Exhibit 1.01
CITIGROUP FUNDING INC.
Retail Medium-Term Notes, Series C
GLOBAL SELLING AGENCY AGREEMENT
June 1, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
To the Agents listed on Schedule I hereto
Ladies and Gentlemen:
Citigroup Funding Inc., a Delaware corporation (the "Company") and
Citigroup Inc., a Delaware corporation (the "Guarantor"), confirm their
agreement with each of you with respect to the issue and sale by the Company of
up to $5,000,000,000 aggregate principal amount of its Retail Medium-Term Notes,
Series C in registered form (the "Notes"), which Notes are fully and
unconditionally guaranteed (the "Guarantee") by the Guarantor. It is understood
that the Company may from time to time authorize the issuance and sale of
additional amounts of the Notes and that such Notes may be issued and sold
pursuant to the terms of this Agreement, all as though the issuance and sale of
such Notes were authorized by the Company as of the date hereof.
The Notes will be issued under an indenture (the "Senior Debt
Indenture") dated as of June 1, 2005, among the Company, the Guarantor, and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). Unless otherwise
specifically provided for and set forth in a supplement to the Prospectus
referred to below, the Notes will be issued in minimum denominations of $1,000
and in denominations exceeding such amount by integral multiples of $1,000 and
will be issued only in fully registered form, and the Notes will have the
interest rates, maturities, redemption provisions and other terms set forth in
the applicable Pricing Supplement (as defined herein).
The Notes will be issued, and the terms thereof established, in
accordance with the Senior Debt Indenture and the Retail Medium-Term Notes,
Series C Administrative Procedures attached hereto as Exhibit A (the
"Administrative Procedures") (unless a Terms Agreement (as defined in Section
2(b)) modifies or otherwise supersedes such Administrative Procedures with
respect to the Notes issued pursuant to such Terms Agreement). The
Administrative Procedures may only be amended by written agreement of the
Company, the Guarantor and Citigroup Global Markets Inc., as purchasing agent
(the "Purchasing Agent"), on behalf of the Agents, after notice to, and with the
approval of, the Trustee.
For purposes of this Agreement, the term "Agent" shall refer to any
one of you and to any additional agents appointed as a party to this Agreement
pursuant to Section 2(d) hereof; and the term "you" shall refer to you and any
other Agent collectively. In acting under this Agreement, each of you is acting
individually and not jointly.
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 in this Section. 1.
(a) Registration Statement (File No. 333-122925) in respect of
$10,000,000,000 aggregate principal amount of securities of the Company,
including the Notes, has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to each of
you, excluding exhibits to such registration statement but including all
documents incorporated by reference therein, have been declared effective by the
Commission in such forms; no other document with respect to such registration
statement (other than a document incorporated by reference therein) has
heretofore been filed or transmitted for filing with the Commission; and no stop
order suspending the effectiveness of the registration statement has been issued
and no proceeding for that purpose has been instituted or threatened by the
Commission (any preliminary prospectus included in the Registration Statement
(as defined herein) or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary Prospectus"); the
various parts of the registration statement, including all exhibits thereto and
the documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of such registration statement
became effective but excluding the Statements of Eligibility under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), pertaining to the
Senior Debt Indenture, each as amended at the time such part became effective,
being hereinafter collectively called the "Registration Statement"; the form of
base prospectus relating to the offering and sale of Debt Securities and Index
Warrants included in the Registration Statement, in the form in which it has
most recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement being hereinafter from time to time called
the "Base Prospectus"; the supplement to the Prospectus relating to the Notes
and the plan of distribution thereof being hereinafter called the "Prospectus
Supplement"; and the Base Prospectus (and the Prospectus Supplement) being
hereinafter called the "Prospectus". Any reference herein to the Prospectus, a
Preliminary Prospectus or any Prospectus Supplement shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Prospectus, Preliminary
Prospectus or Prospectus Supplement, as the case may be; any reference to any
amendment or supplement to any Prospectus, Preliminary Prospectus or Prospectus
Supplement, including any supplement to the Prospectus that sets forth only the
terms of a particular issue of the Notes (a "Pricing Supplement"), shall be
deemed to refer to and include any documents filed after the date of such
Prospectus, Preliminary Prospectus or Prospectus Supplement, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Prospectus or Prospectus Supplement, as the
case may be; any reference to any amendment to the Registration Statement shall
be deemed to include any report of the Guarantor filed pursuant to the Exchange
Act after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to and include the
Prospectus as amended or supplemented in relation to the Notes sold pursuant to
this Agreement, in the form in which it is filed with the Commission
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pursuant to Rule 424(b) under the Act, including any documents incorporated by
reference therein as of the date of such filing;
(b) The documents incorporated by reference in the 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 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 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
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder;
(c) The Registration Statement and the Prospectus, and any amendment
thereof or supplement thereto, and the Senior Debt Indenture, conform or will
conform in all material respects with the applicable requirements of the Act and
the Trust Indenture Act, and the rules and regulations of the Commission
thereunder;
(d) The Registration Statement as of its effective date did not and,
as amended as of any time, 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 the
Prospectus, as amended and supplemented as of any such time, did not and will
not include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading; provided, however,
that neither the Company nor the Guarantor makes any representations or
warranties as to the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto in
reliance upon, and in conformity with, information furnished in writing to the
Company or the Guarantor by or on behalf of any Agent specifically for use in
the Registration Statement and the Prospectus or any amendment thereof or
supplement thereto;
(e) The Notes have been duly authorized and, when executed and
authenticated in accordance with the Senior Debt 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 Senior Debt 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 Senior Debt Indenture has been duly
authorized by the Company and qualified under the Trust Indenture Act; and the
Senior Debt Indenture conforms to the descriptions thereof in the Prospectus as
amended or supplemented to relate to such issuance of Notes;
(f) The Guarantees have been duly authorized and, when the Notes
have been executed, authenticated and delivered in accordance with the Senior
Debt Indenture, will constitute valid and binding obligations of the Guarantor,
enforceable in accordance with their terms and entitled to the benefits of the
Senior Debt Indenture; and
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(g) Since the date of the most recent financial statements included
in the Prospectus, 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 Prospectus, as amended or supplemented.
2. Appointment of Agents. Subject to the terms and conditions stated
herein, the Company hereby (i) appoints and authorizes the Agents to act as its
agents to solicit offers for the purchase of all or part of the Notes from the
Company in accordance with the terms hereof and (ii) agrees that whenever the
Company determines from time to time to sell Notes pursuant to this Agreement,
it will enter into a Terms Agreement (as defined below) relating to such sale in
accordance with the provisions of Section 2(b) hereof between the Company and
the Purchasing Agent, with the Purchasing Agent purchasing such Notes as
principal for resale to other Agents or other dealers (the "Selected Dealers"),
each of whom will purchase as principal.
(a) Solicitations of Offers to Purchase Notes. Following the
Commencement Date (referred to below), the Company shall notify the Purchasing
Agent from time to time as to the commencement of a period during which the
Notes may be offered and sold by the Agents (each period, commencing with such a
notification and ending at 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"). The
initial Offering Period shall begin on June 1, 2005 (the "Commencement Date").
On the basis of the representations and warranties, and subject to the terms and
conditions set forth herein, each of the Agents agrees to use its reasonable
best efforts to solicit offers to purchase Notes from the Company upon the terms
and conditions set forth in the applicable Prospectus (and any supplement
thereto) and in the Administrative Procedures. The Purchasing Agent shall
communicate to the Company, orally or in writing, each reasonable offer or
indication of interest to purchase Notes received by each 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,
no Agent assumes 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. Except as provided in Section 2(b) and Section 2(c)
below, 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 pursuant to Section 2(b) and Section 2(c) below, as
applicable.
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, the Agents 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.
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Subject to the provisions of this Section 2 and to the
Administrative Procedures, as applicable, offers for the purchase of Notes may
be solicited by an Agent 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; provided, however, that so long as this Agreement is in
effect the Company shall not solicit or accept offers to purchase Notes through
any agent other than 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 you 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, each sale of Notes shall be made in accordance with the terms of this
Agreement and a supplemental agreement between the Company and the Purchasing
Agent which will provide for the sale of such Notes to, and the purchase of and
reoffering thereof by, the Purchasing Agent, as principal. 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 Purchasing Agent pursuant thereto and shall
specify the aggregate principal amount of such Notes, the price to be paid to
the Company for such Notes, the initial public offering price at which the Notes
are proposed to be reoffered, the maturity date of such Notes, the rate at which
interest will be paid on such Notes, the dates on which interest will be paid on
such Notes and the record date with respect to each such payment of interest,
whether the Notes provide for a Survivor's Option, such other terms of the Notes
as are applicable, the Settlement Date for the purchase of such Notes, the
method of payment and any requirements for the delivery of opinions of counsel,
certificates from the Company, the Guarantor or their respective officers or a
letter from the Guarantor's independent registered public accountants as
described in Section 5(b). A Terms Agreement may also specify certain provisions
relating to the reoffering of such Notes by the Purchasing Agent. Any written
Terms Agreement may be in the form attached hereto as Exhibit B. The Purchasing
Agent'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.
Each date of delivery of and payment for Notes to be purchased by
the Purchasing Agent is referred to herein as a "Settlement Date". Delivery of
the Notes sold to the Purchasing Agent pursuant to a Terms Agreement shall be
made not later than the Settlement Date agreed to in such Terms Agreement,
against payment of funds to the Company in the net amount due to the Company for
such Notes by the method and in the form set forth in the Administrative
Procedures, as applicable, unless otherwise agreed to between the Company and
the Purchasing Agent in such Terms Agreement.
The Company agrees to pay the Purchasing Agent a commission on the
Settlement Date with respect to each sale of Notes by the Company as a result of
solicitations made by the Agents, in an amount equal to that percentage
specified in Schedule II hereto of the aggregate principal amount of the Notes
sold by the Company; provided, however, that the Company and the Purchasing
Agent may agree to a commission greater than or less than the
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percentages specified in Schedule II hereto; and provided, further, that in no
case shall the commission exceed 8% of the initial offering proceeds. Such
commission shall be payable as specified in the Administrative Procedures, and
the actual aggregate commission with respect to each sale of Notes will be set
forth in the relevant Pricing Supplement. The Purchasing Agent and the other
Agents or Selected Dealers will share the above-mentioned commission in such
proportions as they may agree.
Unless otherwise agreed to between the Company and the Purchasing
Agent in a Terms Agreement, any Note sold to the Purchasing Agent (i) shall be
purchased by the Purchasing Agent 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 the Purchasing Agent to other Agents or Selected Dealers, each of
whom will purchase as principal for resale to the public at a fixed public
offering price which shall be set forth in the applicable Terms Agreement and
Pricing Supplement. In connection with any resale of Notes purchased, without
the consent of the Company or unless otherwise set forth in the applicable Terms
Agreement, the Agents are not authorized to appoint subagents or to engage the
services of any other broker or dealer or to reallow any portion of the
commission paid to such Agent.
(c) Unless otherwise agreed to by the Purchasing Agent, each Agent
shall purchase from the Purchasing Agent as principal for resale to the public
such aggregate principal amount of Notes with respect to which it has
communicated offers to purchase to the Purchasing Agent (the "Commitment
Amount"). The agreement of each Agent to purchase Notes from the Purchasing
Agent shall be deemed to be made on the basis of the representations, warranties
and agreements of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Agent agrees to deliver to the Purchasing
Agent on the Settlement Date (or on such later date as may be specified by the
Purchasing Agent) and at the place specified by the Purchasing Agent immediately
available funds, payable to the order of the Purchasing Agent, for (i) an amount
equal to the Offering Price, less the applicable commission in respect of such
Agent's Commitment Amount or (ii) such other amount as the Purchasing Agent
shall advise such Agent. The Purchasing Agent will make payment to the Company
against delivery to the Purchasing Agent for each Agent's account of the Notes
to be purchased by each Agent, and the Purchasing Agent will deliver to each
Agent the Notes paid for by such Agent. If the Purchasing Agent has determined
that transactions in the Notes are to be settled through the facilities of The
Depository Trust Company or another clearinghouse facility, payment for and
delivery of Notes purchased by each Agent shall be made through such facilities,
if such Agent is a member, or, if such Agent is not a member, settlement shall
be made through such Agent's ordinary correspondent who is a member.
(d) Additional Agents. Notwithstanding paragraphs 2(a), 2(b) or 2(c)
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 to this Agreement;
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 to this Agreement whereupon it shall, subject to the terms and
conditions of this Agreement, the Agent Accession Letter and the Agent
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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. The
Company shall promptly notify the Guarantor, the Trustee and the other Agents of
any such appointment, but only in the event that any such additional Agent is
appointed for the duration of this Agreement.
(e) Each Agent acknowledges and agrees, with respect to
communications in accordance with the Administrative Procedures via
▇▇▇▇▇://▇▇▇▇▇▇▇▇.▇-▇▇▇▇.▇▇▇, or such other website as may be from time to time
maintained for use in connection with the Notes (the "Notes Website"), (i) that
it is responsible for maintaining the confidentiality of the log-on and password
it uses to access the Notes Website, (ii) that it is fully responsible for all
activities that occur using its log-on and password, (iii) to notify the
Company, the Guarantor and the Purchasing Agent immediately of any unauthorized
use of its log-on or password or any other breach of security and (iv) that it
will not use the log-on or password of any other person at any time.
(f) Each Agent represents that it is a broker-dealer registered
under the Exchange Act.
3. Offering and Sale of Notes. The Purchasing Agent, the other
Agents and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Administrative Procedures,
as the case may be.
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 Act,
prior to amending or supplementing either Registration Statement or the
Prospectus, the Company and the Guarantor will furnish the Purchasing Agent and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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, or a Pricing Supplement or an amendment or supplement relating
solely to an offering of securities other than the Notes). The Company and the
Guarantor will promptly cause the Prospectus together with each amendment
thereof or supplement thereto to be mailed or otherwise transmitted to the
Commission for filing pursuant to Rule 424(b) by an appropriate method or will
promptly cause the Prospectus together with each amendment thereof or supplement
thereto to be filed with the Commission pursuant to said Rule. If the Prospectus
is amended or supplemented (other than by a Pricing 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 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 Act, the Company and the Guarantor will promptly advise each Agent of (i)
the filing of any amendment or supplement to the Prospectus (other than a
Pricing Supplement or an amendment or supplement relating solely to an offering
of securities other than the Notes), (ii) the filing or effectiveness of any
amendment to the ▇▇▇▇▇▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇, (▇▇▇) 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 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 notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof. Upon any Agent's request, the
Company and the Guarantor will within a reasonable time inform such Agent of the
aggregate principal amount of Notes registered under the Registration Statement
that remain unissued.
(b) Within the time during which a prospectus relating to the Notes
is required to be delivered under the Act, the Company and the Guarantor will
comply with all requirements imposed upon them by the 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
Prospectus. If during such period any event occurs as a result of which the
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 and the Guarantor, during such
period it is necessary to amend or supplement the Registration Statement or the
Prospectus to comply with the Act, the Company promptly will notify each Agent
to suspend the solicitation of offers to purchase the Notes and to cease sales
of any Notes and, to the extent required under the provision in the last
sentence of this subsection (b), the Company and the Guarantor promptly will
amend or supplement the Registration Statement or the Prospectus (at the expense
of the Company and the Guarantor ) so as to correct such statement or omission
or effect such compliance. If such amendment or supplement, and any documents,
certificates, opinions and letters furnished to the Agents pursuant to
subsections (i), (j) and (k) 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 Purchasing 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 (b) 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 (b) 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
pursuant to a Terms Agreement or from the Purchasing Agent, the Company and the
Guarantor shall comply with the provisions of subsection (b) of this Section
4(A) during the period when a Prospectus is required to be delivered pursuant to
the Act.
(c) 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
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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.
(d) The Company and the Guarantor will use their best efforts to
qualify the Notes for sale under the securities laws of such jurisdictions as
any Agent reasonably designates, to maintain such qualifications in effect so
long as required for the distribution of the Notes, 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.
(e) The Company and the Guarantor will furnish to each Agent copies
of the Registration Statement and the Prospectus (including all documents
incorporated by reference therein), and all amendments of and supplements to the
Registration Statement or the Prospectus which are filed with the Commission
during the period in which a prospectus relating to the Notes is required to be
delivered under the Act (including all documents filed by an amendment or
supplement with the Commission during such period which are deemed to be
incorporated by reference therein), in each case in such quantities as such
Agent may from time to time reasonably request.
(f) 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, ▇▇▇.▇▇▇.▇▇▇ (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.
(g) 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 its
accountants and counsel, the cost of printing (or other production) and delivery
of the Registration Statement and the Prospectus, all amendments thereof and
supplements thereto, the Senior Debt 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 any Agent may designate, the fees and
disbursements of the Trustee, the fees of any agency that rates the Notes, the
fees and expenses incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and the reasonable fees and
disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as counsel for the
Agents, or other counsel for the Company and/or the Guarantor reasonably
satisfactory to the Purchasing Agent, the Company and the Guarantor, and such
other expenses, including, without limitation, advertising expenses as may be
agreed upon by the Purchasing Agent, the Company and the Guarantor; provided,
however, that with respect to any purchase of
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Notes by the Purchasing Agent pursuant to a Terms Agreement, the fees and
disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or other counsel to the
Agents shall not be paid by either the Company or the Guarantor.
(h) 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
Prospectus, any amendments thereof or supplements thereto, the Senior Debt
Indenture, the Notes, this Agreement, the Administrative Procedures, any Terms
Agreement and the performance by the Company and the Guarantor of their
obligations hereunder or thereunder as any Agent may from time to time
reasonably request, and the Company and the Guarantor shall promptly notify each
Agent orally, followed by written notice, of any downgrading or of the receipt
by either of them of any notice of any intended downgrading in the rating
accorded any securities of either the Company or the Guarantor by ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Ratings Services or, if one of them
no longer rates the securities of either the Company or the Guarantor, another
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g) (2) under the Act.
(i) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by filing with the Commission: (i) a Pricing
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
Purchasing Agent reasonably deems immaterial), the Company and the Guarantor
will deliver or cause to be delivered forthwith to the Agents a certificate of
the Company and the Guarantor, signed by (A) on behalf of the Company, the
Chairman, the President or any Vice President and by the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary
and, (B) on behalf of the Guarantor, the Chairman, any Vice Chairman, any Vice
President, the principal financial officer, the General Counsel, the Controller,
any Deputy Controller or the principal accounting officer and by the Treasurer,
any Assistant Treasurer, the Secretary or any Assistant Secretary (or another
officer or officers acceptable to the Purchasing Agent), dated 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 Purchasing 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)(l)) 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 at the time of effectiveness
of such amendment, and to the Prospectus, as amended and supplemented at 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 at the time of
the effectiveness of such amendment, and to the Prospectus, as amended and
supplemented at the date of such certificate.
(j) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by filing with the Commission: (i) a Pricing
Supplement, (ii) an
10
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 Purchasing Agent reasonably
deems immaterial), the Company and the Guarantor shall furnish to or cause to be
furnished forthwith to the Agents the written opinion of the General Counsel --
Capital Markets of the Guarantor, or other counsel for the Company and/or the
Guarantor reasonably satisfactory to the Purchasing Agent, dated 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 Purchasing Agent, to the effect set forth in Exhibit F hereto. 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 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, and to the Prospectus, as
amended and supplemented at the date of such letter).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information supplemented (other than by filing with the Commission: (i) a
Pricing 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 Purchasing Agent reasonably deems immaterial), the Guarantor shall cause
KPMG LLP, Independent Registered Public Accounting Firm, forthwith to furnish
the Agents a letter, dated the date of 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 Purchasing 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 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 Prospectus is 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.
(l) Each acceptance by the Company of an offer for the purchase of
Notes and each sale of Notes to the Purchasing Agent 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 acceptance or sale, as the case may
be, as though made at and as of such time, and an undertaking that such
representations and warranties will be true and correct in all material respects
at the time of delivery to the Purchasing Agent of the Notes relating to such
acceptance, 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 Prospectus as amended and supplemented to each
such time).
(m) 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 Prospectus, the Company shall have instructed the Agents to
suspend solicitation of offers to purchase the
11
Notes and no Agent then holds any Notes acquired by it as principal pursuant to
a Terms Agreement or from the Purchasing Agent, 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.
5. Conditions to the Obligations of the Agents. The obligations of
each Agent under the terms of this Agreement 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 any Agent's obligations
to solicit offers to purchase Notes, at the time of such solicitation, and, in
the case of any Agent's obligation to purchase Notes, at the time the Company
accepts the offer from the Purchasing Agent to purchase such Notes and at the
time of purchase by the Purchasing Agent) and (in each case) to the following
additional conditions precedent when and as specified:
(a) On the corresponding Settlement Date:
(i) There shall not have occurred any change in or affecting
particularly the business or properties of the Company, the Guarantor and
their respective affiliates from that set forth in the Registration
Statement, as amended or supplemented, that, in such Agent's judgment,
makes it impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus except as disclosed to the Agents in
writing by the Company and the Guarantor before the Company accepted the
Purchasing Agents' offer to purchase such Notes.
(ii) 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 any securities of either the
Company or the Guarantor on any exchange (whether U.S. or foreign) or in
the over-the-counter market, (y) declaration of a general moratorium on
commercial banking activities in New York 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 major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency
that, in the Agent's judgment, is material and adverse and, in the case of
any of the events described in clauses (x) through (z) above, such event
makes it, in such Agent's judgment, impracticable to market the Notes on
the terms and in the manner contemplated by the Prospectus, as amended or
supplemented, except for any such event occurring before the Company
accepted the offer of the Purchasing Agent to purchase such Notes.
12
(iii) There shall not have been any downgrading, nor any
notice given of any intended downgrading, in the rating accorded any
securities of either the Company or the Guarantor by ▇▇▇▇▇'▇ Investor
Service or Standard & Poor's Ratings Services or, if one of them no longer
rates the securities of either the Company or the Guarantor, another
"nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g) (2) under the Act, except as disclosed
to the Agents in writing by the Company and the Guarantor before the
Company accepted the Purchasing Agent's offer to purchase such Notes.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date:
(i) The Company and the Guarantor shall have furnished to the
Agents the opinion of the General Counsel -- Capital Markets of the
Guarantor (or other counsel for the Company and/or the Guarantor
reasonably acceptable to the Agents) on the Commencement Date, and, on the
Settlement Date will furnish the opinion of the General Counsel -- Capital
Markets of the Guarantor (or other counsel for the Company and/or the
Guarantor reasonably acceptable to the Agents) and, if called for by a
Terms Agreement, the opinion of other counsel, dated the Commencement Date
or the Settlement Date, as the case may be, to the effect set forth in
Exhibit F hereto.
(ii) The Agents shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, counsel for the Agents (or other counsel reasonably
acceptable to the Purchasing Agent, the Company and the Guarantor), an
opinion dated the Commencement Date or the Settlement Date, as the case
may be, to the effect set forth in Exhibit G hereto.
(iii) The Company and the Guarantor shall have furnished to
the Agents a certificate of the Company and the Guarantor, signed by (A)
on behalf of the Company, the Chairman, the President or any Vice
President and by the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Assistant Secretary and, (B) on behalf of the
Guarantor, the Chairman, any Vice Chairman, any Vice President, the
principal financial officer, the General Counsel, the Controller, any
Deputy Controller or the principal accounting officer and by the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary (or another officer or officers acceptable to the Agents), 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
Prospectus, as amended and supplemented as of the date of such
certificate, and this Agreement and that:
(A) the representations and warranties of the Company
and the Guarantor in this Agreement are true and correct in all material
respects 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 and the Guarantor
have complied in all material respects with all the agreements and
satisfied in all material respects all the conditions on their part to be
performed or satisfied as a condition to the obligations of the Agents
under this Agreement;
13
(B) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to their knowledge, have been threatened or
communicated; and
(C) since the date of the most recent financial
statements included in the Prospectus, 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 Prospectus, 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, to the effect set forth in Exhibit H and Exhibit I hereto.
(v) The Company and the Guarantor shall have furnished to the
Agents such appropriate further information, certificates and documents as
the Agents may reasonably request.
6. Indemnification and Contribution. (a) The Company and the
Guarantor will indemnify and hold harmless each of you against any losses,
claims, damages or liabilities, joint or several, to which each of you may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement when it became effective, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
Prospectus, 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 will reimburse each of you for
any legal or other expenses reasonably incurred by you in connection with
investigating or defending against such loss, claim damage, liability or action;
provided, however, that (i) neither the Company nor the Guarantor shall be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an 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
or on behalf of any of you specifically for use in the preparation thereof, and
(ii) such indemnity with respect to any Preliminary Prospectus, the Prospectus
or any preliminary supplemental prospectus, shall not inure to the benefit of
any of you (or any person controlling you) if the Company and the Guarantor
shall have delivered sufficient quantities of the Prospectus, as amended and
supplemented, to you within a reasonable time prior to the earlier of the
delivery of the written confirmation of the sale of such Notes or the delivery
of such Notes to the person asserting such loss, claim, damage, liability or
action for which indemnification is sought, and the Prospectus as so amended and
supplemented (excluding documents incorporated by reference) was not sent or
given to such person by you at or prior to the earlier of the delivery of the
written confirmation of the sale of such Notes or the delivery of such Notes to
such person in any case where such sending or giving of a prospectus is required
by the Act, and the untrue statement or omission of a material fact contained in
such Preliminary Prospectus, such Prospectus or such preliminary
14
supplemental prospectus, was corrected in the Prospectus, as so amended and
supplemented, provided to you.
(b) Each Agent will indemnify and hold harmless the Company and the
Guarantor against any losses, claims, damages or liabilities to which either the
Company or the Guarantor may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any part of the Registration Statement when it
became effective, or the Prospectus, or any amendment or supplement thereto, or
any related Preliminary Prospectus, 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, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made therein in
reliance upon and in conformity with written information furnished to the
Company or the Guarantor by or on behalf of any Agent specifically for use in
the preparation thereof, and will reimburse the Company and the Guarantor for
any legal or other expenses reasonably incurred by either of them in connection
with investigating or defending against any such loss, claim, damage, liability
or action.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
which the indemnifying party may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate in
and, to the extent that it shall wish, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnified party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor on the one hand and by each of you on the other
from the offering of the Notes from which such losses, claims, damages or
liabilities arose, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Guarantor on the one hand and by each of you on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and
15
the Guarantor on the one hand and by each of you on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Notes from which such losses, claims, damages or liabilities arose (before
deducting expenses) received by the Company bear to the total commissions
received by each of you in connection with such offering. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Guarantor or by any
of you and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Guarantor and each of you agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were to be determined
by pro rata allocation (even if you were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to in the first sentence of this subsection
(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim (which shall be limited as provided in subsection (c) above if the
indemnifying party has assumed the defense of any such action in accordance with
the provisions thereof) which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), none of you shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes sold by the Company from which such losses, claims,
damages or liabilities arose pursuant to offers solicited by you were offered to
the public exceeds the amount of any damages which you have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Agents'
obligations in this subsection (d) to contribute shall be several in such
proportion so that each Agent is responsible for the portion represented by the
percentage that the commission received by such Agent from the offering of the
Notes bear to the public offering price of such Notes, and not joint. Promptly
after receipt by an indemnified party under this subsection (d) of the notice of
the commencement of any action against such party in respect of which a claim
for contribution may be made against an indemnifying party under this subsection
(d), such indemnified party shall notify the indemnifying party in writing of
the commencement thereof if the notice specified in subsection (c) above has not
been given with respect to such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this subsection (d).
(e) The obligations of the Company and the Guarantor under this
Section 6 shall be in addition to any liability which the Company and the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any of you within the meaning
of the Act or the Exchange Act; and the obligations of each of you under this
Section 6 shall be in addition to any liability which you may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company and the Guarantor (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of either the
Company or the Guarantor), to each officer of the
16
Company and the Guarantor who has signed the Registration Statement and to each
person, if any, who controls the Company or the Guarantor within the meaning of
the Act or the Exchange Act.
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 and 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 the Purchasing Agent 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
(i) as provided in the first sentence of the fourth paragraph of Section 2(a),
the last proviso of Section 4(A)(b), and Sections 4(A)(g), 6, 8 and 11, (ii)
that the Company or, failing which, the Guarantor, shall reimburse the Agents,
through the Purchasing Agent, for all reasonable and documented out-of-pocket
expenses (including reasonable and documented fees and disbursements of counsel)
that shall have been incurred by them in connection with any proposed but not
completed purchase and sale of Notes, and (iii) 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 of the Note or 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
Administrative Procedures, and in Sections 2(c), 4(A)(a), 4(A)(b), 4(A)(c),
4(A)(e), 4(A)(h), 4(A)(i), 4(A)(j), 4(A)(k), 4(A)(l), 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. With respect to any
Agent's solicitation of offers to purchase Notes or the Purchasing Agent's
obligation to purchase Notes pursuant to any Terms Agreement or any Agent's
commitment to purchase Notes from the Purchasing Agent, the respective
agreements, representations, warranties, indemnities and other statements of the
Company and the Guarantor or their 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 for a period
extending to the earlier of (i) three years from the corresponding Settlement
Date for such Notes or (ii) the expiration of any applicable statute of
limitations governing such solicitation or purchase of Notes.
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 in 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 Citigroup Funding Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Assistant
Treasurer; and 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
Citigroup Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel -- Capital Markets.
17
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.
11. Waivers, Etc. 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. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
18
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 among the
Company, the Guarantor and you.
Very truly yours,
CITIGROUP FUNDING INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Treasurer
CITIGROUP INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
19
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Principal
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
UBS FINANCIAL SERVICES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
UBS FINANCIAL SERVICES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
20
SCHEDULE I
AGENT CONTACT INFORMATION
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
Corporate Bond Department
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Eshing
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Transaction Management Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇.▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager - Continuously Offered Products
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
S-I
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Investment Banking Information Center
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
UBS Financial Services Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇
with a copy to:
UBS Financial Services Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇
Wachovia Capital Markets, LLC
One Wachovia Center, DC-08
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
2
SCHEDULE II
SCHEDULE OF COMMISSIONS
The following commissions are payable as a percentage of the non-discounted
public offering price of each note sold through the Purchasing Agent.
Term of Note Commission Rate
------------ ---------------
One Year 0.20%
Two Years 0.40%
Three Years 0.60%
Five Years 1.00%
Seven Years 1.25%
Ten Years 1.50%
Fifteen Years 2.00%
Twenty Years 2.50%
Twenty-five Years 2.50%
Thirty Years 2.50%
S-II
EXHIBIT A
CITIGROUP FUNDING INC.
Retail Medium-Term Notes, Series C Administrative Procedures
June 1, 2005
The Retail Medium-Term Notes, Series C (the "Notes") of Citigroup
Funding Inc. (the "Company"), fully and unconditionally guaranteed (the
"Guarantees") by Citigroup Inc. (the "Guarantor"), are to be offered on a
continuing basis. Citigroup Global Markets Inc. (the "Purchasing Agent"), ▇.▇.
▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, UBS Financial Services
Inc., Wachovia Capital Markets, LLC, each as agents (collectively, the "Agents")
have agreed to solicit purchases of Notes issued in fully registered form. No
Agent will be obligated to purchase Notes for its own account. The Notes are
being sold pursuant to a Global Selling Agency Agreement among the Company, the
Guarantor and the agents named therein (including the Agents) dated the date
hereof (the "Agency Agreement") and one or more terms agreement substantially in
the form attached as Exhibit B to the Agency Agreement (each a "Terms
Agreement"). The Notes have been registered with the Securities and Exchange
Commission (the "Commission"). JPMorgan Chase Bank, N.A., as trustee (the
"Trustee"), is the trustee under the Indenture, dated as of June 1, 2005, under
which the Notes will be issued (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 Guarantees 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 whenever the Company determines
from time to time to sell Notes pursuant to the Agency Agreement, it will enter
into a Terms Agreement relating to such sale between the Company and the
Purchasing Agent, with the Purchasing Agent purchasing such Notes as principal
for resale to other Agents or dealers (the "Selected Dealers") each of whom will
purchase as principal. Each Agent or participating Selected Dealer will then
resell the Notes directly to its customers pursuant to a Master Selected Dealer
Agreement attached as Exhibit J to the Agency Agreement.
Unless otherwise specified in the applicable Pricing Supplement, the
Notes will be issued in book-entry form (each, a "Book-Entry Note") and will be
represented by a fully registered master global note certificate (the "Master
Global Note"). The Master Global Note shall be in a form approved by the
Company, the Agents, The Depository Trust Company ("DTC") and the Trustee. Prior
to the issuance of any Notes, the Trustee shall authenticate the Master Global
Note and the DTC Agent (as defined below) will hold it as custodian for DTC.
Except under the limited circumstances described in the Indenture, beneficial
owners of Book-Entry Notes will not be entitled to receive a certificate
representing such Notes.
A-1
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents 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 Agent and the Trustee are to
communicate regarding orders to purchase Notes and the details of their
settlement. 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 are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth below, 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 Prospectus
Supplement or the Pricing Supplement 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 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 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. Citibank, N.A. will perform such functions in
accordance with its respective obligations under a Bring-Down 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").
Issuance: All Book-Entry Notes will be represented
initially by a single Master Global Note in fully
registered form without coupons. The Master
Global Note will be dated and issued as of the
date of its authentication by the DTC Agent. The
Master Global Note will not represent any Note in
certificated form.
Identification Numbers: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Ratings Services (the
"CUSIP Service Bureau") for the reservation of a
series of CUSIP numbers, which series consists of
approximately 900 CUSIP numbers and relates to
the Book-Entry Notes. The Company has obtained
from the CUSIP Service Bureau a written list of
such reserved CUSIP numbers. The DTC Agent will
assign CUSIP numbers to Book-Entry Notes as
described below under Settlement Procedure "B".
DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that
A-2
the DTC Agent has assigned to Book-Entry Notes.
The DTC Agent will notify the Company at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Book-Entry Notes, and, if it
deems necessary, the Company will reserve
additional CUSIP numbers for assignment to
Book-Entry Notes. 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.
Registration: The Master Global Note 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.
Transfers: Transfers of interests in 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.
Consolidation and 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
maintained in the records of the DTC Agent
described below) specifying (i) the CUSIP numbers
of two or more outstanding Book-Entry Notes that
have 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 shall be consolidated, and (iii)
a new CUSIP number to be assigned to such
consolidated Book-Entry Notes. 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
consolidation will occur on such date. Prior to
the specified consolidation date, the DTC Agent
will deliver to the CUSIP Service Bureau a
written notice setting forth such consolidation
date and such new CUSIP number and stating that,
as of such consolidation date, the CUSIP numbers
of the Book-Entry Notes to be consolidated will
no longer be valid. On
A-3
the specified consolidation date, the DTC Agent
will consolidate on its records such Book-Entry
Notes as a single Book-Entry Note bearing the new
CUSIP number and dated the last Interest Payment
Date to which interest has been paid on the
underlying Book-Entry Notes, and the CUSIP
numbers of the consolidated Book-Entry Notes
will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned.
Maturities: Each Note will mature on a date (the "Maturity
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 Note will mature only on an
Interest Payment Date for such Note.
Denominations: The Notes will be issued in principal amounts of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000.
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.
Interest: General. Unless otherwise indicated in the
applicable Pricing Supplement, interest, if any,
on each 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 such Note for the first
interest period or the last date to which
interest has been paid, if any, for each
subsequent interest period and will be calculated
and paid in the manner and on the Interest
Payment Dates described in the Prospectus (as
defined in the Agency Agreement), as supplemented
by the applicable Pricing Supplement. Each
payment of interest on a 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 Date.
The Regular Record Date with respect to any
Interest Payment Date for a Fixed Rate Note or a
Floating Rate Note shall be the date (whether or
not a Business Day) fifteen calendar days
immediately preceding such Interest Payment Date.
Standard & Poor's Ratings Services 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 Notes in the appropriate
daily bond report published by Standard & Poor's
Ratings Services.
A-4
Unless otherwise specified in the applicable
Pricing Supplement, interest on each Note will be
payable either monthly, quarterly, semiannually
or annually on each Interest Payment Date and at
Maturity (or on the date of redemption or
repayment if a Note is repurchased by the Company
prior to maturity pursuant to mandatory or
optional redemption or repayment provisions of
the Survivor's Option). Interest will be payable
to the person in whose name a Note is registered
at the close of business on the Regular Record
Date next preceding each Interest Payment Date;
provided, however, interest payable at Maturity,
on a date of redemption or repayment or in
connection with the exercise of the Survivor's
Option will be payable to the person to whom
principal shall be payable.
Unless otherwise specified in the applicable
Pricing Supplement, the Interest Payment Dates
for a Fixed Rate Note that provides for monthly
interest payments shall be the fifteenth day of
each calendar month, commencing in the calendar
month that next succeeds the month in which the
Note is issued. In the case of a Fixed Rate Note
that provides for quarterly interest payments,
the Interest Payment Dates shall be the fifteenth
day of each third month, commencing in the third
succeeding calendar month following the month in
which the Note is issued. In the case of a Fixed
Rate Note that provides for semi-annual interest
payments, the Interest Payment dates shall be the
fifteenth day of each sixth month, commencing in
the sixth succeeding calendar month following the
month in which the Note is issued. In the case of
a Fixed Rate Note that provides for annual
interest payments, the Interest Payment Date
shall be the fifteenth day of every twelfth
month, commencing in the twelfth succeeding
calendar month following the month in which the
Note is issued.
The Interest Payment Dates for a Floating Rate
Note will be the dates specified in the
applicable Pricing Supplement.
The interest rates the Company will agree to pay
on newly-issued Notes are subject to change
without notice by the Company from time to time,
but no such change will affect any Notes already
issued or as to which an offer to purchase has
been accepted by the Company.
Business Day: "Business Day" means, unless otherwise specified
in the applicable Pricing Supplement, any weekday
that is (1) not a legal holiday in New York, New
York and (2) not a day on which banking
institutions in New York, New York are authorized
or required by law or regulation to be closed.
A-5
Payments of Principal and Payment of Interest Only. Promptly after each
Interest: Regular Record Date, the DTC Agent will deliver
to the Company and DTC a written notice setting
forth, by CUSIP number, the amount of interest to
be paid on each Book-Entry Note on the following
Interest 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 Book-Entry Note on such
Interest Payment Date by reference to the
appropriate daily bond reports published by
Standard & Poor's Ratings Services. The Company
will pay to the DTC Agent the total amount of
interest due on such Interest Payment Date (other
than at Maturity), and the DTC Agent 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.
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 DTC Agent a written list of principal and
interest to be paid on each Book-Entry Note
maturing either on a Maturity Date or on a
Redemption Date in the following month. The DTC
Agent, the Company and DTC will confirm the
amounts of such principal and interest payments
with respect to each Book-Entry Note on or about
the fifth Business Day preceding the Maturity
Date or Redemption Date of such Book-Entry Note.
On or before such Maturity or Redemption, the
Company will pay to the DTC Agent the principal
amount of such Book-Entry Note, together with
interest due on such Maturity Date. The DTC Agent
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 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 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 due on the Maturity
Date or on the Redemption Date of such Book-Entry
Note, the DTC Agent will cancel such Book-Entry
Note in accordance with the provisions of the
Indenture and record an appropriate debit advice
on the Master Global Note.
Manner of Payment. The total amount of any
principal and interest due on Book-Entry Notes on
any Interest Payment Date or at Maturity or upon
redemption shall be paid by the Company to the
DTC Agent 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
Book-Entry Notes by instructing the DTC Agent to
withdraw funds from an account maintained by the
Company with the
A-6
DTC Agent. The Company will confirm any such
instructions in writing to such DTC Agent. Prior
to 10:00 A.M. (New York City time) on the
Maturity Date or as soon as possible thereafter,
such DTC Agent 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 Book-Entry Note 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 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 are recorded
in the book-entry system maintained by DTC. None
of the Company, the Guarantor 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.
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.
Procedures upon Company Notice to DTC Agent regarding Company's
Company Notice Exercise of At least 60 days prior to the date on
regarding Company's which it intends to redeem any Book-Entry
Exercise of Optional Optional Redemption: Note, the Company will
Redemption. notify the DTC Agent (with a copy to the Trustee)
that it is exercising such option with respect to
such Book-Entry Note on such date.
DTC Agent Notice to DTC regarding Company's
Exercise of Optional Redemption. After receipt of
notice that the Company is exercising its option
to redeem any Book-Entry Note, the DTC Agent
will, at least 30 days before the redemption date
for such Book-Entry Note, hand 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.
Deposit of Redemption Price. On or before any
redemption date, the Company shall deposit with
the DTC Agent 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 that are to be repaid
on such redemption date. The DTC Agent will use
such money to repay such Book-Entry Notes
pursuant to the terms set
A-7
forth in such Notes.
Payments of Principal DTC Agent Notice to Company of Option to be
and Interest Upon Repaid. Upon receipt of notice of exercise of the
Exercise of Optional option for repayment, the DTC Agent shall give
Repayment: notice to the Company (with a copy of such notice
to the Trustee) 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.
Deposit of Repayment Price. On or prior to any
Optional Repayment Date, the Company shall
deposit with the DTC Agent 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 DTC Agent will
use such money to repay such Book-Entry Notes
pursuant to the terms set forth in such Notes.
Procedure for Rate The Company and the Purchasing Agent will discuss
Setting and Posting: from time to time the aggregate principal amount
of, the issuance price of, and the interest rates
to be borne by, Notes that may be sold as a
result of the solicitation of orders by the
Agents. If the Company decides to set prices of,
and rates borne by, any Book-Entry Notes in
respect of which the Agents are to solicit orders
to purchase (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 Agents of the prices and rates to be posted.
The DTC Agent will assign a separate CUSIP number
for each tranche of Notes to be posted, and will
so advise and notify the Company, the Trustee and
the Purchasing Agent of said assignment by
telephone and/or by telecopier or by other
electronic transmission. The Purchasing Agent
will include the assigned CUSIP number on all
Posting notices communicated to the Agents and
Selected Dealers.
Offering of Notes: In the event that there is a Posting, the
Purchasing Agent will communicate to each of the
Agents and Selected Dealers the relevant terms
of, including the Maturities of and the interest
rates to be borne by, each tranche of Notes that
is the subject of the Posting. Thereafter, the
Purchasing Agent, along with the other Agents and
Selected Dealers, will solicit offers to purchase
the Note accordingly.
Purchase of Notes by the The Purchasing Agent will no later than 12:00
Purchasing Agent: noon (New York City time) on the seventh day
subsequent to the day on which such Posting
occurs, or if such seventh day is not a Business
Day on the preceding Business Day, or on such
other Business Day and time as shall be mutually
agreed upon by the Company and the Agents (any
such day, a "Trade Day"), (i) complete, execute
and deliver to the Company a
A-8
Terms Agreement that sets forth, among other
things, the amount of each tranche that the
Purchasing Agent is offering to purchase or (ii)
inform the Company that none of the Notes of a
particular tranche will be purchased by the
Purchasing Agent.
Acceptance and Unless otherwise instructed by the Company, the
Rejection of Orders: Purchasing Agent will advise the Company promptly
by telephone or by other electronic transmission
of all orders to purchase Notes received by each
Agent, 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 the Agents, the Company has the sole
right to accept orders to purchase Notes and may
reject any such orders in whole or in part.
Upon receipt of a completed and executed Terms
Agreement from the Purchasing Agent, the Company
will (i) promptly execute and return such Terms
Agreement to the Purchasing Agent or (ii) inform
the Purchasing Agent that its offer to purchase
the Notes of a particular tranche has been
rejected, in whole or in part. The Purchasing
Agent will thereafter promptly inform the other
Agents and participating Selected Dealers of the
action taken by the Company.
Preparation of Pricing If any order to purchase a Book-Entry Note is
Supplement: accepted by or on behalf of the Company, the
Company will prepare a pricing supplement
(substantially in the form attached to the Agency
Agreement as Exhibit E, each a "Pricing
Supplement") reflecting the terms of such
Book-Entry Note, will file such Pricing
Supplement with the Commission in accordance with
the applicable paragraph of Rule 424(b) under the
Act, will deliver such number of copies thereof
to the Agent as the Agent shall request and will,
on the Agent's behalf, file such Pricing
Supplement with the National Association of
Securities Dealers, Inc. (the "NASD"). The
Company shall use its reasonable best efforts to
send such Pricing Supplement by email or
facsimile to the Purchasing Agent and the Trustee
by 3:00 P.M. (New York City time) on the
applicable Trade Date. The Purchasing Agent shall
use its reasonable best efforts to send such
Pricing Supplement and the Prospectus by email or
telecopy or overnight express (for delivery by
the close of business on the applicable Trade
Date) to each Agent (or Selected Dealer) which
made or presented the offer to purchase the
applicable Note and the Trustee at the following
applicable address:
If to ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., to:
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
A-9
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
If to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., to:
Corporate Board Department
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Eshing
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Production Technologies
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇@▇▇▇.▇▇.▇▇.▇▇▇
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, to:
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Trading Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to UBS Financial Services Inc
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇
If to Wachovia Capital Markets, LLC, to:
One Wachovia Center, DC-08
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
A-10
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
If to the Trustee, to:
JPMorgan Chase Bank, N.A.
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Each such Agent (or Selected Dealer), in turn,
pursuant to the terms of the Agency Agreement and
the Master Selected Dealer Agreement will cause
to be delivered a copy of the Prospectus and the
applicable Pricing Supplement to each purchaser
of Notes from such Agent or Selected Dealer.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to the Prospectuses prior to their
use. Outdated Pricing Supplements and the
Prospectuses to which they are attached (other
than those retained for files) will be destroyed.
Suspension of Solicitation; Subject to the representations, warranties and
Amendment or Supplement: 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 Notes. Upon
receipt of such instructions, each Agent will
forthwith suspend solicitation until such time as
the Company has advised it that such solicitation
may be resumed.
In the event that at the time the Company
suspends solicitation of purchases there shall be
any orders outstanding for settlement, the
Company will promptly advise the Agents, the
Trustee and the DTC Agent whether such orders may
be settled and whether copies of the Prospectus
as in effect at the time of the suspension,
together with the appropriate Pricing Supplement,
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 Prospectus
may not be so delivered.
Delivery of Prospectus: A copy of the Prospectus and a Pricing Supplement
relating to a Note must accompany or precede the
earliest of any written offer of such Note,
confirmation of the purchase of such Note and
payment for such Note by its purchaser. If notice
of a change in the terms of the Notes is received
by an Agent or Selected Dealer between the time
an
A-11
order for a Note is placed and the time written
confirmation thereof is sent by the Agent or
Selected Dealer to a customer or his agent, such
confirmation shall be accompanied by a Prospectus
and Pricing Supplement setting forth the terms in
effect when the order was placed. Each Agent or
Selected Dealer will deliver a Prospectus and
Pricing Supplement as herein described with
respect to each Note sold by it. The Company will
make such delivery if such Note is sold directly
by the Company to a purchaser (other than an
Agent or Selected Dealer).
Confirmation: For each order to purchase a Note solicited by an
Agent and accepted by or on behalf of the
Company, the Purchasing Agent will issue a
confirmation, which confirmation may be delivered
by facsimile or other electronic transmission, to
each Agent or Selected Dealer, with a copy to the
Company, setting forth the details set forth
above and delivery and payment instructions.
In addition, the Purchasing Agent, other Agent or
Selected Dealer, as the case may be, will deliver
to investors purchasing the Notes the Prospectus
(including the Pricing Supplement) in relation to
such Notes prior to or simultaneously with
delivery of the confirmation of sale or delivery
of the Notes.
Settlement: The receipt by the Company of immediately
available funds in payment for a Note and the
entry by the DTC Agent of an SDFS deliver order
through DTC's Participant Terminal System to
credit such Note to the account of a Participant
purchasing, or acting for the purchaser of such
Note, shall constitute "settlement" with respect
to such 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 Purchasing Agent 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.
Settlement Procedures: Unless otherwise specified in the applicable
Terms Agreement, Settlement Procedures with
regard to each Book-Entry Note sold by the
Company through the Agents shall be as follows:
A. After the acceptance of an offer by the
Company with respect to a Note, the
Purchasing Agent will communicate the
following details of the terms of such offer
(the "Note Sale Information") to the Company
by telephone (confirmed in writing) or by
facsimile transmission or other electronic
A-12
transmission:
1. Principal amount of the purchase.
2. Stated Maturity.
3. In the case of a Fixed Rate Note, the
interest rate and redemption and
repayment provisions (if any) or, in the
case of a Floating Rate Note, the Base
Rate, Initial Interest Rate (if known at
such time), Interest Reset Period,
Interest Reset Dates, Spread and/or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest
Rate (if any) and redemption and
repayment provisions (if any).
4. Interest Payment Dates and the Interest
Payment Period.
5. Settlement Date and Issue Date, if
different.
6. Trade Date.
7. Purchasing Agent's commission, determined
as provided in the Agency Agreement.
8. Net proceeds to the Company.
9. Price to Public.
10. If a Note is redeemable by the Company or
repayable by the Noteholder, such of the
following as are applicable:
(i) The date on and after which such
Note may be redeemed/repaid (the
"Redemption/ Repayment Commencement
Date"),
(ii) Initial redemption/repayment price
(% of par), and
(iii) Amount (% of par) that the initial
redemption/repayment price shall
decline (but not below par) on each
anniversary of the
Redemption/Repayment Commencement
Date.
11. Whether the Note has a Survivor's Option.
A-13
12. Whether the Note is an OID Note and, if
so, the total amount of OID, the yield to
maturity and the initial accrual period
OID.
13. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Book-Entry
Note.
14. Any other terms necessary to describe the
Book-Entry Note.
B. The Company will advise the DTC Agent and the
Purchasing Agent by telephone (confirmed in
writing at any time on the same date),
written telecommunication or other 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 Agents
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; (ii) such Note will conform with the
terms of the Indenture for such Note; and
(iii) upon issuance of such Book-Entry Note,
the aggregate principal amount of all Notes
issued under the Indenture will not exceed
the aggregate principal amount of Notes
authorized for issuance at such time by the
Company. The DTC Agent will then assign a
CUSIP number to the Book-Entry Note and
notify the Purchasing Agent and the Company
by telephone (confirmed in writing at any
time on the same date), written
telecommunication or other electronic
transmission of such CUSIP number as soon as
practicable.
C. The DTC Agent will enter a pending deposit
message through DTC's Participant Terminal
System providing the following settlement
information to DTC, Standard & Poor's Ratings
Services, Interactive Data Corporation, the
Agents and, upon request, the Trustee:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Note or a
Floating Rate Note.
3. The Initial Interest Payment Date for
such Note, number of days by which such
date succeeds the related Regular Record
Date and the amount of
A-14
interest payable on such Initial Interest
Payment Date.
4. The Interest Payment Period.
5. The CUSIP number of the Book-Entry Note
representing such Notes.
6. The participant account numbers
maintained by DTC on behalf of the
Trustee and the Purchasing Agent.
7. Whether such Book-Entry Note will
represent any other Notes (to the extent
known at such time).
D. The DTC Agent will complete the Master Global
Note as it relates to such Note by filing the
applicable Pricing Supplement relating to
such Note in the records maintained by it,
which records, taken with the Master Global
Note, shall evidence such Note.
E. DTC will credit such Note to the DTC Agent's
participant account at DTC.
F. The DTC Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such Note
to the DTC Agent's participant account and
credit such Note to the Purchasing Agent's
participant account and (ii) debit the
Purchasing Agent's settlement account and
credit the DTC Agent's settlement account for
an amount equal to the price of such Note
less the Purchasing Agent's commission. The
entry of such a deliver order shall
constitute a representation and warranty by
the DTC Agent to DTC that (i) the Master
Global Note representing such Note has been
issued and authenticated and (ii) the DTC
Agent is holding such Master Global Note
pursuant to the Medium Term Note Certificate
Agreement between the DTC Agent and DTC.
G. The Purchasing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Note to the Purchasing Agent's
participant account and credit such Note to
the participant accounts of the Agents with
respect to such Note and (ii) to debit the
settlement accounts of such Agents and credit
the settlement account of the Purchasing
Agent for an amount equal to the price of
such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be
A-15
settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
I. The DTC Agent will, upon receipt of funds
from the Purchasing Agent in accordance with
Settlement Procedure "F", 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 "F".
J. Each Agent and participating Selected Dealer
will confirm the purchase of such Note to the
purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser. In
all cases, the Prospectus as most recently
amended or supplemented must accompany or
precede such confirmation.
K. 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 brief description of any
sales of which the Company has advised the
DTC Agent but which have not yet been
settled.
Settlement Procedures For sales by the Company of Notes solicited by
Timetable: the Agents and accepted by the Company for
settlement, 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 4:00 P.M. on the trade date
B 5:00 P.M. on the trade date
C 2:00 P.M. on the day before settlement
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
K Monthly or at the request of the Company
Settlement Procedure "H" 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
A-16
date.
If settlement of a Book-Entry Note is rescheduled
or canceled, the DTC Agent, after receiving
notice from the Company or the Purchasing Agent,
will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such
effect by no later than 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 for such Note has not entered
an SDFS deliver order with respect to a Note
pursuant to Settlement Procedure "F", after
receiving notice from the Company or the
Purchasing 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
such DTC Agent's participant account. DTC will
process the withdrawal message, provided that the
DTC Agent's participant account contains a
principal amount of Notes that are at least equal
to the principal amount to be debited. If a
withdrawal message is processed with respect to
the Notes represented by a Book-Entry Note, the
DTC Agent will ▇▇▇▇ the Pricing Supplement in its
records relating to such Book-Entry Note
"cancelled", make appropriate entries in the DTC
Agent's records and record an appropriate debit
advice on the Master Global Note. The CUSIP
number assigned to such Book-Entry Note shall, in
accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned.
If the purchase price for any Note is not timely
paid to any relevant Participant with respect to
such Note by the beneficial purchaser thereof (or
a Person, including an indirect participant in
DTC, acting on behalf of such purchaser), such
Participant 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 "F" 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
relevant Agent in the performance of its
obligations hereunder and under the Agency
Agreement, then the Company will reimburse such
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 Notes to have been
A-17
represented by a Book-Entry Note, the DTC Agent
will provide, in accordance with Settlement
Procedures "D".
Procedure for Rate Each time after a Posting, if a decision has been
Changes: reached to change the interest rates of the Notes
subject to such Posting, the Company will
promptly advise the Purchasing Agent, which will
in turn promptly advise the other Agents; and the
Agents will forthwith suspend solicitation of
offers to purchase Notes at the prior rates. The
Purchasing Agent may telephone the Company with
recommendations as to the changed interest rates.
The DTC Agent Not to Nothing herein shall be deemed to require the DTC
Risk Funds: Agent to risk or expend its own funds in
connection with any payment to the Company, DTC,
the Agents or the purchasers, it being understood
by all parties that payments made by the DTC
Agent to the Company, DTC, the Agents or the
purchasers shall be made only to the extent that
funds are provided to the DTC Agent for such
purpose.
Advertising Costs: The Company shall have the sole right to approve
the form and substance of any advertising an
Agent may initiate in connection with such
Agent's solicitation to purchase the Notes. The
expense of such advertising will be solely the
responsibility of such Agent, unless otherwise
agreed to by the Company.
A-18
EXHIBIT B
FORM OF TERMS AGREEMENT
Citigroup Funding Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasury Capital Markets
Subject in all respects to the terms and conditions contained in the Global
Selling Agency Agreement dated June 1, 2005 (the "Agency Agreement"), among
Citigroup Funding Inc. (the "Company"), Citigroup Inc. (the "Guarantor"),
Citigroup Global Markets Inc. (the "Purchasing Agent") and the additional Agents
named therein, the undersigned agrees to purchase the following aggregate
principal amount of the Company's Retail Medium-Term Notes, Series C (the
"Notes"), which Notes are fully and unconditionally guaranteed by the Guarantor:
Principal Amount: $ CUSIP Number:
Purchaser: Citigroup Global Markets Inc. Original Issue Date:
Interest Rate: [ ] Fixed % Stated Maturity:
[ ] Floating (see below)
Reoffering Price: 100% of Principal Amount
Interest Payment Dates: Accrue to Pay: [ ] Yes [ ] No
Interest Reset Period or Interest Reset Dates:
Survivor's Option: [ ] Yes [ ] No
Base Rate: [ ] CD Rate [ ] Commercial Paper Rate [ ] Federal Funds Rate [ ]
LIBOR Telerate
[ ] LIBOR Reuters [ ] Treasury Rate [ ] Treasury Rate Constant Maturity [ ]
Prime Rate [ ] Indexed Interest Rate (see attached)
Spread Multiplier: Spread (+/-):
Spread Reset: The Spread or Spread Multiplier may not be changed prior to Stated
Maturity.
Index Maturity:
Maximum Interest Rate: Minimum Interest Rate:
Optional Redemption: [ ] Yes [ ] No
Optional Redemption Dates:
Optional Redemption Prices:
Optional Repayment: [ ] Yes [ ] No
Optional Repayment Dates:
Optional Repayment Prices:
B-1
Discount Note: [ ] Yes [ ] No
Total Amount of OID:
Yield to Maturity:
Settlement Date, Time and Place:
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.
Date:
CITIGROUP GLOBAL MARKETS INC.
By:__________________________
Name:
Title:
Accepted:
CITIGROUP FUNDING INC.
By:_________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF AGENT ACCESSION CONFIRMATION
[date]
To: [Name and address of new Agent]
Re: Citigroup Funding Inc. $5,000,000,000 Series C Retail Medium-Term Notes
Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated June 1, 2005 (which
agreement, as amended from time to time, is herein referred to as the "Agency
Agreement") entered into in respect of the above Series C Retail Medium-Term
Notes Program and hereby acknowledge receipt of your Agent Accession Letter to
us dated [date].
In accordance with Section 2(d) of the Agency Agreement we hereby confirm that,
with effect from the date hereof, you shall become a party to, and a 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 FUNDING INC.
By:______________________________________
Name:
Title:
cc: DTC Agent
Trustee
Existing Agents
Guarantor
C-1
EXHIBIT D
FORM OF AGENT ACCESSION LETTER
[date]
To: Citigroup Funding Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasury Capital Markets
Re: Citigroup Funding Inc. $5,000,000,000 Series C Retail Medium-Term Notes
Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated June 1, 2005, entered into
in respect of the above Series C Retail Medium-Term Note Program and made among
Citigroup Funding Inc. (the "Company"), Citigroup Inc. (the "Guarantor"),
Citigroup Global Markets Inc. (the "Purchasing Agent") and the other 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, facsimile 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.
D-1
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]
By:____________________________________
Name:
Title:
cc: DTC Agent
Trustee
Existing Agents
Guarantor
D-2
EXHIBIT E
FORM OF PRICING SUPPLEMENT
(Fixed Rate Note)
Pricing Supplement No.
Pricing Supplement Dated:
Rule 424(b)(3)
File No. 333-122925
(To Prospectus Supplement Dated June 1, 2005 and Prospectus Dated May 3, 2005)
$5,000,000,000
Citigroup Funding Inc.
Retail Medium-Term Notes, Series C
Trade Date:
Original Issue Date:
Lead Agent: Citigroup Global Markets Inc.
Agents:
CUSIP:
Aggregate Principal Amount: $
Price to Public: %
Concession: %
Net Proceeds to Issuer: $
Interest Rate: %
Interest Payment Frequency:
First Interest Payment Date:
Stated Maturity:
Calculation Agent:
Survivor's Option: Yes/No
Product Ranking:
Form of Note: Global/Book-Entry Only
Redemption Information:
Other Terms:
E-1
FORM OF PRICING SUPPLEMENT
(Floating Rate Note)
Pricing Supplement No.
Pricing Supplement Dated:
Rule 424(b)(3)
File No. 333-122925
(To Prospectus Supplement Dated June 1, 2005 and Prospectus Dated May 3, 2005)
$5,000,000,000
Citigroup Funding Inc.
Retail Medium-Term Notes, Series C
Trade Date:
Original Issue Date:
Lead Agent: Citigroup Global Markets Inc.
Agents:
CUSIP:
Aggregate Principal Amount: %
Price to Public: %
Concession: $
Net Proceeds to Issuer: $
Stated Maturity:
Authorized Denominations (if other than as set forth in the Prospectus
Supplement):
Form of Note: Global/Book-Entry Only
Interest Payment Dates:
First Interest Payment Date:
Accrue to Pay: Yes/No
Initial Interest Rate:
Base Rate:
Indexed Interest Rate:
Calculation Agent:
Computation of Interest (if other than as set forth in the Prospectus
Supplement):
Interest Rest Dates:
Rate Determination Dates (if other than as set forth in the Prospectus
Supplement):
Index Maturity:
Spread:
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
Survivor's Option: Yes/No
E-2
Product Ranking:
Optional Redemption: Yes/No
Optional Redemption Dates:
Redemption Prices:
Redemption:
Optional Repayment: Yes/No
Optional Repayment Dates:
Optional Repayment Prices:
Discount Note: Yes/No
Total Amount of OID:
Bond Yield to Call:
Bond Yield to Maturity:
Yield to Maturity:
Other Terms:
E-3
EXHIBITS F-I
FORMS OF OPINIONS, CERTIFICATES AND COMFORT LETTERS
EXHIBIT J
MASTER SELECTED DEALER AGREEMENT