ex4-04.htm


     

     

    CITIGROUP
INC.,

    as
Issuer

     

     

     

    and

     

     

     

    THE BANK
OF NEW YORK MELLON,

    as
Trustee

     

     

     

    Fifth
Supplemental Indenture

     

     

     

    Dated as
of December 9, 2008

     

     

     

    Supplement
to Indenture dated as of March 15, 1987

    providing
for the issuance of

    Debt
Securities

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    FIFTH
SUPPLEMENTAL INDENTURE, dated as of December 9, 2008 (this “Fifth Supplemental
Indenture”),
between CITIGROUP INC., a Delaware corporation (the “Company”), and THE BANK OF NEW YORK
MELLON, a New York banking corporation, not in its individual capacity but
solely as trustee (the “Trustee”) under the
Indenture, dated as of March 15, 1987, supplemented by a First Supplemental
Indenture, dated as of December 15, 1988, a Second Supplemental Indenture,
dated as of January 31, 1991, a Third Supplemental Indenture, dated as of
December 9, 1992, and a Fourth Supplemental Indenture, dated as of
November 2, 1998 (as supplemented, the “Indenture”).

     

    RECITALS:

     

    WHEREAS,
the Company is required to supplement the terms of the Indenture in order to
issue Securities having the benefit of the Federal Deposit Insurance Corporation
(“FDIC”) debt guarantee
(the “FDIC Debt
Guarantee”) under the FDIC’s Temporary Liquidity Guarantee Program
(“TLG
Program”);

     

    WHEREAS,
the Company has delivered to the Trustee an Opinion of Counsel and an Officers’
Certificate pursuant to Sections 13.03 and 14.03 of the Indenture to the effect
that all conditions precedent provided for in the Indenture to the Trustee’s
execution and delivery of this Fifth Supplemental Indenture have been complied
with;

     

    WHEREAS,
the Company has requested that the Trustee execute and deliver this Fifth
Supplemental Indenture and satisfy all requirements necessary to make this Fifth
Supplemental Indenture a valid instrument in accordance with its terms, and all
acts and things necessary have been done and performed to make this Fifth
Supplemental Indenture enforceable in accordance with its terms, and the
execution and delivery of this Fifth Supplemental Indenture has been duly
authorized in all respects:

     

    NOW,
THEREFORE, the Company and the Trustee agree as follows:

     

    ARTICLE
I

     

    DEFINITIONS;
GENERAL

     

    Section
1.1    Definition of
Terms.

     

    Unless
the context otherwise requires (including for purposes of the
Recitals):

     

    (a)           a
term defined in the Indenture has the same meaning when used in this Fifth
Supplemental Indenture unless otherwise specified herein;

     

    (b)           a
term defined anywhere in this Fifth Supplemental Indenture has the same meaning
throughout;

     

    (c)           the
singular includes the plural and vice versa; and

     

    (d)           headings
are for convenience of reference only and do not affect
interpretation.

     


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    


     

    Section
1.2    General. The terms of this
Fifth Supplemental Indenture shall apply to each series of Securities issued
under the Indenture the terms of which state that they have the benefit of the
FDIC Debt Guarantee (such Securities, “Guaranteed Securities”) and
shall not apply to any other series of Securities.

     

    ARTICLE
II

     

    ADDITIONAL
TERMS UNDER TLG PROGRAM

     

    Section
2.1    FDIC Debt Guarantee Program.
The parties to this Fifth Supplemental Indenture acknowledge that the
Company has not opted out of the debt guarantee program (the “Debt Guarantee Program”)
established by the FDIC under its TLG Program. As a result, each series of
Guaranteed Securities is guaranteed under the FDIC TLG Program and is backed by
the full faith and credit of the United States. The details of the FDIC
guarantee are provided in the FDIC’s regulations, 12 CFR Part 370, and at the
FDIC’s website, www.fdic.gov/tlgp. The expiration date of the FDIC’s guarantee
is the earlier of the maturity date of this debt or June 30, 2012.

     

    Section
2.2    Representative.

     

    (a)           The
Trustee is designated under this Fifth Supplemental Indenture as the duly
authorized representative of the holder of Guaranteed Securities for purposes of
making claims and taking other permitted or required actions under the Debt
Guarantee Program (the “Representative”). Any holder
may elect not to be represented by the Representative by providing written
notice of such election to the Representative.

     

    (b)           Upon
an uncured failure by the Company to make a timely payment of principal or
interest under any Guaranteed Securities (a “Payment Default”), the
Trustee, on behalf of all holders of such Guaranteed Securities that are
represented by the Trustee, shall submit to the FDIC a demand for payment by the
FDIC of such unpaid principal and interest, together with proof of such claim
and such other documentation as may be required by the FDIC under the Debt
Guarantee Program (i) in the case of any payment due by the Company prior to the
final maturity or redemption of such Guaranteed Securities, on the date that the
applicable cure period ends (or if such date is not a Business Day, the
immediately succeeding Business Day) and (ii) in the case of any payment due by
the Company on the final maturity date or on a redemption date for such
Guaranteed Securities, on such final maturity date or redemption date (or if
such date is not a Business Day, the immediately succeeding Business
Day).

    


    Section
2.3    Subrogation. The FDIC shall
be subrogated to all of the rights of the holders of Guaranteed Securities and
the Representative under this Fifth Supplemental Indenture against the Company
in respect of any amounts paid to the holders, or for the benefit of the
holders, by the FDIC pursuant to the Debt Guarantee Program.

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    Section
2.4    Assignment.

     

    (a)           The
holders of Guaranteed Securities hereby authorize the Representative, at such
time as the FDIC shall commence making any guarantee payments to the
Representative for the benefit of the holders pursuant to the Debt Guarantee
Program, to execute an assignment in the form attached to this Fifth
Supplemental Indenture as Annex A pursuant to which the Representative shall
assign to the FDIC its right as Representative to receive any and all payments
from the Company under the Indenture and this Fifth Supplemental Indenture on
behalf of the holders of Guaranteed Securities. The Company hereby consents and
agrees that the FDIC is an acceptable transferee for all or any portion of the
Guaranteed Securities for all purposes of the Indenture, as supplemented by this
Fifth Supplemental Indenture and upon any such assignment, the FDIC shall be
deemed a holder under the Indenture, as supplemented by this Fifth Supplemental
Indenture, for all purposes hereof, and the Company hereby agrees to take such
reasonable steps as are necessary to comply with any relevant provision of the
Indenture and of this Fifth Supplemental Indenture as a result of such
assignment.

     

    (b)           Each
holder of Guaranteed Securities that has exercised its right not to be
represented by the Representative hereby agrees that, at such time as the FDIC
shall commence making any guarantee payments to such holder pursuant to the Debt
Guarantee Program, such holder shall execute an assignment in the form attached
to this Fifth Supplemental Indenture as Annex A pursuant to which the holder
shall assign to the FDIC its right to receive any and all payments from the
Company under the Indenture and this Fifth Supplemental Indenture. The Company
hereby consents and agrees that the FDIC is an acceptable transferee for all or
any portion of the Guaranteed Securities for all purposes of the Indenture, as
supplemented by this Fifth Supplemental Indenture, and upon any such assignment,
the FDIC shall be deemed a holder under the Indenture, as supplemented by this
Fifth Supplemental Indenture, for all purposes thereof, and the Company hereby
agrees to take such reasonable steps as are necessary to comply with any
relevant provision of the Indenture and of this Fifth Supplemental Indenture as
a result of such assignment.

     

    Section
2.5    Surrender of Securities. If,
at any time on or prior to the expiration of the period during which senior
unsecured debt of the Company is guaranteed by the FDIC under the Debt Guarantee
Program (the “Effective
Period”), payment in full shall be made pursuant to the Debt Guarantee
Program on the outstanding principal of and accrued interest to such date on
Guaranteed Securities of the Company, the holders shall, or the holders shall
cause the person or entity in possession to, promptly surrender to the FDIC the
certificate, note or other instrument evidencing such Guaranteed Securities, if
any.

     

    Section
2.6    Notice to FDIC. If, at any
time prior to the earlier of (a) full satisfaction of the payment obligations of
the Company with respect to Guaranteed Securities, or (b) expiration of the
Effective Period, the Company is in default of any payment obligation with
respect to Guaranteed Securities, including timely payment of any accrued and
unpaid interest, without regard to any cure period, the Representative covenants
and agrees that it shall provide written notice to the FDIC within one (1)
Business Day of such payment default at the address set forth below, or at such
other address or by such other means of delivery as the FDIC may specify from
time to time.

     


    
      
         


      

      
        3

        
          

        

      

      
         


      

    

     

    The Federal Deposit Insurance
Corporation

    Deputy Director, Receivership
Operations Branch

    Division of Resolutions and
Receiverships

    Attention: Master
Agreement

    550 17th Street
N.W.

    Washington,
D.C.  20429

     

    Section
2.7    Ranking. Any indebtedness of
the Company to the FDIC arising under Section 2.03 of the Master Agreement dated
December 1, 2008 entered into between the Company and the FDIC in connection
with the Debt Guarantee Program (the “Master Agreement”) will
constitute a senior unsecured general obligation of the Company, ranking pari passu with any
indebtedness issued under the Indenture.

     

    Section
2.8    Events of Default. Section
6.02 of the Indenture is hereby amended by adding the following sentence after
the existing text:

     

    “Notwithstanding anything to the
contrary in the foregoing, no acceleration of amounts due on the Guaranteed
Securities of any series will be permitted at any time that the FDIC is making
timely guarantee payments on the Guaranteed Securities of such series in
accordance with the Debt Guarantee Program.”

     

    Section
2.9    Modifications. Without the
express written consent of the FDIC, the parties hereto agree not to amend,
modify, supplement or waive any provision in the Indenture or the Fifth
Supplemental Indenture that is related to the principal, interest, payment,
default or ranking of the Guaranteed Securities or that is required to be
included herein in connection with the Debt Guarantee Program.

     

    ARTICLE
III

     

    MISCELLANEOUS

     

    Section
3.1    Trustee.  The
Trustee accepts the trusts created by this Fifth Supplemental Indenture upon the
terms and conditions set forth in the Indenture.  The Trustee shall
not be responsible or accountable in any manner whatsoever for or in respect of,
and makes no representation with respect to, the validity or sufficiency of this
Fifth Supplemental Indenture or the due execution hereof by the Company and
shall not be responsible in any manner whatsoever for or in respect of the
correctness of the recitals and statements contained herein, all of which
recitals and statements are made solely by the Company.

     

    Section
3.2    Ratification. The Indenture
as supplemented by this Fifth Supplemental Indenture is in all respects ratified
and confirmed, and this Fifth Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein
provided.

     

    Section
3.3    Counterparts.

     

    This
Fifth Supplemental Indenture may be executed in any number of separate
counterparts each of which shall be an original for all purposes; but such
separate counterparts shall together constitute but one and the same
instrument.

     

    

      
        
           


        

        
          4

          
            

          

        

        
           


        

      



    IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized, on the day and year first above written.

     

    CITIGROUP
INC.

     

     

    By: 
/s/ Martin A. Waters 

      
        

      

    

    Name:  Martin
A. Waters

    Title:    Assistant
Treasurer

     

     

     

    THE BANK
OF NEW YORK MELLON,

    as
Trustee

     

     

    By: 
/s/ Christopher Greene 

      
        

      

    

    Name:  Christopher
Greene

    Title:    Vice
President

     

    



    
      
         


      

      
        5

        
          

        

      

      
         


      

    


    Annex A

    


    FORM OF
ASSIGNMENT1

    


    This
Assignment is made pursuant to the terms of Section 2.4 of the Fifth
Supplemental Indenture, dated as of December 9, 2008, as amended from time to
time (the “Agreement”), between
The Bank of New York Mellon, as trustee (the “Representative”),
acting on behalf of the holders of the debt issued under the Agreement who have
not opted out of representation by the Representative (the “Holders”), and
Citigroup Inc. (the “Issuer”) with respect
to the debt obligations of the Issuer that are guaranteed under the Debt
Guarantee Program.  Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in the
Agreement.

    


    For value
received, the Representative, on behalf of the Holders  (the “Assignor”), hereby
assigns to the Federal Deposit Insurance Corporation (the “FDIC”), without
recourse, all of the Assignor’s respective rights, title and interest in and to:
(a) the
promissory note or other instrument evidencing the debt issued under the
Agreement (the “Note”); (b) the Agreement
pursuant to which the Note was issued; and (c) any other
instrument or agreement executed by the Issuer regarding obligations of the
Issuer under the Note or the Agreement (collectively, the “Assignment”).

    


    The
Assignor hereby certifies that:

    


    
      	
              1.  

            	
              Without
      the FDIC’s prior written consent, the Assignor has
  not:

            


    

    


    
      	
              (a)  

            	
              agreed
      to any amendment, modification, supplement or waiver of a provision that
      is related to the principal, interest, payment, default or ranking of the
      Guaranteed Securities, or any other provision of the Agreement that is
      required to be included in the Agreement pursuant to the Master Agreement
      or to any material deviation from the provisions thereof;
    or

            


    

    


    
      	
              (b)  

            	
              accelerated
      the maturity of the Note.

            


    

    


    [Instructions to the
Assignor:  If the Assignor has not assigned or transferred any
interest in the Note and related documentation, such Assignor must include the
following representation.]

    


    2. The
Assignor has not assigned or otherwise transferred any interest in the Note or
Agreement;

    


    [Instructions to the
Assignor:  If the Assignor has assigned a partial interest in
the Note and related documentation, the Assignor must include the following
representation.]

    
 

     

      
        

      

    

    
      
        	
                1

              	
                This
      Form of Assignment shall be modified as appropriate if the assignment is
      being made by an individual debt holder rather than the Representative or
      if the debt being assigned is not in certificated form or otherwise
      represented by a written
instrument.

              


      

       

    


    
      
         


      

      
        6

        
          

        

      

      
         


      

    


    


    2. The
Assignor has assigned part of its rights, title and interest in the Note and the
Agreement to _____________ pursuant to the __________ agreement, dated as of
___________, 20__, between ___________, as assignor, and _____________, as
assignee, an executed copy of which is attached hereto.

    


    The
Assignor acknowledges and agrees that this Assignment is subject to the
Agreement and to the following:

    


    1. In the
event the Assignor receives any payment under or related to the Note or the
Agreement from a party other than the FDIC (a “Non-FDIC
Payment”):

    


     (a) after
the date of demand for a guarantee payment on the FDIC pursuant to 12 CFR Part
370, but prior to the date of the FDIC’s first guarantee payment under the
Agreement pursuant to 12 CFR Part 370, the Assignor shall promptly but in no
event later than five (5) Business Days after receipt notify the FDIC of the
date and the amount of such Non-FDIC Payment and shall apply such payment as
payment made by the Issuer, and not as a guarantee payment made by the FDIC, and
therefore, the amount of such payment shall be excluded from this Assignment;
and

    


     (b) after
the FDIC’s first guarantee payment under the Agreement, the Assignor shall
forward promptly to the FDIC such Non-FDIC Payment in accordance with the
payment instructions provided in writing by the FDIC.

    


    2.
Acceptance by the Assignor of payment pursuant to the Debt Guarantee Program on
behalf of the Holders shall constitute a release by such Holders of any
liability of the FDIC under the Debt Guarantee Program with respect to such
payment.

    


    The
Person who is executing this Assignment on behalf of the Assignor hereby
represents and warrants to the FDIC that he/she/it is duly authorized to do
so.

    


    ******

    


    IN
WITNESS WHEREOF, the Assignor has caused this instrument to be executed and
delivered this ____ day of ____________, 20__.

     

    
      
        
          	 	

                  Very
      truly yours,

                
	 	 
	 	

                  THE
      BANK OF NEW YORK MELLON

                
	 	 
	
                   
      

                	
                  By: 
      ___________________________________

                


        

      

    

    (Signature)

    


    
      	
               
      

            	
              Name: 
      ________________________________

            


    

    (Print)

    


    
      	
               
      

            	
              Title: 
      __________________________________

            


    

    (Print)


    
      
         


      

      
        7

        
          

        

      

      
         


      

    


    Consented
to and acknowledged by this ____ day of _________, 20__:

    THE
FEDERAL DEPOSIT INSURANCE CORPORATION

    


    By:  ______________________________

    (Signature)

    Name:  ____________________________

    (Print)

    


    Title:  _____________________________

    (Print)

     

     

     

     

    8