement.
"Trustee" has the meaning assigned to it in the recitals
hereto.
Section 102 Conflicts with Base Indenture. In the event that
any provision of this Second Supplemental Indenture limits, qualifies or
conflicts with a provision of the Base Indenture, such provision of this Second
Supplemental Indenture shall control.
ARTICLE TWO
The Notes
Section 201 Form of Notes. The Notes and Trustee's certificate
of authentication shall be substantially in the form of Exhibit A hereto.
Section 202 Amount, Series and Terms.
(a) There is hereby created under this Indenture a series of
Securities known and designated as the "5.00% Subordinated Notes Due 2014." The
aggregate principal amount of Notes that may be authenticated and delivered
under this Second Supplemental Indenture is not limited.
(b) The terms and provisions of the Notes, the form of which
is in Exhibit A hereto, shall constitute, and are hereby expressly made, a part
of this Indenture, and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture expressly agree to such terms and
provisions and to be bound thereby.
(c) The Notes may have notations, legends or endorsements as
specified in Section 204 hereof or as otherwise required by law, stock exchange
rule or Note Depositary rule or usage. The Company and the Trustee shall approve
the form of the Notes and the Company shall approve any notation legend or
endorsement on them. Each Note shall be dated the date of its authentication.
(d) Notes originally offered and sold to QIBs in reliance on
Rule 144A will be issued in the form of one or more permanent Global Notes
(each, a "Rule 144A Global Note").
(e) Notes originally offered and sold outside the United
States of America will be issued in the form of one or more permanent Global
Notes (each, the "Regulation S Global Note").
Section 203 Global Note Provisions.
(a) Each Global Note initially shall: (i) be registered in the
name of the Note Depositary or the nominee of the Note Depositary, (ii) be
delivered to the Note Custodian, and (iii) bear the appropriate legend, as set
forth in Section 204 hereof and Exhibit A hereto. Any
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Global Note may be represented by more than one certificate. The aggregate
principal amount of each Global Note may from time to time be increased or
decreased by adjustments made on the records of the Note Custodian, as provided
in this Indenture.
(b) Members of, or participants in, the Note Depositary
("Agent Members") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Note Depositary or by the Note Custodian
under such Global Note, and the Note Depositary may be treated by the Company,
the Trustee, the Paying Agent and the Registrar and any of their agents as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying
Agent or the Registrar or any of their agents from giving effect to any written
certification, proxy or other authorization furnished by the Note Depositary or
impair, as between the Note Depositary and its Agent Members, the operation of
customary practices of the Note Depositary governing the exercise of the rights
of an owner of a beneficial interest in any Global Note. The registered Holder
of a Global Note may grant proxies and otherwise authorize any person, including
Agent Members and persons that may hold interests through Agent Members, to take
any action that a Holder is entitled to take under this Indenture or the Notes.
(c) Except as provided below, owners of beneficial interests
in Global Notes will not be entitled to receive Certificated Notes. Certificated
Notes shall be issued to all owners of beneficial interests in a Global Note in
exchange for such interests if:
(i) the Note Depositary notifies the Company that it is
unwilling or unable to continue as depositary for such Global Note or
the Note Depositary ceases to be a clearing agency registered under the
Exchange Act, at a time when the Note Depositary is required to be so
registered in order to act as depositary, and in each case a successor
depositary is not appointed by the Company within 90 days of such
notice, or
(ii) the Company executes and delivers to the Trustee and
Registrar an Officers' Certificate stating that such Global Note shall
be so exchangeable.
In connection with the exchange of an entire Global Note for
Certificated Notes pursuant to this paragraph (c), such Global Note shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and upon Company Order the Trustee or the Authentication Agent shall
authenticate and deliver, to each beneficial owner identified by the Note
Depositary in exchange for its beneficial interest in such Global Note, an equal
aggregate principal amount of Certificated Notes of authorized denominations.
Section 204 Legends.
(a) Each Global Note shall bear the legend specified therefor
in Exhibit A hereto on the face thereof.
(b) Each Restricted Note shall bear the private placement
legend specified therefor in Exhibit A hereto on the face thereof (the "Private
Placement Legend").
Section 205 Transfer and Exchange.
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(a) The following provisions shall apply with respect to any
proposed transfer of an interest in a Rule 144A Global Note that is a Restricted
Note: If (1) the owner of a beneficial interest in a Rule 144A Global Note
wishes to transfer such interest (or portion thereof) to a Non-U.S. Person
pursuant to Regulation S and (2) such Non-U.S. Person wishes to hold its
interest in the Notes through a beneficial interest in the Regulation S Global
Note, (x) upon receipt by the Note Custodian and Registrar of:
(i) instructions from the Holder of the Rule 144A Global Note
directing the Note Custodian and Registrar to credit or cause to be
credited a beneficial interest in the Regulation S Global Note equal to
the principal amount of the beneficial interest in the Rule 144A Global
Note to be transferred, and
(ii) a certificate in the form of Exhibit C hereto from the
transferor,
and (y) subject to the rules and procedures of the Note Depositary, the Note
Custodian and Registrar shall increase the Regulation S Global Note and decrease
the Rule 144A Global Note by such amount in accordance with the foregoing.
(b) If the owner of an interest in a Regulation S Global Note
wishes to transfer such interest (or any portion thereof) to a QIB pursuant to
Rule 144A prior to the expiration of the Distribution Compliance Period
therefor, (x) upon receipt by the Note Custodian and Registrar of:
(i) instructions from the Holder of the Regulation S Global
Note directing the Note Custodian and Registrar to credit or cause to
be credited a beneficial interest in the Rule 144A Global Note equal to
the principal amount of the beneficial interest in the Regulation S
Global Note to be transferred, and
(ii) a certificate in the form of Exhibit B hereto duly
executed by the transferor,
and (y) in accordance with the rules and procedures of the Note Depositary, the
Note Custodian and Registrar shall increase the Rule 144A Global Note and
decrease the Regulation S Global Note by such amount in accordance with the
foregoing.
(c) Other Transfers. Any transfer of Restricted Notes not
described above (other than a transfer of a beneficial interest in a Global Note
that does not involve an exchange of such interest for a Certificated Note or a
beneficial interest in another Global Note, which must be effected in accordance
with applicable law and the rules and procedures of the Note Depositary, but is
not subject to any procedure required by this Indenture) shall be made only upon
receipt by the Registrar of such opinions of counsel, certificates and/or other
information reasonably required by and satisfactory to it in order to ensure
compliance with the Securities Act or in accordance with paragraph (d) of this
Section 205.
(d) Use and Removal of Private Placement Legends. Upon the
transfer, exchange or replacement of Notes (or beneficial interests in a Global
Note) not bearing (or not required to bear upon such transfer, exchange or
replacement) a Private Placement Legend, the Note Custodian and Registrar shall
exchange such Notes (or beneficial interests) for beneficial
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interests in a Global Note (or Certificated Notes if they have been issued
pursuant to Section 203(c) hereof) that does not bear a Private Placement
Legend. Upon the transfer, exchange or replacement of Notes (or beneficial
interests in a Global Note) bearing a Private Placement Legend, the Note
Custodian and Registrar shall deliver only Notes (or beneficial interests in a
Global Note) that bear a Private Placement Legend unless:
(i) such Notes (or beneficial interests) are exchanged in a
Registered Exchange Offer;
(ii) such Notes (or beneficial interests) are transferred
pursuant to a Shelf Registration Statement;
(iii) such Notes (or beneficial interests) are transferred
pursuant to Rule 144 upon delivery to the Registrar of a certificate of
the transferor in the form of Exhibit D hereto, and an Opinion of
Counsel reasonably satisfactory to the Registrar;
(iv) such Notes (or beneficial interests) are transferred,
replaced or exchanged after the Resale Restriction Termination Date
therefor; or
(v) in connection with such transfer, exchange or replacement
the Registrar shall have received an Opinion of Counsel and other
evidence reasonably satisfactory to it to the effect that neither such
Private Placement Legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act.
The Private Placement Legend on any Note shall be removed at the request of the
Holder on or after the Resale Restriction Termination Date therefor. The Holder
of a Global Note may exchange an interest therein for an equivalent interest in
a Global Note not bearing a Private Placement Legend (other than a Regulation S
Global Note) upon transfer of such interest pursuant to any of clauses (i)
through (v) of this paragraph d. The Company shall deliver to the Trustee an
Officers' Certificate promptly upon effectiveness, withdrawal or suspension of
any Registration Statement.
(e) Consolidation of Global Notes and Exchange of Certificated
Notes for Beneficial Interests in Global Notes.
(i) If a Global Note not bearing a Private Placement Legend
(other than a Regulation S Global Note) is Outstanding at the time of a
Registered Exchange Offer, any interests in a Global Note exchanged in
such Registered Exchange Offer shall be exchanged for interests in such
Outstanding Global Note.
(ii) Nothing in this Indenture shall provide for the
consolidation of any Notes with any other Notes to the extent that they
constitute, as determined pursuant to an Opinion of Counsel, different
classes of securities for U.S. federal income tax purposes.
(f) Retention of Documents. The Registrar shall retain copies
of all letters, notices and other written communications received pursuant to
this Article II. The Company shall have the right to inspect and make copies of
all such letters, notices or other written
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communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
(g) Execution, Authentication of Notes, etc.
(i) Subject to the other provisions of this Section
205, when Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer of such Notes or to exchange such
Notes for an equal principal amount of Notes of other authorized
denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided that any Notes presented or surrendered
for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to
the Registrar or co-Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing. To permit registrations of
transfers and exchanges and subject to the other terms and conditions
of this Article II, the Company will execute and upon Company Order the
Trustee will authenticate Certificated Notes and Global Notes at the
Registrar's or co-Registrar's request. In accordance with the
Registration Rights Agreement, the Company will execute and upon
Company Order the Trustee will authenticate Exchange Notes or Private
Exchange Notes, as the case may be, in exchange for Issue Date Notes.
(ii) No service charge shall be made to a Holder for
any registration of transfer or exchange, but the Company or the
Registrar may require payment of a sum sufficient to cover any transfer
tax, assessments, or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or similar
governmental charges payable upon exchange or transfer pursuant to a
Registered Exchange Offer.
(iii) The Registrar or co-Registrar shall not be
required to register the transfer of or exchange of any Note for a
period beginning: (1) 15 days before the mailing of a notice of an
offer to repurchase or redeem Notes and ending at the close of business
on the day of such mailing or (2) 15 days before an Interest Payment
Date and ending on such Interest Payment Date.
(iv) Prior to the due presentation for registration
of transfer of any Note, the Company, the Trustee, the Paying Agent,
the Registrar or any co-Registrar may deem and treat the person in
whose name a Note is registered as the absolute owner of such Note for
the purpose of receiving payment of principal of and interest on such
Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-Registrar shall be affected by notice to the
contrary.
(v) All Notes issued upon any registration of
transfer or exchange pursuant to the terms of this Indenture shall
evidence the same debt and shall be entitled to the same benefits under
this Indenture as the Notes surrendered upon such registration of
transfer or exchange.
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(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner of an interest in a Global Note, a
member of, or a participant in, the Note Depositary or other Person
with respect to the accuracy of the records of the Note Depositary or
its nominee or of any participant or member thereof, with respect to
any ownership interest in the Notes or with respect to the delivery to
any participant, member, beneficial owner or other Person (other than
the Note Depositary) of any notice (including any notice of redemption)
or the payment of any amount or delivery of any Notes (or other
security or property) under or with respect to such Notes. All notices
and communications to be given to the Holders and all payments to be
made to Holders in respect of the Notes shall be given or made only to
or upon the order of the registered Holders (which shall be the Note
Depositary or its nominee in the case of a Global Note). The rights of
beneficial owners in any Global Note shall be exercised only through
the Note Depositary subject to the applicable rules and procedures of
the Note Depositary. The Trustee may rely and shall be fully protected
in relying upon information furnished by the Note Depositary with
respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any
transfers between or among the Note Depositary participants, members or
beneficial owners in any Global Note) other than to require delivery of
such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
Section 206 Additional Interest Under Registration Rights
Agreements. Under certain circumstances, the Company may be obligated to pay
additional interest to Holders, all as and to the extent set forth in the Issue
Date Registration Rights Agreement or any Registration Rights Agreement
applicable to the Additional Notes. The terms thereof are hereby incorporated
herein by reference and such additional interest is deemed to be interest for
purposes of this Indenture.
Section 207 Additional Notes. The Company may, from time to
time, subject to compliance with any other applicable provisions of this
Indenture, without the consent of the Holders, create and issue pursuant to this
Indenture additional notes ("Additional Notes") having terms and conditions set
forth in Exhibit A hereto identical to those of the other Outstanding Notes,
except that Additional Notes:
(i) may have a different issue date from other Outstanding
Notes;
(ii) may have a different amount of interest payable on the
first Interest Payment Date after issuance than is payable on other
Outstanding Notes;
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(iii) may have terms specified in the Additional Note Board
Resolution or Additional Note Supplemental Indenture for such
Additional Notes making appropriate adjustments to this Article II and
Exhibit A hereto (and related definitions) applicable to such
Additional Notes in order to conform to and ensure compliance with the
Securities Act (or other applicable securities laws) and any
registration rights or similar agreement applicable to such Additional
Notes, which are not adverse in any material respect to the Holder of
any Outstanding Notes (other than such Additional Notes); and
(iv) may be entitled to additional interest as provided in
Section 207 herein not applicable to other Outstanding Notes and may
not be entitled to such additional interest applicable to other
Outstanding Notes;
provided, that no adjustment pursuant to this Section 207 shall cause such
Additional Notes to constitute a different class of securities than the Issue
Date Notes for U.S. federal income tax purposes except for Additional Notes that
have a separate CUSIP number from other Outstanding Notes pending performance by
the Company of its obligations under a Registration Rights Agreement applicable
thereto.
ARTICLE THREE
Miscellaneous
Section 301 The Trustee accepts the trusts created by this
Second Supplemental Indenture upon the terms and conditions set forth in the
Base Indenture. The Trustee shall not be responsible or accountable in any
manner whatsoever for or in respect of, and makes no representation with respect
to, the validity or sufficiency of this Second Supplemental Indenture or the due
execution hereof by the Company and shall not be responsible in any manner
whatsoever for or in respect of the correctness of the recitals and statements
contained herein, all of which recitals and statements are made solely by the
Company.
Section 302 Except as hereby expressly modified, the Base
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This
Second Supplemental Indenture shall take effect on the date hereof.
Section 303 This Second Supplemental Indenture may be executed
in any number of counterparts, each of which shall be deemed to be an original
for all purposes; but such counterparts shall together be deemed to constitute
but one and the same instrument.
X.X. Xxxxxx Trust Company, National Association, hereby
accepts the trusts in this Second Supplemental Indenture declared and provided,
upon the terms and conditions herein set forth.
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IN WITNESS WHEREOF, each of CITIGROUP INC. and X.X. XXXXXX
TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee, has caused this Second
Supplemental Indenture to be signed and acknowledged by one of its officers
thereunto duly authorized, as of September 16, 2004
CITIGROUP INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Treasurer
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By: /s/ X.X. XXXXXX TRUST COMPANY
NATIONAL ASSOCIATION
------------------------------
Name:
Title:
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EXHIBIT A
FORM OF FACE OF NOTE
[Restricted Notes Private Placement Legend: THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR A PREDECESSOR
SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF THE COMPANY AT
ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER
CASE OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (3) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) OR (4) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A OR (2) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k) (2)
OF RULE 902 UNDER) REGULATION S. THE HOLDER HEREOF BY ITS ACCEPTANCE HEREOF
AGREES TO BE BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT DATED
SEPTEMBER 16, 2004 RELATING TO THE NOTES.]
[To be inserted if the note is a global note: THIS SUBORDINATED NOTE IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY NAMED BELOW OR A NOMINEE OF THE
DEPOSITORY. THIS SUBORDINATED NOTE IS NOT EXCHANGEABLE FOR SUBORDINATED NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED HEREIN AND IN THE INDENTURE, AND
NO
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TRANSFER OF THIS SUBORDINATED NOTE (OTHER THAN A TRANSFER OF THIS SUBORDINATED
NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE
OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SUBORDINATED NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR U.S.
FEDERAL INCOME TAX PURPOSES. FOR INFORMATION ABOUT THE ISSUE PRICE, THE AMOUNT
OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY, PLEASE CONTACT CITIGROUP INC.
FIXED INCOME INVESTOR RELATIONS AT 000 XXXX 00xx XXXXXX, XXX XXXX, XXX XXXX,
TEL. 000-000-0000.
THE SUBORDINATED NOTES ARE NOT SAVINGS ACCOUNTS OR DEPOSITS BUT ARE UNSECURED
OBLIGATIONS OF CITIGROUP INC. THE SUBORDINATED NOTES ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER FEDERAL AGENCY OR
INSTRUMENTALITY.
CITIGROUP INC.
5.00% SUBORDINATED NOTES DUE SEPTEMBER 15, 2014.
REGISTERED REGISTERED
CUSIP: [ ]
ISIN: [ ]
Common Code: [ ]
No. [ ] $[ ]
CITIGROUP INC., a Delaware corporation (the "Company", which
term includes any successor Person under the Indenture), for value received,
hereby promises to pay to Cede & Co., or registered assigns, the principal sum
of $[ ] on September 15, 2014 and to pay interest thereon from and including
September 16, 2004 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually, on March 15 and
September 15 of each year, commencing March 15, 2005, at the rate of 5.00% per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and
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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 Subordinated
Note is registered at the close of business on the Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business
Day) immediately preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the holder on such Record Date and may
either be paid to the Person in whose name this Subordinated Note is registered
at the close of business on a subsequent Record Date, such subsequent Record
Date to be not less than five days prior to the date of payment of such
defaulted interest, notice whereof shall be given to holders of Subordinated
Notes of this series not less than 15 days prior to such subsequent Record Date,
or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Subordinated Notes of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture.
Interest hereon will be calculated on the basis of a 360-day
year comprised of twelve 30-day months.
If either an Interest Payment Date or the Maturity of the
Subordinated Notes falls on a day that is not a Business Day, such Interest
Payment Date or Maturity will be the next succeeding Business Day. If a date for
payment of interest or principal on the Subordinated Notes falls on a day that
is not a business day in the place of payment, such payment will be made on the
next succeeding business day in such place of payment as if made on the date the
payment was due. No interest will accrue on any amounts payable for the period
from and after the due date for payment of such principal or interest.
For these purposes, "Business Day" means any day which is a
day on which commercial banks settle payments and are open for general business
in The City of New York.
Payment of the principal of and interest on this Subordinated
Note will be made at the office or agency of the Trustee maintained for that
purpose in The City of New York.
Reference is hereby made to the further provisions of this
Subordinated Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee or by an authenticating agent on behalf of the Trustee
by manual signature, this Subordinated Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: September 16, 2004
CITIGROUP INC.
By:_____________________
Title: Assistant Treasurer
ATTEST:
By:_________________________
Assistant Secretary
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This is one of the Subordinated Notes of the series issued
under the within-mentioned Indenture.
Dated: September 16, 2004
X.X XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee
By:_____________________
Name:
Title:
-- OR --
CITIBANK, N.A.,
as Authenticating Agent
By:_____________________
Name:
Title:
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FORM OF REVERSE OF NOTE
This Subordinated Note is one of a duly authorized issue of
Securities of the Company (the "Subordinated Notes"), issued and to be issued in
one or more series under the Indenture, dated as of April 12, 2001, as
supplemented by the First Supplemental Indenture, dated as of August 2, 2004,
and the Second Supplemental Indenture, dated as of September 16, 2004 (together,
the "Indenture"), as supplemented and amended from time to time, each between
the Company and X.X. Xxxxxx Trust Company, National Association (as successor to
Bank One Trust Company, National Association.), as Trustee (the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the holders of the Subordinated Notes and of the
terms upon which the Subordinated Notes are, and are to be, authenticated and
delivered. This Subordinated Note is one of the series designated on the face
hereof, initially limited in aggregate principal to $o.
The Company covenants and agrees that the indebtedness
evidenced by the Subordinated Notes is subordinate and junior in right of
payment to all Senior Indebtedness (as defined in the Indenture) to the extent
provided in the Indenture, and each holder of Subordinated Notes, by his or her
acceptance thereof, likewise covenants and agrees to the subordination provided
in the Indenture (including Article Fourteen thereof) and shall be bound by the
provisions thereof.
In the event that the Company shall default in the payment of
any principal of (or premium, if any) or interest on any Senior Indebtedness
when the same becomes due and payable after any applicable grace period, whether
at maturity or at a date fixed for prepayment or by declaration or otherwise,
then, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of, or premium, if any, or interest on the indebtedness
evidenced by the Subordinated Notes, or in respect of any redemption, retirement
or other acquisition of any of the Subordinated Notes, except that holders of
Subordinated Notes may receive and retain (x) securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Subordinated Notes, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment and (y) payments made from a defeasance trust
created pursuant to Article Eleven of the Indenture.
In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its
property,
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(ii) any proceeding for liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether
or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of
creditors, or
(iv) any other marshalling of the assets of the Company,
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any of the Subordinated Notes on account thereof (except
as provided in the next sentence). Any payment or distribution, whether in cash,
securities or other property (other than (x) securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Subordinated Notes, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment and (y) payments made from a defeasance trust
created pursuant to Article Eleven of the Indenture), which would otherwise (but
for these subordination provisions) be payable or deliverable in respect of the
Subordinated Notes shall be paid or delivered directly to the holders of Senior
Indebtedness in accordance with the priorities then existing among such holders
until all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full.
If an event of default (as defined in the Indenture) with
respect to Subordinated Notes of this series shall occur and be continuing, the
principal of the Subordinated Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Subordinated Note upon compliance by the
Company with certain conditions set forth in Article Eleven thereof, which
provisions apply to this Subordinated Note.
The Indenture contains provisions permitting the Company and
the Trustee, without the consent of the holders of Securities, to establish,
among other things, the form and terms of any series of Securities issuable
thereunder by one or more supplemental indentures, and, with the consent of the
holders of not less than a majority of the principal amount of Securities at the
time Outstanding which are affected thereby, to modify the Indenture or any
supplemental indenture or the rights of the holders of Securities of such series
to be affected, provided that no such modification shall, without the consent of
the holder of each Outstanding Security so affected, (x) 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 or any premium thereon, or change any place of payment where, or the
coin or currency in which any Security or any premium or 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 the Indenture with
respect to the subordination of the Securities in a manner adverse to the
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Securityholders or (y) reduce the aforesaid percentage in principal amount of
the Outstanding Securities of any series, the consent of the holders of which is
required for any supplemental indenture, or the consent of whose holders is
required for any waiver provided for in the Indenture, or (z) modify certain
other provisions of the Indenture, as set forth in Section 13.02 of the Base
Indenture.
No reference herein to the Indenture and no provision of this
Subordinated Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of and
interest on this Subordinated Note at the times, place and rate, and in the coin
or currency, herein prescribed.
This Subordinated Note is a Global Security registered in the
name of a nominee of the Note Depositary. This Subordinated Note is exchangeable
for Subordinated Notes registered in the name of a person other than the Note
Depositary or its nominee only in the limited circumstances hereinafter
described. Unless and until it is exchanged in whole or in part for a definitive
Subordinated Notes in certificated form, this Subordinated Note may not be
transferred except as a whole by the Note Depositary to a nominee of the Note
Depositary or by a nominee of the Note Depositary to the Note Depositary or
another nominee of the Note Depositary.
The Subordinated Notes represented by this Global Security are
exchangeable for definitive Subordinated Notes in certificated form of like
tenor as such Subordinated Notes in denominations of $1,000 and integral
multiples thereof only if any Subordinated Notes that are exchangeable pursuant
to the preceding sentence are exchangeable for certificated Subordinated Notes
issuable in authorized denominations and registered in such names as the Note
Depositary shall direct. As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of definitive Subordinated Notes in
certificated form is registrable in the register maintained by the Company in
The City of New York for such purpose, upon surrender of the definitive
Subordinated Note for registration of transfer at the office or agency of the
registrar, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the registrar duly executed by, the
holder thereof or his attorney duly authorized in writing, and thereupon one or
more new Subordinated Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees. Subject to the foregoing, this
Subordinated Note is not exchangeable, except for a Global Security or Global
Securities of this issue of the same principal amount to be registered in the
name of the Note Depositary or its nominee.
No service charge shall be made for any such registration of
transfer or exchange, but the Company or the Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Subordinated Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Subordinated Note is
registered as the owner hereof for all purposes, whether or not this
Subordinated Note be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
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The Company will pay additional amounts ("Additional Amounts")
to the beneficial owner of any Subordinated Note that is a non-United States
person in order to ensure that every net payment on such Subordinated Note will
not be less, due to payment of U.S. withholding tax, than the amount then due
and payable. For this purpose, a "net payment" on a Subordinated Note means a
payment by the Company or a paying agent, including payment of principal and
interest, after deduction for any present or future tax, assessment or other
governmental charge of the United States. These Additional Amounts will
constitute additional interest on the Subordinated Note.
The Company will not be required to pay Additional Amounts,
however, in any of the circumstances described in items (1) through (13) below.
(1) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment or other governmental charge that is imposed or
withheld solely by reason of the beneficial owner:
(a) having a relationship with the United States as a
citizen, resident or otherwise;
(b) having had such a relationship in the past or
(c) being considered as having had such a relationship.
(2) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment or other governmental charge that is imposed or
withheld solely by reason of the beneficial owner:
(a) being treated as present in or engaged in a trade or
business in the United States;
(b) being treated as having been present in or engaged in
a trade or business in the United States in the past
or
(c) having or having had a permanent establishment in the
United States.
(3) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment or other governmental charge that is imposed or
withheld solely by reason of the beneficial owner being or
having been, any of the following (as these terms are defined
in the Internal Revenue Code of l986, as amended):
(a) personal holding company;
(b) foreign personal holding company;
(c) foreign private foundation or other foreign
tax-exempt organization;
(d) passive foreign investment company;
A-9
(e) controlled foreign corporation or
(f) corporation which has accumulated earnings to avoid
United States federal income tax.
(4) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment or other governmental charge that is imposed or
withheld solely by reason of the beneficial owner owning or
having owned, actually or constructively, 10 percent or more
of the total combined voting power of all classes of stock of
the Company entitled to vote or by reason of the beneficial
owner being a bank that has invested in a Subordinated Note as
an extension of credit in the ordinary course of its trade or
business.
For purposes of items (1) through (4) above, "beneficial owner" means a
fiduciary, settlor, beneficiary, member or shareholder of the holder if the
holder is an estate, trust, partnership, limited liability company, corporation
or other entity, or a person holding a power an estate or trust administered by
a fiduciary holder.
(5) Additional Amounts will not be payable to any beneficial owner
of a Subordinated Note that is a:
(a) fiduciary;
(b) partnership;
(c) limited liability company or
(d) other fiscally transparent entity
or that is not the sole beneficial owner of the Subordinated
Note, or any portion of the Subordinated Note. However, this
exception to the obligation to pay Additional Amounts will
only apply to the extent that a beneficiary or settlor in
relation to the fiduciary, or a beneficial owner or member of
the partnership, limited liability company or other fiscally
transparent entity, would not have been entitled to the
payment of an Additional Amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or
distributive share of the payment.
(6) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment or other governmental charge that is imposed or
withheld solely by reason of the failure of the beneficial
owner or any other person to comply with applicable
certification, identification, documentation or other
information reporting requirements. This exception to the
obligation to pay Additional Amounts will only apply if
compliance with such reporting requirements is required by
statute or regulation of the United States or by an applicable
income tax treaty to which the United States is a party as a
precondition to exemption from such tax, assessment or other
governmental charge.
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(7) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment or other governmental charge that is collected or
imposed by any method other than by withholding from a payment
on a Subordinated Note by the Company or a paying agent.
(8) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment or other governmental charge that is imposed or
withheld by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes
effective more than 15 days after the payment becomes due or
is duly provided for, whichever occurs later.
(9) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment or other governmental charge that is imposed or
withheld by reason of the presentation by the beneficial owner
of a Subordinated Note for payment more than 30 days after the
date on which such payment becomes due or is duly provided
for, whichever occurs later.
(10) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any:
(a) estate tax;
(b) inheritance tax;
(c) gift tax,
(d) sales tax
(e) excise tax;
(f) transfer tax;
(g) wealth tax;
(h) personal property tax or
(i) any similar tax, assessment or other governmental
charge.
(11) Additional Amounts will be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment, or other governmental charge required to be
withheld by any paying agent from a payment of principal or
interest on a Subordinated Note if such payment can be made
without such withholding by any other paying agent.
(12) Additional amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any tax,
assessment or other governmental charge that is required to be
made pursuant to any European Union directive on the taxation
of
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savings income or any law implementing or complying with, or
introduced to conform to, any such directive.
(13) Additional Amounts will not be payable if a payment on a
Subordinated Note is reduced as a result of any combination of
items (1) through (12) above.
Except as specifically provided herein, the Company will not
be required to make any payment of any tax, assessment or other governmental
charge imposed by any government or a political subdivision or taxing authority
of such government.
As used in this Subordinated Note, "United States person"
means:
(a) any individual who is a citizen or resident of the United
States;
(b) any corporation, partnership or other entity treated as a
corporation of a partnership created or organized in or under the laws
of the United States or any political subdivision thereof;
(c) any estate if the income of such estate falls within the
federal income tax jurisdiction of the United States regardless of the
source of such income; and
(d) any trust if a United States court is able to exercise
primary supervision over its administration and one or more United
States persons have the authority to control all of the substantial
decisions of the trust.
Additionally, "non-United States person" means a person who is
not a United States person, and "United States" means the United States of
America including the states of the United States of America and the District of
Columbia, but excluding its territories and possessions.
Except as provided below, the Subordinated Notes may not be
redeemed prior to maturity.
(1) The Company may, at its option, redeem the Subordinated Notes
if:
(a) the Company becomes or will become obligated to pay
Additional Amounts as described above;
(b) the obligation to pay Additional Amounts arises as a
result of any change in the laws, regulations or
rulings of the United States, or an official position
regarding the application or interpretation of such
laws, regulations or rulings, which change is
announced or becomes effective on or after September
13, 2004; and
(c) the Company determines, in its business judgment,
that the obligation to pay such Additional Amounts
cannot be avoided by the use of reasonable measures
available to it, other than substituting the obligor
under the
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Subordinated Notes or taking any action that would
entail a material cost to the Company.
(2) The Company may also redeem the Subordinated Notes, at its
option, if:
(a) any act is taken by a taxing authority of the United
States on or after September 13, 2004, whether or not
such act is taken in relation to the Company or any
affiliate, that results in a substantial probability
that the Company will or may be required to pay
Additional Amounts as described above;
(b) the Company determines, in its business judgment,
that the obligation to pay such Additional Amounts
cannot be avoided by the use of reasonable measures
available to it, other than substituting the obligor
under the Subordinated Notes or taking any action
that would entail a material cost to the Company; and
(c) the Company receives an opinion of independent
counsel to the effect that an act taken by a taxing
authority of the United States results in a
substantial probability that the Company will or may
be required to pay the Additional Amounts described
above, and delivers to the Trustee a certificate,
signed by a duly authorized officer, stating that
based on such opinion the Company is entitled to
redeem the Subordinated Notes pursuant to their
terms.
Any redemption of the Subordinated Notes as set forth in clauses (1) or (2)
above shall be in whole, and not in part, and will be made at a redemption price
equal to 100% of the principal amount of the Subordinated Notes Outstanding plus
accrued interest thereon to the date of redemption. Holders shall be given not
less than 30 days nor more than 60 days prior notice by the Trustee of the date
fixed for such redemption.
All terms used in this Subordinated Note which are defined in
the Indenture shall have the meanings assigned to them in the Indenture. The
Subordinated Notes are governed by the laws of the State of New York.
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[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized signatory
Principal Amount of Principal Amount of following such of Trustee or Note
Date of Exchange this Global Note this Global Note decrease or increase Custodian
---------------- --------------------- --------------------- -------------------- ---------------------
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EXHIBIT B
Certificate of Transfer
(To be executed by the registered holder
if such holder desires to transfer this Note)
_________________
_________________
New York, New York____
FOR VALUE RECEIVED ______________________hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
__________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint _________________________ Attorney to
transfer this Note on the Debt Security Register relating to this Note, with
full power of substitution.
Dated:
_____________________________________________________
Signature
_____________________________________________________
Signature Guaranteed
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
B-1
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Notes and the last date, if any, on which such Notes were owned by the
Company or any Affiliate of the Company, the undersigned confirms that such
Notes are being transferred in accordance with its terms:
[CHECK ONE BOX BELOW]
(1) [ ] to the Company; or
(2) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act
("Rule 144A")) ("QIB") that purchases for its own account
or for the account of a qualified institutional buyer to
whom notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A; or
(3) [ ] outside the United States in accordance with Regulation S
under the Securities Act; or
(4) [ ] pursuant to an exemption from registration under the
Securities Act provided by Rule 144 under the Securities
Act.
B-2
EXHIBIT C
FORM OF CERTIFICATE FOR TRANSFER TO QIB
[Date]
Citibank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Customer Service
Fax: 000-000-0000
Re: 5.00% Subordinated Notes Due 2014 (the "Notes")
of Citigroup Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April
12, 2001, as supplemented by the First Supplemental Indenture, dated as of
August 2, 2004, and the Second Supplemental Indenture, dated as of September 16,
2004 (as further amended and supplemented from time to time, the "Indenture"),
each between the Company and X.X. Xxxxxx Trust Company, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
This letter relates to $___________ aggregate principal amount
of Notes [in the case of a transfer of an interest in a Regulation S Global
Note: which represents an interest in a Regulation S Global Note beneficially
owned by] the undersigned (the "Transferor") to effect the transfer of such
Notes in exchange for an equivalent beneficial interest in the Rule 144A Global
Note.
In connection with such request, and with respect to such
Notes, the Transferor does hereby certify that such Notes are being transferred
in accordance with Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), to a transferee that the Transferor reasonably believes is purchasing
the Notes for its own account or an account with respect to which the transferee
exercises sole investment discretion, and the transferee, as well as any such
account, is a "qualified institutional buyer" within the meaning of Rule 144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction.
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You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
C-2
EXHIBIT D
FORM OF CERTIFICATE FOR TRANSFER
PURSUANT TO REGULATION S
[Date]
Citibank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Customer Service
Fax: 000-000-0000
Re: 5.00% Subordinated Notes Due 2014 (the "Notes")
of Citigroup Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April
12, 2001, as supplemented by the First Supplemental Indenture, dated as of
August 2, 2004, and the Second Supplemental Indenture, dated as of September 16,
2004 (as further amended and supplemented from time to time, the "Indenture"),
each between the Company and X.X. Xxxxxx Trust Company, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
In connection with our proposed sale of $________ aggregate
principal amount of the Notes [in the case of a transfer of an interest in a
144A Global Note: , which represent an interest in a 144A Global Note
beneficially owned by] the undersigned ("Transferor"), we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Notes was not made to a person in the
United States;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (ii) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
D-1
(d) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of
Notes being transferred.
In addition, if the sale is made during a Distribution
Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of
Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2),
as the case may be.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
D-2
EXHIBIT E
FORM OF CERTIFICATE FOR TRANSFER
PURSUANT TO RULE 144
[Date]
Citibank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Customer Service
Fax: 000-000-0000
Re: 5.00% Subordinated Notes Due 2014 (the "Notes")
of Citigroup Inc. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April
12, 2001, as supplemented by the First Supplemental Indenture, dated as of
August 2, 2004, and the Second Supplemental Indenture, dated as of September 16,
2004 (as further amended and supplemented from time to time, the "Indenture"),
each between the Company and X.X. Xxxxxx Trust Company, National Association, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
In connection with our proposed sale of $________ aggregate
principal amount of the Notes [in the case of a transfer of an interest in a
144A Global Note: , which represent an interest in a 144A Global Note
beneficially owned by] the undersigned ("Transferor"), we confirm that such sale
has been effected pursuant to and in accordance with Rule 144 under the
Securities Act.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
E-1
