CITIGROUP
GLOBAL MARKETS HOLDINGS INC.
Medium-Term
Senior Notes, Series N
GLOBAL SELLING
AGENCY AGREEMENT
March 8,
2016
New York, New York
To the Agents listed on Schedule
I hereto
Ladies and Gentlemen:
Citigroup Global
Markets Holdings Inc., a corporation organized and existing under the laws of the State of New York (the “
Company
”),
and Citigroup Inc., a corporation organized and existing under the laws of the State of Delaware (the “
Guarantor
”),
confirm their agreement with each of you (each, an “
Agent
”) with respect to the issue and sale by the Company
of its Medium-Term Senior Notes, Series N (the “
Notes
”), in fully registered form only, which Notes are fully
and unconditionally guaranteed (the “
Guarantee
”) by the Guarantor. The Notes may be denominated in U.S. dollars,
foreign currencies or composite currencies (the “
Specified Currency
”) and will have the interest rates, maturities,
redemption provisions and other terms as may be specified in the applicable supplements to the MTN Prospectus (as defined below).
The Notes will
be issued under an indenture (as supplemented from time to time, the “
Indenture
”), dated as of March 8, 2016,
between the Company, the Guarantor and The Bank of New York Mellon, as trustee (the Trustee or such other replacement or successor
trustee as may be named for such senior debt securities, the “
Trustee
”).
The Notes will
be issued, and the terms thereof established, in accordance with the Indenture and the Notes Administrative Procedures attached
hereto as
Exhibit A
(the “
Procedures
”) (unless a Terms Agreement (as defined in Section 2(b)) modifies
or otherwise supersedes such Procedures with respect to the Notes issued pursuant to such Terms Agreement). The Procedures may
only be amended by written agreement of the Company, the Guarantor and Citigroup Global Markets Inc. (the “
Lead Agent
”),
with notice to the Trustee.
Unless otherwise
specified herein, any reference to “Rule [
number
]” shall mean a rule under the Securities Act of 1933, as amended
(the “
Securities Act
”). As used herein, the term “
Registration Statement
” shall mean the
automatic shelf registration statement (as defined in Rule 405), on Form S-3 under the Securities Act (File No. 333-192302) prepared
by the Guarantor and filed with the Securities and Exchange Commission (the “
Commission
”), as amended by Post-Effective
Amendment No. 1 thereto prepared by the Guarantor and filed with the Commission and Post-Effective Amendment No. 2 thereto prepared
by the Company and the Guarantor and filed with the Commission (“
Post-Effective Amendment No. 2
”), including
exhibits and financial statements but excluding all Forms T-1, and any prospectus, prospectus supplement, product supplement or
pricing supplement relating to the Notes that is filed therein or with the Commission pursuant to Rule 424(b) and deemed part
of such shelf registration statement pursuant to Rule 430B, as amended on each Effective Date (as defined below) and, in
the event
any additional post-effective amendment thereto or any Rule 462(b) registration statement becomes effective prior to the applicable
Time of Sale or Settlement Date (each, as defined in Section 1(c) below), shall also mean such registration statement as so amended
or such Rule 462(b) registration statement; the term “
MTN Prospectus
” shall mean (i) the base prospectus dated
March 7, 2016, included in the Post-Effective Amendment No. 2 initially filed by the Company and the Guarantor with the Commission
on March 8, 2016 and (ii) the prospectus supplement related to the Notes dated March 7, 2016 filed by the Company and the Guarantor
with the Commission pursuant to Rule 424(b) on March 8, 2016; the term “
Final Prospectus
”, with respect to
a series of Notes, shall mean (w) the MTN Prospectus, (x) any applicable product supplement filed by the Company and the Guarantor
with the Commission pursuant to Rule 424(b), (y) the applicable final pricing supplement first filed with the Commission pursuant
to Rule 424(b) after the applicable Time of Sale (the “
Final Supplement
”), and (z) any other applicable supplement
to the MTN Prospectus (except a Preliminary Prospectus); the term “
Preliminary Prospectus
”, with respect to
a series of Notes, means any applicable preliminary prospectus supplement or preliminary pricing supplement which is used prior
to the filing of the applicable final prospectus supplement or final pricing supplement; and the term “
Disclosure Package
”
shall mean (a) the MTN Prospectus, as amended and supplemented most recently prior to the Time of Sale, (b) any applicable
product supplement and/or other supplement referred to in the applicable Preliminary Prospectus filed with the Commission pursuant
to Rule 424(b) most recently prior to the Time of Sale, (c) any applicable Preliminary Prospectus used most recently prior to
the Time of Sale, (d) any applicable Final Term Sheet (as defined in Section 4(g) below), (e) if no applicable Final Term Sheet,
the final terms of the Notes set forth in the applicable Final Supplement, and (f) any applicable issuer free writing prospectus,
as defined in Rule 433 (each an “
Issuer Free Writing Prospectus
”), filed with the Commission under Rule 433
prior to the Time of Sale.
Any reference
herein to the Registration Statement, the MTN Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934 (the “
Exchange Act
”) on or before the most recent date and time that the Registration
Statement, any post-effective amendment or amendments thereto became or become effective (the “
Effective Date
”)
or the issue date of the MTN Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement, the MTN Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the
MTN Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference.
For purposes of this Agreement, the term “
you
” shall refer to you and any other Agent collectively and, in
acting under this Agreement, each of you is acting individually and not jointly. In the event that the Lead Agent does not participate
in the offer and sale of any series of Notes, the participating Agent will be treated as the Lead Agent in connection with such
offer and sale.
1.
Representations and Warranties
. The Company and the Guarantor jointly and severally
represent and warrant to, and agree with, each of you as set forth below:
(a)
The Company and the Guarantor meet the requirements for use of Form S-3 under the Securities Act and have prepared and
filed with the Commission an automatic shelf registration statement, as defined in Rule 405, on Form S-3, including the base prospectus
and form of prospectus supplement relating to the Notes, for registration under the Securities Act of the offering and sale of
the Notes. Such Registration Statement, including any amendments thereto filed prior to the date of this Agreement, became effective
upon filing. The Company and the Guarantor have filed with the Commission pursuant to Rule 424(b) the MTN Prospectus relating
to the Notes and the plan of distribution thereof. As filed, such MTN Prospectus contained all information required by the Securities
Act and the rules thereunder; provided that the terms of a particular offering of the Notes will be set forth in a Preliminary
Prospectus, if any, and a Final Prospectus, each of which the Company and the Guarantor will file with the Commission in accordance
with Rule 424(b) and each of which shall contain all information required by the Securities Act and the rules thereunder. The
Registration Statement, as of the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective
Date of the Registration Statement was not earlier than the date three years before the date of this Agreement;
(b)
The documents incorporated by reference in the Disclosure Package and the Final Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated thereunder, and any further
documents so filed and incorporated by reference in the Disclosure Package or the Final Prospectus, or any further amendment or
supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder;
(c)
On each Effective Date, the Registration Statement did, and when the MTN Prospectus was first filed in accordance with
Rule 424(b) and on the date hereof (the “
Commencement Date
”), the MTN Prospectus did, and on the date of delivery
of and payment for a particular issue of Notes (the “
Settlement Date
”), the Final Prospectus and any supplements
thereto will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the
Trust Indenture Act of 1939 (the “
Trust Indenture Act
”) and the respective rules thereunder; on each Effective
Date and at the time sales of a particular offering of the Notes are confirmed (the “
Time of Sale
”), the Registration
Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not misleading; and on the Effective Date, on the Commencement
Date and on the Settlement Date, the Indenture did or will comply in all material respects with the applicable requirements of
the Trust Indenture Act and the rules thereunder; on the date of any filing pursuant to Rule 424(b) and on the Settlement Date,
the Final Prospectus and any supplement thereto will not include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
,
that the Company and the Guarantor make no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement, the MTN
Prospectus or the Final Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of the Agents specifically for inclusion in the Registration Statement, the MTN Prospectus or the Final Prospectus
(and any supplement thereto);
(d)
As of the Time of Sale, the Disclosure Package does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and
in conformity with written information furnished to the Company by the Agents specifically for use therein;
(e)
Each of the Company and the Guarantor was or is (as the case may be) a “well-known seasoned issuer” as defined
in Rule 405 (i) at the time of filing the Registration Statement (in the case of the Guarantor) and at the time of filing of Post-Effective
Amendment No. 2 (in the case of the Company and the Guarantor), (ii) at the time of the most recent amendment to the Registration
Statement for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus) (in the case of the Company,
only if such date is later than the time of filing of Post-Effective Amendment No. 2), (iii) at the time the Company and the Guarantor
or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the
Notes in reliance on the exemption in Rule 163, and (iv) at the Time of Sale (with such date being used as the determination date
for purposes of this clause (iv)). The Company agrees to pay the fees required by the Commission relating to the Notes within
the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(f)
(i) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a
bona fide
offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Time of Sale
(with such time being used as the determination date for purposes of this clause (ii)), each of the Company and the Guarantor was
not and is not an Ineligible Issuer (as defined in Rule 405).
(g)
Each Issuer Free Writing Prospectus and Final Term Sheet (as defined in Section 4(g) below) does not include any information
that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference
and any prospectus supplement, product supplement, or pricing supplement deemed to be a part thereof that has not been superseded
or modified. The foregoing sentence does not apply to statements in or omissions from the Issuer Free Writing Prospectus or Final
Term Sheet based upon and in conformity with written information furnished to the Company by any Agent specifically for use therein;
(h)
The Notes have been duly authorized and, when executed and authenticated in accordance with the Indenture and delivered
to and duly paid for by the purchasers thereof, will constitute valid and binding obligations of the Company, enforceable in accordance
with their respective terms and entitled to the benefits of the Indenture (subject, as to enforcement, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting creditors’ rights generally and to general principles
of equity regardless of
whether such enforceability is considered in a proceeding in equity or at law); the Indenture has been
duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and the Guarantor
and constitutes valid and binding obligations of the Company and the Guarantor, enforceable in accordance with its respective
terms (subject, as to enforcement, to applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws affecting
creditors’ rights generally and to general principles of equity regardless of whether such enforceability is considered
in a proceeding in equity or at law); the Indenture conforms to the description thereof in the MTN Prospectus, as amended or supplemented
to relate to such issuance of Notes; and this Agreement and any Terms Agreement (as defined in Section 2(b) below) has been duly
authorized, and any written Terms Agreement has been duly executed and delivered, by the Company;
(i)
The Guarantees have been duly authorized and, when the Notes have been executed, authenticated and delivered by the Company
in accordance with the Indenture, will constitute valid and binding obligations of the Guarantor, enforceable in accordance with
their terms and entitled to the benefits of the Indenture;
(j)
Since the date of the most recent financial statements included in the Disclosure Package, as amended or supplemented,
there has not been any material adverse change in the consolidated financial condition or results of operations of the Guarantor
and its subsidiaries, taken as a whole, which is not disclosed in the Disclosure Package, as amended or supplemented;
(k)
(A) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of New York, with the necessary power and authority to own its properties and
conduct its business in all material respects as currently conducted; and except as has not, individually or in the aggregate,
had and would not reasonably be likely to have a Material Adverse Effect (as defined in this Section), has been duly qualified
as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require such qualification;
(B)
The Guarantor has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware,
with the necessary power and authority to own its properties and conduct its business in all material respects as currently conducted,
and except as has not, individually or in the aggregate, had and would not reasonably be likely to have a Material Adverse Effect
(as defined in this Section), has been duly qualified as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require
such qualification;
(C)
Except as has not had and would not reasonably be likely to have, individually or in the aggregate, a Material Adverse
Effect, each subsidiary of the Guarantor that is a “significant subsidiary” within the meaning of Rule 1-02(w) of
Regulation S-X under the Securities Act (each, a “
Significant Subsidiary
”) has been duly organized and is validly
existing in good standing under the laws of its jurisdiction of organization;
“
Material
Adverse Effect
” means a material adverse effect on the condition (financial or otherwise), prospects, earnings, business
or properties of the Company or the Guarantor and their respective subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(l)
None of the execution and delivery of this Agreement or the Indenture, the issue and sale of the Notes, or the consummation
of any other of the transactions herein or therein contemplated, or the fulfillment of the terms hereof or thereof will conflict
with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the
Company, the Guarantor or any of their respective subsidiaries pursuant to, (i) the charter or by-laws of the Company, the
Guarantor or any of their respective subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company, the Guarantor
or any of their respective subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to the Company, the Guarantor or any of their respective subsidiaries
of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over
the Company or the Guarantor or any of their respective subsidiaries or any of its or their properties, except in the case of
clauses (ii) and (iii), for those occurrences that, individually or in the aggregate, have not had and would not reasonably be
likely to have a Material Adverse Effect;
(m)
None of the Company, the Guarantor or any of their respective subsidiaries is in violation or default of (i) any provision
of its charter or bylaws, (ii) the material terms of any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its
property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or the Guarantor
or such subsidiary or any of its properties, as applicable, except as would not have and would not reasonably be likely, individually
or in the aggregate, to have a Material Adverse Effect;
(n)
No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company, the Guarantor or any of their respective subsidiaries or their property or the property of their respective subsidiaries
is pending or, to the best knowledge of the Company or the Guarantor, threatened that (i) could reasonably be expected to
have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated
hereby, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto), or (ii) could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(o)
Each of the Company and the Guarantor is not and, after giving effect to each offering and sale of the Notes and the application
of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company”
as defined in the Investment Company Act of 1940, as amended (the “
Investment Company Act
”);
(p)
The interactive data in the eXtensible Business Reporting Language included as an exhibit to the Registration Statement
fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(q)
Neither the Guarantor nor any of its subsidiaries nor, to the knowledge of the Guarantor, any director, officer, agent,
employee or affiliate of the Guarantor, including the Company, or any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation or a sanction for violation by such persons of the Foreign Corrupt Practices
Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar law of any other relevant jurisdiction, or the rules
and regulations thereunder; and the Guarantor and its subsidiaries have instituted and maintained policies and procedures to ensure
continued compliance therewith. No part of the proceeds of any offering will be used, directly or indirectly, in violation of
the Foreign Corrupt Practices Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar law of any other relevant
jurisdiction, or the rules or regulations thereunder;
(r)
The operations of the Guarantor and its subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “
Money Laundering Laws
”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Guarantor or any of its subsidiaries with respect to the Money Laundering Laws
is pending or, to the best knowledge of the Guarantor, threatened;
(s)
Neither the Guarantor nor any of its subsidiaries nor, to the knowledge of the Guarantor, any director, officer, agent,
employee or affiliate of the Guarantor or any of its subsidiaries (i) is, or is controlled or 50% or more owned by, or is acting
on behalf of, an individual or entity that is currently subject to any sanctions administered or imposed by the United States
(including any administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department
of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the
European Union, or the United Kingdom (including sanctions administered or controlled by Her Majesty’s Treasury) or other
relevant sanctions authority (collectively, “
Sanctions
” and such persons, “
Sanction Persons
”),
(ii) is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that
broadly prohibit dealings with that country or territory (collectively, “
Sanctioned Countries
” and each, a
“
Sanctioned Country
”), or (iii) will, directly or indirectly, use the proceeds of any offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other person in any manner that would result
in a violation of any economic Sanctions by, or could result in the imposition of Sanctions against, any person (including any
person participating in the offering, whether as underwriter, advisor, investor or otherwise);
(t)
Except as has been disclosed to the Agents through the Company or through publicly available information or is not material
to the analysis under any Sanctions, neither the Guarantor nor any of its subsidiaries has engaged in any dealings or transactions
with
or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding three years, nor does the
Guarantor or any of its subsidiaries have any plans to increase its dealings or transactions with Sanctioned Persons, or with
or in Sanctioned Countries.
Any certificate
signed by any officer of the Company and the Guarantor and delivered to the Agents or counsel for the Agents in connection with
the offering of the Notes shall be deemed a representation and warranty by the Company and the Guarantor, as to matters covered
thereby, to each Agent.
2.
Appointment of Agents
. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes to any of you acting as principal at a discount for its own
account or for resale to one or more investors or other dealers and the Company’s right to sell Notes directly to investors
on its own behalf or through other agents, the Company hereby appoints and authorizes Citigroup Global Markets Inc. and the other
Agents listed in Schedule I hereto to act as its agents to solicit offers for the purchase of all or part of the Notes from the
Company.
(a)
Solicitations of Offers to Purchase Notes
. At any time following the Commencement Date (defined below), the Company
shall notify each Agent from time to time as to the commencement of a period during which a particular issuance of Notes may be
offered and sold by the Agents (each period, commencing with such a notification and ending at the earlier of the Settlement Date
for such Notes and such time as the authorization for offers and sales through the Agents shall have been suspended by the Company
or the Agents as provided hereunder, being herein referred to as an “
Offering Period
”). On the basis of the
representations and warranties, and subject to the terms and conditions set forth herein, each of the Agents agrees, as agent
of the Company, to use its reasonable efforts to solicit offers to purchase Notes from the Company upon the terms and conditions
set forth in the MTN Prospectus and any supplement thereto, and in the Procedures. Each Agent shall communicate to the Company,
orally or in writing, each reasonable offer or indication of interest to purchase Notes received by such Agent as agent. The Company
shall have the sole right to accept offers to purchase the Notes and may reject any such offer in whole or in part. Each Agent
shall have the right to reject, in its discretion reasonably exercised, any offer received by it to purchase the Notes, in whole
or in part, and any such rejection shall not be deemed a breach of its agreements contained herein. In soliciting offers to purchase
the Notes in its capacity as agent of the Company, each Agent is acting solely as agent for the Company, and not as principal,
and does not assume any obligation toward or relationship of agency or trust with any purchaser of the Notes (other than any such
obligation or relationship which the Agent assumes independently of this Agreement). Each Agent shall make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to purchase Notes has been solicited by such Agent
and accepted by the Company, but such Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose
the identity of any purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason.
Except as provided in Section 2(b), under no circumstances will any Agent be obligated to purchase any Notes for its own account.
It is understood and agreed, however, that any of you may purchase Notes as principal or agent pursuant to Section 2(b).
The Company
reserves the right, in its sole discretion, to instruct the Agents to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Notes. Upon receipt of instructions from the Company, such Agent will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time as the Company has advised them that such solicitation
may be resumed.
The Company
agrees to pay each Agent a commission, on the Settlement Date with respect to each sale of Notes by the Company as a result of
a solicitation made by such Agent, in an amount agreed upon by the Agent and the Company. Such commission shall be payable as
specified in the Procedures. Without the prior approval of the Company, no Agent (acting on an agency basis) may reallow any portion
of the commission payable pursuant hereto to dealers or purchasers in connection with the offer and sale of any Notes.
Subject to
the provisions of this Section 2 and to the Procedures, offers for the purchase of Notes may be solicited by an Agent as agent
for the Company at such time and in such amounts as such Agent shall deem advisable. The Company may from time to time offer Notes
for sale otherwise than through an Agent.
If the Company
defaults in its obligations to deliver Notes to a purchaser whose offer it has accepted, the Company and the Guarantor shall indemnify
and hold each of the Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company.
(b)
Purchases of Notes
. Subject to the terms and conditions stated herein, whenever the Company and any of you determine
that the Company shall sell Notes directly (or through one of its affiliates) to any of you as principal or agent (in such capacity,
the “
Purchaser
”), each such sale of Notes shall be made in accordance with the terms of this Agreement and
a supplemental agreement relating to such sale. Each such supplemental agreement (which may be either an oral or written agreement)
is herein referred to as a “
Terms Agreement
.” Each Terms Agreement shall describe the Notes to be purchased
by the Purchaser pursuant thereto and shall specify the terms of the offered Notes. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by the Purchaser. Any written Terms Agreement may be in the form attached
hereto as
Exhibit B
. The Purchaser’s commitment to purchase Notes shall be deemed to have been made on the basis
of the representations and warranties of the Company and the Guarantor herein contained and shall be subject to the terms and
conditions herein set forth.
Delivery of
the Notes sold to the Purchaser pursuant to a Terms Agreement shall be made not later than the Settlement Date specified in the
Terms Agreement against payment of funds by you in the net amount due for such Notes by the method and in the form set forth in
the Procedures unless otherwise agreed to between the Company and the Purchaser.
Unless otherwise
agreed to between the Company and the Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall be purchased
by such Purchaser at a price equal to 100% of the principal amount thereof less a percentage equal to the applicable commission
and (ii) may be resold by such Purchaser at varying prices from time to time or at a fixed public offering price, as set
forth in the applicable Supplement (as defined in Section 4(a)
below). In connection with any resale of Notes purchased, a Purchaser
may use a selling or dealer group and may reallow to any broker or dealer any portion of the discount or commission payable pursuant
hereto.
(c)
Additional Agents
. Notwithstanding paragraph 2(a) or 2(b) above, the Company may from time to time appoint one or
more additional financial institutions experienced in the distribution of securities as an Agent under this Agreement, for the
duration of this Agreement (subject to Section 7 hereof) or on an issue by issue basis, pursuant to a letter (an “
Agent
Accession Confirmation
”) substantially in the form of
Exhibit C
or
Exhibit E
to this Agreement, as appropriate,
provided that any such additional party shall have first requested appointment as such upon the terms and conditions of this Agreement
in writing to the Company pursuant to a letter (an “
Agent Accession Letter
”) substantially in the form of
Exhibit
D
or
Exhibit F
to this Agreement, as appropriate, whereupon it shall, subject to the terms and conditions of this Agreement,
the relevant Agent Accession Letter and the relevant Agent Accession Confirmation, become a party to this Agreement as an Agent,
vested with all the authority, rights and powers and subject to all the duties and obligations of an Agent as if originally named
as an Agent hereunder.
3.
Offering and Sale of Notes
. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them in the Procedures.
4.
Agreements
. (A) The Company and the Guarantor agree with each of you that:
(a)
At any time during an Offering Period or during the time a prospectus relating to the Notes is required to be delivered
under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172) with respect
to a particular offering of Notes, prior to amending or supplementing either the Registration Statement or the MTN Prospectus,
the Company and the Guarantor will furnish the Agents participating in such offering and Cleary Gottlieb Steen & Hamilton
LLP, counsel to the Agents, with a copy of each proposed amendment or supplement (other than an amendment or supplement to be
made pursuant to incorporation by reference of a document filed under the Exchange Act, a prospectus supplement, product supplement
or pricing supplement relating to the Notes (each, a “
Supplement
”), or an amendment or supplement relating
solely to an offering of securities other than the Notes) and will not file any such proposed amendment or supplement to which
they reasonably object. The Company and the Guarantor will promptly cause each amendment of or supplement to the MTN Prospectus
to be filed with the Commission pursuant to Rule 424(b). If the MTN Prospectus is amended or supplemented (other than by a Supplement
or an amendment or supplement relating solely to an offering of securities other than the Notes), each Agent shall be furnished
with such information relating to such filing as it may reasonably request, and no Agent shall be obligated to solicit offers
to purchase Notes so long as it is not reasonably satisfied that such amendment or supplement complies in all material respects
with the provisions of the Securities Act and the Exchange Act. At any time during an Offering Period or during the time a prospectus
relating to the Notes is required to be delivered under the Securities Act with respect to a particular offering of Notes, the
Company and the Guarantor will promptly advise each Agent participating in such offering of (i) the filing of any amendment
or
supplement to the MTN Prospectus (other than a Supplement or an amendment or supplement to be made pursuant to incorporation
by reference of a document filed under the Exchange Act or relating solely to an offering of securities other than the Notes),
(ii) the filing of any amendment to the Registration Statement, (iii) the receipt by the Company or the Guarantor of
comments from the Commission relating to or requests by the Commission for any amendment of the Registration Statement or any
amendment of or supplement to the Prospectus or for any additional information, (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution
or threatening of any proceeding for that purpose and (v) the receipt by the Company or the Guarantor of any notification
with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company and the Guarantor will use their reasonable best efforts to prevent the issuance
of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon
such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from
such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration
statement and using their best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b)
If, at any time prior to the filing of the related Final Prospectus pursuant to Rule 424(b), any event occurs as a result
of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company
will (1) notify promptly each Agent so that any use of the Disclosure Package may cease until it is amended or supplemented;
(2) amend or supplement the Disclosure Package to correct such statement or omission; and (3) supply any amendment or
supplement to each Agent in such quantities as such Agent may reasonably request.
(c)
At any time during an Offering Period, the Company and the Guarantor will comply with all requirements imposed upon them
by the Securities Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time
to time in force, so far as necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions
hereof and the MTN Prospectus. If during such period any event occurs as a result of which the MTN Prospectus, as then amended
or supplemented, would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not misleading, or if, in the opinion of the Company or the Guarantor,
during such period it is necessary to amend or supplement the Registration Statement or the MTN Prospectus or file a new registration
statement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, the Company promptly will
notify each Agent to suspend the solicitation of offers to purchase the Notes and to cease sales of any Notes. To the extent required
under the provision in the last sentence of this subsection (c), the Company and the Guarantor promptly will amend or supplement
the Registration Statement or the MTN Prospectus or file a new registration statement (at the expense of the Company and the Guarantor)
so as to correct such statement or omission or effect such compliance and will use their best efforts to have any amendment to
the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption
in use of the MTN Prospectus (and any supplements thereto). If
such amendment or supplement, and any documents, certificates,
opinions and letters furnished to the Agents pursuant to subsections (m), (n) and (o) of this Section 4(A) in connection with
the preparation and filing of such amendment or supplement, are reasonably satisfactory in all respects to the Lead Agent, in
its sole discretion, upon the filing of such amendment or supplement with the Commission or effectiveness of an amendment to the
Registration Statement, the Agents will resume solicitation of offers to purchase Notes hereunder. Notwithstanding the foregoing,
neither the Company nor the Guarantor shall be required to comply with the provisions of subsection (c) of this Section 4(A) during
any period from the time any Agent shall have been notified to suspend the solicitation of offers to purchase the Notes in its
capacity as Agent (whether under this subparagraph (c) or otherwise under this Agreement) to the time the Company shall determine
that solicitation of offers to purchase the Notes should be resumed; provided that if any Agent holds any Notes purchased as principal
or agent pursuant to a Terms Agreement, the Company and the Guarantor shall comply with the provisions of subsection (c) of this
Section 4(A) during the period when a prospectus relating to the Notes is required to be delivered pursuant to the Securities
Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172).
(d)
The Guarantor will comply, in a timely manner, with all applicable requirements under the Exchange Act relating to the
filing with the Commission of the Guarantor’s reports pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act and,
if then applicable, of the Guarantor’s proxy statements pursuant to Section 14 of the Exchange Act.
(e)
The Company and the Guarantor will use their best efforts to qualify the Notes for sale under the securities laws of such
jurisdictions as the Lead Agent or other Agent participating in the offer and sale of an issue of Notes may reasonably designate
in connection with the offer and sale of such issue of Notes, to maintain such qualifications in effect so long as required for
the distribution of the Notes and, if requested by the Lead Agent or other Agent participating in the offer and sale of such issue
of Notes, to arrange for the determination of the legality of the Notes for purchase by institutional investors, except that neither
the Company nor the Guarantor shall be required in connection therewith to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction
where it is not now so subject.
(f)
Upon request, the Company and the Guarantor will furnish to the Agents and counsel for the Agents, without charge, signed
copies of the Registration Statement (including exhibits thereto) and the MTN Prospectus and, so long as delivery of a prospectus
relating to the Notes by an Agent may be required by the Securities Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), as many copies of each additional Supplement and Issuer Free Writing Prospectus and any supplements
thereto as each Agent may reasonably request. The Company will pay the expenses of printing or other production of all documents
relating to each offering that are required to be prepared, furnished or delivered by it.
(g)
Upon request, the Company will prepare a final term sheet, containing solely a description of final terms of the Securities
and the offering thereof (a “
Final Term Sheet
”), in a form approved by the relevant Agent and will file such
term sheet pursuant to Rule 433(d) within the time required by such Rule.
(h)
Each of the Company and the Guarantor agrees that, unless it has obtained or will obtain, as the case may be, the prior
consent of the Lead Agent, it has not made and will not make any offer relating to the Notes that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required
to be filed by the Company or the Guarantor with the Commission or retained by the Company or the Guarantor under Rule 433;
provided
that the prior consent of the Lead Agent shall be deemed to have been given in respect of any Final Term Sheet. Any such free
writing prospectus consented to by the Lead Agent is hereinafter referred to as a “
Permitted Free Writing Prospectus
.”
Each of the Company and the Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with
the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(i)
So long as any of the Notes are outstanding, the Guarantor agrees to furnish to each Agent, upon its reasonable request,
as soon as available, all reports and financial statements filed by or on behalf of the Guarantor with the Commission or any national
securities exchange. The Guarantor shall be deemed to have furnished such information to such Agent if (i) such reports and
financial statements are generally available on, and can be printed and/or downloaded from, the Securities and Exchange Commission’s
internet website,
www.sec.gov
(or any other website of which the Guarantor notifies such Agent), and (ii) such Agent
has been notified by the Guarantor that such reports and financial statements have been filed with the Securities and Exchange
Commission.
(j)
The Company and the Guarantor shall, whether or not any sale of Notes is consummated or this Agreement is terminated, pay
all expenses incident to the performance of their obligations under this Agreement and under any Terms Agreement, including, without
limitation, the fees and disbursements of their accountants and counsel; the cost of printing (or other production) and delivery
of the Registration Statement, the MTN Prospectus, any Preliminary Prospectus, Final Term Sheets or Issuer Free Writing Prospectuses,
all amendments thereof and supplements thereto, the Indenture, and all other documents relating to the offering; the cost of preparing,
printing, packaging and delivering the Notes; the fees and disbursements (including reasonable fees of counsel) incurred in connection
with the qualification of the Notes for sale and determination of eligibility for investment of the Notes under the securities
or blue sky laws of such jurisdictions as the relevant Agent may reasonably designate; the fees and disbursements of the Trustee;
the fees of any agency that rates the Notes; the fees and expenses in connection with any listing of the Notes on The NASDAQ Stock
Market, NYSE Arca, Luxembourg Stock Exchange or such other securities exchange agreed to by the Company; the fees and expenses
incurred with respect to any filing with the Financial Industry Regulatory Authority, Inc. (“
FINRA
”); the reasonable
fees and disbursements of Cleary Gottlieb Steen & Hamilton LLP, as counsel for the Agents, and/or other counsel reasonably
satisfactory to the Lead Agent, the Company and the Guarantor; and such other expenses, including, without limitation, advertising
expenses as may be agreed upon by the Agents, the Company and the Guarantor;
provided
,
however
, that with respect
to any purchase of Notes by one of you as principal or agent pursuant to a Terms Agreement, the fees and disbursements of Cleary
Gottlieb Steen & Hamilton LLP and/or other counsel to you shall not be paid by either the Company or the Guarantor.
(k)
During the term of this Agreement, the Company and the Guarantor shall furnish to each Agent such relevant documents and
certificates of officers of the Company and the Guarantor relating to the business, operations and affairs of the Company and
the Guarantor, the Registration Statement, the MTN Prospectus, any Preliminary Prospectus, Final Term Sheet and Issuer Free Writing
Prospectus, any amendments thereof or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures, any Terms
Agreement and the performance by the Company and the Guarantor of their obligations hereunder or thereunder as the Agents may
from time to time reasonably request.
(l)
If any issue of Notes is to be listed on The NASDAQ Stock Market, NYSE Arca or such other securities exchange agreed to
by the Company, as specified in the applicable Final Prospectus, the Company and the Guarantor will use their best efforts to
obtain the listing of such issue of Notes on such securities exchange, to furnish to such securities exchange all documents, information
and undertakings that may be reasonably necessary in order to effect such listing, and to cause such listing to be continued so
long as any of the Notes of such issue remain outstanding.
(m)
Each time the Registration Statement or the MTN Prospectus are amended or supplemented (other than by filing with the Commission:
(i) a Supplement, (ii) an amendment or supplement relating solely to an offering of securities other than the Notes,
(iii) a Current Report on Form 8-K (or any successor item thereto), or (iv) any other amendment or supplement that the
Lead Agent reasonably deems immaterial), each of the Company and the Guarantor will deliver or cause to be delivered forthwith
to the Agents a certificate, signed by (A) on behalf of the Company, the Chairman, the President, the Chief Financial Officer,
the Chief Accounting Officer, the General Counsel, a Vice President or the Treasurer, and by an Assistant Treasurer, the Secretary
or an Assistant Secretary and, (B) on behalf of the Guarantor, the Chairman, a Vice Chairman, the President, the Chief Financial
Officer, the Chief Accounting Officer, the General Counsel, a Vice President, the Treasurer or a deputy Treasurer and by an Assistant
Treasurer, the Secretary or an Assistant Secretary (or another officer or officers acceptable to the Lead Agent), dated no more
than five business days after the date of the effectiveness of such amendment or the date of filing with the Commission of such
supplement or document, as the case may be, in form reasonably satisfactory to the Lead Agent, to the effect that the statements
contained in the certificate referred to in Section 5(b)(iii) that was last furnished to the Agents (either pursuant to Section
5(b)(iii) or pursuant to this Section 4(A)(m)) are true and correct at the time of the effectiveness of such amendment or the
time of filing of such supplement or document, as the case may be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement, as amended as of the time of effectiveness of such amendment or the time
of such filing, as the case may be, and to the MTN Prospectus, as amended and supplemented as of the date of such certificate)
or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(b)(iii) but modified,
if necessary, to relate to the Registration Statement, as amended as of the time of the effectiveness of such amendment or the
time of such filing, as the case may be, and to the MTN Prospectus, as amended and supplemented as of the date of such certificate.
(n)
Each time the Registration Statement or the MTN Prospectus are amended or supplemented (other than by filing with the Commission:
(i) a Supplement, (ii) an amendment or supplement relating solely to an offering of securities other than the Notes,
(iii) a Current
Report on Form 8-K (or any successor item thereto), or (iv) any other amendment or supplement that the
Lead Agent reasonably deems immaterial), each of the Guarantor and the Company shall furnish to or cause to be furnished forthwith
to the Agents the written opinion of the Assistant General Counsel-Capital Markets of the Guarantor and the written opinion of
the Secretary and General Counsel of the Company, respectively, or, in connection with the filing of the Guarantor’s Annual
Report on Form 10-K, Cleary Gottlieb Steen & Hamilton LLP, or in either case, other counsel for the Guarantor, the Company
or other external counsel reasonably satisfactory to the Lead Agent, dated no more than five business days after the date of the
effectiveness of such amendment or the date of filing with the Commission of such supplement or document, as the case may be,
in form reasonably satisfactory to the Lead Agent. In lieu of such opinion, counsel last furnishing such an opinion to the Agents
may furnish to the Agents a letter to the effect that the Agents may rely on such last opinion to the same extent as though it
were dated as of the date of such letter and authorizing reliance on such last opinion (except that statements in such last opinion
will be deemed to relate to the Registration Statement, as amended at the time of the effectiveness of such amendment or the time
of such filing, as the case may be, and to the MTN Prospectus, as amended and supplemented as of the date of such letter).
(o)
Each time that the Registration Statement or the MTN Prospectus are amended or supplemented to set forth amended or supplemental
financial information (other than by filing with the Commission: (i) a Supplement, (ii) an amendment or supplement relating
solely to an offering of securities other than the Notes, (iii) a Current Report on Form 8-K (or any successor item thereto),
or (iv) any other amendment or supplement that the Lead Agent reasonably deems immaterial), the Guarantor shall cause KPMG
LLP, Independent Registered Public Accounting Firm, forthwith to furnish the Agents a letter, dated no more than five business
days after the effectiveness of such amendment or the date of filing of such supplement or document, as the case may be, in form
satisfactory to the Lead Agent, of the same tenor as the letter of such independent public accountants referred to in Section
5(b)(iv) hereof but modified to relate to the Registration Statement and MTN Prospectus, as amended and supplemented to the date
of such letter, with such changes as may be necessary to reflect changes in the financial statements and other information derived
from the accounting records of the Guarantor;
provided
,
however
, that if the Registration Statement or the MTN Prospectus
are amended or supplemented solely to include or incorporate by reference financial information with respect to a fiscal quarter,
KPMG LLP may limit the scope of such letter to the unaudited financial statements included in such amendment or supplement.
(p)
Each solicitation of an offer to purchase Notes by you, each acceptance by the Company of an offer for the purchase of
Notes, each sale of Notes to any Purchaser and each Settlement Date shall be deemed to be an affirmation that the representations
and warranties of the Company and the Guarantor contained in or made pursuant to this Agreement are true and correct in all material
respects at the time of such solicitation, acceptance, sale or issuance and delivery, as the case may be, as though made at and
as of such time (and it is understood that such representations and warranties shall relate to the Registration Statement and
the MTN Prospectus as amended and supplemented to each such time).
(q)
Anything to the contrary in this Section 4 notwithstanding, if, at the time of any required notice, amendment or supplement
to the Registration Statement or the MTN
Prospectus, the Company shall have instructed the Agents to suspend solicitation of offers
to purchase the Notes in each Agent’s capacity as agent of the Company and no Agent then holds any Notes acquired by it
as principal pursuant to a Terms Agreement, neither the Company nor the Guarantor shall be obligated to furnish or cause to be
furnished any notice, certificate, opinion or letter otherwise required until such time as it shall determine that solicitation
of offers to purchase the Notes should be resumed; and provided, further, that, prior to resuming such solicitation the Agents
shall be entitled to receive any such notices, certificates, opinions or letters not previously furnished, accurate as of the
date of such notice, certificate, opinion or letter.
(B)
Each Agent represents to and agrees with the Company and the Guarantor that it will comply with all relevant selling restrictions
included in any Preliminary Prospectus, the MTN Prospectus and the Final Prospectus provided to such Agent prior to the Time of
Sale for each series of Notes such Agent offers or sells.
5.
Conditions to the Obligations of the Agents
. Each Agent’s obligations
to solicit offers to purchase Notes as agent of the Company, any Agent’s obligation to purchase Notes as principal pursuant
to any Terms Agreement or otherwise, and the obligation of any other Agent to purchase Notes from the Company will be subject
to the accuracy in all material respects of the representations and warranties on the part of the Company and the Guarantor herein
contained, to the accuracy of the statements of the officers of the Company and the Guarantor made in each certificate furnished
pursuant to the provisions hereof and to the performance and observance by the Company and the Guarantor of all covenants and
agreements herein contained on their part to be performed and observed (in the case of the Agents’ obligations to solicit
offers to purchase Notes, at the time of such solicitation, and, in the case of any Purchaser’s obligation to purchase Notes,
at the time the Company accepts the offer to purchase such Notes and at the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified:
(a)
On the corresponding Settlement Date:
(i)
The MTN Prospectus, any Preliminary Prospectus and the Final Prospectus (and any supplements thereto) have been filed in
the manner and within the time period required by Rule 424(b), and any other material required to be filed by the Company
pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings
by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall
have been issued and no proceedings for that purpose shall have been instituted or threatened.
(ii)
There shall not have occurred any change, or any development involving a prospective change, in or affecting the condition
(financial or otherwise), prospects, earnings, business or properties of the Company, the Guarantor and their respective subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred
to above, is, in the sole judgment of the Lead Agent after
consultation with the Company, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Disclosure Package and
Final Prospectus (exclusive of any supplement thereto), except, in the case of any purchase of Notes by any Agent as principal,
as disclosed to such Agent in writing by the Company and the Guarantor before the Company accepted the offer to purchase such
Notes.
(iii)
There shall not have occurred any (x) suspension or material limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of the Guarantor’s
common stock by the Commission or the New York Stock Exchange, (y) declaration of a general moratorium on commercial banking
activities by either federal or New York state authorities or exchange controls shall have been imposed by the United States or
(z) any outbreak or escalation of hostilities, any declaration by the United States of war or national emergency or act of
terrorism or other calamity or crisis the effect of which on financial markets is such to as to make it, in the Lead Agent’s
sole judgment, after consultation with the Company, impracticable or inadvisable to proceed with the offering of the Notes as
contemplated by the Disclosure Package and Final Prospectus, as amended or supplemented, except, in the case of any purchase of
Notes by any Agent as principal, for any such event occurring before the Company accepted the offer to purchase such Notes.
(iv)
There shall not have been any decrease in the rating of any of the Company’s or the Guarantor’s senior debt
securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange
Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change, except, for any such decrease or notice that is publicly disclosed, or
the possibility of which is publicly disclosed, either by the Company, the Guarantor or the applicable rating organization before
the Company accepted the offer to purchase such Notes.
(b)
On the Commencement Date and, if called for by any Terms Agreement, on the corresponding Settlement Date:
(i)
Each of the Company and the Guarantor shall have furnished to the Agents such customary opinion or opinions of the Assistant
General Counsel – Capital Markets of the Guarantor and of the Secretary and General Counsel of the Company (or other counsel
for the Company and/or the Guarantor reasonably acceptable to the Lead Agent) on the Commencement Date as the Agents may reasonably
require, and, on the Settlement Date will furnish such customary opinion or opinions of the Assistant General Counsel –
Capital Markets of the Guarantor and of the Secretary and General Counsel of the Company (or other counsel for the Company and/or
the Guarantor reasonably acceptable to the Agents) as the Agents may reasonably require and, if called for by a Terms Agreement,
such customary opinion or opinions of other counsel, dated the Commencement Date or the Settlement Date, as the case may be, as
the Agents may reasonably require.
(ii)
Each Agent shall have received from Cleary Gottlieb Steen & Hamilton LLP, counsel for the Agents (or other counsel
reasonably acceptable to such Agent, the Company and the Guarantor), such customary opinion or opinions dated the Commencement
Date or the Settlement Date, as the case may be, as the Agents may reasonably require.
(iii)
Each of the Company and the Guarantor shall have furnished to the Agents a certificate, signed by (A) on behalf of the
Company—the Chairman, the President, the Chief Financial Officer, the Chief Accounting Officer, the General Counsel, a Vice
President or the Treasurer, and by an Assistant Treasurer, the Secretary or an Assistant Secretary and (B) on behalf of the Guarantor—the
Chairman, a Vice Chairman, the President, the Chief Financial Officer, the Chief Accounting Officer, the General Counsel, a Vice
President, the Treasurer or a Deputy Treasurer and by an Assistant Treasurer, the Secretary or an Assistant Secretary (or another
officer or officers acceptable to the Lead Agent), dated the Commencement Date or the Settlement Date, as the case may be, to
the effect that each signatory of such certificate has carefully examined the Registration Statement, as amended as of the date
of such certificate, the MTN Prospectus, as amended and supplemented as of the date of such certificate, the Disclosure Package
(if applicable) and this Agreement and that: the representations and warranties of the Company and the Guarantor, as applicable,
in this Agreement are true and correct on and as of the date of such certificate with the same effect as if made on the date of
such certificate and the Company or the Guarantor, as applicable, has complied in all material respects with all the respective
agreements and satisfied all the conditions on their part to be performed or satisfied as a condition to the obligations of the
Agents under this Agreement; no stop order suspending the effectiveness of the Registration Statement or any notice objecting
to its use has been issued and no proceedings for that purpose have been instituted or, to its knowledge, has been threatened
or communicated by the Commission to the, in the case of the Guarantor’s certificate, that Company or the Guarantor as being
contemplated by it under the Securities Act; and since the date of the most recent financial statements included in the MTN Prospectus
or the Disclosure Package (if applicable), each as amended and supplemented, there has been no material adverse change in the
consolidated financial condition or results of operations of the Guarantor and its subsidiaries, taken as a whole, which is not
disclosed in the MTN Prospectus or the Disclosure Package (if applicable), as amended or supplemented.
(iv)
KPMG LLP or another nationally recognized independent registered public accounting firm shall have furnished to the Agents
a letter or letters, dated the Commencement Date or the Settlement Date, as the case may be, in form and substance reasonably
satisfactory to the Agents.
(v)
The Company and the Guarantor shall have furnished to each Agent such appropriate further information, certificates and
documents as such Agent may reasonably request.
The documents
required to be delivered by this Section 5 shall be delivered at the office of Cleary Gottlieb Steen & Hamilton LLP, counsel
for the Agents, at One Liberty Plaza, New York, New York 10006, on the Commencement Date or the Settlement Date, as the case may
be.
6.
Indemnification and Contribution
. (a) The Company and the Guarantor jointly
and severally agree to indemnify and hold harmless each Agent, the directors, officers, employees and agents of each Agent and
each person who controls any Agent within the meaning of either the Securities Act or the Exchange Act and each of your affiliates
within the meaning of Rule 405 against any and all losses, claims, damages or liabilities (collectively, “Losses”),
joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as such Losses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement
for the registration of the Notes as originally filed or in any amendment thereof, or in the MTN Prospectus, any Preliminary Prospectus,
the Final Prospectus, any Final Term Sheet, any Issuer Free Writing Prospectus or any Disclosure Package, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or
defending any such Loss or action;
provided
,
however
, that the Company and the Guarantor will not be liable in any
such case to the extent that any such Loss arises out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company
or the Guarantor by any Agent specifically for inclusion therein. This indemnity agreement will be in addition to any liability
which the Company and the Guarantor may otherwise have.
(b)
Each Agent severally and not jointly agrees to indemnify and hold harmless the Company and the Guarantor, each of their
directors, each of their respective officers who signs the Registration Statement, and each person who controls the Company or
the Guarantor within the meaning of either the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company and the Guarantor to each Agent, but only with reference to written information relating to such Agent furnished
to the Company or the Guarantor by such Agent specifically for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability that any Agent may otherwise have.
(c)
Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph
(a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel shall be satisfactory
to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (A) includes an
unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (B)
does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d)
In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 6 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company, the Guarantor and the Agents severally agree to contribute
to the aggregate Losses (including legal or other expenses reasonably incurred in connection with investigating or defending same)
to which the Company, the Guarantor and one or more of the Agents may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantor on the one hand and by the Agents on the other from the offering
of the Notes;
provided
,
however
, that in no case shall (i) any Agent (except as may be provided in any agreement
among Agents relating to the offering of the Notes) be responsible for any amount in excess of the discount or commission applicable
to the Notes purchased by such Agent hereunder. If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company, and the Guarantor jointly and severally and the Agents severally and not jointly shall contribute
in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and
the Guarantor on the one hand and of the Agents on the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits received by the Company and the Guarantor shall be
deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by the Company, and benefits
received by the Agents shall be deemed to be equal to the total discounts and commissions, in each case as set
forth in the applicable
Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the
Company and the Guarantor on the one hand or the Agents on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The Company, the Guarantor and
the Agents agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 6, each person who controls an Agent within the meaning of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of an Agent shall have the same rights to contribution as such Agent, and each person who controls
the Company or the Guarantor, as applicable, within the meaning of either the Securities Act or the Exchange Act, each officer
of the Company or the Guarantor, as applicable, who shall have signed the Registration Statement and each director of the Company
or the Guarantor, as applicable, shall have the same rights to contribution as the Company or the Guarantor, as applicable, subject
in each case to the applicable terms and conditions of this paragraph (d).
7.
Termination
. (a) This Agreement will continue in effect until terminated
as provided in this Section 7. This Agreement may be terminated by either the Company or the Guarantor as to any Agent, or by
any Agent, insofar as this Agreement relates to such Agent, by giving written notice of such termination to such Agent or the
Company and the Guarantor, as the case may be. The termination of this Agreement shall not require termination of any agreement
by any of you to purchase Notes as principal, and the termination of any such agreement shall not require termination of this
Agreement. If this Agreement is terminated, neither the Company and the Guarantor, on the one hand, nor any Agent, on the other
hand, shall have any liability to each other, except as provided in the first sentence of the third paragraph of Section 2(a)
and Sections 4(A)(b), 4(A)(g), 4(A)(h), 6, 8 and 11, and except that, if at the time of termination an offer to purchase any of
the Notes has been accepted by the Company but the time of delivery to the purchaser or its agent of the Notes relating thereto
has not occurred, the representations and warranties of the Company and the Guarantor stated in Section 2 and the Company’s
obligations under the Procedures, and in Sections 2(c), 4(A)(a), 4(A)(b), 4(A)(c), 4(A)(d), 4(A)(e), 4(A)(f), 4(A)(g), 4(A)(i),
4(A)(j), 4(A)(k), 4(A)(1), 4(A)(m), 4(A)(o), 4(A)(q) and 5 shall also remain in full force and effect and not be terminated until
the delivery of such Notes.
8.
Representations and Indemnities to Survive
. The respective agreements, representations,
warranties, indemnities and other statements of the Company and the Guarantor or their respective officers and of any of you set
forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of you, the Company, the Guarantor or any of the officers, directors or controlling persons referred to in Section 6 hereof,
and will survive delivery of and payment for the Notes. The provisions of Section 4(j) and Section 6 hereof shall survive the
termination or cancellation of this Agreement.
9.
Notices
. All communications hereunder will be in writing and effective only
on receipt, and, if sent to an Agent, will be delivered or sent by mail or transmitted by any standard form of telecommunication
and confirmed to such Agent, at the address specified on Schedule I hereto; or, if sent to the Company, will be delivered
or sent by mail or transmitted by any standard form of telecommunication and confirmed to it at 388 Greenwich Street, New York,
New York 10013, Attn: Assistant Treasurer (fax no.: (646) 291-5542), with a copy to Citigroup Global Markets Inc., 388 Greenwich
Street, New York, New York 10013, Attn: Secretary and General Counsel; or, if sent to the Guarantor, will be delivered or sent
by mail or transmitted by any standard form of telecommunication and confirmed to it at 388 Greenwich Street, New York, New York
10013, with a copy to Citigroup Inc., One Court Square, 45
th
Floor, Long Island City, New York 11120, Attn: Associate
General Counsel – Capital Markets (fax no.: (718) 248-2705).
10.
Successors
. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section
6 hereof. Nothing expressed or implied in this Agreement or any Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons and officers
and directors referred to in Section 6 and their heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any Terms Agreement or any provision herein or therein contained. This Agreement and
any Terms Agreement and all conditions and provisions hereof and thereof except to the extent provided for in Section 5 hereof
are intended to be for the sole and exclusive benefit of the parties hereto and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No Purchaser of Notes shall be deemed to be a successor by reason merely of such purchase. This Agreement and the
rights and obligations of any of you hereunder may not be assigned without the prior written consent of the Company and the Guarantor;
provided however, Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”) may, without notice to or the
consent of any party, assign its rights and obligations hereunder to BofAML Securities, Inc. (or to any other wholly-owned broker-dealer
subsidiary of Bank of America Corporation to which all or substantially all of Merrill’s investment banking or related business
may be transferred).
11.
Waivers
. Neither any failure nor delay on the part of any party to exercise
any right, remedy, power or privilege under this Agreement (singly and collectively referred to as a “
Right
”)
shall operate as a waiver of such Right, nor shall any single or partial exercise of any Right preclude any other or further exercise
of any Right, nor shall any waiver of any Right with respect to any occurrence be construed as a waiver of any Right with respect
to any other occurrence.
12.
No Fiduciary Duty
. The Company and the Guarantor hereby acknowledge that (i) the
purchase and sale of the Notes pursuant to this Agreement is an arm’s-length commercial transaction between the Company
and the Guarantor, on the one hand, and the Agents and any affiliate through which it may be acting, on the other, (ii) the
Agents are acting as principal and not as an agent or fiduciary of the Company or the Guarantor and (iii) the Company’s
engagement of the Agents in connection with the offering and the process leading up
to the offering is as independent contractors
and not in any other capacity. Furthermore, each of the Company and the Guarantor agrees that it is solely responsible for making
its own judgments in connection with the offering (irrespective of whether any of the Agents has advised or is currently advising
the Company or the Guarantor on related or other matters). The Company and the Guarantor agree that they will not claim that the
Agents have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company or
the Guarantor, in connection with such transaction or the process leading thereto.
13.
Integration
. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company, the Guarantor and the Agents, or any of them, with respect to the subject matter
hereof.
14.
Applicable Law
. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
15.
Counterparts
. This Agreement may be signed in one or more counterparts, each
of which shall constitute an original and all of which together shall constitute one and the same agreement.
16.
Headings
. The section headings used herein are for convenience only and shall
not affect the construction hereof.
17.
Notice of New Registration Statement
.
(a)
Upon delivery by the Company and the Guarantor to the Agents of a properly executed notice in the form attached as Exhibit
G hereto (a “
Notice of New Registration Statement
”), (i) the file number contained in the definition of “Registration
Statement” in the fourth paragraph hereof shall thereafter be deemed to refer to the file number of the registration statement
specified in such Notice of New Registration Statement (the “
New Registration Statement
”) and (ii) all references
in this Agreement to the “Registration Statement” shall thereafter be deemed to refer to the New Registration Statement.
(b)
Together with the notice required by Section 17(a), the Company and the Guarantor shall deliver or cause to be delivered
to the Agents the documents required under Section 4(A)(m), 4(A)(n) and 4(A)(o) of the Agreement, provided that such Section 4(A)(m),
4(A)(n) and 4(A)(o) shall remain unchanged and shall apply to the New Registration Statement.
If the foregoing
is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the Company, the Guarantor and you.
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Very
truly yours,
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CITIGROUP GLOBAL MARKETS HOLDINGS INC.
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By:
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/s/ Peter A. Mozer
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Name: Peter A. Mozer
Title: Treasurer
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CITIGROUP INC.
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By:
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/s/ Joseph Bonocore
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Name: Joseph Bonocore
Title: Deputy Treasurer
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The
foregoing
Global Selling Agency Agreement is
hereby confirmed and accepted
as of the date hereof:
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CITIGROUP GLOBAL MARKETS INC.,
as Lead Agent
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By:
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/s/ Jack D. McSpadden, Jr.
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Name: Jack D. McSpadden, Jr.
Title: Managing Director
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BARCLAYS CAPITAL INC.
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By:
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/s/ Morgan Baumann
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Name: Morgan Baumann
Title: Managing Director
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INCAPITAL LLC
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By:
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/s/ Christopher O’Connor
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Name: Christopher O’Connor
Title: Head of Debt Capital Markets
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MERRILL LYNCH, PIERCE, FENNER
&
SMITH INCORPORATED
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By:
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/s/ Dorothy E. Hurley
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Name: Dorothy E. Hurley
Title: Managing Director
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UBS FINANCIAL SERVICES INC.
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By:
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/s/ Eric Glicksman
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Name: Eric Glicksman
Title: Managing Director
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By:
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/s/ Frank Anguiano
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Name: Frank Anguiano
Title: Director
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Schedule
I
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Attn: MTNSN Syndicate US
Incapital LLC
200 S. Wacker Drive, Suite 3700
Chicago, Illinois 60606
Attn: General Counsel
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
50 Rockefeller Plaza
NY1-050-12-02
New York, New York 10020
Attn: High Grade Transaction Management
UBS Financial Services Inc.
1000 Harbor Boulevard, 3rd Floor
Weehawken, NJ 07086
Attn: Structured Solutions Development
EXHIBIT
A
CITIGROUP
GLOBAL MARKETS HOLDINGS INC.
Medium-Term
Senior Notes, Series N
Administrative Procedures
March
8, 2016
The Medium-Term
Senior Notes, Series N (the “
Notes
”) of Citigroup Global Markets Holdings Inc. (the “
Company
”),
any payments due on which are fully and unconditionally guaranteed by (the “
Guarantee
”) Citigroup Inc. (the
“
Guarantor
”), are to be offered on a continuing basis. The Notes are being sold pursuant to a Global Selling
Agency Agreement between the Company, the Guarantor and the agents named therein (the “
Agents
”) dated the date
hereof (the “
Agency Agreement
”). Each of the Agents has agreed to solicit purchases of Notes issued in fully
registered form only. An Agent will not be obligated to purchase Notes for its own account. The Notes have been registered with
the U.S. Securities and Exchange Commission (the “
Commission
”). The Bank of New York Mellon is the trustee
(the “
Trustee
”) under the Indenture, dated as of March 8, 2016, under which the Notes will be issued (as amended,
the “
Indenture
”). The Notes will constitute part of the senior debt of the Company and will rank equally with
all other unsecured and unsubordinated debt of the Company. The Guarantee of the Notes will constitute part of the senior debt
of the Guarantor and will rank equally with all other unsecured and unsubordinated debt of the Guarantor.
The Agency
Agreement provides that Notes may also be purchased by an Agent acting solely as principal and not as agent. In the event of any
such purchase, the functions of both the Agent and the beneficial owner under the administrative procedures set forth below shall
be performed by the Agent acting solely as principal, unless otherwise agreed to between the Company, the Guarantor and the Agent
acting as principal.
Each Note will
be represented by a Global Security (as defined hereinafter). Each Global Security representing Notes will be delivered to Citibank,
N.A., acting as agent for The Depository Trust Company or any successor depositary selected by the Company (“
DTC
”,
which term, as used herein, includes any successor depositary selected by the Company), and will be recorded in the book-entry
system maintained by DTC (a “
Book-Entry Note
”). An owner of a Book-Entry Note will not be entitled to receive
a certificate representing such Note, except in the circumstances described in the MTN Prospectus.
The procedures
to be followed during, and the specific terms of, the solicitation of orders by an Agent and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities will be handled for the Company by its Treasury
Department. The Company will advise the Agents and the Trustee in writing of those persons handling administrative responsibilities
with whom the Agents and the Trustee is to communicate regarding orders to purchase Notes and the details of their delivery. The
term “
Trustee
” as used in these procedures means the Trustee and any other agents appointed by the Trustee
or the Company.
Administrative
procedures and specific terms of the offering of the Notes are explained below. Book-Entry Notes will be issued in accordance
with the administrative procedures set forth herein, as adjusted in accordance with changes in DTC’s operating requirements.
Unless otherwise defined herein, terms defined in the Indenture, the Agency Agreement, the Notes or the Final Prospectus relating
to the Notes shall be used herein as therein defined. Notes for which interest is calculated on the basis of a fixed interest
rate, which may be zero, are referred to herein as “
Fixed Rate Notes
”. Notes for which interest is calculated
on the basis of a floating interest rate are referred to herein as “
Floating Rate Notes
”. To the extent the
procedures set forth below conflict with the provisions of the Notes, the Indenture, DTC’s operating requirements or the
Agency Agreement, the relevant provisions of the Notes, the Indenture, DTC’s operating requirements and the Agency Agreement
shall control.
Administrative
Procedures for
Book-Entry Notes
In connection
with the qualification of the Book-Entry Notes for eligibility in the book-entry system maintained by DTC, Citibank, N.A. (the
“
DTC Agent
”) will perform the custodial, document control and administrative functions described below for
the Notes. Citibank, N.A. will perform such functions in accordance with its respective obligations under a MTN Letter of Representations
from the Company and Citibank, N.A. to DTC dated as of the date hereof and a Medium-Term Note Certificate Agreement between Citibank,
N.A. and DTC, dated as of October 31, 1988 and as amended to date, and its obligations as a participant in DTC, including
DTC’s Same-Day Funds Settlement system (“
SDFS
”).
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Issuance:
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Unless otherwise agreed to by the Company, on any date
of settlement (as defined under “
Settlement
” below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form without coupons (a “
Global Security
”) representing
up to U.S. $500,000,000 principal amount of all such Book-Entry Notes of the same Series that have the same Original Issue
Date, Stated Maturity, and other relevant terms (the “
Terms
”). Each Global Security will be
dated and issued as of the date of its settlement. Each Global Security will bear an Original Issue Date, which
will be (i) with respect to an original Global Security (or any portion thereof), the Original Issue Date specified in
such Global Security and (ii) following a consolidation of Global Securities, with respect to the Global Security resulting
from such consolidation, the most recent Interest Payment Date to which interest has been paid or duly provided for on the
predecessor Global Securities, regardless of the date of authentication of such resulting Global Security.
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Identification Numbers:
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The Company has arranged with the CUSIP Service Bureau of Standard
& Poor’s Corporation (the “
CUSIP Service Bureau
”) for the reservation of a Series of CUSIP numbers,
which series consists of approximately 900 CUSIP numbers and relates to Global Securities representing Book-Entry Notes and
book-entry medium-term notes issued by the Company with other Series designations. The DTC Agent, the Company and
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DTC have obtained from the CUSIP Service Bureau a written list of such reserved CUSIP numbers. The DTC
Agent will assign CUSIP numbers to Global Securities as described below under Settlement Procedure “B”. DTC will notify
the CUSIP Service Bureau periodically of the CUSIP numbers that the DTC Agent have assigned to Global Securities. The DTC Agent
will notify the Company at any time when fewer than 100 of the reserved CUSIP numbers remain unassigned to Global Securities, and,
if it deems necessary, the Company will reserve additional CUSIP numbers for assignment to Global Securities. Upon obtaining such
additional CUSIP numbers, the Company shall deliver a list of such additional CUSIP numbers to the DTC Agent, as needed, and to
DTC.
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Registration:
|
Global Securities will be issued only in fully registered form without coupons. Each Global Security will be registered in the name of Cede & Co., as nominee for DTC, on the securities register for the Notes (the “
Securities Register
”) maintained under the Indenture. The beneficial owner of a Book-Entry Note (or one or more indirect participants in DTC designated by such owner) will designate one or more participants in DTC (with respect to such Book-Entry Note, the “
Participants
”) to act as agent or agents for such owner in connection with the book-entry system maintained by DTC, and DTC will record in book-entry form, in accordance with instructions provided by such Participants, a credit balance with respect to such beneficial owner in such Book-Entry Note in the account of such Participants. The ownership interest of such beneficial owner (or such participant) in such Book-Entry Note will be recorded through the records of such Participants or through the separate records of such Participants and one or more indirect participants in DTC.
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Transfers:
|
Transfers of a Book-Entry Note will be accomplished by book entries made by DTC and, in turn, by Participants (and in certain cases, one or more indirect participants in DTC) acting on behalf of beneficial transferors and transferees of such Note.
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Exchanges:
|
The DTC Agent may deliver to DTC and the CUSIP Service Bureau at any time a written notice of consolidation (a copy of
which shall be attached to the resulting Global Security described below) specifying (i) the CUSIP numbers of two or more
outstanding Global Securities that represent (A) Fixed Rate Book-Entry Notes of the same Series and having the same Terms
and for which interest has been paid to the same date or (B) Floating Rate Book-Entry Notes of the same Series and having
the same Terms and for which interest has been paid to the same date, (ii) a date, occurring at least thirty days after such
written notice is delivered and at least thirty days before the next Interest Payment Date for such Book-Entry Notes, on which
such Global Securities shall be exchanged for a single replacement Global Security and (iii) a new
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CUSIP number to be assigned to such replacement Global Security. Upon receipt of such a notice, DTC will send to its participants (including the DTC Agent) a written reorganization notice to the effect that such exchange will occur on such date. Prior to the specified exchange date, the DTC Agent will deliver to the CUSIP Service Bureau a written notice setting forth such exchange date and such new CUSIP number and stating that, as of such exchange date, the CUSIP numbers of the Global Securities to be exchanged will no longer be valid. On the specified exchange date, the DTC Agent will exchange such Global Securities for a single Global Security bearing the new CUSIP number and a new Original Issue Date, which shall be the last date to which interest has been paid on the underlying Book-Entry Notes, and the CUSIP numbers of the exchanged Global Securities will, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned. Upon such exchange, the DTC Agent will mark the predecessor Global Security “canceled”, make appropriate entries in the DTC Agent’s records and dispose of such canceled Global Security in accordance with the terms of the Indenture and deliver a certificate of such disposal to the Company. Notwithstanding the foregoing, if the Global Securities to be exchanged exceed U.S $500,000,000 in aggregate principal amount, one Global Security will be authenticated and issued to represent each U.S. $500,000,000 of principal amount of the exchanged Global Securities and an additional Global Security will be authenticated and issued to represent any remaining principal amount of such Global Securities (see “
Denominations
” below).
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Maturities:
|
Each Book-Entry Note will mature on a date nine months or more after the issue date for such Note, except in the case of indexed Notes, for which the maturity may be shorter. A Floating Rate Book-Entry Note will mature only on an Interest Payment Date for such Note. Any Note denominated in Japanese yen will mature on a date not less than one year from the Original Issue Date (as defined below) for such Note. Any Note denominated in Pounds Sterling will mature on a date not less than one year, nor more than five years, after its Original Issue Date.
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Denominations:
|
Unless otherwise agreed to by the Company, Book-Entry Notes will be issued in principal amounts of U.S.$1,000 or any amount in excess thereof that is an integral multiple of U.S.$1,000. If Book-Entry Notes are denominated in a Specified Currency other than U.S. dollars, the denominations of such Notes will be determined pursuant to the provisions of the applicable Supplement. Global Securities will be denominated in principal amounts not in excess of U.S.$500,000,000 (or the equivalent thereof). If one or more Book-Entry Notes having an aggregate principal amount in excess of U.S.$500,000,000 (or the equivalent thereof) would, but for the preceding sentence, be represented by a single Global Security, then one Global Security will
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be authenticated and issued to represent each U.S.$500,000,000 principal
amount (or the equivalent thereof) of such Book-Entry Note or Notes and an additional Global Security will be authenticated
and issued to represent any remaining principal amount of such Book-Entry Note or Notes. In such a case, each of
the Global Securities representing such Book-Entry Note or Notes shall be assigned the same CUSIP number.
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Notice of Redemption Dates:
|
The DTC Agent will give notice to DTC prior to each
Redemption Date (as specified in the Note) if any at the time and in the manner set forth in the Letter.
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Interest:
|
General
. Unless
otherwise indicated in the applicable Final Prospectus, interest, if any, on each Book-Entry Note will accrue from the
Original Issue Date (or such other date on which interest otherwise begins to accrue, if different than the Original Issue
Date) of the Global Security representing such Book-Entry Note for the first interest period or the last date to which
interest has been paid, if any, for each subsequent interest period, on the Global Security representing such Book-Entry
Note, and will be calculated and paid in the manner and on the Interest Payment Dates described in such Book-Entry Note
and in the Final Prospectus (as defined in the Agency Agreement). Each payment of interest on a Book-Entry Note will include
interest accrued to but excluding the Interest Payment Date; provided that in the case of Floating Rate Notes that reset
daily or weekly, interest payments will include interest accrued to but excluding the next preceding Regular Record Date,
except that at stated Maturity, the interest payable will include interest accrued to, but excluding, the Maturity. Interest
payable at the Maturity of a Book-Entry Note will be payable to the Person to whom the principal of such Note is payable.
Standard & Poor’s
Corporation will use the information received in the pending deposit message described under Settlement Procedure “C”
below in order to include the amount of any interest payable and certain other information regarding the related Global
Security in the appropriate (daily or weekly) bond report published by Standard & Poor’s Corporation.
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Regular Record Dates
. Unless otherwise specified
in the applicable Pricing Supplement, the Regular Record Date with respect to any Interest Payment Date for a Book-Entry Note
shall be the Business Day immediately preceding such Interest Payment Date.
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Payments of Principal and Interest:
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Payment of Interest Only
. Promptly after each
Regular Record Date, the DTC Agent for each Global Security will deliver to the Company and DTC a written notice setting forth,
by CUSIP number, the amount of interest to be paid on each Global Security on the following Interest
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Payment Date (other than an Interest Payment Date coinciding with Maturity) and the total of such amounts. DTC
will confirm the amount payable on each Global Security on such Interest Payment Date by reference to the appropriate (daily
or weekly) bond reports published by Standard & Poor’s Corporation. The Company will pay to the Trustee
the total amount of interest due on such Interest Payment Date (other than at Maturity), and the Trustee will pay such amount
to DTC at the times and in the manner set forth below under “Manner of Payment”. If any Interest Payment
Date for a Book-Entry Note is not a Business Day, the payment due on such day shall be made on the next succeeding Business
Day and no interest shall accrue as a result of such delayed payment, except that in the case of a Floating Rate Book-Entry
Note that is a LIBOR Note or a EURIBOR Note, if such day falls in the next calendar month, the Interest Payment Date shall
be the immediately preceding day that is a Business Day.
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Payments at Maturity or Upon Redemption
. On or about the first Business Day of each month, the DTC Agent will deliver to the Company, DTC and the Trustee a written list of principal and interest to be paid on each Global Security maturing either at Maturity or on a Redemption Date in the following month. The DTC Agent for each Global Security, the Company and DTC will confirm the amounts of such principal and interest payments with respect to each such Global Security on or about the fifth Business Day preceding the Maturity Date or Redemption Date of such Global Security. On or before such Maturity or Redemption, the Company will pay to the Trustee the principal amount or redemption price of such Global Security, together with interest due at such Maturity. The Trustee will pay such amount to DTC at the times and in the manner set forth below under “Manner of Payment”. If any Maturity of a Global Security representing Book-Entry Notes is not a Business Day, the payment due on such day shall be made on the next succeeding Business Day and no interest shall accrue on such payment for the period from and after such Maturity Date or Redemption Date. Promptly after payment to DTC of the principal and interest or redemption price due on the Maturity Date or on the Redemption Date of such Global Security, the Trustee will cancel and dispose of such Global Security in accordance with the Indenture and deliver a certificate of such disposal to the Company.
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Manner of Payment
. The total amount of any principal and interest or redemption price due on Global
Securities on any Interest Payment Date or at Maturity or upon redemption or repayment shall be paid by the Company to the Trustee
in immediately available funds no later than 9:30 A.M. (New York City time) on such date. The Company will make such
payment on such Global Securities by instructing the Trustee to withdraw funds from an account maintained by the Company with
the DTC Agent. The Company will confirm any such instructions in
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writing to the Trustee. Prior to 10:00 A.M.
(New York City time) on the Maturity Date or as soon as possible thereafter, the Trustee will pay by separate wire transfer
(using Fedwire message entry instructions in a form previously specified by DTC) to an account at the Federal Reserve Bank
of New York previously specified by DTC, in funds available for immediate use by DTC, each payment of principal (together
with interest thereon) due on a Global Security on such Maturity Date or Redemption Date. On each Interest Payment
Date (other than at Maturity), interest payments shall be made to DTC, in same day funds, in accordance with existing arrangements
between the relevant DTC Agent and DTC. On each such date, DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds available for immediate use to the respective Participants in whose names
the Book-Entry Notes represented by such Global Securities are recorded in the book-entry system maintained by DTC. None
of the Company (as issuer or as paying agent), the Guarantor, the Trustee or the DTC Agent shall have any direct responsibility
or liability for the payment by DTC to such Participants of the principal of and interest on the Book-Entry Notes. If
an issue of Notes is denominated in a currency other than the U.S. dollar, the Company will make payments of principal and
any interest in the currency in which the Notes are denominated (the “
foreign currency
”) or in U.S. dollars. DTC
has elected to have all such payments of principal and interest in U.S. dollars unless notified by any of its Participants
through which an interest in the Notes is held that it elects, in accordance with and to the extent permitted by the applicable
Supplement and the Note, to receive such payment of principal or interest in the foreign currency. On or prior
to the third Business Day after the record date for payment of interest and twelve days prior to the date for payment of principal,
such Participant shall notify DTC of (i) its election to receive all, or the specified portion, of such payment in the
foreign currency and (ii) its instructions for wire transfer of such payment to a foreign currency account.
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DTC will notify the Trustee on or prior to the fifth business day
after the record date for payment of interest and ten days prior to the date for payment of principal of the portion of such
payment to be received in the foreign currency and the applicable wire transfer instructions, and the Trustee shall use such
instructions to pay the Participants directly. If DTC does not so notify the Trustee, it is understood that only
U.S. dollar payments are to be made. The Trustee shall notify DTC on or prior to the second Business Day prior
to payment date of the conversion rate to be used and the resulting U.S. dollar amount to be paid per U.S.$1,000 face amount. In
the event that the Trustee’s quotation to convert the foreign currency into U.S. dollars is not available, the Trustee
shall notify DTC’s Dividend Department that the entire payment is to be made in the foreign currency. In
such event,
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DTC will ask its Participants for payment instructions and forward such instructions to the Trustee and the Trustee shall use such instructions to pay the Participants directly.
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Withholding Taxes
. The amount of any taxes required under applicable law to be withheld from any interest payment on a Book-Entry Note will be determined and withheld by the Participant, indirect participant in DTC or other Person responsible for forwarding payments and materials directly to the beneficial owner of such Note.
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Procedures upon Company’s Exercise of Optional Reset or Optional Extension of Maturity:
|
Company Notice to Trustee regarding Exercise of Optional Reset
. Not less than 45 or more than 60 days before an Optional Reset Date as set forth in a Book-Entry Note, the Company will notify the Trustee whether it is exercising its option to reset the interest rate or Spread or Spread Multiplier, as the case may be, for such Book-Entry Note, and if so, (i) the new interest rate or Spread or Spread Multiplier, as the case may be, for such Book-Entry Note during the period from such Optional Reset Date to the next Optional Reset Date as set forth in such Book-Entry Note or, if there is no such next Optional Reset Date, to the Stated Maturity of such Book-Entry Note (the “
Subsequent Interest Period
”); and (ii) the provisions, if any, for redemption of such Book-Entry Note during such Subsequent Interest Period, including the date or dates on which or the period or periods during which such redemption may occur during such Subsequent Interest Period.
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Company Notice to Trustee regarding Exercise of Optional Extension of Maturity
. If the Company elects to exercise an option, as set forth in a Book-Entry Note, to extend the Stated Maturity of such Note, it will so notify the Trustee no less than 45 or more than 60 days before the Stated Maturity of such Book-Entry Note, and will further indicate (i) the new Stated Maturity; (ii) the interest rate or Spread or Spread Multiplier, as the case may be, applicable to the extension period; and (iii) the provisions, if any, for redemption of such Book-Entry Note during such extension period, including the date or dates on which or the period or periods during which such redemption may occur during such extension period.
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Trustee Notice to DTC regarding Company’s Exercise of Optional Extension or Reset
. Upon receipt of notice from the Company regarding the Company’s exercise of either an optional extension of maturity or an optional reset, the Trustee will hand-deliver a notice to DTC not less than 40 days before the Optional Reset Date (in which case a “
Reset Notice
”) or the Stated Maturity (in which case an “
Extension Notice
”), as the case may be, which Reset Notice or Extension Notice shall identify such Book-Entry Note by CUSIP number and shall contain the information required by the terms of the
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Book-Entry Note.
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Trustee Notice to DTC regarding Company’s Exercise of Optional Extension or Reset
. Upon receipt of notice from the Company regarding the Company’s exercise of either an optional extension of maturity or an optional reset, the Trustee will hand-deliver a notice to DTC not less than 40 days before the Optional Reset Date (in which case a “
Reset Notice
”) or the Stated Maturity (in which case an “
Extension Notice
”), as the case may be, which Reset Notice or Extension Notice shall identify such Book-Entry Note by CUSIP number and shall contain the information required by the terms of the Book-Entry Note.
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Trustee Notice to Company regarding Option to be Repaid
. If, after receipt of either a Reset Notice or an Extension Notice, DTC exercises the option for repayment by tendering the Global Security representing the Book-Entry Note to be repaid as set forth in such Note, the Trustee shall give notice to the Company not less than 22 days before the Optional Reset Date or the old Stated Maturity, as the case may be, of the principal amount of Book-Entry Notes to be repaid on such Optional Reset Date or old Stated Maturity, as the case may be.
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Company Notice regarding New Interest Rate or New Spread or Spread Multiplier
. If the Company elects to revoke the interest rate or Spread or Spread Multiplier provided for in the Reset Notice and establish a higher interest rate or Spread or Spread Multiplier for an Optional Reset Period or extension period, as the case may be, it shall, not less than 20 days before such Optional Reset Date or old Stated Maturity, so notify the Trustee. The Trustee will promptly thereafter notify DTC of the new interest rate or Spread or Spread Multiplier applicable to such Book-Entry Note.
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Trustee Notice to Company regarding DTC Revocation of Option to be Repaid
. If, after DTC has tendered any Book-Entry Notes for repayment pursuant to an Extension Notice or an Optional Reset Notice, DTC then revokes such tender for repayment, the Trustee upon being notified of such revocation shall give notice to the Company not less than five days prior to the Stated Maturity or Optional Reset Date, as the case may be, of such revocation and of the principal amount of Book-Entry Notes for which tender for repayment has been revoked.
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Deposit of Repayment Price
. On or before any old Stated Maturity where the Maturity has been extended, and on or before any Optional Reset Date, the Company shall deposit with the Trustee an amount of money sufficient to pay the principal amount, plus interest accrued to such old Stated Maturity or Optional Reset Date, as the case may be, for all the Book-Entry Notes or portions thereof which are to be repaid on such old Stated Maturity or Optional Reset Date, as the case may be. The Trustee will use such money to repay such Book-Entry Notes pursuant to the terms set forth in such Notes.
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Procedures upon Company Notice to Trustee regarding Company’s Exercise of Optional Redemption:
|
Company Notice to Trustee regarding Company’s Exercise of Optional Redemption.
At least 45 days prior to the date on which it intends to redeem a Book-Entry Note, the Company will notify the Trustee that it is exercising such option with respect to such Book-Entry Note on such date.
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Trustee Notice to DTC regarding Company’s Exercise of Optional Redemption
. After receipt of notice that the Company is exercising its option to redeem a Book-Entry Note, the Trustee will, at least 30 days before the redemption date for such Book-Entry Note, deliver to DTC a notice identifying such Book-Entry Note by CUSIP number and informing DTC of the Company’s exercise of such option with respect to such Book-Entry Note.
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Deposit of Redemption Price
. On or before any redemption date, the Company shall deposit with the Trustee an amount of money sufficient to pay the redemption price, plus interest accrued to such redemption date, for all the Book-Entry Notes or portions thereof for which the Trustee serves as Trustee and which are to be repaid on such redemption date. The Trustee will use such money to repay such Book-Entry Notes pursuant to the terms set forth in such Notes.
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Payments of Principal and Interest Upon Exercise of Optional Repayment (Except Pursuant to Company’s Exercise of Optional Reset or Optional Extension):
|
Trustee Notice to Company of Option to be Repaid
. Upon receipt of notice of exercise of the option for repayment and the Global Securities representing the Book-Entry Notes so to be repaid as set forth in such Notes, the Trustee shall (unless such notice was received pursuant to the Company’s exercise of an optional reset or an optional extension of maturity, in each of which cases the relevant procedures set forth above are to be followed) give notice to the Company not less than 20 days prior to each Optional Repayment Date of such Optional Repayment Date and of the principal amount of Book-Entry Notes to be repaid on such Optional Repayment Date.
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Deposit of Repayment Price
. On or prior to any Optional Repayment Date, the Company shall deposit with the Trustee an amount of money sufficient to pay the optional repayment price, and accrued interest thereon to such date, of all the Book-Entry Notes or portions thereof which are to be repaid on such date. The Trustee will use such money to repay such Book-Entry Notes pursuant to the terms set forth in such Notes.
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Procedure for Rate Setting and Posting:
|
The Company and the Agent will discuss from time to time the aggregate principal amount of, the issuance price of, and the interest rates to be borne by, Book-Entry Notes that may be sold as a result of the solicitation of orders by the Agent. If the Company decides to set prices of, and rates borne by, any Book-Entry Notes in respect of which the Agent is to solicit orders (the setting of such prices and rates to be referred to herein as “
posting
”) or if the Company decides to change prices or rates previously posted by it, it will promptly advise the Agent of the prices and rates to be posted.
|
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Acceptance and Rejection of Orders:
|
Unless otherwise instructed by the Company, the Agents will advise the Company promptly by telephone or other means of electronic
|
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of Orders:
|
communication of all orders to purchase Book-Entry Notes received by the Agents, other than those rejected by it in whole or in part in the reasonable exercise of its discretion. Unless otherwise agreed by the Company and any Agent, the Company has the right to accept orders to purchase Book-Entry Notes and may reject any such orders in whole or in part.
|
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Preparation of Pricing Supplement:
|
If any order to purchase a Book-Entry Note is accepted by or on behalf of the Company, the Company will prepare a final pricing supplement or prospectus supplement (a “
Final Supplement
”) reflecting the terms of such Book-Entry Note, will file such Final Supplement with the Commission in accordance with the applicable paragraph of Rule 424(b) under the Securities Act, will deliver such number of copies thereof to the Agent as the Agent shall request. If required, the Agent will file such Final Supplement with the Financial Industry Regulatory Authority, Inc. (“
FINRA
”) and cause a Final Prospectus, including such Final Supplement, to be delivered to the purchaser of such Book-Entry Note or otherwise will comply with the requirements of Rule 173(a) under the Securities Act.
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|
In each instance that a Final Supplement is prepared, the Agents will affix or attach the Final Supplement to the MTN Prospectus and other applicable Supplement(s) prior to their use. Outdated Final Supplements, MTN Prospectus and any other applicable Supplement(s) to which they are attached (other than those retained for files) will be destroyed.
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|
If requested, hard copies of the appropriate number of Final Prospectuses, including the Final Supplement, shall be delivered to the Agent at the addresses designated by such Agent on the Business Day following the acceptance of an offer by or on behalf of the Company.
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Suspension of Solicitation; Amendment or Supplement:
|
Subject to the representations, warranties and covenants of the Company and the Guarantor contained in the Agency Agreement, the Company may instruct the Agents to suspend at any time, for any period of time or permanently, the solicitation of orders to purchase Book-Entry Notes. As soon as practicable, but in any event not later than one Business Day after receipt of such notice, the Agents will suspend solicitation until such time as the Company has advised it that such solicitation may be resumed. Except as otherwise provided for in the Agency Agreement, the Company will have discretion regarding whether to amend or supplement the MTN Prospectus. If the Company proposes so to amend or supplement, it will promptly advise the Agents and will furnish the Agents such proposed amendment or supplement.
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In the event that at the time the Company suspends solicitation of purchases there shall be any orders outstanding for settlement, the
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Company will promptly advise the applicable Agents, the Trustee and the DTC Agent whether such orders may be settled and whether copies of the Final Prospectus as in effect at the time of the suspension, including the applicable Final Supplement, (or the notice provided for in Rule 173(a) under the Securities Act, if applicable), may be delivered in connection with the settlement of such orders. The Company will have the sole responsibility for such decision and for any arrangements that may be made in the event that the Company determines that such orders may not be settled or that copies of such Final Prospectus (or the notice provided for in Rule 173(a) under the Securities Act, if applicable) may not be so delivered.
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Delivery of Final Prospectus:
|
With respect to each offering pursuant to the Agency Agreement, an Agent shall send a copy of the Final Prospectus as the same may be supplemented or amended (either physically or pursuant to Rule 172 under the Act) to the customer or its agent with or prior to the delivery of the written confirmation of sale sent to such customer or agent.
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Confirmation:
|
For each offer to purchase a Book-Entry Note solicited by an Agent and accepted by or on behalf of the Company, the Agent will issue a confirmation, which confirmation may be delivered by facsimile or other electronic transmission, to the purchaser, with a copy to the Company, setting forth the details for settlement set forth below and delivery and payment instructions.
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Settlement:
|
The receipt by the Company of immediately available funds in payment for a Book-Entry Note and the authentication and issuance of the Global Security representing such Book-Entry Note shall constitute “
settlement
” with respect to such Book-Entry Note, and the date of such settlement, the “
Settlement Date
”. All orders accepted by the Company will be settled on the third Business Day next succeeding the date of acceptance pursuant to the timetable for settlement set forth below unless the Company and the purchaser agree to settlement on another day which shall be no earlier than the Business Day succeeding the date of sale. In all cases, the Company will notify the Trustee and the DTC Agent on the date issuance instructions are given.
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|
Settlement Procedures:
|
Settlement Procedures with regard to each Book-Entry Note sold by the Company to or through an Agent, except as otherwise specified pursuant to a Terms Agreement, shall be as follows:
|
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|
A.
The
Agent will advise the Company by telephone (or by facsimile or other acceptable written means) that such Note is a Book-Entry
Note and of the following settlement information:
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|
Principal or face amount.
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|
Series.
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|
Stated Maturity.
|
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|
In the case of a Fixed Rate Book-Entry Note, the interest rate, and whether and the manner in which such rate may be changed prior to its stated maturity, and reset, redemption, renewability, repayment and extension provisions (if any) or, in the case of a Floating Rate Book-Entry Note, the Base Rate, Initial Interest Rate (if known at such time), Interest Periods, Interest Reset Dates, Index Maturity, Spread and/or Spread Multiplier (if any) and whether and how any Spread and/or Spread Multiplier may be changed prior to the State Maturity, Minimum Interest Rate (if any), Maximum Interest Rate (if any) and reset, redemption, renewability, repayment and extension provisions (if any).
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Interest Payment Dates and the Interest Payment Period.
|
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|
Amortization provisions, if any.
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|
Settlement Date and Issue Date, if different.
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|
Specified currency and if such Book-Entry Note may be settled in any property or currency other than U.S. dollars, the type of such property or currency and the manner in which it will be determined.
|
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|
Denominated currency, Indexed Currency, Base Exchange Rate, and the Determination Date, if applicable.
|
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|
Price.
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|
Agent’s commission, determined as provided in the Agency Agreement.
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|
Whether the Notes will have a Survivor’s Option.
|
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|
Whether such Book-Entry Note is an OID Note and, if so, the total amount of OID, the yield to maturity and the initial accrual period OID.
|
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|
Any other terms necessary to describe the Book-Entry Note.
|
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B.
The
Company will advise the DTC Agent by telephone (confirmed in writing at any time on the same date), written telecommunication
or electronic transmission of the information set forth in Settlement Procedure “A” above. Each such communication
by the Company shall constitute a representation and warranty by the Company to the DTC Agent, the Trustee and the Agent that
(i) such Note is then, and at the time of issuance and sale thereof will be, duly authorized for issuance and sale by the
Company and (ii) such Note, and the Global Security representing such Note, will conform with the terms of the Indenture
for such Note. The DTC Agent will then assign a CUSIP number to the Global
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Security representing such Note, will conform with the terms of the Indenture for such Note. The DTC Agent will
then assign a CUSIP number to the Global Security representing such Book-Entry Note and notify the Agent and the Company by telephone
(confirmed in writing at any time on the same date), written telecommunication or electronic transmission of such CUSIP number
as soon as practicable.
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C.
The
DTC Agent will enter a pending deposit message through DTC’s Participant Terminal System-4 providing the following settlement
information to DTC, Standard & Poor
’
s Corporation, Interactive
Data Corporation, the Agent and, upon request, the Trustee for such Notes:
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|
The information set forth in Settlement Procedure “A”.
|
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|
Identification as a Fixed Rate Book-Entry Note or a Floating Rate Book-Entry Note.
|
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|
The Initial Interest Payment Date for such Book-Entry Note, number of days by which such date succeeds the related Regular Record Date and amount of interest payable on such Interest Payment Date.
|
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|
The Interest Payment Period.
|
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|
The CUSIP number of the Global Security representing such Book-Entry Note.
|
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|
The participant account numbers maintained by DTC on behalf of the Trustee and such Agent.
|
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|
Whether such Global Security will represent any other Book-Entry Note (to the extent known at such time).
|
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|
D.
To
the extent the Company has not already done so, the Company will deliver to the Trustee a Global Security in a form that has been
approved by the Company, the Agent and the Trustee.
|
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|
E.
The
Trustee will complete such Book-Entry Note, stamp the appropriate legend, as instructed by DTC and the Company, if not already
set forth thereon, and authenticate the Global Security representing such Book-Entry Note.
|
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|
F.
DTC
will credit such Book-Entry Note to the DTC Agent’s participant account at DTC.
|
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|
G.
The
DTC Agent will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC to (i) debit such
Book-Entry Note to the DTC Agent’s participant account and credit such Book-Entry Note to the Agent’s participant
account and (ii) debit the Agent’s settlement account and credit the DTC Agent’s settlement account for an amount
equal to the price of such Book-Entry Note less the Agent’s commission, or as otherwise directed by the Company. The
entry of such a deliver order shall constitute a representation and warranty by the DTC Agent to DTC that (i) the Global
Security representing such Book-Entry Note has been issued and authenticated and (ii) the DTC Agent is holding such Global
Security pursuant to the Medium Term Note Certificate Agreement between the DTC Agent and DTC.
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H.
Unless
the Agent is purchasing such Note as principal, the Agent will enter an SDFS deliver order through DTC’s Participant Terminal
System instructing DTC (i) to debit such Book-Entry Note to the Agent’s participant account and credit such Book-Entry
Note to the participant accounts of the Participants with respect to such Book-Entry Note and (ii) to debit the settlement
accounts of such Participants and credit the settlement account of the Agent for an amount equal to the price of such Book-Entry
Note.
|
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I.
Transfers
of funds in accordance with SDFS deliver orders described in Settlement Procedures “G” and “H” will be
settled in accordance with SDFS operating procedures in effect on the settlement date.
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|
J.
The
DTC Agent will, upon receipt of funds from the Agent in accordance with Settlement Procedure “G”, credit to an account
of the Company maintained at the DTC Agent funds available for immediate use in the amount transferred to the DTC Agent in accordance
with Settlement Procedure “G”.
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K.
Unless
the Agent is purchasing such Book-Entry Note as principal, the Agent will confirm the purchase of such Book-Entry Note to the
purchaser either by transmitting to the Participants with respect to such Book-Entry Note a confirmation order or orders through
DTC’s institutional delivery system or by mailing a written confirmation to such purchaser.
|
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|
L.
Monthly,
the DTC Agent will send to the Company a statement setting forth the principal amount of Registered Notes Outstanding as of the
date of such statement and setting forth a
|
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|
brief
description of any sales of which the Company has advised the DTC Agent but which have not yet been settled.
|
|
Settlement Procedures Timetable:
|
For sales by the Company of Book-Entry Notes solicited by the Agent
and accepted by the Company (except pursuant to a Terms Agreement) for settlement on the first Business Day after the sale
date, Settlement Procedures “A” through “K” set forth above shall be completed as soon as possible
but not later than the respective times (New York City time) set forth below:
|
|
|
Settlement
Procedure
|
Time
|
|
|
A
|
11:00 A.M. on the sale date
|
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|
B
|
12:00 Noon on the sale date
|
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|
C
|
2:00 P.M. on the sale date
|
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|
D
|
3:00 P.M. on the day before settlement
|
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|
E
|
9:00 A.M. on settlement date
|
|
|
F
|
10:00 A.M. on settlement date
|
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|
G-H
|
2:00 P.M. on settlement date
|
|
|
I
|
4:45 P.M. on settlement date
|
|
|
J-K
|
5:00 P.M. on settlement date
|
|
|
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures “A”, “B” and “C” shall be completed as soon
as practicable but no later than 11:00 A.M., 12:00 Noon and 2:00 P.M., respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate Book-Entry Note has not been determined at the time that
Settlement Procedure “A” is completed, Settlement Procedures “B” and “C” shall be completed
as soon as such rate has been determined but no later than 12:00 Noon and 2:00 P.M., respectively, on the Business Day before
the settlement date. Settlement Procedure “I” is subject to extension in accordance with any extension
of Fedwire closing deadlines and in the other events specified in SDFS operating procedures in effect on the settlement date.
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|
If settlement of a Book-Entry Note is rescheduled or canceled, the
DTC Agent for such Book-Entry Note, after receiving notice from the Company or the Agent, will deliver to DTC, through DTC’s
Participant Terminal System, a cancellation message to such effect by no later than
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2:00 P.M. on the Business Day immediately preceding the scheduled settlement date.
|
|
Failure to Settle:
|
If settlement of a Book-Entry Note is rescheduled and the DTC Agent has not entered an SDFS deliver order with respect to a Book-Entry Note pursuant to Settlement Procedure “G”, after receiving notice from the Company or the Agent, the DTC Agent shall deliver to DTC, through DTC’s Participant Terminal System, as soon as practicable, a withdrawal message instructing DTC to debit such Book-Entry Note to the DTC Agent’s participant account. DTC will process the withdrawal message, provided that the DTC Agent’s participant account contains a principal amount of the Global Security representing such Book-Entry Note that is at least equal to the principal amount to be debited. If a withdrawal message is processed with respect to all the Book-Entry Notes represented by a Global Security, the Trustee for the Notes represented by such Global Security will mark such Global Security “canceled”, make appropriate entries in its records and dispose of such canceled Global Security in accordance with the applicable Indenture and deliver a certificate of such disposal to the Company. The CUSIP number assigned to such Global Security shall, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned.
|
|
|
If a withdrawal message is processed with respect to one or more, but not all, of the Book-Entry Notes represented by a Global Security, the DTC Agent for such Book-Entry Notes will exchange such Global Security for two Global Securities, one of which shall represent such Book-Entry Notes and shall be canceled immediately after issuance and the other of which shall represent the other Book-Entry Notes previously represented by the surrendered Global Security and shall bear the CUSIP number of the surrendered Global Security.
|
|
|
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such Book-Entry Note by the beneficial purchaser thereof (or a Person, including
an indirect participant in DTC, acting on behalf of such purchaser), such Participants and, in turn, the Presenting Agent
may enter SDFS deliver orders through DTC’s Participant Terminal System reversing the orders entered pursuant to Settlement
Procedures “H” and “G”, respectively. Thereafter, the DTC Agent will deliver the withdrawal
message and take the related actions described in the preceding paragraph. If such failure shall have occurred
for any reason other than a default by the Agent in the performance of its obligations hereunder and under the Agency Agreement,
then the Company will reimburse the Agent for the loss of the use of the funds during the period when they were credited to
the account of the Company. Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry
Note, DTC may take any actions in accordance with its SDFS operating procedures then in effect. In the event of
a failure to settle with respect to one or more, but not all, of the Book-Entry Notes to have been represented by a Global
Security, the DTC Agent for such Book-Entry Note or Notes will provide, in accordance with Settlement Procedures “E”
and “G”, for the authentication and issuance of a Global Security representing the other Book-Entry Notes to have
been represented by such Global Security and will make appropriate entries in its records.
|
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Trustee Not to Risk Funds:
|
Nothing herein shall be deemed to require either Trustee to risk
or expend its own funds in connection with any payment to the Company, DTC, the Agent or the purchaser, it being understood
by all parties that payments made by either Trustee to the Company, DTC, the Agent or the purchaser shall be made only to
the extent that funds are provided to the Trustee for such purpose.
|
|
Authenticity of Signatures:
|
The Company will cause the Trustee to furnish the Agent from time to time with the specimen signatures of the Trustee’s officers, employees or agents who has been authorized by the Trustee to authenticate Book-Entry Notes, but the Agent will not have any obligation or liability to the Company or the Trustee in respect of the authenticity of the signature of any officer, employee or agent of the Company or the Trustee on any Book-Entry Note.
|
|
Payment of Expenses:
|
The Agent shall forward to the Company, on a monthly basis, a statement of the out-of-pocket expenses incurred by such Agent during that month that are reimbursable to it pursuant to the terms of the Agency Agreement. The Company will remit payment to the Agent currently on a monthly basis.
|
|
Advertising Costs:
|
The Company will determine with the Agents the amount of advertising that may be appropriate in soliciting offers to purchase the Book-Entry Notes. Advertising expenses will be paid by the Company.
|
EXHIBIT
B
FORM OF TERMS
AGREEMENT
Citigroup Global Markets Holdings
Inc.
388 Greenwich Street
New York, NY 10013
Attention: Assistant Treasurer
Subject in all respects to the
terms and conditions contained in the Global Selling Agency Agreement dated March 8, 2016 (the “
Global Selling Agency
Agreement
”), between Citigroup Global Markets Holdings Inc. (the “
Company
”), Citigroup Inc. (the
“
Guarantor
”) and the Agents named therein, the undersigned agrees to purchase the following Notes of Citigroup
Global Markets Holdings Inc.:
|
Principal Amount:
|
|
|
Purchaser:
|
|
|
Issue Price:
|
|
|
Original Issue Date:
|
|
|
Stated Maturity:
|
|
|
CUSIP:
|
|
Terms of the Notes: As described
in the [Preliminary Prospectus/Offering Summary] dated [ ], 20[ ]
attached hereto, as supplemented by and the Final Term Sheet dated the date hereof and attached hereto.
[Requirements for delivery, if
any, of opinions of counsel, certificates from the Company and the Guarantor or their respective officers or a letter from the
Guarantor’s independent registered public accountants:]
Other terms:
The provisions
of the Global Selling Agency Agreement and the related definitions are incorporated by reference herein and shall be deemed to
have the same force and effect as if set forth in full herein. By accepting this Terms Agreement by signing below, the Company
additionally represents and warrants that this Terms Agreement has been duly authorized, executed and delivered by it.
|
Accepted: CITIGROUP GLOBAL MARKETS
HOLDINGS INC.
|
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By:
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EXHIBIT
C
FORM OF AGENT
ACCESSION CONFIRMATION – PROGRAM
To: [Name and address of new
Agent]
[date]
Citigroup Global Markets Holdings
Inc.
Series N Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling
Agency Agreement dated March 8, 2016 (which agreement, as amended from time to time, is herein referred to as the “
Agency
Agreement
”) entered into in respect of the above Medium-Term Note Program and hereby acknowledge receipt of your Agent
Accession Letter to us dated [•].
In accordance with Section 2(c)
of the Agency Agreement we hereby confirm that, with effect from the date hereof, you shall become a party to, and an Agent under,
the Agency Agreement, vested with all the authority, rights and powers, and subject to all the duties and obligations of an Agent
as if originally named as such under the Agency Agreement.
Yours faithfully,
|
CITIGROUP GLOBAL MARKETS HOLDINGS
INC.
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By:
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Name:
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Title:
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EXHIBIT
D
FORM OF AGENT
ACCESSION LETTER – PROGRAM
To: Citigroup Global Markets
Holdings Inc.
388 Greenwich Street
New York, NY 10013
[date]
Citigroup Global Markets Holdings
Inc.
Series N Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling
Agency Agreement dated March 8, 2016, entered into in respect of the above Medium-Term Note Program and made between Citigroup
Global Markets Holdings Inc. (the “
Company
”), Citigroup Inc. (the “
Guarantor
”) and the Agents
party thereto (which agreement, as amended from time to time, is herein referred to as the “
Agency Agreement
”).
We confirm that we are in receipt
of the documents referenced below (except to the extent we have waived delivery of such documents):
— a
copy of the Agency Agreement;
— a
copy of all documents referred to in Section 5 of the Agency Agreement; and
— a
letter in a form approved by ourselves from each of the legal advisers referred to in Section 5 of the Agency Agreement addressed
to ourselves and giving us the full benefit of the existing legal opinions as of the date of such existing legal opinions, and
have found them to our satisfaction.
For the purposes of Section 9
of the Agency Agreement our notice details are as follows: (insert name, address, telephone, fax, email address and attention).
In consideration of the Company
appointing us as an Agent under the Agency Agreement, we hereby undertake, for the benefit of the Company, the Guarantor and each
of the other Agents, that we will perform and comply with all the duties and obligations expressed to be assumed by an Agent under
or pursuant to the Agency Agreement. We also undertake to deliver to The Depository Trust Company of New York such pricing letters
as it may reasonably require from us in connection with the offer and sale of the Notes.
This letter is governed by, and
shall be construed in accordance with, the laws of the State of New York.
Yours faithfully,
|
[Name of new Agent]
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By:
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Name:
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Title:
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EXHIBIT
E
FORM OF AGENT
ACCESSION CONFIRMATION – NOTE ISSUE
To: [Name and address of new
Agent]
[date]
Citigroup Global Markets Holdings
Inc.
Series N Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling
Agency Agreement dated March 8, 2016 (which agreement, as amended from time to time, is herein referred to as the “
Agency
Agreement
”) entered into in respect of the above Medium-Term Note Program and hereby acknowledge receipt of your Agent
Accession Letter to us dated [•].
In accordance with Section 2(c)
of the Agency Agreement we hereby confirm that, with effect from the date hereof solely in respect of the issue of [•] Notes
due [•] (the “
Issue
”), you shall become a party to, and an Agent under, the Agency Agreement, vested with
all the authority, rights and powers, and subject to all duties and obligations of an Agent in relation to the Issue as if originally
named as such under the Agency Agreement.
Such appointment is limited to
the Issue and is not for any other issue of Notes of the Company pursuant to the Agency Agreement and such appointment will terminate
upon issue of the Notes comprising the Issue but without prejudice to any rights, duties or obligations which have arisen prior
to such termination.
Yours faithfully,
|
CITIGROUP GLOBAL MARKETS HOLDINGS
INC.
|
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By:
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Name:
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Title:
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EXHIBIT
F
FORM OF AGENT
ACCESSION LETTER – NOTE ISSUE
Citigroup Global Markets Holdings
Inc.
388 Greenwich Street
New York, NY 10013
Attention: Assistant Treasurer
Series N Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling
Agency Agreement dated March 8, 2016, entered into in respect of the above Medium-Term Note Program and made between the Company,
Citigroup Inc. and the Agents party thereto (which agreement, as amended from time to time, is herein referred to as the “
Global
Selling Agency Agreement
”).
We confirm that we are in receipt
of the documents referenced below (except to the extent that we have waived delivery of such documents): a copy of the Agency
Agreement and a copy of all documents referred to in Section 5 of the Agency Agreement, and have found them to our satisfaction.
For the purposes of Section 9
of the Agency Agreement our notice details are as follows: (insert name, address, telephone, fax, email address and attention).
In consideration of the Company
appointing us as an Agent solely in respect of the issue of [•] Notes due [•] (the “
Issue
”) under
the Agency Agreement, we hereby undertake, for the benefit of the Company, the Guarantor and each of the other Agents, that in
relation to the Issue we will perform and comply with all the duties and obligations expressed to be assumed by an Agent under
or pursuant to the Agency Agreement.
We acknowledge that such appointment
is limited to the Issue and is not for any other issue of Notes of the Company pursuant to the Agency Agreement and that such
appointment will terminate upon issue of the Notes comprising the Issue but without prejudice to any rights, duties or obligations
which have arisen prior to such termination.
This letter is governed by, and
shall be construed in accordance with, the laws of the State of New York.
Yours faithfully,
|
[Name of new Agent]
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By:
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Title:
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EXHIBIT
G
[date]
To the Agents listed on Schedule
I of the Agency Agreement
Ladies and Gentlemen:
Re: Notice
of New Registration Statement on Form S-3 (No. [ ])
In
accordance with the provisions of the Global Selling Agency Agreement dated March 8, 2016
as supplemented and amended from time to time, between Citigroup Global
Markets Holdings Inc. (the “
Company
”), Citigroup Inc. (the “
Guarantor
”) and the Agents listed
in Schedule I thereto (the “
Agency Agreement
”), we hereby notify you that a Registration Statement on Form
S-3 (No. [ ]) relating to the Notes was filed by the Company and the Guarantor with the U.S. Securities and Exchange Commission
(the “
Commission
”) on [date], (the “
New Registration Statement
”) and became effective upon
filing.
Accordingly,
the file number contained in the definition of “Registration Statement” in the fourth paragraph of the Agency Agreement
shall be hereafter deemed to refer to the file number of the New Registration Statement, and all references in the Agency Agreement
to the “Registration Statement” shall be hereafter deemed to refer to the New Registration Statement.
Very truly
yours,
|
|
CITIGROUP GLOBAL MARKETS HOLDINGS INC.
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By:
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Name:
Title:
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CITIGROUP
INC.
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By:
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Name:
Title:
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CITIGROUP
GLOBAL MARKETS HOLDINGS INC.
Issuer
CITIGROUP
INC.
Guarantor
____________________
INDENTURE
Dated as
of March 8, 2016
Senior Debt
Securities
____________________
THE BANK
OF NEW YORK MELLON
Trustee
This Cross
Reference Sheet, showing the location in the Indenture of the provisions inserted pursuant to Section 310-318(a), inclusive, of
the Trust Indenture Act of 1939, is not to be considered a part of the Indenture.
Trust
Indenture Act Cross Reference Sheet
|
Section of Act
|
Section of Indenture
|
|
310(a)(1)
|
10.06(a)
|
|
310(a)(2)
|
10.06(a)
|
|
310(a)(3)
|
Not applicable
|
|
310(a)(4)
|
Not applicable
|
|
310(b)
|
10.06(b)
|
|
310(c)
|
Not applicable
|
|
311
|
10.09
|
|
312
|
9.01
|
|
313
|
9.04
|
|
314(a)
|
9.03
|
|
314(b)
|
Not applicable
|
|
314(c)
|
17.01(a)
|
|
314(d)
|
Not applicable
|
|
314(e)
|
17.01(a)
|
|
315(a)
|
10.02(b)(i)
|
|
315(b)
|
10.03
|
|
315(c)
|
10.02(a)
|
|
315(d)
|
10.02(b)
|
|
315(e)
|
6.08
|
|
316(a)
|
6.06 and 7.03
|
|
316(b)
|
6.07
|
|
317(a)
|
6.03 and 6.04
|
|
317(b)
|
5.03
|
|
318(a)
|
17.06
|
TABLE
OF CONTENTS
|
|
P
age
|
|
Article One Definitions
|
2
|
|
Section 1.01.
|
Definitions.
|
2
|
|
Section 1.02.
|
Other Interpretive Provisions.
|
11
|
|
Article Two Security Forms
|
12
|
|
Section 2.01.
|
Forms Generally.
|
12
|
|
Section 2.02.
|
Form of Trustee’s Certificate of Authentication.
|
12
|
|
Section 2.03.
|
Form of Trustee’s Certificate of Authentication by an Authenticating Agent.
|
13
|
|
Article Three The Securities
|
13
|
|
Section 3.01.
|
Amount Unlimited; Issuable in Series.
|
13
|
|
Section 3.02.
|
Denominations and Minimum Investment.
|
15
|
|
Section 3.03.
|
Execution, Authentication, Delivery and Dating.
|
15
|
|
Section 3.04.
|
Global Securities.
|
17
|
|
Section 3.05.
|
Registrar and Paying Agent.
|
18
|
|
Section 3.06.
|
Transfer and Exchange.
|
19
|
|
Section 3.07.
|
Mutilated, Destroyed, Lost and Stolen Securities.
|
20
|
|
Section 3.08.
|
Payment of Interest; Interest Rights Preserved.
|
21
|
|
Section 3.09.
|
Cancellation.
|
22
|
|
Section 3.10.
|
Book-Entry Only System.
|
22
|
|
Section 3.11.
|
Currency of Payments in Respect of Securities.
|
23
|
|
Section 3.12.
|
Judgment Currency.
|
23
|
|
Section 3.13.
|
Security Numbers.
|
24
|
|
Article Four Redemption of Securities
|
25
|
|
Section 4.01.
|
Applicability of Right of Redemption.
|
25
|
|
Section 4.02.
|
Selection of Securities to be Redeemed.
|
25
|
|
Section 4.03.
|
Notice of Redemption.
|
25
|
|
Section 4.04.
|
Deposit of Redemption Price.
|
26
|
|
Section 4.05.
|
Securities Payable on Redemption Date.
|
26
|
|
Section 4.06.
|
Securities Redeemed in Part.
|
27
|
|
Article Five Covenants
|
27
|
|
Section 5.01.
|
Payment of Principal and Interest.
|
27
|
|
Section 5.02.
|
Maintenance of Office or Agency.
|
27
|
|
Section 5.03.
|
Money for Securities Payments to be Held in Trust.
|
28
|
TABLE
OF CONTENTS
(continued)
|
|
|
P
age
|
|
Section 5.04.
|
Restrictions on Sales of Voting Stock of Certain Significant Subsidiaries.
|
29
|
|
Section 5.05.
|
Restrictions on Merger, Consolidation, Sale and Lease of Assets.
|
30
|
|
Section 5.06.
|
Compliance Certificate.
|
31
|
|
Section 5.07.
|
Conditional Waiver by Securityholders of Securities.
|
31
|
|
Article Six Remedies of Trustee and Securityholders
|
31
|
|
Section 6.01.
|
Events of Default.
|
31
|
|
Section 6.02.
|
Acceleration; Rescission and Annulment.
|
33
|
|
Section 6.03.
|
Other Remedies.
|
34
|
|
Section 6.04.
|
Trustee as Attorney-in-Fact.
|
34
|
|
Section 6.05.
|
Priorities.
|
35
|
|
Section 6.06.
|
Control by Holders; Waiver of Past Defaults.
|
36
|
|
Section 6.07.
|
Limitation on Suits.
|
36
|
|
Section 6.08.
|
Undertaking for Costs.
|
37
|
|
Section 6.09.
|
Remedies Cumulative.
|
37
|
|
Section 6.10.
|
Meaning of “Series”.
|
38
|
|
Article Seven Concerning the Securityholders
|
38
|
|
Section 7.01.
|
Evidence of Action of Securityholders.
|
38
|
|
Section 7.02.
|
Proof of Execution or Holding of Securities.
|
38
|
|
Section 7.03.
|
Company-Owned Securities Disregarded.
|
39
|
|
Section 7.04.
|
Persons Deemed Owners.
|
39
|
|
Section 7.05.
|
Revocation of Consents.
|
40
|
|
Article Eight Securityholders’ Meetings
|
40
|
|
Section 8.01.
|
Purpose of Meetings.
|
40
|
|
Section 8.02.
|
Call of Meetings by Trustee.
|
41
|
|
Section 8.03.
|
Call of Meetings by Company or Securityholders.
|
41
|
|
Section 8.04.
|
Qualification for Voting.
|
41
|
|
Section 8.05.
|
Regulations.
|
41
|
|
Section 8.06.
|
Voting.
|
42
|
|
Section 8.07.
|
No Delay of Rights by Meeting.
|
42
|
TABLE
OF CONTENTS
(continued)
|
|
P
age
|
|
Article Nine Reports by the Company, THE GUARANTOR and the Trustee and Securityholders’ Lists
|
43
|
|
Section 9.01.
|
Securityholders’ Lists.
|
43
|
|
Section 9.02.
|
Preservation and Disclosure of Lists.
|
43
|
|
Section 9.03.
|
Reports by the Company and the Guarantor.
|
44
|
|
Section 9.04.
|
Reports by the Trustee.
|
45
|
|
Article Ten Concerning the Trustee
|
45
|
|
Section 10.01.
|
Rights of Trustee; Compensation and Security and Indemnity.
|
45
|
|
Section 10.02.
|
Duties of Trustee.
|
48
|
|
Section 10.03.
|
Notice of Defaults.
|
49
|
|
Section 10.04.
|
Limitation of Liability.
|
50
|
|
Section 10.05.
|
Resignation and Removal of Trustee.
|
50
|
|
Section 10.06.
|
Eligibility of Trustee; Disqualification.
|
50
|
|
Section 10.07.
|
Successor by Appointment.
|
51
|
|
Section 10.08.
|
Successor Trustee by Merger.
|
52
|
|
Section 10.09.
|
Limitation on Rights of Trustee as Creditor.
|
52
|
|
Section 10.10.
|
Right to Rely on Officers’ Certificate.
|
53
|
|
Section 10.11.
|
Appointment of Authenticating Agent.
|
53
|
|
Article Eleven Satisfaction and Discharge
|
53
|
|
Section 11.01.
|
Satisfaction and Discharge of Indenture.
|
53
|
|
Section 11.02.
|
Application of Trust Money.
|
54
|
|
Article Twelve Defeasance and Covenant Defeasance
|
55
|
|
Section 12.01.
|
Applicability of Article.
|
55
|
|
Section 12.02.
|
Defeasance and Discharge.
|
55
|
|
Section 12.03.
|
Covenant Defeasance.
|
56
|
|
Section 12.04.
|
Conditions to Defeasance or Covenant Defeasance.
|
56
|
|
Section 12.05.
|
Repayment to Company.
|
57
|
|
Section 12.06.
|
Indemnity for Government Obligations.
|
58
|
|
Section 12.07.
|
Deposits to Be Held in Escrow.
|
58
|
|
Section 12.08.
|
Deposits of Non-U.S. Currencies.
|
58
|
|
Section 12.09.
|
Unclaimed Funds.
|
58
|
TABLE
OF CONTENTS
(continued)
|
|
P
age
|
|
Article Thirteen Immunity of Certain Persons
|
59
|
|
Section 13.01.
|
No Personal Liability.
|
59
|
|
Article Fourteen Sinking Funds
|
59
|
|
Section 14.01.
|
Applicability of Article.
|
59
|
|
Section 14.02.
|
Satisfaction of Sinking Fund Payments with Securities.
|
60
|
|
Section 14.03.
|
Redemption of Securities for Sinking Fund.
|
60
|
|
Article Fifteen Supplemental Indentures
|
60
|
|
Section 15.01.
|
Without Consent of Securityholders.
|
60
|
|
Section 15.02.
|
With Consent of Securityholders; Limitations.
|
62
|
|
Section 15.03.
|
Trustee Protected.
|
63
|
|
Section 15.04.
|
Effect of Execution of Supplemental Indenture.
|
64
|
|
Section 15.05.
|
Notation on or Exchange of Securities.
|
64
|
|
Section 15.06.
|
Compliance with Trust Indenture Act.
|
64
|
|
Article Sixteen guarantee
|
64
|
|
Section 16.01.
|
Unconditional Guarantee.
|
64
|
|
Section 16.02.
|
Execution and Delivery of Guarantee.
|
66
|
|
Section 16.03.
|
Waiver of Subrogation
|
66
|
|
Section 16.04.
|
Restrictions on Sales of Voting Stock of Certain Significant Subsidiaries.
|
67
|
|
Section 16.05.
|
Restrictions on Merger, Consolidation, Sale and Lease of Assets.
|
68
|
|
Section 16.06.
|
Assumption by Guarantor.
|
69
|
|
Section 16.07.
|
Article Sixteen Applicable to Paying Agent
|
69
|
|
Section 16.08.
|
No Suspension of Remedies
|
69
|
|
Article Seventeen Miscellaneous Provisions
|
69
|
|
Section 17.01.
|
Certificates and Opinions as to Conditions Precedent.
|
69
|
|
Section 17.02.
|
What Constitutes Action by Board of Directors.
|
70
|
|
Section 17.03.
|
Notices to the Company, Guarantor and Trustee.
|
70
|
|
Section 17.04.
|
Notices to Securityholders; Waiver.
|
71
|
|
Section 17.05.
|
Consolidation, Merger, Sale or Lease.
|
71
|
|
Section 17.06.
|
Trust Indenture Act to Control.
|
72
|
|
Section 17.07.
|
Force Majeure.
|
72
|
TABLE
OF CONTENTS
(continued)
|
|
|
P
age
|
|
Section 17.08.
|
Legal Holiday.
|
72
|
|
Section 17.09.
|
Separability Clause.
|
73
|
|
Section 17.10.
|
Benefits of Indenture.
|
73
|
|
Section 17.11.
|
Counterparts Originals.
|
73
|
|
Section 17.12.
|
Governing Law, Etc.
|
73
|
|
Section 17.13.
|
Waiver of Jury Trial.
|
73
|
Exhibit A Form
of Global
Note
INDENTURE dated
as of March 8, 2016, by and between Citigroup Global Markets Holdings Inc., a corporation organized and existing under the laws
of the State of New York (the “
Company
”), Citigroup Inc., a corporation organized and existing under the laws
of the State of Delaware, as guarantor (the “
Guarantor
”), and The Bank of New York Mellon, a New York banking
corporation, as trustee (the “
Trustee
”).
W
I T N E S S E T H:
WHEREAS, the
Company is authorized and empowered to borrow money for its purposes and to issue its bonds, debentures, notes and other obligations
for money so borrowed;
WHEREAS, the
Company has duly authorized the issue, in one or more series as in this Indenture provided, from time to time of its senior unsecured
debt securities (the “
Securities
”) and, to provide the general terms and conditions upon which the Securities
are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture;
WHEREAS, the
Guarantor has duly authorized the full and unconditional guarantee of the Securities and, to provide the general terms and conditions
of the Securities and the guarantee of the same, the Guarantor has duly authorized the execution and delivery of this Indenture;
WHEREAS, the
Trustee has power to enter into this Indenture and to accept and execute the trust herein created; and
WHEREAS, each
of the Company and the Guarantor jointly and severally represents that all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in this Indenture provided, and paid for and issued,
the valid, binding and legal obligation of the Company, will, at the time of such execution, authentication and delivery, have
been done and performed, that all acts and things necessary to constitute these presents a valid indenture and agreement according
to its terms have been done and performed, that the execution of this Indenture has in all respects been duly authorized and that
the issue hereunder of the Securities will, at the time of the issue thereof, have in all respects been duly authorized, and each
of the Company and the Guarantor, in the exercise of each and every legal right and power in it vested, executes this Indenture
and proposes to make, execute, issue and deliver, in the case of the Company, and guarantee, in the case of the Guarantor, the
Securities;
NOW, THEREFORE:
That, for the
benefit of the other parties and for the equal and proportionate benefit of all of the present and future holders of the Securities,
each party agrees and covenants as follows:
Article One
Definitions
Section 1.01.
Definitions.
Except as
otherwise expressly provided in this Indenture or unless the context otherwise requires, the terms defined in this
Section 1.01
for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this
Section 1.01
. All other terms used in this Indenture which are defined in the Trust Indenture Act or which are
by reference therein defined in the Securities Act shall have the meanings assigned to such terms therein. All accounting terms
used in this Indenture and not expressly defined shall have the meaning assigned to such terms in accordance with U.S. generally
accepted accounting principles, as are generally accepted at the time of any computation. The words “
herein
”,
“
hereof
” and “
hereunder
” and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.
Affiliate:
The term “
Affiliate
”,
with respect to any specified Person, shall mean 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 or 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:
The term “
Authenticating
Agent
” shall have the meaning specified in
Section 10.11
.
Board
of Directors:
The term “
Board
of Directors
” shall mean either the board of directors of the Company or the Guarantor, as applicable, or the executive,
funding or any other committee of that board duly authorized to act in respect hereof.
Board
Resolution:
The term “
Board
Resolution
” shall mean a copy of a resolution(s) certified by the Secretary or an Assistant Secretary of the Company
or the Guarantor, as applicable, 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. Where any provision of this Indenture refers to action to be taken pursuant
to a Board Resolution (including the establishment of any series of the Securities and the forms and terms thereof), such action
may be taken by any committee of the Board of Directors of the Company or the Guarantor, as applicable or any officer or employee
of
the Company or the Guarantor, as applicable, authorized to take such action by a Board Resolution.
business
day:
The term “
business
day
”, when used with respect to any particular location referred to in this Indenture or in the Securities, shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in such location are authorized
or obligated by law or executive order to close.
cash;
Currency:
The terms “
cash
”
and “
Currency
” shall mean U.S. Dollars or any Security Currency.
Company:
The
term “
Company
” shall mean Citigroup Global Markets Holdings Inc., a corporation organized and existing under
the laws of the State of New York and, subject to the provisions of
Section 5.05
, shall also include its successors
and assigns.
Company
Order; Company Request:
The term “
Company
Order
” or “
Company Request
” shall mean, respectively, a written order or request signed in the name
of the Company by the Chairman of the Board of Directors, a Vice Chairman, the President, the Chief Financial Officer, the Chief
Accounting Officer, any Vice President, the Treasurer, a Deputy Treasurer, the General Counsel or any Assistant Treasurer of the
Company, or a person authorized by such person or by or pursuant to a Board Resolution, and delivered to the Trustee.
Corporate
Trust Office:
The term “
Corporate
Trust Office
”, or other similar term, shall mean the principal office of the Trustee in New York, New York, at which
at any particular time its corporate trust business shall be administered, which office at the date hereof is located at 101 Barclay
Street, Floor 7 East, New York, New York 10286, Attention: Corporate Trust Administration, or such other address as the Trustee
may designate from time to time by notice to the holders and the Company and the Guarantor, or the principal corporate trust office
of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the holders,
the Company and the Guarantor).
Default:
The term “
Default
”
shall have the meaning specified in
Section 10.03
.
Defaulted
Interest:
The term “
Defaulted
Interest
” shall have the meaning specified in
Section 3.08(b)
.
Definitive
Security:
The term “
Definitive
Security
” shall mean any Security, evidencing all or a part of a series of Securities, issued in fully registered certificated
form (other than a Global Security).
Depositary:
The term “
Depositary
”,
with respect to the Securities of any series issuable in the form of one or more Global Securities, shall mean the Person designated
as Depositary by the Company pursuant to
Section 3.01
until a successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who
is then a Depositary hereunder, and if at any time there is more than one such Person, “
Depositary
” as used
with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
Designated
Currency
The term “Designated
Currency” shall have the meaning specified in
Section 3.12
.
Event
of Default:
The term “
Event
of Default
” shall have the meaning specified in
Section 6.01
.
Exchange
Act:
The term “
Exchange
Act
” shall mean the Securities Exchange Act of 1934.
Foreign
Currency:
The term “
Foreign
Currency
” shall mean a currency issued by the government of any country or economic union other than the United States
or a composite currency, the value of which is determined by reference to the values of the currencies of any group of countries.
Global
Security:
The term “
Global
Security
” shall mean any Security evidencing all or part of a series of Securities, issued in fully registered certificated
form to the Depositary for such series in accordance with
Section 3.04
, which shall be substantially in the form of
Exhibit A
or in such other form as may be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto.
Government
Obligations:
The term “
Government
Obligations
” shall mean (a) direct obligations of a sovereign other than the United States or an entity described in
Rule 902(k)(2)(vi) under the Securities Act or (b) U.S. Government Obligations.
Guarantee:
The term “
Guarantee
”
shall mean the guarantee of the Company’s obligations to the Securityholders under this Indenture and the Securities by
the Guarantor pursuant to
Article Sixteen
.
Guarantor:
The term “
Guarantor
”
shall mean Citigroup Inc., a Delaware corporation, and its successors and permitted assigns.
Indebtedness:
The term “
Indebtedness
”
shall mean any and all obligations of a Person for money borrowed which in accordance with generally accepted accounting principles
would be reflected on the balance sheet of such Person as a liability on the date as of which Indebtedness is to be determined.
Indenture:
The term “
Indenture
”
shall mean, with respect to a series of Securities, this indenture, all applicable supplemental indentures and the relevant Board
Resolution.
interest:
The term “
interest
”
shall mean interest payable on any Security, and, when used with respect to an Original Issue Discount Security which by its terms
accrues interest only after Maturity, means interest payable after Maturity.
Interest
Payment Date:
The term “
Interest
Payment Date
”, with respect to any Security, shall mean the Stated Maturity of an installment of interest on such Security,
as specified in or pursuant to the relevant Board Resolution or supplemental indenture, as applicable.
Investment
Company Act:
The term “
Investment
Company Act
” shall mean the Investment Company Act of 1940.
Mandatory
Sinking Fund Payment:
The term “
Mandatory
Sinking Fund Payment
” shall have the meaning specified in
Section 14.01(b)
.
Maturity;
Maturity Date:
The term “
Maturity
”
or “
Maturity Date
”, with respect to any Security, shall mean the date on which the principal of such Security
shall become due and payable as therein and herein provided, whether by declaration, call for redemption or otherwise.
Members:
The term “
Members
”
shall have the meaning specified in
Section 3.04(c)
.
Officers’
Certificate:
The term “
Officers’
Certificate
” when used (i) with respect to the Company, shall mean a certificate signed by the Chairman of the Board
of Directors, a Vice Chairman, the President, the Chief Financial Officer, the Chief Accounting Officer, the General Counsel,
a Deputy General Counsel, a Vice President, the Controller, the Treasurer or a Deputy Treasurer, and by an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company and (ii) with respect to the Guarantor, shall mean a certificate signed
by the Chairman of the Board of Directors, a Vice Chairman, the President, the Chief Financial Officer, the Chief Accounting Officer,
the General Counsel, a Vice President, the Treasurer or a Deputy Treasurer and by an Assistant Treasurer, the Secretary or any
Assistant Secretary of the Guarantor, or, in each case, a person authorized by such person or by or pursuant to a Board Resolution,
and delivered to the Trustee. Each such certificate shall include the statements provided for in
Section 17.01
if
and to the extent required by the provisions of
Section 17.01
.
Opinion
of Counsel:
The term “
Opinion
of Counsel
” shall mean an opinion satisfactory to the Trustee in writing signed by legal counsel, who may be an employee
of or of counsel to the Company or the Guarantor, or may be other counsel to the Company or the Guarantor. Each such opinion shall
include the statements provided for in
Section 17.01
if and to the extent required by the provisions of
Section 17.01
.
Optional
Sinking Fund Payment:
The term “
Optional
Sinking Fund Payment
” shall have the meaning specified in
Section 14.01(b)
.
Original
Issue Discount Security:
The term “
Original
Issue Discount Security
” means any Security which provides in all circumstances for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02
.
Outstanding:
The term “
Outstanding
”,
with respect to a series of Securities, shall mean, as of the date of determination, all Securities of such series theretofore
authenticated and delivered under this Indenture, including Securities owned by the Company or any other obligor upon the Securities,
or any Affiliate of the Company or of such other obligor,
except
:
(1)
Securities of such series theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(2)
Securities of such series or portions thereof for which 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 or for its obligations with respect to which
the Company shall have been discharged;
provided
,
however
, that if such Securities or portions thereof 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;
(3)
Securities of such series that have been paid pursuant to
Section 3.07
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; and
(4)
Securities of such series or portions thereof as to which the Company shall have deposited in trust funds or Government Obligations
and complied with other conditions as specified in
Section 12.04
;
provided
,
however
, that in determining whether the holders of the requisite principal amount of Securities Outstanding of a series
have performed any action 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, except that, in determining whether
the Trustee shall be protected in relying upon any such action, only Securities that a Responsible Officer of the Trustee knows
to be so owned shall be disregarded;
provided further
that in determining whether the holders of the requisite principal
amount of the Securities then Outstanding have given any request, demand, authorization, direction, notice, consent or waiver
hereunder (A) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to
Section 6.02
and (B) the principal amount of any other Security
that shall be deemed to be Outstanding for such purposes shall be the amount designated on the face thereof as its principal amount,
stated principal amount, face amount or similar term. Securities so owned that 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 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:
The term “
Paying
Agent
” shall mean any Person authorized by the Company to pay the principal of or interest on any Securities on behalf
of the Company and which shall initially be Citibank, N.A.
Person:
The term “
Person
”
shall mean an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a
trust, an unincorporated organization, or a government or an agency or political subdivision thereof.
Place
of Payment:
The term “
Place
of Payment
”, with respect to any Security, shall mean the place or places where the principal of and/or interest on
the Securities of that series are payable as specified pursuant to
Section 3.01
.
principal:
The term “
principal
”
shall mean principal (including any premium) payable on any Security. With respect to Securities described in
Section 3.01(b)(vi)
,
in the context of the amount payable at Maturity, upon acceleration pursuant to
Section 6.02
or upon redemption pursuant
to
Article Four
, the term “
principal
” shall mean the amount of cash or property payable on such Securities
at Maturity, upon acceleration or upon redemption, as applicable, as specified under the terms of such Securities.
Record
Date:
The term “
Record
Date
”, with respect to any interest payable on any Security on any Interest Payment Date, shall mean the date specified
in such Security for the payment of interest pursuant to
Section 3.01
or, if no such date is so specified, the close
of business on the business day preceding such Interest Payment Date.
Redemption
Date:
The term “
Redemption
Date
”, with respect to any Security to be redeemed in whole or in part, shall mean the date fixed for such redemption
by or pursuant to this Indenture and the terms of such Security.
Redemption
Price:
The term “
Redemption
Price
”, when used with respect to any Security to be redeemed, shall mean the price at which it is to be redeemed as
therein provided or specified in or pursuant to the relevant Board Resolution or supplemental indenture, as applicable or, if
no such price is so provided or specified, the principal amount thereof, plus accrued and unpaid interest, if any, to, but not
including, the Redemption Date.
Register:
The term “
Register
”
shall have the meaning specified in
Section 3.05(a)
.
Registrar:
The term “
Registrar
”
shall have the meaning specified in
Section 3.05(a)
.
Responsible
Officer:
The term “
Responsible
Officer
” of the Trustee hereunder shall mean any officer associated with the corporate trust department of the Trustee
and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because
of such person’s knowledge of and familiarity with the particular subject and, who shall have direct responsibility for
the administration of this Indenture.
SEC:
The term “
SEC
”
shall mean the U.S. Securities and Exchange Commission.
Securities
Act:
The term “
Securities
Act
” shall mean the Securities Act of 1933.
Security:
The term “
Security
”
shall mean one of the Securities of a series duly authenticated by the Trustee and delivered pursuant to the provisions of this
Indenture.
Security
Currency:
The term “
Security
Currency
”, with respect to Securities of any series, shall mean the currency in which such Securities are denominated
and/or payable as specified in or pursuant to the Board Resolution for such series.
Security
Custodian
:
The term “
Security
Custodian
” shall mean the custodian with respect to any Global Security appointed by the Depositary, or any successor
Person thereto, and shall initially be the Paying Agent.
Securityholder;
holder of Securities;
holder; registered holder:
The term “
Securityholder
”
or “
holder of Securities
” or “
holder
” or “
registered holder
” shall mean
the Person in whose name such Security shall be registered in the Register kept for that purpose hereunder.
Significant
Subsidiary:
The term “
Significant
Subsidiary
” shall have the meaning specified in
Section 5.04(c)
or
Section 16.04(c)
, as applicable.
Special
Record Date:
The term “
Special
Record Date
” shall have the meaning specified in
Section 3.08(b)(i)
.
Stated
Maturity:
The term “
Stated
Maturity
”, with respect to any Security or any installment of interest thereon, shall mean the date specified in such
Security as the fixed date on which the principal (or any portion thereof) of such Security or such installment of interest is
due and payable.
Subsidiary:
The term “
Subsidiary
”,
when used with respect to any Person, shall mean any corporation or other entity of which a majority of the voting power of the
voting equity securities or in the case of a partnership or any other entity other than a corporation, the outstanding equity
interests, are owned, directly or indirectly, by such Person. For the purposes of this definition, “voting equity securities”
means equity securities having voting power for the election of directors, whether at all times or only so long as no senior class
of securities has such voting power by reason of any contingency.
Trust
Indenture Ac
t:
The term “
Trust
Indenture Act
” shall mean the Trust Indenture Act of 1939.
Trustee:
The term “
Trustee
”
shall mean the trustee hereunder for the time being, whether original or successor, and if at any time there is more than one
such trustee, “
Trustee
” as used with respect to the Securities of such series shall mean the trustee with respect
to Securities of that series.
U.S.
Dollars:
The term “
U.S.
Dollars
” shall mean such currency of the United States as at the time of payment shall be legal tender for the payment
of public and private debts.
U.S.
Government Obligations:
The term “
U.S.
Government Obligations
” shall mean securities that are either (1) direct obligations of the United States for the
payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States, the timely of payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States that, in either case under
clause (1)
or
(2)
, are not callable or
redeemable at the action of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such
U.S. Government Obligation held by such custodian for the account of the holder of a depositary
receipt;
provided
that
(except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such depositary receipt.
United
States; U.S.:
The term “
United
States
” or “
U.S.
” shall mean the United States of America (including the States and the District
of Columbia), its territories and its possessions and other areas subject to its jurisdiction.
Voting
Stock:
The term “
Voting
Stock
” shall have the meaning specified in
Section 5.04(b)
or
Section 16.04(b)
, as applicable.
Section 1.02.
Other Interpretive Provisions.
(a)
The definitions of terms in this Indenture shall apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “
include
”,
“
includes
” and “
including
” shall be deemed to be followed by the phrase “
without
limitation
”. The word “
will
” shall be construed to have the same meaning and effect as the word “
shall
”.
Unless the context requires otherwise:
(i)
any definition of or reference to any agreement, instrument or other document shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented, restated or otherwise modified in accordance with the
terms hereof and thereof (subject to any restrictions on such amendments, supplements, restatements or modifications set forth
herein),
(ii)
any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns,
except
that references herein to the Company, the Guarantor or the Trustee shall include such Person’s successors and permitted
assigns only to the extent explicitly permitted as set forth herein,
(iii)
any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law shall, unless otherwise specified, refer to such law as amended, modified or supplemented
from time to time, and
(iv)
the words “
asset
” and “
property
” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b)
In the computation of periods of time from a specified date to a later specified date, the word “
from
” means
“
from and including
;” the words “
to
” and “
until
” each mean “
to
but excluding
;” and the word “
through
” means “
to and including
”.
(c)
Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Indenture.
Article Two
Security Forms
Section 2.01.
Forms Generally.
(a)
The Securities of each series shall be substantially in the form of
Exhibit A
hereto or such other form as shall be
established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, and shall have 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 or designation and such legends or endorsements placed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which any series
of the Securities may be listed or of any automated quotation system on which any such series may be quoted, or to conform to
usage, all as determined by the officers executing such Securities as conclusively evidenced by their execution of such Securities.
(b)
In the event that Definitive Securities are to be issued, either originally or in exchange for interests in a Global Security,
the form thereof shall be as set forth in or pursuant to a Board Resolution.
(c)
The terms and provisions of each series of Securities as reflected in or pursuant to the Board Resolution(s) or supplemental indenture(s)
which establish such series of Securities shall constitute, and are hereby expressly made, a part of this Indenture.
(d)
In the event of any conflict or inconsistency between the terms of this Indenture and the terms of the related supplemental indenture(s)
or Board Resolution(s), the terms of such supplemental indenture(s) or Board Resolution(s), as applicable, shall govern.
Section 2.02.
Form of Trustee’s Certificate of Authentication.
(a)
Only such of the Securities as shall bear thereon a certificate substantially in the form of the Trustee’s certificate of
authentication hereinafter recited, executed by the Trustee by manual signature, shall be valid or become obligatory for any purpose
or entitle the holder thereof to any right or benefit under this Indenture, and the certificate of authentication by the Trustee
upon any such Security executed on behalf of the Company as aforesaid shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder thereof is entitled to the benefits of this Indenture.
(b)
Each Security shall be dated the date of its authentication,
except
that any Global Security may be dated as of the date
specified as contemplated in
Section 3.01(b)(xv)
.
(c)
The form of the Trustee’s certificate of authentication to be borne by the Securities shall be substantially as set forth
in
Exhibit A
.
Section 2.03.
Form of Trustee’s Certificate of Authentication by an Authenticating Agent.
If at any
time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee’s certificate
of authentication by such Authenticating Agent to be borne by Securities of each such series shall be substantially as set forth
in
Exhibit A
.
Article Three
The Securities
Section 3.01.
Amount Unlimited; Issuable in Series.
(a)
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
(b)
The Securities may be issued in one or more series. There shall be established by or pursuant to a Board Resolution or in such
other manner as the Company and the Trustee (or any Authenticating Agent) may agree, or established in one or more supplemental
indentures, prior to the issuance of Securities of any series:
(i)
the title of the Securities of the series (which shall distinguish the Securities of such series from the Securities of all
other series,
except
to the extent that additional Securities of an existing series are being issued);
(ii)
any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other Securities
of such series pursuant to
Section 3.06
,
Section 3.07
or
Section 4.06
);
(iii)
the dates on which or periods during which the Securities of the series may be issued, and the dates on, or the range of dates
within, which the principal of the Securities of such series are or may be payable;
(iv)
the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall
be determined, the Interest Payment Dates on which any such interest shall be payable, and the Record Dates for the determination
of holders to whom interest is payable on such Interest Payment Dates;
(v)
if other than U.S. Dollars, the Currency in which Securities of the series shall be denominated or in which payment of the
principal of or interest on the Securities of the series shall be payable and any other terms concerning such payment;
(vi)
if the amount of payment of principal of or interest on the Securities of the series, or the type of property in which the
payment of principal or interest may be made, may be determined with reference to an index, formula or other method including,
but not limited to, an index based on a Currency or Currencies other than that in which the Securities are stated to be payable
or the price or level of one or more equity securities, equity indices, commodities, commodity indices, currencies, interest rates
or any other index or measure, or of one or more of the foregoing, the manner in which such amounts shall be determined;
(vii)
if the principal of or interest on Securities of the series are to be payable, at the election of the Company or a holder
thereof, in a Currency other than that in which the Securities are denominated or stated to be payable without such election,
the period or periods within which, and the terms and conditions upon which, such election may be made and the time and the manner
of determining the exchange rate between the Currency in which the Securities are denominated or payable without such election
and the Currency in which the Securities are to be paid if such election is made;
(viii)
the place or places, if any, in addition to or instead of the Corporate Trust Office where the principal of and interest on
Securities of the series shall be payable;
(ix)
the price or prices at which, the period or periods within which or the date or dates on which, and the terms and conditions
upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to
have that option;
(x)
the obligation, if any, of the Company to redeem, purchase or repay Securities of the series at the option of a holder thereof
and the price or prices at which, the period or periods within which or the date or dates on which, and the terms and conditions
upon which, Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(xi)
if other than minimum denominations of $1,000 or any integral multiple thereof, the minimum denominations in which Securities
of the series shall be issuable;
(xii)
if other than the principal amount thereof, the portion of the principal amount of the Securities of the series which shall
be payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.02
;
(xiii)
provisions, if any, for the defeasance of Securities of the series or the applicability of a sinking fund to the series;
(xiv)
the Depositary for the Global Security or Securities and the terms and conditions, if any, upon which interests in such Global
Security or Securities may be exchanged in whole or in part for the individual Securities represented thereby;
(xv)
the date as of which any Global Security of the series shall be dated if other than the original issuance of the first Security
of the series to be issued;
(xvi)
the form of the Securities of the series; and
(xvii)
any other terms of the Securities of the series, including additional conditions to closing, Events of Default and/or covenants
of the Company and/or the Guarantor not inconsistent with this Indenture or Federal or applicable State securities laws.
(c)
All Securities of any one series shall be substantially identical, except as to denomination and except as may otherwise be provided
by or pursuant to such Board Resolution, or in any such supplemental indenture.
Section 3.02.
Denominations and Minimum Investment.
(a)
In the absence of any specification otherwise pursuant to
Section 3.01
with respect to Securities of any series and
subject to
Section 3.02(b)
, the Securities of such series shall be issuable only in registered form in denominations
of any integral multiple of $1,000, and shall be payable only in U.S. Dollars.
(b)
If the Securities of any series are issued in a Currency other than U.S. Dollars, the denominations shall be the approximate equivalents
of the amounts specified in
Section 3.02(a)
, as determined by the Company using commercially reasonable judgment,
and such Securities shall be payable only in the Currency in which the Securities are denominated.
Section 3.03.
Execution, Authentication, Delivery and Dating.
(a)
The Securities shall be executed in the name and on behalf of the Company by the manual, facsimile or electronic signature of
its Chairman of the Board of Directors, a Vice Chairman, its President, the Chief Financial Officer, the Chief Accounting Officer,
the Treasurer, an Assistant Treasurer, the Controller, the General Counsel, a Deputy General Counsel or any Vice President, or
a person authorized by such person or by or pursuant to a Board Resolution, under its corporate seal (which may be printed, engraved
or otherwise reproduced thereon, by facsimile or otherwise), which shall be attested by the manual, facsimile or electronic signature
of its Secretary or an Assistant Secretary. If the Person whose signature is on a Security no longer holds that office at the
time the Security is authenticated and delivered, the Security shall nevertheless be valid.
(b)
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. The Trustee shall thereupon authenticate and deliver such Securities without any further action by the Company.
The Company Order shall specify the amount of such Securities to be authenticated and the date on which the original issue of
such Securities is to be authenticated.
(c)
In authenticating the first Securities of any series and accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall receive, and (subject to
Section 10.02
) shall be fully protected in relying
upon:
(i)
the supplemental indenture or Board Resolution relating thereto;
(ii)
an Officers’ Certificate of the Company and the Guarantor prepared in accordance with
Section 17.01
, which
will also advise as to the absence of any event that is, or after notice or lapse of time or both would become, an Event of Default;
and
(iii)
an Opinion of Counsel prepared in accordance with
Section 17.01
, which shall also state:
(A)
that the form and terms of such Securities have been established by or pursuant to one or more Board Resolutions, by a supplemental
indenture as permitted by
Section 15.01(a)(ix)
, or by both such resolution or resolutions and such supplemental indenture,
in conformity with the provisions of this Indenture;
(B)
that the supplemental indenture, if any, when executed and delivered by the Company, the Guarantor and the Trustee, will constitute
a valid and legally binding obligation of the Company and the Guarantor;
(C)
that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, and will be entitled to the benefit of this Indenture;
(D)
that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(E)
that the Guarantor has the corporate power to guarantee the Securities, and has duly taken all necessary action with respect
to such guarantee;
(F)
that the issuance of such Securities will not contravene the certificate of incorporation or by-laws of the Company or the
Guarantor or result in any violation of any of the terms or provisions of any law or regulation or of any indenture, mortgage
or other agreement by which the Company or the Guarantor is bound and, with respect to the Guarantor, under which long-term debt
of the Guarantor as reflected in its latest financial statements on file with the SEC is Outstanding; and
(G)
that all requirements of this Indenture applicable to the Company in respect of the execution and delivery by the Company
of such Securities and applicable to the Guarantor in respect of the Guarantee and of such supplemental indenture, if any, have
been complied with and that, assuming (1) all requisite corporate authorization on the part of the Trustee, (2) continued compliance
by the Trustee with the terms of the Indenture specifically applicable to the Trustee,
and (3) due authentication and delivery
of such Securities by the Trustee, the execution and delivery of such supplemental indenture, if any, will not violate the terms
of this Indenture, and that, other than compliance with federal and state securities laws, no authorization, approval or consent
by any regulatory or statutory or other public authority is required in connection with the execution and delivery of such supplemental
indenture or for the creation, issuance, authentication and delivery of the Securities pursuant to this Indenture.
(d)
The Trustee shall have the right to decline to authenticate and deliver the Securities under this
Section 3.03
if
the issue of the 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.
(e)
Each Security shall be dated the date of its authentication, except as otherwise provided pursuant to
Section 3.01
with respect to the Securities of such series.
(f)
Notwithstanding the provisions of
Section 3.01
and of this
Section 3.03
, if all of the Securities of any
series are not to be originally issued at the same time, then the documents required to be delivered pursuant to this
Section 3.03
must be delivered only once, prior to the authentication and delivery of the first Security of such series, with appropriate
modifications to the information otherwise required to be set forth in such documents to account for the fact that the Securities
of such series may be issued at different times, in different amounts and with different terms.
Section 3.04.
Global Securities.
(a)
Unless otherwise provided by or pursuant to a Board Resolution or supplemental indenture pursuant to
Section 3.01
,
the Securities will be issued as Global Securities, and the Depositary will be The Depository Trust Company, New York, New York.
The Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities, substantially in the form
of
Exhibit A
or such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal
amount of the Outstanding Securities of such series to be represented by such Global Securities, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary’s instruction. The aggregate principal amount of each Global
Security may from time to time be increased or decreased by adjustments made on the records of the Security Custodian, as provided
in this Indenture and in or pursuant to a Board Resolution pursuant to
Section 3.01
.
(b)
Each Depositary designated pursuant to this Indenture must, at the time of its designation and at all times while it serves as
such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation or Clearstream
Banking S.A., The Euroclear System, CREST and any other securities depository, book-entry system or clearing agency (and their
respective successors and assignees) located outside the United States
which is so authorized to act under applicable law and
identified to the Trustee, the Company and the Guarantor from time to time.
(c)
Members of, or participants in, the Depositary (“
Members
”) shall have no rights under this Indenture with respect
to any Global Security held on their behalf by the Depositary or by the Security Custodian under such Global Security, and the
Depositary may be treated by the Company, the Guarantor, the Trustee, the Paying Agent and the Registrar and any of their agents
as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Guarantor, 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 Depositary or impair, as between the Depositary and its
Members, the operation of customary practices of the Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Security. The registered holder of a Global Security may grant proxies and otherwise authorize any Person,
including Members and Persons that may hold interests through Members, to take any action that a holder is entitled to take under
this Indenture or the Securities.
(d)
Except as provided below in this
Section 3.04(d)
, owners of beneficial interests in Global Securities will not be
entitled to receive Definitive Securities in exchange for such beneficial interests. Definitive Securities shall be issued to
all owners of beneficial interests in a Global Security in exchange for such beneficial interests if (A) the Depositary notifies
the Company that it is unwilling or unable to continue as depositary for such Global Security and a successor depositary is not
appointed by the Company within 90 days of such notice, or (B) the Depositary ceases to meet the requirements described in
Section 3.04(b)
,
at a time when the Depositary is required to do so in order to act as depositary and the Company notifies the Trustee that it
is unable to locate a qualified successor Depositary or (C) the Company issues a Company Order to the Trustee to allow some or
all of the Global Securities to be exchangeable for Definitive Securities. In connection with the exchange of an entire Global
Security for Definitive Securities pursuant to this
Section 3.04(d)
, such Global Security shall be deemed to be surrendered
to the Trustee for cancellation, and the Company shall execute, and upon Company Order the Trustee shall authenticate and deliver
to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of Definitive Securities of authorized denominations, and the Registrar shall register such exchanges
in the Register.
Section 3.05.
Registrar and Paying Agent.
(a)
The Company hereby appoints Citibank, N.A. as Registrar and Paying Agent in connection with the Securities and this Indenture,
until such time as another Person is appointed as such. The Registrar shall keep, at an office or agency to be maintained by it
in New York, New York, and, if so designated by the Company, in any other office or agency in or outside of the United States,
where Securities may be presented for registration or presented and surrendered for registration of transfer or of exchange (the
“
Registrar
”), a security register for the registration and the registration of transfer or of exchange of the
Securities (the registers maintained in such New York office and in any other office or agency in or outside the United States
being herein sometimes collectively referred to as the “
Register
”), as in this Indenture provided, which Register
shall at all reasonable times be open for inspection by the Trustee.
Such Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. The Company or any Affiliate of the Company may act as
Registrar, Paying Agent or transfer agent. The Company may have one or more co-Registrars; the term “
Registrar
”
includes any co-registrar.
(b)
The Company shall enter into an appropriate agency agreement with any other Registrar or Paying Agent not a party to or signatory
on this Indenture, which agreement shall implement the provisions of this Indenture that relate to such agent, and the Company
shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such upon written direction from the Company or upon receipt by a Responsible Officer of other written
notification that the Company has failed to maintain a Registrar or Paying Agent and shall be entitled to appropriate compensation
therefor pursuant to
Section 10.01
.
Section 3.06.
Transfer and Exchange.
(a)
Subject to the other provisions of this
Section 3.06
, when Securities are presented to the Registrar with a request
to register the transfer of such Securities or to exchange such Securities for an equal principal amount of Securities of other
authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for
such transaction are met;
provided
that any Securities 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, duly executed
by the holder thereof or such holder’s attorney duly authorized in writing.
(b)
To permit registrations of transfers and exchanges and subject to the other terms and conditions of this
Article Three
,
the Company will execute and, upon Company Order, the Trustee or the Authenticating Agent will authenticate and make available
for delivery Definitive Securities and Global Securities, as applicable, at the Registrar’s request.
(c)
No service charge shall be made to a holder for any registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar governmental charges payable in connection therewith (other
than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to
Article
Four
).
(d)
The Registrar shall not be required to register the transfer of or exchange of
(i)
any Security for a period beginning
(A)
15 days before the
delivering of a notice of an offer to repurchase or redeem Securities
and ending at the close of business on the day of such delivering or
(B)
15 days before an Interest Payment Date and ending
on such Interest Payment Date and
(ii)
any Security selected for repurchase or redemption, except the unrepurchased or
unredeemed portion thereof, if any.
(e)
Prior to the due presentation for registration of transfer of any Security, the Company, the Guarantor, the Trustee, the Paying
Agent or the Registrar may deem and treat the holder thereof as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other purposes whatsoever, whether or not
such Security is overdue,
and none of the Company, the Guarantor, the Trustee, the Paying Agent or the Registrar or the Security Custodian shall be affected
by notice to the contrary.
(f)
All Securities issued upon any 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 Securities surrendered upon such transfer or exchange.
(g)
Subject to this
Section 3.06
, in connection with the exchange of a portion of a Definitive Security for a beneficial
interest in a Global Security, the Trustee shall cancel such Definitive Security, and the Company shall execute, and upon Company
Order the Trustee shall authenticate and make available for delivery to the exchanging holder, a new Definitive Security representing
the principal amount not so exchanged.
(h)
Neither the Trustee nor the Registrar shall have any 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 Security (including any transfers between or among beneficial owners of interests in any Global Security) 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 compliance with the express requirements
hereof.
Section 3.07.
Mutilated, Destroyed, Lost and Stolen Securities.
(a)
If (i) any mutilated Security is surrendered to the Trustee at the Corporate Trust Office or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company
and the Trustee security and indemnity satisfactory to them to save each of them and any Paying Agent harmless, and neither the
Company nor the Trustee has received notice that such Security has been acquired by a protected purchaser, then the Company shall
execute and upon Company Request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of the same series and of like tenor, form, terms and principal amount, bearing
a number not contemporaneously Outstanding.
(b)
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 the amount due on such Security in accordance with its terms.
(c)
Upon the issuance of any new Security under this
Section 3.07
, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in respect thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
(d)
Every new Security of any series issued pursuant to this
Section 3.07
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.
(e)
The provisions of this
Section 3.07
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 3.08.
Payment of Interest; Interest Rights Preserved.
(a)
Generally
.
(i)
Except as otherwise specified pursuant to
Section 3.01
, interest on any Security that is payable and is punctually
paid or duly provided for on any Interest Payment Date shall be paid to the Person in whose name such Security is registered at
the close of business on the Record Date for such interest notwithstanding the cancellation of such Security upon any transfer
or exchange subsequent to the Record Date. Payment of interest on Securities shall be made at the Corporate Trust Office (except
as otherwise specified pursuant to
Section 3.01
) or, if any, at such other office of the Paying Agent in New York,
New York or, at the option of the Company, by check mailed to the address of the Person entitled thereto as such address shall
appear in the Register or, if provided pursuant to
Section 3.01
and in accordance with arrangements satisfactory to
the Trustee, at the option of the registered holder by wire transfer to an account designated by the registered holder.
(ii)
Except as otherwise specified pursuant to
Section 3.01
, accrued interest on each Security shall be payable by
the Company in arrears on each Interest Payment Date and on the Maturity Date.
(b)
Defaulted Interest
. Any interest on any Security that 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 registered
holder on the relevant Record Date by virtue of his or her having been such a registered holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in this
Section 3.08(b)
.
(i)
The Company may elect to make payment of any Defaulted Interest to the Persons in whose names such Securities are registered
at the close of business on a special record date for the payment of such Defaulted Interest (a “
Special Record Date
”),
which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, 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 provided in this
Section 3.08(b)(i)
.
Thereupon the Trustee, at the direction of the Company, shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 calendar days and not less than 10 calendar days prior to the date of the proposed payment and
not less than 10 calendar 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 delivered to the holders of such Securities, not
less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been delivered as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities are registered at the close of business on such Special Record Date and shall no longer be payable pursuant
to
Section 3.08(b)(ii)
below.
(ii)
The Company may alternatively make payment of any Defaulted Interest on Securities in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to
Section 3.08(b)(i)
,
such manner of payment shall be deemed practicable by the Trustee.
(c)
Subject to the provisions set forth herein relating to Record Dates, each Security delivered pursuant to any provision of this
Indenture in exchange or substitution for, or upon registration of transfer of, any other Security shall carry all the rights
to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.09.
Cancellation.
Unless otherwise
specified in or pursuant to a Board Resolution or supplemental indenture pursuant to
Section 3.01
for Securities of
any series, all Securities surrendered for payment, redemption, registration of transfer or exchange or otherwise shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee for cancellation and shall be promptly canceled by it and, if
surrendered to the Trustee, shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this
Section 3.09
, except as expressly permitted by this Indenture. The
Trustee shall dispose of all canceled Securities held by it in accordance with its then customary procedures and deliver a certificate
of such disposal to the Company upon written request by the Company. The acquisition of any Securities by the Company shall not
operate as a redemption or satisfaction of the indebtedness represented thereby unless and until such Securities are surrendered
to the Trustee for cancellation.
Section 3.10.
Book-Entry Only System.
If specified
by the Company pursuant to
Section 2.01
with respect to Securities represented by a Global Security, a series of Securities
may be issued initially in book-entry only form and, if issued in such form, shall be represented by one or more Global Securities
registered in the name of the Depositary with respect thereto or its nominee and, so long as such system of registration is in
effect, (a) Securities of a series so issued in book-entry form will not be issuable in the form of or exchangeable for Securities
in certificate or definitive registered form, except as provided in
Section 3.04(d)
, (b) the records of the Depositary
will be determinative for all
purposes and (c) neither the Company, the Guarantor, the Trustee nor the Paying Agent, Registrar
or transfer agent for such Securities will have any responsibility or liability for (i) any aspect of the records relating to
or payments made on account of owners of beneficial interests in the Securities of such series, (ii) maintaining, supervising
or reviewing any records relating to such beneficial interests, (iii) receipt of notices, voting and requesting or directing the
Trustee to take, or not to take, or consenting to, certain actions hereunder, or (iv) the records and procedures of the Depositary.
Section 3.11.
Currency of Payments in Respect of Securities.
(a)
Except as otherwise specified in or pursuant to a Board Resolution or supplemental indenture provided for in
Section 3.01
,
payment of the principal of and interest on Securities of such series will be made in U.S. Dollars.
(b)
For purposes of any provision of the Indenture where the holders of Outstanding Securities may perform an action that requires
that a specified percentage of the Outstanding Securities of all series perform such action and for purposes of any decision or
determination by the Trustee of amounts due and unpaid for the principal of and interest on the Securities of all series in respect
of which moneys are to be disbursed ratably, the principal of and interest on the Outstanding Securities denominated in a Foreign
Currency will be the amount in U.S. Dollars based upon exchange rates, determined as specified (in a Board Resolution or supplemental
indenture or, if not therein specified, in a Company Order) pursuant to
Section 3.01
for Securities of such series,
as of the date for determining whether the holders entitled to perform such action have performed it or as of the date of such
decision or any such determination by the Trustee, as the case may be.
(c)
Except as otherwise specified in or pursuant to a Board Resolution or supplemental indenture provided for in
Section 3.01
,
in the event that payments in a Foreign Currency are unable to be made in such Foreign Currency when such payments become due,
the Company shall determine, in accordance with reasonable market practice, the amount of U.S. Dollars payable in respect of any
particular payment under such Securities. Such payment shall be equal to the amount of the relevant exchange rate prevailing as
of 11:00 a.m. (London time) on the day which is 2 business days prior to the relevant payment date, less any costs incurred by
the Company for such conversion (to be shared pro rata among the holders of such Securities accepting U.S. Dollar payments in
the proportion of their respective holdings). If an exchange rate bid quotation is not available, the Company shall obtain a bid
quotation from a leading foreign exchange bank in London selected by the Company for such purpose. If no bid quotation from a
leading foreign exchange bank is available, payment will be made in the applicable Foreign Currency to the account or accounts
specified by the Company. For purposes of this
Section 3.11(c)
, a “
business day
” is a day on which
commercial banks and foreign exchange markets settle payments in each of New York, New York and London, England.
Section 3.12.
Judgment Currency.
The Company
and the Guarantor may provide (in or pursuant to a Board Resolution or supplemental indenture) pursuant to
Section 3.01
for Securities of any series that:
(a)
the obligation of the Company or the Guarantor, as applicable, to pay the principal of and interest on the Securities of any series
in a Foreign Currency or U.S. Dollars (the “
Designated Currency
”) as may be specified (in a Board Resolution
or supplemental indenture) pursuant to
Section 3.01
is of the essence and agrees that, to the fullest extent possible
under applicable law, judgments in respect of such Securities shall be given in the Designated Currency;
(b)
the obligation of the Company or the Guarantor, as applicable, to make payments in the Designated Currency of the principal of
and interest on such Securities shall, notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise),
be discharged by payment in a currency other than the Designated Currency only to the extent of the amount in the Designated Currency
that the holder receiving such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other
Currency (after any cost of exchange) on the business day in the country of issue of the Designated Currency or in the international
banking community, as applicable, immediately following the day on which such holder receives such payment;
(c)
if the amount in the Designated Currency that may be so purchased for any reason falls short of the amount originally due, the
Company or the Guarantor, as applicable, shall pay such additional amounts as may be necessary to compensate for such shortfall;
(d)
if the amount in the Designated Currency that may be so purchased is in excess of the amount originally due, the Company or the
Guarantor, as applicable, shall retain, or have paid to it, such excess; and
(e)
any obligation of the Company or the Guarantor, as applicable, not discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full force and effect.
Section 3.13.
Security Numbers.
The Company
in issuing any series of Securities may use CUSIP numbers, ISINs and/or common codes, if then generally in use, and thereafter
with respect to such series, the Trustee may use such numbers in any notice of redemption or exchange with respect to such series;
provided
that any such notice may state that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee in writing of any change in such CUSIP numbers, ISINs and/or common codes.
Article Four
Redemption of Securities
Section 4.01.
Applicability of Right of Redemption.
Redemption
of Securities permitted by the terms of any series of Securities shall be made in accordance with such terms and, except as otherwise
specified pursuant to
Section 3.01
for Securities of any series, in accordance with this
Article Four
.
Section 4.02.
Selection of Securities to be Redeemed.
(a)
If the Company shall at any time elect to redeem all of the Securities of a series then (for purposes of this
Section 4.02
,
meaning Securities having identical terms, except as to issue date, principal amount and, if applicable, the date from which interest
begins to accrue) Outstanding, it shall at least 35 days prior to the Redemption Date fixed by the Company (unless a shorter period
shall be satisfactory to the Trustee) notify the Trustee of such Redemption Date.
(b)
If the Company shall at any time elect to redeem less than all of the Securities of a series (as specified in
Section 4.02(a)
)
then Outstanding, it shall at least 35 days prior to the Redemption Date fixed by the Company (unless a shorter period shall be
satisfactory to the Trustee) notify the Trustee of such Redemption Date and of the principal amount of Securities to be redeemed,
and thereupon the Securities shall be selected, in the case of Global Securities, in accordance with the applicable procedures
of the Depositary, and in the case of Definitive Securities, in a manner the Trustee shall deem appropriate. Unless otherwise
provided in or pursuant to a Board Resolution or supplemental indenture established pursuant to
Section 3.01
, no Security
of a denomination of $1,000 shall be redeemed in part and Securities may be redeemed in part only in integral multiples of $1,000.
In any case where more than one Security of such series is registered in the same name, the Trustee may treat the aggregate principal
amount so registered as if it were represented by one Security of such series.
(c)
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 Security redeemed or to be redeemed only in part, to the portion of the principal amount of such
Security that has been or is to be redeemed.
Section 4.03.
Notice of Redemption.
(a)
The election of the Company to redeem any Securities of any series shall be evidenced by a written notice of redemption given
by the Company or, at the Company’s request and provision of such notice information, by the Trustee in the name and at
the expense of the Company, not less than 30 nor more than 60 days prior to the Redemption Date, to the holders of Securities
of any series to be redeemed in whole or in part pursuant to this
Article Four
, in the manner provided in
Section 17.04
.
Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. Failure
to give such notice, or any defect in such notice, to the holder of any Security of a series designated for redemption, in
whole
or in part, shall not affect the sufficiency of any notice of redemption with respect to the holder of any other Security of such
series.
(b)
All notices of redemption shall identify the Securities to be redeemed (including applicable CUSIP numbers, ISINs and/or common
codes) and shall state:
(i)
such election by the Company to redeem Securities of such series;
(ii)
the Redemption Date;
(iii)
the Redemption Price;
(iv)
if less than all 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 to be redeemed;
(v)
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed, and that
interest thereon, if any, shall cease to accrue on and after said date;
(vi)
the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price, and that the
Securities designated in such notice for redemption are required to be presented on or after such Redemption Date at the designated
Place of Payment; and
(vii)
if any Security of any series is to be redeemed in part, that on and after the Redemption Date, upon surrender of such Security,
such Security will be canceled and a new Security or Securities of such series in aggregate principal amount equal to the unredeemed
portion thereof will be issued and delivered without charge to the holder or, in the case of Securities providing appropriate
space for such notation, at the option of the holders, the Trustee, in lieu of delivering a new Security or Securities as aforesaid,
may make a notation on such Security of the payment of the redeemed portion thereof.
Section 4.04.
Deposit of Redemption Price
.
On or prior
to 10:00 a.m. (New York City time) on the 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 5.03
) an amount
of money in the Currency in which such Securities are payable (as provided pursuant to
Section 3.01
) sufficient to
pay the Redemption Price of such Securities or any portions thereof that are to be redeemed on that date.
Section 4.05.
Securities Payable on Redemption Date.
(a)
Notice of redemption having been given as aforesaid, any Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price and from and after such date (unless the Company shall default in the payment of the Redemption
Price) 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;
provided
,
however
, that installments
of interest that have a Stated Maturity on or prior to the Redemption Date for such Securities shall be payable according to the
terms of such Securities and the provisions of
Section 3.08
.
(b)
If any Security called for redemption shall not be so paid upon surrender thereof for redemption as provided in
Section 4.05(a)
,
the principal shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 4.06.
Securities Redeemed in Part
.
On each occasion
on which a series of Securities represented by a Global Security are redeemed in part pursuant to
Section 4.02(b)
,
the Security Custodian will notate, or caused to be notated, the resulting decrease in the aggregate principal amount of the Securities
Outstanding of that series on the schedule to such Global Security, whereupon the aggregate principal amount Outstanding of the
Securities of such series shall for all purposes be as most recently so notated on such Global Security.
Article Five
Covenants
The Company
hereby covenants and agrees as follows:
Section 5.01.
Payment of Principal and Interest.
The Company
will duly and punctually pay the principal of each series of the Securities, and the interest which shall have accrued thereon,
at the dates and place and in the manner provided in the Securities and in this Indenture.
Section 5.02.
Maintenance of Office or Agency.
(a)
As long as any of the Securities will remain Outstanding, the Company will maintain an office or agency in New York, New York,
where the Securities may be presented or surrendered for payment, exchange and registration of transfer as in this Indenture provided
and where notices and demands to or upon the Company in respect of this Indenture and of the Securities may be served. The Company
will from time to time give written notice to the Trustee of the location, and any change in the location, of such office or agency.
In case the Company shall fail to maintain such required office or agency or to give such notice of its location or of any change
in the location thereof, presentations and demands may be made and notices may be served at the principal office of the Trustee.
The Company hereby initially designates the principal office of the Paying Agent as its office or agency for all the above purposes.
(b)
The Company may also from time to time designate additional offices or agencies where the Securities of any series may be presented
or surrendered for any or all such purposes (in or outside of the United States), and may from time to time rescind any such designations;
provided
,
however
, that no such designation or rescission shall in any manner relieve the Company of its obligations
described in
Section 5.02(a)
. The Company will give
prompt written notice to the Trustee of any such additional designation
or rescission of designation and of any change in the location of any such additional office or agency.
Section 5.03.
Money for Securities Payments to be Held in Trust.
(a)
If the Company or the Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities, then,
on or before the date on which the principal of any of the Securities of that series by their terms or as a result of the calling
thereof for redemption shall become payable, the Company or the Guarantor will set apart and segregate and hold in trust for the
benefit of the holders of such Securities a sum sufficient to pay such principal or interest which shall have so become payable
and will notify the Trustee of its failure to act in that regard and of any failure by the Company, the Guarantor or any other
obligor upon the Securities of that series to make any such payment.
(b)
If the Company shall appoint, and at the time have, a Paying Agent for the payment of the principal of or interest on any series
of Securities, then, on or before the date on which the principal of or interest on any of the Securities of that series shall
become payable as aforesaid, whether by their terms or as a result of the calling thereof for redemption, the Company will pay
to such Paying Agent a sum sufficient to pay such principal or interest to be held in trust for the benefit of the holders of
such Securities.
(c)
If the Paying Agent shall be other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee
an instrument in which such Paying Agent and the Company shall agree with the Trustee, subject to the provisions of this
Section 5.03
and
Section 12.09
, that such Paying Agent shall:
(i)
hold all sums held by such Paying Agent for the payment of the principal of or interest on the Securities of that series in
trust for the benefit of the holders of such Securities;
(ii)
give to the Trustee notice of any default by the Company, the Guarantor or any other obligor upon the Securities of that series
in the making of any payment of the principal of or interest on the Securities of that series when the same shall have become
due and payable; and
(iii)
at any time during the continuance of any such Default, upon the written request of the Trustee, pay to the Trustee all sums
so held in trust by such Paying Agent.
(d)
Anything in this
Section 5.03
to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining
a release or satisfaction of this Indenture or for any other reason, pay or cause to be paid to the Trustee all sums held in trust
by the Company or by any Paying Agent other than the Trustee as required by this
Section 5.03
, 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.
Section 5.04.
Restrictions on Sales of Voting Stock of Certain Significant Subsidiaries.
(a)
The Company will not, and will not permit any Subsidiary to, incur, issue, assume or guarantee any Indebtedness if such Indebtedness
is secured by a pledge of, lien on, or security interest in any shares of Voting Stock of any Significant Subsidiary, whether
such Voting Stock is now owned or shall hereafter be acquired, without effectively providing that the Securities (together with,
if the Company shall so determine, any other indebtedness or obligations of the Company or any Subsidiary ranking equally with
such Securities and then existing or thereafter created) shall be secured equally and ratably with such Indebtedness. For the
purposes of the foregoing, pledging, placing a lien on or creating a security interest in any shares of Voting Stock of a Significant
Subsidiary in order to secure then outstanding Indebtedness of the Company or any Subsidiary shall be deemed to be the incurrence,
issuance, assumption or guarantee (as the case may be) of such Indebtedness, but the foregoing shall not apply to Indebtedness
secured by a pledge of, lien on or security interest in any shares of Voting Stock of any corporation at the time it becomes a
Significant Subsidiary, including extensions, renewals and replacements of such Indebtedness without increase in the amount thereof.
(b)
For the purposes of
Section 5.04(a)
, the term “
Voting Stock
” shall mean capital stock the holders
of which have general voting power under ordinary circumstances to elect at least a majority of the board of directors of a corporation,
or substantially equivalent interests in the case of an entity other than a corporation;
provided
that, for the purposes
hereof, capital stock which carries only the right to vote conditioned on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
(c)
For the purposes of
Section 5.04(a)
, the term “
Significant Subsidiary
” shall mean a Subsidiary,
including its Subsidiaries, which meets any of the following conditions:
(i)
The Company’s and its other Subsidiaries’ investments in and advances to the Subsidiary exceed 10% of the total
assets of the Company and its Subsidiaries consolidated as of the end of the most recently completed fiscal year;
(ii)
The Company’s and its other Subsidiaries’ proportionate share of the total assets (after inter-company eliminations)
of the Subsidiary exceeds 10% of the total assets of the Company and its Subsidiaries consolidated as of the end of the most recently
completed fiscal year; or
(iii)
The Company’s and its other Subsidiaries’ equity in the income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principle of the Subsidiary exceeds 10% of such income of
the Company and its Subsidiaries consolidated for the most recently completed fiscal year.
(d)
For the purposes of making the prescribed income test in
Section 5.04(c)(iii)
, the following shall be applicable:
(i)
When a loss has been incurred by either the Company and its Subsidiaries consolidated or the tested Subsidiary, but not both,
the equity in the income or loss of the
tested Subsidiary shall be excluded from the income of the Company and its Subsidiaries
consolidated for purposes of the computation; and
(ii)
If income of the Company and its Subsidiaries consolidated for the most recent fiscal year is at least 10% lower than the
average of the income for the last five fiscal years, such average income shall be substituted for purposes of the computation.
Any loss years shall be omitted for purposes of computing average income.
Section 5.05.
Restrictions on Merger, Consolidation, Sale and Lease of Assets.
(a)
Except as provided in
Section 17.05
, the Company will not consolidate with any other entity or accept a merger of
any other entity into the Company or permit the Company to be merged into any other entity, or sell other than for cash or lease
all or substantially all its assets to another entity, unless:
(i)
in the case where the Company shall consolidate with or merge into another entity or sell other than for cash or lease all
or substantially all of its assets to another entity, the entity formed by such consolidation or into which the Company is merged
or the entity which acquires other than for cash, or which leases, all or substantially all of the assets of the Company, shall
be a corporation, partnership or trust organized and existing under the laws of the United States of America, any State thereof
or the District of Columbia;
(ii)
either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company)
shall expressly assume, by supplemental indenture satisfactory to the Trustee, executed and delivered by such entity prior to
or simultaneously with such consolidation, merger, sale or lease, the due and punctual payment of the principal of and interest
on all the Securities, according to their tenor and the due and punctual performance and observance of all other obligations to
the holders and the Trustee under this Indenture or under the Securities to be performed or observed by the Company;
(iii)
immediately after such merger, consolidation, sale or lease, the Company or the successor, transferee or lessee entity (if
other than the Company) would not be in default in the performance of any covenant or condition of this Indenture; and
(iv)
after giving effect to such merger, consolidation, sale or lease, neither the Company nor any successor will be required to
register as an “investment company” under the Investment Company Act.
(b)
Upon any consolidation with or merger into any other entity, or any conveyance or lease of all of substantially all of the assets
of the Company in accordance with this
Section 5.05
, the successor entity formed by such consolidation or into or
with which 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 entity had
been named as the Company herein, and thereafter,
except
in the case of a lease, any predecessor Company shall be relieved
of all obligations and covenants under this Indenture and the Securities.
Section 5.06.
Compliance Certificate.
(a)
Each of the Company and the Guarantor shall furnish to the Trustee annually, within 120 days after the end of each fiscal year
of the Company, commencing on May 1, 2016, a certificate from its Chairman of the Board of Directors, President, Chief Financial
Officer or Chief Accounting Officer as to his or her knowledge of compliance by the Company or the Guarantor, as applicable, with
all conditions and covenants under this Indenture (which compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture) and, in the event of any Default, specifying each such Default known to
him or her and the nature and status thereof of which such person may have knowledge. Such certificates need not comply with
Section 17.01
of this Indenture.
(b)
The Company shall deliver to the Trustee, as soon as possible and in any event within five days after the Company becomes aware
of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event
of Default, a written notice setting forth the details of such Event of Default or default and the action which the Company proposes
to take with respect thereto signed in the name of the Company by the Chairman of the Board of Directors, a Vice Chairman, the
President, the Chief Financial Officer, the Chief Accounting Officer, any Vice President, the Treasurer, a Deputy Treasurer, the
General Counsel or any Assistant Treasurer of the Company, or a person authorized by such person or by a Board Resolution.
Section 5.07.
Conditional Waiver by Securityholders of Securities.
Anything
in this Indenture to the contrary notwithstanding, the Company or the Guarantor may fail or omit in any particular instance to
comply with a covenant or condition set forth in
Section 5.04
or
Section 5.05
or
Section 16.04
or
Section 16.05
with respect to any series of Securities if the Company or the Guarantor shall have obtained
and filed with the Trustee, prior to the time of such failure or omission, evidence (as provided in
Article Seven
) of the
consent of the holders of a majority in aggregate principal amount of the Securities of such series at the time Outstanding, either
waiving such compliance in such instance or generally waiving compliance with such covenant or condition, but,
except
to
the extent so expressly waived, no such waiver shall extend to or affect such covenant or condition, or impair any right consequent
thereon and, until such waiver shall have become effective, the obligations of the Company and the Guarantor and the duties of
the Trustee in respect of any such covenant or condition shall remain in full force and effect.
Article Six
Remedies of Trustee and Securityholders
Section 6.01.
Events of Default
.
(a)
Except where otherwise indicated by the context or where the term is otherwise defined for a specific purpose, the term “
Event
of Default
” as used in this Indenture with respect to Securities of any series (for purposes of this
Article Six
,
having the meaning specified in
Section 6.10
) shall mean one of the following described events unless it is either
inapplicable to a particular series or it is specifically deleted or modified in or pursuant to the Board Resolution or supplemental
indenture under which such series of Securities is issued:
(i)
the failure of the Company or the Guarantor 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; or
(ii)
the failure of the Company or the Guarantor to pay the principal of any Security of such series, when and as the same shall
become payable, whether at Maturity as therein expressed, by call for redemption (other than pursuant to a sinking fund), by declaration
as authorized by this Indenture or otherwise; or
(iii)
the failure of the Company or the Guarantor 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; or
(iv)
the failure of the Company, subject to the provisions of
Section 5.07
, to observe and perform any other of the
covenants or agreements on the part of the Company contained in this Indenture (including in or pursuant to the Board Resolution
or supplemental indenture pursuant to which the Securities of such series were issued as contemplated by
Section 3.01
)
(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 to the satisfaction of the Trustee, or without
provision deemed by the Trustee to be adequate for the remedying thereof having been made, 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
(v)
the entry by a court having jurisdiction in the premises of a decree or order: (A) for relief in respect of the Company in
an involuntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency, or other similar law now or hereafter in effect, or (B) appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or for substantially all of the property of the Company or (C) 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
(vi)
the commencement by the Company of a voluntary case under the Federal bankruptcy laws, 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 of substantially all the property of the Company or the making by the Company of an assignment for the benefit
of
creditors; or
(vii)
the occurrence of any other Event of Default with respect to Securities of such series as provided in the supplemental indenture
or in or pursuant to the Board Resolution applicable to such series as contemplated by
Section 3.01
.
(b)
No Event of Default with respect to Securities of a series, except with respect to an Event of Default under
Section 6.01(a)(v)
or
(vi)
, shall constitute an Event of Default with respect to Securities of any other series.
Section 6.02.
Acceleration; Rescission and Annulment.
(a)
If any one or more Events of Default shall happen with respect to Securities of any series at the time Outstanding then, during
the continuance of any such Event of Default, the Trustee or the holders of 25% or more in principal amount of such Securities
then Outstanding may (and upon the written request of the holders of a majority in principal amount of such Securities then Outstanding,
the Trustee shall) declare the principal (or, if the Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) and all accrued and unpaid interest on all the Securities
of such series then Outstanding, if not then due and payable, to be due and payable, 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. Upon payment in full of such amounts in the Currency in which such Securities are payable (as provided pursuant
to
Section 3.01
), all obligations of the Company in respect of the payment of principal of and interest on the Securities
of such series shall terminate.
(b)
This
Section 6.02
, however, is subject to the condition that, if at any time after the principal of all the Securities
of such series to which any one or more of the Events of Default is applicable shall have been so declared to be due and payable,
and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this
Article
Six
;
provided
that:
(i)
the Company has paid or deposited with the Paying Agent a sum in the Currency in which such Securities are payable (as provided
pursuant to
Section 3.01
) sufficient to pay: (A) all amounts owing the Trustee and any predecessor trustee hereunder
under
Section 10.01(a)
; (
provided
,
however
, that all sums payable under this
clause (A)
shall be paid in U.S. Dollars); (B) 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); (C) the principal of any Securities of such series that have become due otherwise than by such declaration
of acceleration and interest thereon; and (D) all other sums payable under this Indenture in respect of such series (except the
principal of the Securities of such series which would not be due and payable were it not for such declaration); and
(ii)
every other Default and Event of Default under this Indenture with respect to Securities of a series shall have been cured
to the reasonable satisfaction of the Trustee or the holders of a majority in principal amount of the Securities of such series
then Outstanding, or provision deemed by such holders to be adequate therefor shall have been
made, then the holders of a majority
in principal amount of the Securities of such series then Outstanding may, by written notice to the Company, the Guarantor and
the Trustee, 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;
provided
,
however
, that no such waiver, rescission or annulment shall extend to or affect
any subsequent Default or Event of Default or impair any right consequent thereon.
(c)
Any declaration by the Trustee pursuant to
Section 6.02(a)
shall be by written notice to the Company and the Guarantor,
and any declaration or waiver by the holders of Securities of any series pursuant to this
Section 6.02
shall be by
written notice to the Company, the Guarantor and the Trustee.
(d)
For the avoidance of doubt, no Event of Default shall occur with respect to any Securities, and nothing herein contained shall
be deemed to authorize the Trustee to exercise any remedy against the Company or the Guarantor with respect to any Securities,
in each case solely as a result of, or because it is related directly or indirectly to, the insolvency of the Guarantor or the
commencement of any proceedings relative to the Guarantor under the Federal bankruptcy laws, as now or hereafter constituted,
or the appointment of a receiver for the Guarantor under Title II of the Dodd-Frank Wall Street Reform and Consumer Protection
Act of 2010 or the commencement of any other applicable Federal or State bankruptcy, insolvency, resolution or other similar law
now or hereafter in effect, or solely as a result of, or because it is related directly or indirectly to, the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar official) of the Guarantor
or substantially all of the property of the Guarantor or solely as a result of, or because it is related directly or indirectly
to, the institution of any other comparable judicial or regulatory proceedings relative to the Guarantor, or to the creditors
or property of the Guarantor.
Section 6.03.
Other Remedies.
(a)
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal
and interest on the affected Securities or to enforce the performance of any provision of the affected Securities or this Indenture.
(b)
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 10.01(a)
, 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.
Section 6.04.
Trustee 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 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 10.01(a)
;
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 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 6.05.
Priorities.
Any moneys
collected by the Trustee under this
Article Six
shall be applied in the order following, at the date or dates fixed by
the Trustee for the distribution of such moneys and, in the case of the distribution of such moneys on account of the Securities
of any series, upon presentation of the Securities of such series, 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 10.01(a)
.
Second
:
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
:
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 interest, with interest
on the overdue principal 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 interest without
preference or priority of principal over interest, or of interest over principal 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 accrued and unpaid interest to the Persons entitled thereto.
Any surplus
then remaining shall be paid to the Company or its designee or to such other Persons as a court of competent jurisdiction shall
direct in writing.
Section 6.06.
Control by Holders; Waiver of Past Defaults.
The holders
of a majority in principal amount of the Securities of any series at the time Outstanding 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;
provided
,
however
, that, subject to the provisions of
Section 10.01
and
Section 10.02
: (i) 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 if the Trustee in good faith shall
determine that the proceedings so directed would be illegal or subject it to personal liability or materially adversely affect
the rights of the holders of the Securities not parties to such direction; (ii) the Trustee shall have the right to decline to
follow any such direction to the extent the Trustee determines it is contrary to prohibitions contained in the Securities Act
and applicable State securities laws; and (iii) nothing in this Indenture shall impair the right of the Trustee to take any action
deemed proper by the Trustee and which is not inconsistent with such direction by the holders of a majority in principal amount
of the Securities of any series at the time Outstanding and the terms of this Indenture. 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 Securities
at the time Outstanding 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 in the payment of interest on or the principal of the Securities of such series. Upon any
such waiver the Company, the Guarantor, 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 Event
of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as
permitted by this
Section 6.06
, said Default or Event of Default shall for all purposes of the Securities of such
series and this Indenture be deemed to have been cured and to be not continuing.
Section 6.07.
Limitation on Suits.
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 for the appointment of a receiver or for any other remedy hereunder, in each case with respect to an
Event of Default with respect to such series of Securities, unless such holder previously shall have given to the Trustee written
notice of the occurrence of one or more of the Events of Default with respect to such series of Securities, and unless also the
holders of 25% 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 security and indemnity, shall have neglected or refused to institute
any such action, suit or proceeding; and such notification, request and offer of security and 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, her, its 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 benefit of all holders of the Outstanding Securities of such series;
provided
,
however
, that nothing in this
Indenture or in the Securities of such series shall affect or impair the obligation of the Company or the Guarantor to pay the
principal of 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, without the consent of such holders, the right of such holders to institute
suit to enforce the payment thereof.
Section 6.08.
Undertaking for Costs.
All parties
to this Indenture and each holder of any Security, by such holder’s acceptance thereof, shall be deemed to have agreed that
any 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 and expenses, 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 6.08
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 Securities of any series Outstanding, or to any
action, suit or proceeding instituted by any holder of Securities of any series for the enforcement of the payment of the principal
of or the interest on any of the Securities of such series, on or after the respective due dates expressed in such Securities.
Section 6.09.
Remedies Cumulative.
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 Six
to the Trustee and to the holders of Securities of any series, respectively, may be exercised from time to
time and as often as may be deemed expedient by the Trustee or by the holders of Securities of such series, as the case may be.
In case the Trustee or any holder of Securities of any series 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 of Securities, then and in every such case the Company,
the Guarantor, the Trustee and the holders of the Securities of such series 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 of the Securities
of such series shall continue as though no such proceedings had been taken, except as to any matters so waived or adjudicated.
Section 6.10.
Meaning of “Series”.
For purposes
of
Article Six
, with respect to Securities issued hereunder, the term “
series
” shall be deemed to refer
to Securities with identical terms, except as to issue date, principal amount and, if applicable, the date from which interest
begins to accrue.
Article Seven
Concerning the Securityholders
Section 7.01.
Evidence of Action of Securityholders.
Whenever
in this Indenture it is provided that the holders of a specified percentage or a majority in aggregate principal amount of the
Securities or of any series of Securities may take any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the holders
of such specified percentage or majority have joined therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by Securityholders in person or by agent or proxy appointed in writing (such action becoming effective,
except as herein otherwise expressly provided, when such instrument or instruments are delivered to the Trustee and, where it
is hereby expressly required, to the Company).
Section 7.02.
Proof of Execution or Holding of Securities.
(a)
Proof of the execution of any instrument by a Securityholder or his or its agent or proxy and proof of the holding by any Person
of any of the Securities shall be sufficient if made in the following manner:
(i)
The fact and date of the execution by any Person of any such instrument may be proved (A) by the certificate of any notary
public or other officer in any jurisdiction who, by the laws thereof, has power to take acknowledgments or proof of deeds to be
recorded within such jurisdiction, that the Person who signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (B) by the affidavit of a witness of such execution sworn to before any such notary or other
officer. Where such execution is by a Person acting in other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(ii)
The ownership of Securities of any series shall be proved by the Register of such Securities or by a certificate of the Registrar
for such series.
(b)
The Trustee may require such additional proof of any matter referred to in this
Section 7.02
as it shall deem appropriate
or necessary, so long as the request is a reasonable one.
(c)
If the Company shall solicit from the holders of Securities of any series any action, the Company may, at its option, by Officers’
Certificate, fix in advance a record date for the determination of holders of Securities entitled to take such action, but the
Company shall have no obligation to do so. Any such record date shall be fixed at the Company’s discretion. If such a record
date is fixed, such action may be sought or given before or after the record date, but only the holders of Securities of record
at the close of business on such record date shall be deemed to be holders of Securities for the purpose of determining whether
holders of the requisite proportion of Outstanding Securities of such series have authorized or agreed or consented to such action,
and for that purpose the Outstanding Securities of such series shall be computed as of such record date.
Section 7.03.
Company-Owned Securities Disregarded.
(a)
In determining whether the holders of the requisite principal amount of the Securities have concurred in any direction, request,
waiver or consent under this Indenture, Securities which are owned by the Company or by any other obligor on the Securities or
by any person directly or indirectly controlling, or controlled by, or under direct or indirect common control with, the Company
or any such other obligor shall be disregarded, except that (i) for the purpose of determining whether the Trustee shall be protected
in relying on any such direction, request, waiver or consent, only Securities which the Trustee knows are so owned shall be disregarded
and (ii) if all the Outstanding Securities or series of Securities is owned by the Company or such obligor or such person, separately
or together, such series shall not be disregarded for the purposes of this
Article Seven
. Securities so owned that have
been pledged in good faith may be regarded as Outstanding for the purposes of this
Section 7.03
if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right to vote such Securities and that the pledgee is not a person
directly or indirectly controlling, or controlled by, or under direct or indirect common control with the Company or any such
other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
(b)
In determining whether the holders of the requisite principal amount of the Outstanding Securities have given any direction, request,
waiver or consent under this Indenture, the principal amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02
.
Section 7.04.
Persons Deemed Owners.
(a)
The Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor 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 (subject
to
Section 3.08(b)
) interest, if any, on, such Security and for all other purposes whatsoever, whether
or not such
Security be overdue, and neither the Company, the Guarantor, the Trustee nor any agent of the Company, the Guarantor or the Trustee
shall be affected by notice to the contrary. All payments made to any holder, or upon his or its order, shall be valid, and, to
the extent of the sum or sums paid, effectual to satisfy and discharge the liability for moneys payable upon such Security.
(b)
None of the Company, the Guarantor, the Trustee, any Paying Agent or the Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 7.05.
Revocation of Consents
.
At any time
prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.01
, of the taking of any action by
the holders of the percentage in aggregate principal amount of the Securities or of any series of Securities specified in this
Indenture in connection with such action, any holder of a Security which is shown by the evidence to be included in the Securities
the holders of which have consented to such action may, by filing written notice with the Trustee at the Corporate Trust Office
and upon proof of holding as provided in
Section 7.02
, revoke such action so far as concerns such Security. Except
as aforesaid, any such action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all
future holders of such Security, and of any Securities issued on transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such Security or such other Securities or any Security
issued in exchange or substitution therefor.
Article Eight
Securityholders’ Meetings
Section 8.01.
Purpose of Meetings.
A meeting
of Securityholders of any or all series may be called at any time and from time to time pursuant to the provisions of this
Article
Eight
for any of the following purposes:
(a)
to give any notice to the Company, the Guarantor or to the Trustee, or to give any directions to the Trustee, or to waive any
Default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders
pursuant to any of the provisions of
Article Six
;
(b)
to remove the Trustee and appoint a successor trustee pursuant to the provisions of
Article Ten
;
(c)
to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of
Section 15.02
;
or
(d)
to take any other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of
the Securities of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
Section 8.02.
Call of Meetings by Trustee.
The Trustee
may at any time call a meeting of Securityholders of any or all series to take any action specified in
Section 8.01
,
to be held at such time and at such place in New York, New York, or in London, England, with respect to Securities of any series
issued in a Currency other than U.S. Dollars, as the Trustee shall determine. Notice of every meeting of the Securityholders of
any or all series, setting forth the time and place of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in
Section 17.04
, not less than 20 nor more than 90 days prior to
the date fixed for the meeting.
Section 8.03.
Call of Meetings by Company or Securityholders.
In case at
any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in aggregate principal amount of the Securities
of any or all series, as the case may be, then Outstanding that may be affected by the action proposed to be taken, shall have
requested the Trustee to call a meeting of Securityholders of any or all series to take any action authorized in
Section 8.01
,
by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not
have made the first publication of the Securities of such meeting within 20 days after receipt of such request, then the Company
or the holders of such Securities in the amount above specified may determine the time and place in said New York, New York or
London, England, as applicable, for such meeting and may call such meeting for such purposes by giving notice thereof as provided
in
Section 8.02
.
Section 8.04.
Qualification for Voting.
To be entitled
to vote at any meeting of Securityholders a person shall be a holder of one or more Securities with respect to which a meeting
is being held or a person appointed by an instrument in writing as proxy by such a holder. The only person who shall be entitled
to be present or to speak at any meeting of the Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any representatives of the Company, the Guarantor and their
respective counsel.
Section 8.05.
Regulations.
(a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
(b)
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Securityholders as provided in
Section 8.03
, in which case the Company or the Securityholders
calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority in principal amount of the Securities represented
at the meeting and entitled to vote.
(c)
Subject to the provisions of
Section 7.01
and
Section 7.04
, at any meeting each Securityholder or proxy
shall be entitled to one vote for each $1,000 (or the U.S. dollar equivalent thereof for Securities in denominated in a foreign
Currency) Outstanding principal amount of Securities held or represented by him;
provided, however
, that no vote shall
be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote except as a holder of an Outstanding Security or
proxy. At any meeting of Securityholders duly called pursuant to the provisions of
Section 8.02
or
Section 8.03
the presence of persons holding or representing Securities in an aggregate principal amount sufficient to take action upon
the matter of which such meeting was called shall be necessary to constitute a quorum, and any such meeting may be adjourned from
time to time by a majority of those present, whether or not constituting a quorum, and the meeting may be held as so adjourned
without further notice.
Section 8.06.
Voting.
(a)
The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballot on which shall be subscribed
the signatures of the Securityholders or proxies and on which shall be inscribed the aggregate principal amount of the relevant
Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceeding of each
meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge
of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in
Section 8.02.
The record shall be signed and verified by affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
(b)
Any record so signed and verified pursuant to
Section 8.06(a)
shall be conclusive evidence of the matters therein
stated.
Section 8.07.
No Delay of Rights by Meeting.
Nothing contained
in this
Article Eight
shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders
of any series or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise
of any
right or rights conferred upon or reserved to the Trustee or to the Securityholders of such series under any of the provisions
of this Indenture or of the Securities of such series.
Article Nine
Reports by the Company, THE GUARANTOR and the Trustee and Securityholders’ Lists
Section 9.01.
Securityholders’ Lists.
The Company
will furnish or cause to be furnished to the Trustee, semiannually, not later than January 15 and July 15 in each year, and at
such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request in writing,
a list in such form as the Trustee may reasonably require containing all the information in the possession or control of the Company
or any of its Paying Agents (other than the Trustee in its capacity as a Paying Agent), as to the names and addresses of the holders
of Securities of particular series specified by the Trustee as of a date not more than 15 days prior to the time such information
is furnished;
provided, however
, that if and so long as the Trustee shall be the Registrar, such list shall not be required
to be furnished. At the Trustee’s direction, the Company will furnish copies of the same reports to the Depositary.
Section 9.02.
Preservation and Disclosure of Lists.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of
the holders of each series of Securities (i) contained in the most recent list furnished to it as provided in
Section 9.01
,
(ii) received by the Trustee in its capacity as Registrar or a Paying Agent or (iii) filed with it within the preceding two years
pursuant to
Section 9.04(b)
. The Trustee may destroy any list furnished to it as provided in
Section 9.01
upon receipt of a new list so furnished.
(b)
In case three or more holders of Securities of any series (hereinafter referred to as “
applicants
”) apply in
writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and such application states that the applicants desire
to communicate with other holders of Securities of such series (in which case the applicants must hold Securities of such series)
or with holders of all Securities with respect to their rights under this Indenture or under such Securities and it is accompanied
by a copy of the form of proxy or other communication which such applicants propose to transmit, then:
(i)
the Trustee shall, within 5 business days after the receipt of such application, at its election, either (A) afford to such
applicants access to the information preserved at the time by the Trustee in accordance with the provisions of
Section 9.02(a)
,
or (B) inform such applicants as to the approximate number of holders of Securities of such series or all Securities, as the case
may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with the provisions
of
Section 9.02(a)
and as to the approximate cost of delivering to such Securityholders the form of proxy or other
communication, if any, specified in such application; and
(ii)
if the Trustee shall elect not to afford to such applicants access to such information pursuant to
Section 9.02(b)(i)
,
the Trustee shall, upon the written request of such applicants, deliver to each holder of Securities of such series or all Securities,
as the case may be, whose name and address appear in the information preserved at the time by the Trustee in accordance with the
provisions of
Section 9.02(a)
a copy of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be delivered and of payment, or provision for the
payment, of the reasonable expense of delivering, unless within five days after such tender, the Trustee shall deliver to such
applicants and file with the SEC, together with a copy of the material to be delivered, a written statement to the effect that,
in the opinion of the Trustee, such delivering would be contrary to the best interests of the holder of Securities of such series
or all Securities, as the case may be, or would be in violation of applicable law, such written statement to specify the basis
of such opinion. If the SEC after opportunity for a hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections,
the SEC shall find, after notice and opportunity for hearing, that all the objections so sustained have been met, and shall enter
an order so declaring, the Trustee shall deliver copies of such material to all such holders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c)
Each and every holder of Securities, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee
that neither the Company, the Guarantor nor the Trustee nor any Paying Agent, Registrar, or any agent of the Company, the Guarantor
or of the Trustee shall be held accountable by reason of the disclosure of information as to the names and addresses of the holders
of Securities in accordance with the provisions of
Section 9.02(b)
, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of delivering any material pursuant to a request made
under
Section 9.02(b)
.
Section 9.03.
Reports by the Company and the Guarantor.
(a)
The Company and the Guarantor shall, so long as the Securities are Outstanding:
(i)
file with the Trustee, within 30 days after the Company or the Guarantor, as applicable, files the same with the SEC, 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 SEC may from time to time by rules and regulations prescribe) that the Company or the Guarantor may be required to file
with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if either the Company or the Guarantor is not required
to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the SEC, in accordance
with rules and regulations prescribed from time to time by said SEC, such of the supplementary and periodic information, documents
and reports that may be required pursuant to Section 13 of the Exchange Act in respect of a Security listed and registered on
a national securities exchange as may be
prescribed from time to time in such rules and regulations, in each case only in the
event such report, information or document is not publicly available on the website of the SEC and only to the extent required
by the Trust Indenture Act and related rules and regulations prescribed by the SEC;
(ii)
file with the Trustee and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such
additional information, documents, and reports with respect to compliance by the Company and the Guarantor with the conditions
and covenants provided for in this Indenture as may be required from time to time by such rules and regulations; and
(iii)
transmit to all the holders of Securities of each series, 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 and the Guarantor with respect to each such series
of Securities pursuant to
Section 9.03(a)(i)
and
(ii)
as may be required by rules and regulations prescribed
from time to time by the SEC.
(b)
Delivery of such reports, information and documents to the Trustee under this
Section 9.03
is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s and the Guarantor’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 9.04.
Reports by the Trustee.
(a)
The Trustee shall transmit to holders such reports concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the date of the initial issuance of
Securities under this Indenture deliver to holders a brief report, dated as of such May 15, which complies with the provisions
of such Section 313(a).
(b)
A copy of each such report shall, at the time of such transmission to holders, be filed by the Trustee with each stock exchange,
if any, upon which the Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee
in writing when the Securities are listed on any stock exchange and of any delisting thereof.
Article Ten
Concerning the Trustee
Section 10.01.
Rights of Trustee; Compensation and Security and Indemnity.
The Trustee
accepts the trusts created by this Indenture upon the terms and conditions hereof, including the following, to all of which the
parties hereto and the holders from time to time of the Securities agree:
(a)
The Trustee shall be entitled to reasonable compensation for all services rendered by it hereunder (including in any agent capacity
in which it acts). The Company agrees to pay to the Trustee from time to time such compensation as the Company and the Trustee
shall from time to time agree in writing for all services rendered by it hereunder. The compensation of the Trustee shall not
be limited by any provision of law in regard to the compensation of a trustee of an express trust. The Company shall reimburse
the Trustee promptly upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
(including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement
or advance as shall be determined to have been caused by its own negligence or willful misconduct. The Company also agrees to
indemnify each of the Trustee and any predecessor Trustee hereunder for, and to hold it harmless against, any and all loss, liability,
damage, claim, or expense incurred without its own negligence or willful misconduct, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder and the performance of its duties (including in any agent capacity
in which it acts), as well as 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. The Trustee shall have a lien prior to the Securities as to
all property and funds held by the Trustee hereunder except with respect to any funds held in trust for the benefit of the Holders
of particular securities. Notwithstanding any provisions of this Indenture to the contrary, the obligations of the Company to
compensate the Trustee and the obligations of the Company to indemnify the Trustee under this
Section 10.01(a)
shall
survive the resignation or removal of the Trustee and any satisfaction and discharge under
Article Eleven
.
(i)
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(a)(v)
or
(vi)
occurs, the expenses (including the charges and expenses of its counsel) and compensation for the services are
intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or similar laws.
(ii)
With respect to investments in money market mutual funds for which The Bank of New York Mellon, in its individual capacity,
provides shareholder services, The Bank of New York Mellon (or its affiliates) may also receive and retain additional fees from
the mutual funds (or their affiliates) for shareholder services.
(b)
The Trustee may execute any of the trusts or powers hereof and perform any duty hereunder either directly or by its agents and
attorneys and shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
(c)
The Trustee shall not be responsible in any manner whatsoever for the correctness of the recitals herein or in the Securities
(except its certificates of authentication thereon) contained, all of which are made solely by the Company or the Guarantor; and
the Trustee shall not be responsible or accountable in any manner whatsoever for or with respect to the validity or execution
or sufficiency of this Indenture or of the Securities (except its certificates of authentication thereon), and the Trustee makes
no representation with respect thereto. The Trustee shall not be accountable for the use or application by the Company of any
Securities, or the proceeds of any Securities, authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
(d)
The Trustee may consult with counsel of its selection, and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or suffered by the Trustee hereunder in good faith and
in reliance thereon.
(e)
The Trustee may rely upon the certificate of the Secretary or one of the Assistant Secretaries of the Company or the Guarantor,
as applicable, as to the adoption of any resolution by the Board of Directors or stockholders of the Company or the Guarantor,
and any request, direction, order or demand of the Company or the Guarantor mentioned herein shall be sufficiently evidenced by,
and whenever in the adminsitration of this Indenture the Trustree shall deem it desirable that a matter be provided or established
prior to taking, offering or omitting any action hereunder, the Trustee may rely upon, an Officers’ Certificate of the Company
or the Guarantor, as applicable, (unless other evidence in respect thereof be herein specifically prescribed).
(f)
The Trustee or any agent of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or the Guarantor with the same rights it would have had if it were not the Trustee or
such agent.
(g)
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law or as
expressly provided herein. The Trustee shall be under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or the Guarantor, as the case may be.
(h)
Any action taken by the Trustee pursuant to any provision hereof at the request or with the consent of any Person who at the time
is the holder of any Security shall be conclusive and binding in respect of such Security upon all future holders thereof or of
any Security or Securities which may be issued for or in lieu thereof in whole or in part, whether or not such Security shall
have noted thereon the fact that such request or consent had been made or given.
(i)
The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties.
(j)
The Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the holders of the Securities of a series, pursuant to any provision of this Indenture, unless one
or more of the holders of the Securities of such series shall have offered to the Trustee reasonable security and indemnity satisfactory
to it against the costs, expenses and liabilities which may be incurred by it therein or thereby.
(k)
The Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within
its discretion or within the rights or powers conferred upon it by this Indenture.
(l)
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 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 at the sole cost of the Company
and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(m)
The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and each agent, custodian and other
person employed to act hereunder.
(n)
The Trustee may request that the Company and the Guarantor deliver a certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to this Indenture.
(o)
The Trustee shall not be deemed to have knowledge or notice of any default or event of default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by
a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and, if such notice is provided by the Company
or the Guarantor, such notice references the Securities and this Indenture.
(p)
In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
Section 10.02.
Duties of Trustee.
(a)
If one or more of the Events of Default specified in
Section 6.01
with respect to the Securities of any series shall
have happened, then, during the continuance thereof, the Trustee shall, with respect to such Securities, exercise such of the
rights and powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)
None of the provisions of this Indenture shall be construed as relieving the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except
that, anything in this Indenture contained to the
contrary notwithstanding:
(i)
unless and until an Event of Default specified in
Section 6.01
with respect to the Securities of any series shall
have happened which at the time is continuing, (A) the Trustee undertakes to perform such duties and only such duties with respect
to the Securities of that series as are specifically set out in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee, whose duties and obligations shall be determined solely by the express provisions
of this Indenture; and (B) the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, in the absence of willful misconduct on the part of the Trustee, upon certificates and opinions furnished to
it pursuant to the express provisions of this Indenture; but in the case of any such certificates or opinions which, by the provisions
of this Indenture, 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 (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein);
(ii)
the Trustee shall not be liable to any holder of Securities or to any other Person for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii)
the Trustee shall not be liable to any holder of Securities or to any other Person with respect to any action taken or omitted
to be taken by it in good faith, in accordance with the direction of Securityholders given as provided in
Section 6.06
,
relating to the time, method and place of conducting any proceeding for any remedy available to it or exercising any trust or
power conferred upon it by this Indenture.
(c)
None of the provisions of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise
to 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 there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity 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 conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of this
Section 10.02
.
Section 10.03.
Notice of Defaults.
Within 90
days after the occurrence thereof, the Trustee shall give to the holders of the Securities of a series notice of each Default
with respect to the Securities of such series known to the Trustee, by transmitting such notice to holders unless such Default
shall have been cured before the giving of such notice (the term “
Default
” being hereby defined to be an event
specified in
Section 6.01
, which is, or after notice or lapse of time or both would become, an Event of Default pursuant
to
Section 6.01
); but, unless such Default is the failure to pay the principal of or interest on any of the Securities
of such series when and as the same shall become payable, or to make any sinking fund payments as to Securities of the same series,
the Trustee shall be protected in withholding such notice, if and so long as the Board of Directors, the
executive committee or
a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice
is in the interests of the holders of the Securities of such series.
Section 10.04.
Limitation of Liability
.
The right
of the Trustee to perform any discretionary act enumerated in this Indenture, or in any other related document, shall not be construed
as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of any
such act.
Section 10.05.
Resignation and Removal of Trustee
.
(a)
The Trustee, or any successor to it hereafter appointed, may at any time resign and be discharged of the trusts hereby created
with respect to all series of Securities by giving to the Company and to the Guarantor notice in writing and by delivering notice
thereof to the holders of Securities then Outstanding. Such resignation shall take effect upon the appointment of a successor
trustee and the acceptance of such appointment by such successor trustee. Any Trustee hereunder may be removed with respect to
all series of Securities at any time by the filing with such Trustee and the delivery to the Company and to the Guarantor of an
instrument or instruments in writing signed by the holders of a majority in principal amount of the Securities then Outstanding,
specifying such removal and the date when it shall become effective. The date of effectiveness of any resignation or removal shall
be no sooner than 30 days after the notice of resignation or instrument of removal, as applicable, has been delivered to the relevant
parties.
(b)
Upon its resignation or removal, any Trustee shall be entitled to the payment of reasonable compensation for the services rendered
hereunder by such Trustee and to the payment of all reasonable expenses incurred hereunder and all moneys then due to it hereunder.
The Trustee’s rights to indemnification provided in
Section 10.01
shall survive its resignation or removal.
Section 10.06.
Eligibility of Trustee; Disqualification.
(a)
There shall at all times be a Trustee under this Indenture, and such Trustee shall at all times be a corporation organized and
doing business under the laws of the United States of America or of the State of New York, in good standing and having its principal
office in New York, New York, which is authorized under such laws to exercise corporate trust powers and is subject to supervision
or examination by Federal or State authority and which has a combined capital and surplus of not less than $50,000,000. For the
purposes of this
Section 10.06
, the combined capital and surplus of any such Trustee shall be deemed to be the combined
capital and surplus as set forth in the most recent report of its condition published by such Trustee;
provided
that such
reports are published at least annually, pursuant to law or to the requirements of a Federal or State supervising or examining
authority. If such Trustee or any successor shall at any time cease to have the qualifications prescribed in this
Section 10.06
,
it shall promptly resign as Trustee hereunder.
(b)
The Trustee shall comply with Section 310(b) of the Trust Indenture Act. If the Trustee has or shall acquire a conflicting interest
within the meaning of such Section 310(b), the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 10.07.
Successor by Appointment.
(a)
In case at any time the Trustee shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if 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
with respect to the Securities of one or more series, a successor trustee with respect to the Securities (it being understood
that any such successor trustee may be appointed with respect to the Securities of all series of Securities then Outstanding and
that at any time there shall be only one Trustee with respect to all Securities then Outstanding) may be appointed by the holders
of a majority in principal amount of the Securities then Outstanding, by an instrument or instruments in writing signed in duplicate
by such holders and filed, one original thereof with the Company, one original thereof with the successor trustee; but, until
a successor trustee shall have been so appointed by the holders of Securities of that or those series as herein authorized, the
Company by a resolution of its Board of Directors, or, in case all or substantially all the assets of the Company shall be in
the possession of one or more custodians or receivers lawfully appointed, or of trustees in bankruptcy or reorganization proceedings
(including a trustee or trustees appointed under the provisions of the Federal bankrutpcy laws, as now or hereafter constituted),
or of assignees for the benefit of creditors, such receivers, custodians, trustees or assignees, as the case may be, by an instrument
in writing, shall appoint a successor trustee with respect to the Securities of such series. Subject to the provisions of
Section 10.05
and
Section 10.06
, upon the appointment as aforesaid of a successor trustee with respect to the Securities, the
Trustee with respect to the Securities shall cease to be Trustee hereunder. After any such appointment other than by the holders
of Securities, the Person making such appointment shall forthwith cause notice thereof to be delivered to the holders of Securities
but any successor trustee with respect to the Securities so appointed shall, immediately and without further act, be superseded
by a successor trustee appointed by the holders of Securities in the manner above prescribed, if such appointment is made prior
to the expiration of one year from the date of the delivering of such notice by the Company, or by such receivers, custodians,
trustees or assignees.
(b)
If any Trustee with respect to the Securities of one or more series shall resign because of conflict of interest as provided in
Section 10.06(b)
and a successor trustee shall not have been appointed by the Company or by the holders of the Securities
of such series or, if any successor trustee so appointed shall not have accepted its appointment within 30 days after such appointment
shall have been made, the resigning Trustee may apply to any court of competent jurisdiction for the appointment of a successor
trustee. If in any other case a successor trustee shall not be appointed pursuant to the foregoing provisions of this
Section 10.07
within three months after such appointment might have been made hereunder, the holder of any Security of the applicable series
or any retiring Trustee may apply to any court of competent jurisdiction to appoint a successor trustee. Such court may thereupon,
in any such case, after such notice, if any, as such court may deem proper and prescribe, appoint a successor trustee.
(c)
Any successor trustee appointed hereunder with respect to the Securities shall execute, acknowledge and deliver to its predecessor
Trustee and to the Company, or to the receivers, custodians, trustees, assignees or court appointing it, as the case may be, an
instrument accepting such appointment hereunder, and thereupon such successor trustee, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor Trustee
with like effect as if originally named as Trustee hereunder, and such predecessor Trustee, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to pay over, and such successor trustee shall be entitled to receive, all moneys
and properties held by such predecessor Trustee as Trustee hereunder. Nevertheless, on the written request of the Company or of
the successor trustee or of the holders of at least 10% in principal amount of the Securities then Outstanding, such predecessor
Trustee, upon payment of its said charges and disbursements, shall execute and deliver an instrument transferring to such successor
trustee upon the trusts herein expressed all the rights, powers and trusts of such predecessor Trustee and shall assign, transfer
and deliver to the successor trustee all moneys and properties held by such predecessor Trustee; and, upon request of any such
successor trustee, the Company and the Guarantor shall make, execute, acknowledge and deliver any and all instruments in writing
for more fully and effectually vesting in and confirming to such successor trustee all such authority, rights, powers, trusts,
immunities, duties and obligations.
Section 10.08.
Successor Trustee by Merger.
Any entity
into which the Trustee or any successor to it in the trusts created by this Indenture shall be merged or converted, or any entity
with which it or any successor to it shall be consolidated, or any entity resulting from any merger, conversion or consolidation
to which the Trustee or any such successor to it shall be a party, or any entity to which the Trustee or any successor to it shall
sell or otherwise transfer all or substantially all of the corporate trust business of the Trustee, shall be the successor trustee
under this Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto;
provided
that such entity shall be otherwise qualified and eligible under this
Article Ten
. In case at the time
such successor to the Trustee shall succeed to the trusts created by this Indenture with respect to the Securities, any of such
Securities shall have been authenticated but not delivered by the Trustee then in office, any successor to such Trustee may adopt
the certificate of authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that
time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either
in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture;
provided
that the certificate of the Trustee
shall have;
provided
,
however
, that the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
Section 10.09.
Limitation on Rights of Trustee as Creditor
.
If and when
the Trustee shall be or become a creditor of the Company or the Guarantor (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company or the Guarantor
(or any such other obligor).
Section 10.10.
Right to Rely on Officers’ Certificate.
Subject to
Section 10.02
, and subject to the provisions of
Section 17.01
with respect to the certificates required
thereby, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee,
be deemed to be conclusively proved and established by an Officers’ Certificate with respect thereto delivered to the Trustee
upon its request therefor or otherwise, and such Officers’ Certificate, in the absence of negligence or willful misconduct
on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section 10.11.
Appointment of Authenticating Agent.
The Company
may appoint an agent (the “
Authenticating Agent
”) to authenticate the Securities and does hereby appoint Citibank,
N.A. as Authenticating Agent. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication
by the Authenticating Agent.
Article Eleven
Satisfaction and Discharge
Section 11.01.
Satisfaction and Discharge of Indenture.
(a)
This Indenture, with respect to the Securities of any series (for purposes of this
Article Eleven
, meaning Securities having
identical terms, except as to issue date, principal amount and, if applicable, the date from which interest begins to accrue),
if all series issued under this Indenture are not to be affected, shall, upon Company Request, cease to be of further effect (except
as to any surviving rights of registration of transfer or exchange of such Securities herein expressly provided for, the rights
powers, trusts, duties, indemnities and immunities of the Trustee hereunder, and rights to receive payments of principal of and
interest on such Securities) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when:
(i)
either:
(A)
all Securities of such series theretofore authenticated and delivered (other than (1) Securities of such series that have
been mutilated, destroyed, lost or stolen and that have been replaced or paid as provided in
Section 3.07
, or (2) Securities
of such series 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 5.03
) have been delivered
to the Trustee for cancellation; or
(B)
all Securities of such series not theretofore delivered to the Trustee for cancellation: (1) have become due and payable,
or (2) will become due and payable at their Stated Maturity within one year, or (3) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice by the Trustee in the name, and at the expense, of
the Company; and
(C)
the Company, in the case of
Section 11.01(a)(i)(B)
above, has irrevocably deposited or caused to be deposited
with the Trustee funds in trust for the purpose an amount in the Currency in which such Securities are payable sufficient to pay
and discharge the entire indebtedness on such Securities for principal and interest to the date of such deposit (in the case of
Securities that have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
provided
,
however
, in the event a petition for relief under Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency, or other similar law, is filed with respect to the Company within 91 days
after the deposit and the Trustee is required to return the moneys then on deposit with the Trustee to the Company, the obligations
of the Company under this Indenture with respect to such Securities shall not be deemed terminated or discharged; and
(ii)
the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Securities;
and
(iii)
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 with respect to such series have been
complied with.
(b)
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Trustee under
Section 10.01
shall survive, and the obligations of the Company to the Trustee under
Section 10.01
and
Section 12.05
,
if money shall have been deposited with the Trustee pursuant to
Section 12.09
, shall survive such satisfaction and
discharge.
Section 11.02.
Application of Trust Money.
Subject to
provisions of
Section 12.05
, all money deposited with the Trustee pursuant to
Section 12.09
shall be held
in trust and applied by such party, 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 interest for whose payment such money has been deposited with the Trustee.
Article Twelve
Defeasance and Covenant Defeasance
Section 12.01.
Applicability of Article.
If, pursuant
to
Section 3.01
, provision is made for the defeasance of Securities of a series under
Section 12.02
or
covenant defeasance of Securities of a series under
Section 12.03
, then the provisions of such
Section 12.02
or
Section 12.03
shall be applicable, except as otherwise specified pursuant to
Section 3.01
for Securities
of such series. In such case, the Company may at its option, at any time, with respect to the Securities of such series, elect
to have either
Section 12.02
(if applicable) or
Section 12.03
(if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in this
Article Twelve
. Any such election
shall be evidenced by or pursuant to a Board Resolution or in another manner specified as contemplated by
Section 3.01
for such Securities.
Section 12.02.
Defeasance and Discharge.
(a)
Upon the Company’s exercise of its option (if any) to have this
Section 12.02
applied to any series of Securities,
the Company and the Guarantor shall each be deemed to have been discharged from its obligations with respect to such Securities
as provided in this
Section 12.02
, on and after the date the conditions set forth in
Section 12.04
are
satisfied (hereinafter called “
Defeasance
”). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise
terminated or discharged hereunder:
(i)
the rights of Holders of such Securities to receive, solely from the trust fund described in
Section 12.04
and
as more fully set forth in
Section 12.04
, payments in respect of the principal of and interest on such Securities
when payments are due;
(ii)
the Company’s obligations with respect to such Securities under
Section 3.06
,
Section 3.07
,
Section 5.02
and
Section 5.03
, and, if applicable to such Securities pursuant to
Section 3.01
,
any optional redemption, any Mandatory Sinking Fund Payment or any Optional Sinking Fund Payment;
(iii)
the rights, powers, trusts, duties and immunities of the Trustee hereunder; and
(iv)
this
Article Twelve
.
(b)
Subject to compliance with this
Article Twelve
, the Company may exercise its option (if any) to have this
Section 12.02
applied to any Securities notwithstanding the prior exercise of its option (if any) to have
Section 12.03
applied
to such Securities.
Section 12.03.
Covenant Defeasance.
Upon the
Company’s exercise of its option (if any) to have this
Section 12.03
applied to any series of Securities,
(a)
the Company shall be released from its obligations under
Section 5.04
,
Section 5.05
and
Section 5.06
(and, if so specified pursuant to
Section 3.01
, any other restrictive covenant added for the benefit of such series
pursuant to
Section 3.01
); and
(b)
the occurrence of any event specified in
Section 6.01(a)(iv)
(with respect to any of
Section 5.04
,
Section 5.05
and
Section 5.06
) and
Section 6.01(a)(vii)
shall be deemed not to be or result in a Default or an
Event of Default,
in each case
with respect to such Securities as provided in this
Section 12.03
on and after the date the conditions set forth in
Section 12.04
are satisfied (hereinafter called “
Covenant Defeasance
”). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, 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 specified Section, whether directly or indirectly by reason
of any reference elsewhere herein to any such Section or by reason of any reference in any such Section or other restrictive covenant
to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected
thereby. Following a Covenant Defeasance, payment of the Securities of such series may not be accelerated because of or by reference
to the Section or other restrictive covenant specified above in this
Section 12.03
.
Section 12.04.
Conditions to Defeasance or Covenant Defeasance.
The following
shall be the conditions precedent to application of either
Section 12.02
or
Section 12.03
to the Outstanding
Securities of such series:
(a)
The Company shall have deposited or caused to be deposited irrevocably with the Paying Agent funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the holders of the Securities of such series (i) money in an amount,
(ii) Government Obligations that through the payment of interest and principal in respect thereof in accordance with their terms
will provide, not later than the opening of business on the due date of any payment, money in an amount, or (iii) a combination
of
clause (i)
and
(ii)
, in each case, in the opinion of a nationally recognized firm of independent registered
public accountants expressed in a written certification thereof delivered and addressed to the Trustee sufficient to pay and discharge
each installment of principal of and interest on the Outstanding Securities of such series on the dates such installments of interest
or principal are due.
(b)
If the Securities of such series are then listed on any national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company’s exercise of its option under this
Article Twelve
would
not cause such Securities to be delisted.
(c)
No Event of Default or event (including such deposit) that, with notice or lapse of time, or both, would become an Event of Default
with respect to the Securities of such
series shall have occurred and be continuing (i) on the date of such deposit or (ii) insofar
as
Section 6.01(a)(v)
and
(vi)
are concerned, at any time during the period ending on the 90th day after the
date of such deposit or, if longer, ending on the day following the expiration of the longest preference period applicable to
the Company in respect of such deposit (it being understood that the condition in this
clause (ii)
is a condition
subsequent and shall not be deemed satisfied until the expiration of such period).
(d)
In the event of an election to have
Section 12.02
apply to any series of Securities, the Company shall have delivered
to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the
U.S. Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change in the applicable federal
income tax law, in either case of
clause (i)
or
(ii)
to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Securities will not recognize gain or loss for federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to federal income
tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(e)
In the event of an election to have
Section 12.03
apply to any series of Securities, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for federal
income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will
be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.
(f)
Such Defeasance or Covenant Defeasance shall not (i) cause the Trustee for the Securities of such series to have a conflicting
interest for purposes of the Trust Indenture Act with respect to any securities of the Company or (ii) result in the trust arising
from such deposit to constitute, unless it is qualified as, a regulated investment company under the Investment Company Act.
(g)
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Defeasance under
Section 12.02
or the Covenant Defeasance
under
Section 12.03
(as the case may be) have been complied with.
Section 12.05.
Repayment to Company.
The Trustee
and any Paying Agent shall promptly pay to the Company (or to its designee) upon Company Request any excess moneys or Government
Obligations held by them at any time, including any such moneys or obligations held by the Trustee under any escrow trust agreement
entered into pursuant to
Section 12.07
. The provisions of
Section 12.09
shall apply to any money held
by the Trustee or any Paying Agent under this
Article Twelve
that remains unclaimed for two years after the Maturity
of any series of Securities for which money or Government Obligations have been deposited pursuant to
Section 12.04
.
Section 12.06.
Indemnity for Government Obligations.
The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the deposited Government
Obligations or the principal or interest received on such Government Obligations pursuant to
Section 12.04
.
Section 12.07.
Deposits to Be Held in Escrow.
(a)
Any deposits with the Paying Agent referred to in
Section 12.04
above shall be irrevocable (except to the extent provided
in
Section 12.04
and
Section 12.09
) and shall be made under the terms of an escrow trust agreement in
form and substance satisfactory to the Trustee. If any Outstanding Securities of a series are to be redeemed prior to their Stated
Maturity pursuant to any optional redemption provision, the applicable escrow trust agreement shall provide therefor and the Company
shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company.
(b)
If Securities of a series with respect to which such deposits are made may be subject to later redemption at the option of the
Company, the applicable escrow trust agreement may, at the option of the Company, provide therefor. In the case of an optional
redemption in whole or in part, such agreement shall require the Company to deposit with the Trustee on or before the date notice
of redemption is given funds sufficient to pay the Redemption Price of the Securities to be redeemed together with all unpaid
interest thereon to the Redemption Date. Upon such deposit of funds, the Trustee shall pay or deliver to the Company as excess
funds pursuant to
Section 12.05
all funds or obligations then held under such agreement and allocable to the Securities
to be redeemed.
Section 12.08.
Deposits of Non-U.S. Currencies.
Notwithstanding
the foregoing provisions of this
Article Twelve
, if the Securities of any series are payable in a Currency other than U.S.
Dollars, the Currency or the nature of the Government Obligations to be deposited with the Trustee or Paying Agent under the foregoing
provisions of this
Article Twelve
shall be as set forth in the Board Resolution or established in the supplemental indenture
under which the Securities of such series are issued or, if not so set forth, in a Company Order.
Section 12.09.
Unclaimed Funds.
(a)
Neither the Trustee nor any Paying Agent shall be required to pay interest on any money deposited pursuant to the provisions of
this Indenture, except such as it shall agree with the Company to pay thereon. Any money so deposited for the payment of the principal
of or interest on the Securities of any series and remaining unclaimed for two years after the date of the Maturity of the Securities
of such series or the date fixed for the redemption of all of the Securities of such series at the time Outstanding, as the case
may be, shall be repaid by the Trustee or Paying Agent to the Company upon its written request and thereafter, anything in this
Indenture notwithstanding, any rights of the holders of Securities of such series in respect of which such money shall have been
deposited shall be enforceable only against the Company (or,
with respect to the Guarantee, the Guarantor), and all liability
of the Trustee or any Paying Agent with respect to such money shall thereafter cease.
(b)
Subject to the provisions of this
Section 12.09
, any money which at any time shall be deposited by the Company or
on its behalf with the Trustee or Paying Agent for the purpose of paying the principal of and interest on any of the Securities
shall be and are hereby assigned, transferred and set over to the Trustee or Paying Agent in trust for the respective holders
of the Securities for the purpose for which such money has been deposited; but such money need not be segregated from other funds
except to the extent required by law.
Article Thirteen
Immunity of Certain Persons
Section 13.01.
No Personal Liability.
No recourse
shall be had for the payment of the principal of or interest on any Security or for any claim based thereon or otherwise in respect
thereof or of the indebtedness represented thereby, or upon any obligation, covenant or agreement of this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or future, of the Company, the Guarantor or of any successor
entity, either directly or through the Company, the Guarantor or any successor entity, whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed
and understood that this Indenture, the Securities and the Guarantee are solely corporate (or equivalent) obligations, and that
no personal liability whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company, the Guarantor or of any successor entity, either directly or through the Company, the
Guarantor or any successor entity, because of the incurring of the indebtedness hereby authorized or under or by reason of any
of the obligations, covenants, promises or agreements contained in this Indenture or in any of the Securities or the Guarantee
endorsed thereon, or to be implied herefrom or therefrom, and that all liability, if any, of that character against every such
incorporator, stockholder, officer and director is, by the acceptance of the Securities and the Guarantee endorsed thereon and
as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the Securities expressly
waived and released.
Article Fourteen
Sinking Funds
Section 14.01.
Applicability of Article.
(a)
Redemption of Securities permitted or required pursuant to a sinking fund for the retirement of Securities shall be applicable
to the Securities of a series if so specified as contemplated by
Section 3.01
for Securities of such series.
(b)
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 14.03
. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
Section 14.02.
Satisfaction of Sinking Fund Payments with Securities.
The Company
(a) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (b) 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 the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such series;
provided
that such Securities have
not been previously so credited;
provided further
that, in the case of
clause (a)
above, with respect to any Outstanding
Securities so delivered, and in the case of
clause (b)
above, with respect to any such Securities so credited, such
Outstanding Securities or Securities, as the case may be, be Securities subject to the sinking fund payment required to be made
with respect to the Securities of such series. 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 14.03.
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
Officers’ 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 14.02
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
in accordance with the procedures of the Depositary shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in
Section 4.02
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 17.04
. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner stated in
Section 4.05
and
Section 4.06
.
Article Fifteen
Supplemental Indentures
Section 15.01.
Without Consent of Securityholders.
(a)
The Company (when authorized by or pursuant to a Board Resolution), the Guarantor 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 one or more of or
all the following purposes:
(i)
to add to the covenants and agreements of the Company or the Guarantor, to be observed thereafter and during the period, if
any, expressed in such supplemental indenture or indentures, and to add Events of Default, in each case for the protection or
benefit of the holders of all or any series of the Securities (and if such covenants, agreements and Events of Default are to
be for the benefit of fewer than all series of Securities, stating that such covenants, agreements and Events of Default are expressly
being included for the benefit of such series as shall be identified therein), or to surrender any right or power herein conferred
upon the Company or the Guarantor;
(ii)
to delete or modify any Events of Default with respect to all or any series of the Securities, the form and terms of which
are being established pursuant to such supplemental indenture as permitted in
Section 2.01
and
Section 3.01
(and, if any such Event of Default is applicable to fewer than all such series of the Securities, specifying the series to
which such Event of Default is applicable), and to specify the rights and remedies of the Trustee and the holders of such Securities
in connection therewith;
(iii)
to change or eliminate any of the provisions of this Indenture;
provided
that any such change or elimination shall
become effective only when there is no Outstanding Security of any series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provision and as to which such supplemental indenture would apply;
(iv)
to evidence the succession or successive successions of another entity to the Company or the Guarantor to the extent permitted
by this Indenture, and the assumption by a successor, transferee or lessee entity of the covenants and obligations of the Company
contained in the Securities of one or more series and in this Indenture;
(v)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities
and to add to or change any of the provisions of this Indenture as shall be necessary for or facilitate the administration of
the trusts hereunder, pursuant to the requirements of
Section 10.07(a)
or
(b)
;
(vi)
to cure any ambiguity or to correct or supplement any provision with respect to Securities of any series contained in this
Indenture which may be defective or inconsistent with any other provision contained in this Indenture, or to make any other provision
in regard to matters or questions arising under this Indenture which the Company and the Guarantor may deem necessary or desirable
and which shall not materially adversely affect the interests of the holders of the Outstanding Securities of the affected series;
(vii)
to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities any property or assets which
the Company or the Guarantor may be required to convey, transfer, assign, mortgage or pledge in accordance with the provisions
of
Section 5.04
and
Section 16.04
;
(viii)
to prohibit the authentication and delivery of additional series of Securities;
(ix)
to establish the form and terms of the Securities of any series as permitted in
Section 3.01
, or to authorize
the issuance of additional Securities of a series previously authorized; or to add to the conditions, limitations or restrictions
on the authorized amount, terms or purposes of issue, authentication or delivery of the Securities of any series, as herein set
forth, or other conditions, limitations or restrictions thereafter to be observed with respect to a series to be issued.
(b)
Subject to the provisions of
Section 15.03
, the Trustee is authorized to join with the Company and the Guarantor in
the execution of any such supplemental indenture, to make the further agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any property or assets thereunder.
(c)
Any supplemental indenture authorized by the provisions of this
Section 15.01
may be executed by the Company, the
Guarantor and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of
Section 15.02
.
Section 15.02.
With Consent of Securityholders; Limitations.
(a)
With the consent of the holders of not less than a majority in aggregate principal amount of the Outstanding Securities affected
by such supplemental indenture, such affected Outstanding Securities within each series voting separately from any other series,
the Company (when authorized by a Board Resolution), the Guarantor and the Trustee may, from time to time and at any time, enter
into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating
any provisions of this Indenture or of modifying in any manner the rights of the holders of the Securities of such series to be
affected;
provided
,
however
, that no such supplemental indenture shall, without the consent of the holder of each
Outstanding Security affected thereby:
(i)
extend the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount
thereof or the interest thereon, or (except as required pursuant to a change in applicable law) change the Currency in which the
principal of or interest on such Security is denominated or payable, or impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date);
(ii)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose holders is required
for any supplemental indenture, or the consent of whose holders is required for any waiver of compliance with certain provisions
of this Indenture or certain Defaults hereunder and their consequences provided for in this Indenture;
(iii)
reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration
of the acceleration of the Maturity thereof pursuant to
Section 6.02
; or
(iv)
modify any of the provisions of this
Section 15.02
,
Section 6.06
or
Section 6.07
, 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
,
however
, that this
Section 15.02(a)(iv)
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 15.02
and
Section 6.07
, or the deletion of this proviso, in accordance
with the requirements of
Section 10.07
.
(b)
A supplemental indenture that changes or eliminates any 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.
(c)
It shall not be necessary for the consent of the Securityholders under this
Section 15.02
to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
(d)
The Company may set a record date for purposes of determining the identity of the holders of each series of Securities entitled
to give a written consent as authorized or permitted by this
Section 15.02
. Such record date shall not be more than
30 days prior to the first solicitation of such consent or the date of the most recent list of holders furnished to the Trustee
prior to such solicitation.
(e)
If any supplemental indenture requiring consent of the Securityholders pursuant to this
Section 15.02
is not filed
with the SEC promptly after the execution by the Company, the Guarantor and the Trustee of such supplemental indenture, the Company
shall deliver a notice, setting forth in general terms the substance of such supplemental indenture, to the holders of Securities
of the applicable series at their addresses as the same shall then appear in the Register of the Company. Any failure of the Company
to deliver such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 15.03.
Trustee Protected.
(a)
Upon the request of the Company, accompanied by the Officers’ Certificate and Opinion of Counsel required by
Section 17.01
and by:
(i)
a supplemental indenture duly executed on behalf of the Company and the Guarantor;
(ii)
a copy of the Board Resolutions authorizing the execution of said supplemental indenture;
(iii)
an Opinion of Counsel and an Officers’ Certificate, stating that said supplemental indenture complies with, and that
the execution thereof is authorized or permitted by, the provisions of this Indenture; and
(iv)
if said supplemental indenture shall be executed pursuant to
Section 15.02
, evidence of the consent thereto of
the Securityholders required to consent thereto as in
Section 15.02
.
(b)
The Trustee shall join with the Company and the Guarantor in the execution of said supplemental indenture unless said supplemental
indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into said supplemental indenture.
Section 15.04.
Effect of Execution of Supplemental Indenture.
Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article Fifteen
, this Indenture shall be
deemed to be modified and amended in accordance therewith and, except as herein otherwise expressly provided, the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the Guarantor and
the holders of all of the Securities or of the Securities of any series affected, as the case may be, shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 15.05.
Notation on or Exchange of Securities.
Securities
of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this
Article Fifteen
may bear a notation in form as to any matter provided for in such supplemental indenture. If the Company
or the Trustee shall so determine, new Securities, so modified as to conform, in the opinion of the Trustee and the Company, to
any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for the Securities then Outstanding in equal aggregate principal amounts,
and such exchange shall be made without cost to the holders of the Securities.
Section 15.06.
Compliance with Trust Indenture Act.
Every supplemental
indenture executed pursuant to the provisions of this
Article Fifteen
shall conform to the requirements of the Trust
Indenture Act.
Article Sixteen
guarantee
Section 16.01.
Unconditional Guarantee
.
(a)
The Guarantor does hereby fully and unconditionally guarantee (the “
Guarantee
”) to the holders all payments
on the Securities when due, in accordance with the provisions of this Indenture, as provided below.
(b)
The Guarantor hereby waives notice of acceptance of the Guarantee and of Default of performance by the Company, and hereby agrees
that payment under the Guarantee shall be subject to no condition other than the giving of a written request for payment, stating
the fact of Default of performance, in the manner provided in
Section 17.03
. This Guarantee is a guarantee of payment
and not of collection.
(c)
The obligations of the Guarantor under the Guarantee shall in no way be impaired by: (1) any extension, amendment, modification
or renewal of the Securities; (2) any waiver of any Event of Default, extension of time or failure to enforce any of the Securities;
or (3) any extension, moratorium or other relief granted to the Company pursuant to any applicable law or statute.
(d)
The Guarantor shall be obligated to make payment under the Guarantee, for the benefit of the holders, at the same address as the
Company is obligated to make payment.
(e)
Subject to clause (f) below, the Guarantor hereby agrees that:
(i)
the Securities will be paid strictly in accordance with the terms of this Indenture, regardless of the value, genuineness,
validity, regularity or enforceability of the Securities, and of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Trustee with respect thereto; and
(ii)
the liability of the Guarantor to the extent herein set forth shall be absolute and unconditional, not subject to any reduction,
limitation, impairment, termination, defense, offset, counterclaim or recoupment whatsoever (all of which are hereby expressly
waived by the Guarantor) whether by reason of any claim of any character whatsoever, including, without limitation, any claim
of waiver, release, surrender, alteration or compromise, or by reason of any liability at any time to the Guarantor or otherwise,
whether based upon any obligations or any other agreement or otherwise, and howsoever arising, whether out of action or inaction
or otherwise and whether resulting from Default, willful misconduct, negligence or otherwise, and without limiting the foregoing,
irrespective of:
(A)
any lack of validity or enforceability of any agreement or instrument relating to the Securities;
(B)
any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Securities, or
any other amendment or waiver of or consent to any departure from any other agreement relating to any Securities;
(C)
any increase in, addition to, exchange or release of, or non-perfection of any lien on or security interest in, any collateral,
or any release or amendment or waiver of or consent to any departure from or failure to enforce any other guarantee, for all or
any of the indebtedness;
(D)
any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company in respect of
the Securities;
(E)
the absence of any action on the part of the Trustee to obtain payment of the Securities from the Company;
(F)
any insolvency, bankruptcy, reorganization or dissolution, or any similar proceeding of the Company, including, without limitation,
rejection of the Securities in such bankruptcy; or
(G)
the absence of notice or any delay in any action to enforce any Securities or to exercise any right or remedy against the
Guarantor or the Company, whether hereunder, under any Securities or any agreement or any indulgence, compromise or extension
granted.
(f)
Notwithstanding anything to the contrary in this Guarantee, the Guarantor does not waive any defense that would be available to
the Company based on a breach, default or misrepresentation by the Trustee, or failure of any condition to the Company’s
obligations under this Indenture or the illegality of any provision of this Indenture.
(g)
The Guarantor further agrees that, to the extent that the Company or the Guarantor makes a payment or payments to the Trustee,
which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to the Company or the Guarantor or their respective estate, trustee, receiver or any other party
under any federal bankruptcy laws, state or federal law, common law or equitable cause, then to the extent of such payment or
repayment, this Guarantee and the advances or part thereof which have been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.
Section 16.02.
Execution and Delivery of Guarantee
.
(a)
If an officer whose signature is on this Indenture or the Guarantee no longer holds that office at the time the Trustee authenticates
the Security on which the Guarantee is endorsed or at any time thereafter, the Guarantee shall be valid nevertheless.
(b)
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of the Guarantor.
Section 16.03.
Waiver of Subrogation
. The Guarantor shall be subrogated to all rights of the
holders of Securities and the Trustee against the Company in respect of any amounts paid to such holders by the Guarantor pursuant
to the provisions of the Guarantee;
provided
,
however
, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon such right of subrogation until the principal of, interest on and additional
interest, if any, payable in respect of all Securities of the same series issued under such Indenture shall have been paid in
full.
Section 16.04.
Restrictions on Sales of Voting Stock of Certain Significant Subsidiaries.
(a)
The Guarantor will not, and will not permit any Subsidiary to, incur, issue, assume or guarantee any Indebtedness if such Indebtedness
is secured by a pledge of, lien on, or security interest in any shares of Voting Stock of any Significant Subsidiary, whether
such Voting Stock is now owned or shall hereafter be acquired, without effectively providing that the Securities (together with,
if the Guarantor shall so determine, any other indebtedness or obligations of the Guarantor or any Subsidiary ranking equally
with such Securities and then existing or thereafter created) shall be secured equally and ratably with such Indebtedness. For
the purposes of the foregoing, pledging, placing a lien on or creating a security interest in any shares of Voting Stock of a
Significant Subsidiary in order to secure then outstanding Indebtedness of the Guarantor or any Subsidiary shall be deemed to
be the incurrence, issuance, assumption or guarantee (as the case may be) of such Indebtedness, but the foregoing shall not apply
to Indebtedness secured by a pledge of, lien on or security interest in any shares of Voting Stock of any corporation at the time
it becomes a Significant Subsidiary, including extensions, renewals and replacements of such Indebtedness without increase in
the amount thereof.
(b)
For the purposes of
Section 16.04(a)
, the term “
Voting Stock
” shall mean capital stock the holders
of which have general voting power under ordinary circumstances to elect a majority of the board of directors of a corporation,
or substantially equivalent interests in the case of an entity other than a corporation;
provided
that, for the purposes
hereof, capital stock which carries only the right to vote conditioned on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
(c)
For the purposes of
Section 16.04(a)
, the term “
Significant Subsidiary
” shall mean a Subsidiary,
including its Subsidiaries, which meets any of the following conditions:
(i)
The Guarantor’s and its other Subsidiaries’ investments in and advances to the Subsidiary exceed 10% of the total
assets of the Guarantor and its Subsidiaries consolidated as of the end of the most recently completed fiscal year; or
(ii)
The Guarantor’s and its other Subsidiaries’ proportionate share of the total assets (after inter-company eliminations)
of the Subsidiary exceeds 10% of the total assets of the Guarantor and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year; or
(iii)
The Guarantor’s and its other Subsidiaries’ equity in the income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principle of the Subsidiary exceeds 10% of such income of
the Guarantor and its Subsidiaries consolidated for the most recently completed fiscal year.
(d)
For the purposes of making the prescribed income test in
Section 16.04(c)(iii)
, the following shall be applicable:
(i)
When a loss has been incurred by either the Guarantor and its Subsidiaries consolidated or the tested Subsidiary, but not
both, the equity in the income or loss of the
tested Subsidiary shall be excluded from the income of the Guarantor and its Subsidiaries
consolidated for purposes of the computation; and
(ii)
If income of the Guarantor and its Subsidiaries consolidated for the most recent fiscal year is at least 10% lower than the
average of the income for the last five fiscal years, such average income shall be substituted for purposes of the computation.
Any loss years shall be omitted for purposes of computing average income.
Section 16.05.
Restrictions on Merger, Consolidation, Sale and Lease of Assets
.
(a)
Except as provided in
Section 17.05
, the Guarantor will not consolidate with any other entity or accept a merger of
any other entity into the Guarantor or permit the Guarantor to be merged into any other entity, or sell other than for cash or
lease all or substantially all its assets to another entity, unless:
(i)
in the case where the Guarantor shall consolidate with or merge into another entity or sell other than for cash or lease all or
substantially all of its assets to another entity, the entity formed by such consolidation or into which the Guarantor is merged
or the entity which acquires other than for cash, or which leases, all or substantially all of the assets of the Guarantor, shall
be a corporation, partnership or trust organized and existing under the laws of the United States of America, any State thereof
or the District of Columbia;
(ii)
either the Guarantor shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Guarantor)
shall expressly assume, by supplemental indenture satisfactory to the Trustee, executed and delivered by such entity prior to
or simultaneously with such consolidation, merger, sale or lease, the full and unconditional guarantee of the due and punctual
payment of the principal of and interest on all the Securities, according to their tenor and the due and punctual performance
and observance of all other obligations to the holders and the Trustee under this Indenture or under the Securities to be performed
or observed by the Guarantor;
(iii)
immediately after such merger, consolidation, sale or lease, the Guarantor or the successor, transferee or lessee entity (if other
than the Guarantor) would not be in default in the performance of any covenant or condition of this Indenture; and
(iv)
after giving effect to such merger, consolidation, sale or lease, neither the Guarantor nor any successor will be required to
register as an “investment company” under the Investment Company Act.
(b)
Upon any consolidation with or merger into any other entity, or any sale, conveyance or lease of all or substantially all of the
assets of the Guarantor in accordance with this
Section 16.05
, the successor entity formed by such consolidation or
into or with which the Guarantor 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 Guarantor under this Indenture with the same effect as if such successor entity
had been named as the Guarantor herein, and
thereafter, except in the case of a lease, the predecessor Guarantor shall be relieved
of all obligations and covenants under the Guarantee.
Section 16.06.
Assumption by Guarantor
.
The Guarantor
may, without the consent of the holders, assume all of the rights and obligations of the Company hereunder with respect to any
Securities and under such Securities if, after giving effect to such assumption, no Event of Default or event which with the giving
of notice or lapse of time, or both, would become an Event of Default, shall have occurred and shall be continuing. Upon such
an assumption, the Guarantor shall execute a supplemental indenture evidencing its assumption of all such rights and obligations
of the Company and the Company shall be released from its liabilities hereunder and under such Securities as obligor on such Securities.
Section 16.07.
Article Sixteen Applicable to Paying Agent
. At any time that a Paying Agent
other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as
used in this
Article Sixteen
shall in such case (unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this
Article Sixteen
in addition to or in place of the Trustee.
Section 16.08.
No Suspension of Remedies
. Nothing contained in this
Article Sixteen
shall limit the right of the Trustee or the holders of Securities to take any action to accelerate the maturity of the Securities
pursuant to
Article Six
or to pursue any rights or remedies hereunder or under applicable law.
Article Seventeen
Miscellaneous Provisions
Section 17.01.
Certificates and Opinions as to Conditions Precedent.
(a)
Upon any request or application by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company or the Guarantor shall furnish to the Trustee an Officers’ Certificate and Opinion of Counsel stating that all
conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided pursuant to
Section 5.06
) shall include:
(i) a statement that the Person making giving such certificate or opinion has read such covenant or condition; (ii) a statement
that, in the view or opinion of such Person, he or she has made such examination or investigation as is necessary to enable such
Person to express an informed view or opinion as to whether or not such covenant or condition has been complied with; and (iii)
a statement as to whether or not, in the view of such Person, such condition or covenant has been complied with.
(c)
Any certificate or statement of an officer of the Company or the Guarantor 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 certificate or representations with respect to the matters upon which his or her certificate or statement
is based are erroneous.
(d)
Any certificate or statement of an officer of the Company or the Guarantor may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of, or representations by, an accountant or firm of accountants, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting
matters upon which his or her certificate or statement may be based are erroneous. Any certificate or opinion of any firm of independent
registered public accountants filed with the Trustee shall contain a statement that such firm is independent.
(e)
In any case where several matters are required to be certified by 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 with respect to some matters and one or more other such Persons as to other matters, and any such
Person may certify as to such matters in one or several documents.
(f)
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 17.02.
What
Constitutes Action by Board of Directors.
Whenever
action is required by this Indenture by the Board of Directors of the Company or the Guarantor and there is at the time constituted
a committee of the Board of Directors duly authorized to take such action, or a committee of officers or other representatives
of the Company or the Guarantor so authorized by the Board of Directors, such action by such a committee shall be deemed to be
the action of the Board of Directors and shall be sufficient for all purposes of this Indenture where action by the Board of Directors
is specified.
Section 17.03.
Notices to the Company, Guarantor and Trustee.
(a)
Any notice or demand authorized by this Indenture to be made upon, given or furnished to, or filed with, the Company, the Guarantor
or the Trustee shall be sufficiently made, given, furnished or filed for all purposes if it shall be mailed, delivered or telefaxed
to:
(i)
the Company, at 388 Greenwich Street, New York, New York 10013 (fax no. (646) 291-5542, Attn: General Counsel or at such
other address or facsimile number as may have been furnished in writing to the Trustee by the Company; and
(ii)
the Guarantor, at 388 Greenwich Street, New York, New York 10013 (fax no.: (212) 793-5629) with a copy to Citigroup Inc.,
One Court Square, 45
th
Floor, Long Island City, New York 11120, Attn: Associate General Counsel – Capital
Markets (fax no.: (718) 248-2705) or at such other address or facsimile number as may have been furnished in writing to the Trustee
by the Company; and
(iii)
the Trustee, at the Corporate Trust Office.
(b)
Any such notice or demand shall be in the English language.
(c)
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf,
facsimile transmission or other similar unsecured electronic methods;
provided, however
, that the Trustee shall have received
an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures
of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or
deleted from the listing. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of
such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly
or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict
or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee
acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Section 17.04.
Notices to Securityholders; Waiver.
(a)
Any notice required or permitted to be given to Securityholders shall be sufficiently given (unless otherwise herein expressly
provided),
(i)
if to registered holders, if given in writing by first class mail, postage prepaid, or by carrier service, to such holders
at their addresses as the same shall appear on the Register of the Company or, with respect to any series of Securities issued
in book-entry form, if given to the Depositary in accordance with its procedures; and
(ii)
in the event of suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice
by mail, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every
purpose hereunder.
(b)
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
on such waiver. 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, and any
notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given.
Section 17.05.
Consolidation, Merger, Sale or Lease.
(a)
Subject to the provisions of
Section 5.05
or
Section 16.05
, nothing contained in this Indenture or in
the Securities shall be deemed to prevent the consolidation or merger of
the Company or the Guarantor with
or into any other entity, or the merger into the Company or the Guarantor of any other entity, or the sale or lease by the Company
or the Guarantor of their respective property and assets as, or substantially as, an entirety or otherwise.
(b)
Upon any consolidation or merger, or any sale, other than for cash, or lease of all or substantially all or the assets of the
Company or the Guarantor in accordance with the provisions of
Section 5.05
or
Section 16.05
, the entity
formed by such consolidation or into which the Company or the Guarantor shall have been merged or to which such sale or lease
shall have been made shall succeed to and be substituted for the Company or the Guarantor, as applicable, with the same effect
as if it had been named herein as a party hereto, and thereafter from time to time such entity may exercise each and every right
and power of the Company or the Guarantor, as applicable, under this Indenture, in the name of the Company or the Guarantor, or
in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of
Directors or any officer of the Company or the Guarantor may be done with like force and effect by the like board or officer of
any entity that shall at the time be the successor of the Company or the Guarantor hereunder. In the event of any such sale or
conveyance, but not any such lease, the Company or the Guarantor (or any successor entity which shall theretofore have become
such in the manner described in
Section 5.05
or
Section 16.05
) shall be discharged from all obligations
and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated.
Section 17.06.
Trust Indenture Act to Control.
If any provision
of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included
in this Indenture by any of the provisions of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provisions
shall control.
Section 17.07.
Force Majeure.
The Trustee
shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising
out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of
God, earthquakes, fires, floods, wars, civil or military disturbances, sabotage, epidemics, riots, loss or malfunctions of utilities,
computer (hardware or software) or communications service disruptions, labor disputes, acts of civil or military authority, terrorism,
or governmental, judicial
or regulatory actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire
or communication facility.
Section 17.08.
Legal Holiday.
Unless otherwise
specified pursuant to
Section 3.01
or
Section 3.10
, in any case where the Maturity Date of any Security
of any series shall not be a business day at any Place of Payment for the Securities of that series, then payment of principal
or interest 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 such Maturity Date and no interest shall accrue on such payment
for the period from and after such Maturity Date, as the
case may be, to such business day
if such payment is made or duly provided for on such business day.
Section 17.09.
Separability Clause.
In case any
provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, to the fullest extent permitted by
law, the validity, legality and enforceability of the remaining provisions thereof shall not in any way be affected or impaired
thereby.
Section 17.10.
Benefits of Indenture.
Nothing in
this Indenture expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed,
to confer upon, or to give to, any Person other than the parties hereto and their permitted successors and assigns and the holders,
from time to time, of the Securities any benefit or any legal or equitable right, remedy or claim under or by reason of this Indenture
or any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and
agreements in this Indenture contained shall be for the sole and exclusive benefit of the parties hereto and their permitted successors
and assigns and of the holders of the Securities.
Section 17.11.
Counterparts Originals.
This Indenture
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.
Section 17.12.
Governing Law, Etc.
(a)
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
(b)
Each of the holders, the Company, the Guarantor and the Trustee hereby consent to the jurisdiction of a state or federal court
situated in New York City, New York in connection with any dispute arising hereunder. Each of the Company and the Guarantor hereby
irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the
laying of venue of any such proceeding brought in such a court and any claim that such proceeding brought in such a court has
been brought in an inconvenient forum.
Section 17.13.
Waiver of Jury Trial
.
EACH OF THE
COMPANY, THE GUARANTOR, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.
IN WITNESS
WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
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CITIGROUP
GLOBAL MARKETS HOLDINGS INC., as Company
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By:
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/s/ Peter A. Mozer
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s
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Name: Peter A. Mozer
Title: Treasurer
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CITIGROUP
INC., as Guarantor
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By:
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/s/ Joseph Bonocore
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Name: Joseph Bonocore
Title: Deputy Treasurer
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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/s/ Laurence J. O’Brien
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Name: Laurence J. O’Brien
Title: Vice President
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APPOINTMENT
PURSUANT TO
Section 3.05
AND
Section 10.11
ACKNOWLEDGED AND ACCEPTED
and obligations pursuant to
section 5.03(c)
acknowledged and agreed
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CITIBANK,
N.A.
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as Registrar, Paying Agent and Authenticating Agent
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By:
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/s/ Anthony Bausa
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Name: Anthony Bausa
Title: Vice President
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Exhibit
A
UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY (DTC) TO ITS NOMINEE OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC
OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
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REGISTERED
NO.
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STATED
PRINCIPAL AMOUNT
$
CUSIP:
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CITIGROUP
GLOBAL MARKETS HOLDINGS INC.
PAYMENTS
DUE FROM CITIGROUP GLOBAL MARKETS HOLDINGS INC.
FULLY AND
UNCONDITIONALLY GUARANTEED
BY CITIGROUP
INC.
[TITLE OF
SECURITIES]
CITIGROUP GLOBAL
MARKETS HOLDINGS INC., a corporation duly organized and existing under the laws of the State of New York (herein referred to as
the “Company”), for value received, hereby promises to pay and/or deliver to CEDE & CO. or registered assigns
(a) on the Maturity Date specified in the pricing supplement attached hereto and delivered herewith (together with the related
prospectus supplement(s) and base prospectus, the “Related Prospectus”) (or on such earlier date or dates as may be
provided in the Related Prospectus), the amount in cash and/or the number of securities, as applicable, due with respect to the
stated principal amount then outstanding, as provided in the Related Prospectus, in the currency specified in the Related Prospectus,
and (b) if applicable, on each Interest Payment Date (or any other date specified in the Related Prospectus), the amount of interest
or any other amount due on the stated principal amount then outstanding, as described in the Related Prospectus.
The cash amounts
payable hereon are payable by the Company in the currency specified in the Related Prospectus. If other than U.S. dollars, the
Company will arrange for payments in respect hereof to be made as described in the Related Prospectus.
The payments
and/or deliveries due on this Note are fully and unconditionally guaranteed by Citigroup Inc. (the “Guarantor”).
REFERENCE IS
HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF AND IN THE RELATED PROSPECTUS. THE PROVISIONS
SET FORTH ON THE REVERSE HEREOF AND IN THE RELATED PROSPECTUS ARE INCORPORATED HEREIN AND SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH IN THIS NOTE.
This Note shall
not become valid or obligatory for any purpose unless and until this Note has been authenticated by Citibank, N.A., or its successor,
as authentication agent.
IN WITNESS
WHEREOF, the Company has caused this Note to be executed under its corporate seal.
Dated:
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CITIGROUP
GLOBAL MARKETS HOLDINGS INC.
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By:
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[Seal]
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Attest
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Assistant Secretary
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CERTIFICATE
OF AUTHENTICATION
This is one
of the Securities of the series designated herein issued under the Indenture described herein.
Dated:
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CITIBANK,
N.A., as authentication agent
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By:
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(REVERSE
OF SECURITY)
CITIGROUP GLOBAL MARKETS HOLDINGS INC.
PAYMENTS
DUE FROM CITIGROUP GLOBAL MARKETS HOLDINGS INC.
FULLY AND
UNCONDITIONALLY GUARANTEED
BY CITIGROUP
INC.
General
This Note is
one of a series of duly authorized debt securities of the Company (the “Securities”) issued or to be issued in one
or more series under an indenture, dated as of March 8, 2016, as such indenture may be amended from time to time (the “Indenture”),
between the Company, the Guarantor and The Bank of New York Mellon (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 Guarantor, the Trustee and
the holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The
payments and/or deliveries due on the Securities are fully and unconditionally guaranteed by the Guarantor.
The Notes are
in registered form without coupons. The authorized denominations of the Notes are as specified in the Related Prospectus.
Each Note will
be issued initially as a book-entry Note, and will not be exchangeable for certificated or definitive Notes, except as otherwise
provided in the Indenture or specified in the Related Prospectus.
If this Note
is an amortizing Note, as indicated in the Related Prospectus, a portion or all the stated principal amount of the Note is payable
prior to the Maturity Date in accordance with a schedule, by application of a formula, or by reference to a measure specified
in the Related Prospectus.
If the holder
of this Note may receive securities or other non-cash payment at Maturity of this Note (or earlier if and to the extent so provided
in the Related Prospectus), such payment will be calculated and paid in accordance with the terms and conditions specified in
the Related Prospectus.
All other terms
and conditions of this Note, including, but not limited to, the applicability of any survivor’s option, optional interest
rate reset, renewable maturity, extension of the Maturity Date or optional redemption, repayment or repurchase, will be as described
in the Related Prospectus.
Other Terms
As provided
in the Indenture and subject to certain limitations therein set forth, when this Note is presented to the Registrar with a request
to register the transfer of this Note or to exchange this Note for an equal stated principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction
are met;
provided
that this Note shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Registrar, duly executed by the holder thereof or such holder’s attorney duly authorized in writing. All Securities
issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled
to the same benefits under the Indenture as this Note.
No service
charge shall be made to a holder for any registration of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax, assessments, or similar governmental charges payable in connection therewith (other than any such transfer
taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to Article Four of the Indenture).
Prior to the
due presentation for registration of transfer of this Note, the Company, the Guarantor, the Trustee, the Paying Agent or the Registrar
may deem and treat the holder hereof as the absolute owner hereof for the purpose of receiving payment of principal of and interest
hereon and for all other purposes whatsoever, whether or not this Note is overdue, and none of the Company, the Guarantor, the
Trustee, the Paying Agent or the Registrar or the Security Custodian shall be affected by notice to the contrary.
If an Event
of Default with respect to the Notes shall have occurred and be continuing, the amount described in the Related Prospectus may
be declared due and payable in the manner and with the effect provided in the Indenture.
If (i) this
Note shall become mutilated and be surrendered to the Trustee at the Corporate Trust Office or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of this Note, and there is delivered to the Company and
the Trustee security and indemnity satisfactory to them to save each of them and any Paying Agent harmless, and neither the Company
nor the Trustee has received notice that this Note has been acquired by a protected purchaser, then the Company shall execute
and upon Company Request the Trustee shall authenticate and deliver, in exchange for or in lieu of this Note, a new Security of
the same series and of like tenor, form, terms and principal amount, bearing a number not contemporaneously Outstanding. In case
this Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay the amount due on this Note in accordance with its terms. Upon the issuance of any new Security under this paragraph, the
Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in respect
thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
The Indenture
permits, with certain exceptions as therein provided, the Company, the Guarantor and the Trustee to enter into, from time to time
and at any time, an indenture or indentures supplemental to the Indenture for the purpose of adding any provisions to or changing
in any manner or eliminating any provisions of the Indenture or of modifying in any manner the rights of the holders of the Securities
to be affected, with the consent of the holders of not less than a majority in aggregate principal amount of Outstanding Securities
that are affected thereby, such affected Outstanding Securities within each series voting separately from any other series.
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, on behalf of the holders of all the Securities of such series, to waive compliance by the Company
or the Guarantor with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences,
as more fully described in the Indenture. Any such consent or waiver by the holder of this Note shall be conclusive and binding
upon such holder and upon all future holders of this Note and of any Security issued upon the registration of transfer hereof
or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon the Security.
Holders of
this Note may not enforce their rights pursuant to the Indenture or this Note except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company
or the Guarantor, which is absolute and unconditional, to pay and/or deliver the amount(s) due on this Note at the times, place
and rate, and in the coin or currency, herein prescribed.
This Note shall
be governed by and construed in accordance with the laws of the State of New York.
All terms used
in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture, and all terms used in
this Note that are defined in the Related Prospectus shall have the meanings assigned to them in the Related Prospectus. In the
event of any inconsistency between the definitions in the Indenture and the definitions in the Related Prospectus, the Related
Prospectus shall govern.
ABBREVIATIONS
The following abbreviations,
when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
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TEN COM -as tenants in common
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UNIF GIFT MIN ACT
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_______________Custodian_______________
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TEN ENT -as tenants by the entireties
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(Cust) (Minor)
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JT ENT -as joint tenants with right of survivorship and not as tenants in common
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Under Uniform Gifts to
Minors Act
______________________________________
(State)
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Additional
abbreviations may also be used though not in the above list
FOR VALUE RECEIVED,
the undersigned hereby sell(s), assign(s) and transfer(s) unto
Please
insert Social Security or Other
Identifying Number of Assignee
__________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________
Please Print
or Type Name and Address Including Zip Code of Assignee
__________________________________________________________________________________________________________________________
the within Note and all rights
thereunder, hereby irrevocably constituting and appointing
___________________________________________________________________________________________________________________attorney
to transfer such Note on the
books of Citigroup Global Markets Holdings Inc. with full power of substitution in the premises.
Dated: ____________________________________ _______________________________________________________________________
Signature
_______________________________________________________________________
NOTICE: The signature
to this assignment must correspond with the name as it appears upon the
face of the Note in every particular, without alteration or enlargement or any change whatsoever.
