Exhibit 1(b)
CITIGROUP GLOBAL MARKETS HOLDINGS INC.
Medium-Term Notes, Series A and Series B
Euro-Medium-Term Notes, Series A and Series B
GLOBAL SELLING AGENCY AGREEMENT
May ___, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "U.S. Agent")
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
(the "International Agent")
Ladies and Gentlemen:
Citigroup Funding Inc., a Delaware corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to U.S.$[ ] (or the equivalent thereof in one or more foreign
currencies, foreign currency units or composite currencies) aggregate principal
amount of its Medium-Term Notes, Series A and Series B, in registered form (the
"Medium-Term Notes") and Euro-Medium-Term Notes, Series A and Series B, in
bearer form (the "Euro Medium-Term Notes"; and together with the Medium-Term
Notes, the "Notes"), which Notes are fully and unconditionally guaranteed by
Citigroup Inc. (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 may be denominated in U.S. dollars,
foreign currencies or composite currencies (the "Specified Currency") as may be
specified in the applicable Pricing Supplement (as defined herein) relating to
any particular issue of Notes.
The Notes, Series A, will be issued under an indenture (the "Senior
Debt Indenture"), dated as of May ___, 2005, among the Company, the Guarantor,
and JPMorgan Chase Bank, N.A., as trustee. The Notes, Series B, will be issued
under an indenture (the "Subordinated Debt Indenture," and, together with the
Senior Debt Indenture, the "Indentures"), dated as of May ___, 2005, among the
Company, the Guarantor, and Deutsche Bank Trust Company Americas, as trustee
(together with JPMorgan Chase Bank, N.A., the "Trustees"). Unless otherwise
specifically provided for and set forth in a supplement to the Prospectus
referred to below, the Medium-Term Notes will be issued in minimum denominations
of U.S.$1,000 (or the approximate equivalent thereof in the Specified Currency)
and in denominations exceeding such amount by integral multiples of U.S.$1,000
(or the approximate equivalent thereof in the Specified Currency) and will be
issued only in fully registered form, and the Euro Medium-Term Notes will be
issued in minimum denominations of U.S.$10,000 (or the approximate equivalent
thereof in the Specified Currency) and in denominations exceeding such amount by
integral multiples of U.S.$1,000 (or the approximate equivalent thereof in the
Specified Currency) and will be issued only in bearer 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 Medium-Term Notes will be issued, and the terms thereof
established, in accordance with the Indentures and the Medium-Term Notes
Administrative Procedures attached hereto as Exhibit A (the "U.S. Procedures")
(unless a Terms Agreement (as defined in Section 2(b)) modifies or otherwise
supersedes such U.S. Procedures with respect to the Medium-Term Notes issued
pursuant to such Terms Agreement). The U.S. Procedures may only be amended by
written agreement of the Company, the Guarantor and the U.S. Agent after notice
to, and with the approval of, the Trustees. The Euro Medium-Term Notes will be
issued, and the terms thereof established, in accordance with the Indentures and
the Euro Medium-Term Notes Administrative Procedures attached hereto as Exhibit
B (the "Euro Procedures") (unless a Terms Agreement modifies or otherwise
supersedes such Euro Procedures with respect to the Euro Medium-Term Notes
issued pursuant to such Terms Agreement). The Euro Procedures may only be
amended by written agreement of the Company, the Guarantor and the International
Agent after notice to, and with the approval of, the Trustees.
For purposes of this Agreement, the term "Agent" shall refer to
either one of you and to any additional agents appointed as a party to this
Agreement pursuant to Section 2(b) hereof, and the terms "U.S. Agent" and
"International Agent" shall refer to such of you as are indicated on the cover
page of this Agreement and any such additional Agents appointed as such pursuant
to Section 2(c) hereof, each acting solely in its capacity as agent for the
Company pursuant to Section 2(a) and not as principal; the term "Purchaser"
shall refer to one of you acting solely as principal pursuant to Section 2(b)
and not as agent; and the term "you" shall refer to you and any other Agent
collectively, whether at any time any one of you is acting in both such
capacities or in either such capacity. In acting under this Agreement, in
whatever capacity, 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-[ ]) in respect of U.S.$[ ]
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
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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 such 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 Indentures, each
as amended at the time such part became effective, being hereinafter
collectively called the "Registration Statement"; the form of basic 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 Medium-Term Notes and the plan
of distribution thereof being hereinafter called the "U.S. Prospectus
Supplement"; the supplement to Prospectus relating to the Euro Medium-Term Notes
and the plan of distribution thereof being hereinafter called the "Euro
Prospectus Supplement" and, together with the U.S. Prospectus Supplement, the
"Prospectus Supplements"; and the Base Prospectus (including the U.S. Prospectus
Supplement or the Euro Prospectus Supplement, as the case may be) 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 Company filed pursuant to the Exchange
Act after the effective date of the Registration Statement that is incorporated
by reference in such 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 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
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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 Indentures, 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 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 Indentures 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 Indentures (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 Indentures have been duly authorized by the Company and
qualified under the Trust Indenture Act; and the Indentures conform 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 executed and
delivered by the Guarantor in accordance with the Indentures, will constitute
valid and binding obligations of the Guarantor, enforceable in accordance with
their terms and entitled to the benefits of the Indentures; and
(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. (a) Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the right to sell
Notes to any of you acting as principal at a discount for its own account or for
resale to one or more investors or other dealers and the Company's right to sell
Notes directly to investors on its own behalf or through other agents, the
Company hereby appoints and authorizes the U.S. Agent and the International
Agent
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to act as its agents to solicit offers for the purchase of all or part of the
Medium-Term Notes and Euro Medium-Term Notes, respectively, from the Company;
provided, however, that only the International Agent may solicit offers for the
purchase of Euro Medium-Term Notes.
Following the Commencement Date (referred to below), the Company
shall notify each 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 May ___, 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 U.S. Agent and
the International Agent agrees, as agent of the Company, to use its reasonable
best efforts to solicit offers to purchase Medium-Term Notes and Euro
Medium-Term Notes, respectively, from the Company upon the terms and conditions
set forth in the applicable Prospectus (and any supplement thereto) and in the
U.S. or Euro Procedures, as applicable. Each Agent shall communicate to the
Company, orally or in writing, each reasonable offer or indication of interest
to purchase Notes received by such Agent as Agent. The Company shall have the
sole right to accept offers to purchase the Notes and may reject any such offer
in whole or in part. Each Agent shall have the right to reject, in its
discretion reasonably exercised, any offer received by it to purchase the Notes,
in whole or in part, and any such rejection shall not be deemed a breach of its
agreements contained herein. In soliciting offers to purchase the Notes in its
capacity as agent of the Company, each Agent is acting solely as agent for the
Company, and not as principal, and does not assume any obligation toward or
relationship of agency or trust with any purchaser of the Notes (other than any
such obligation or relationship which the Agent assumes independently of this
Agreement). Each Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company, but such Agent shall not,
except as otherwise provided in this Agreement, be obligated to disclose the
identity of any purchaser or have any liability to the Company in the event any
such purchase is not consummated for any reason. Except as provided in Section
2(b), under no circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that any of you may
purchase Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to instruct
the U.S. Agent and the International Agent 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 U.S. Agent and the
International Agent (or either or both of them, as the case may be) will
forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised them that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, on the Settlement
Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage specified
in Schedule I hereto of the aggregate principal amount of the Notes sold by the
Company. Such commission shall be payable as specified in the U.S. or Euro
Procedures, as applicable. Without the prior approval of the Company, no Agent
(acting on an agency basis) may reallow any portion of the commission
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payable pursuant hereto to dealers or purchasers in connection with the offer
and sale of any Notes.
Subject to the provisions of this Section and to the U.S. or Euro
Procedures, as applicable, offers for the purchase of Notes may be solicited by
an Agent as agent for the Company at such time and in such amounts as such Agent
shall deem advisable. The Company may from time to time offer Notes for sale
otherwise than through an Agent; 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 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) Subject to the terms and conditions stated herein, whenever the
Company and any of you determine that the Company shall sell Notes directly to
any of you as principal, each such sale of Notes shall be made in accordance
with the terms of this Agreement and a supplemental agreement relating to such
sale. Each such supplemental agreement (which may be either an oral or written
agreement) is herein referred to as a "Terms Agreement". Each Terms Agreement
shall describe the Notes to be purchased by the Purchaser pursuant thereto and
shall specify the aggregate principal amount of such Notes, the price to be paid
to the Company for such Notes, 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, such other terms of the Notes as are applicable, the Settlement Date
for the purchase of such Notes, the place of delivery of the Notes and payment
therefor, 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
Agent. Any written Terms Agreement may be in the form attached hereto as Exhibit
C. The Purchaser's commitment to purchase Notes shall be deemed to have been
made on the basis of the representations and warranties of the Company and the
Guarantor herein contained and shall be subject to the terms and conditions
herein set forth.
Each date of delivery of and payment for Notes to be purchased by
any of you as principal or as agent or by any other purchaser is referred to
herein as a "Settlement Date". Delivery of the certificates for Notes sold to
the Purchaser 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 U.S. or Euro Procedures, as applicable, unless
otherwise agreed to between the Company and the Purchaser in such Terms
Agreement.
Unless otherwise agreed to between the Company and the Purchaser in
a Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Purchaser at varying prices
from time to time or, if set forth in the applicable Terms Agreement
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and Pricing Supplement, at a fixed public offering price. In connection with any
resale of Notes purchased, a Purchaser may use a selling or dealer group and may
reallow to any broker or dealer any portion of the discount or commission
payable pursuant hereto.
(c) Additional Agents. Notwithstanding paragraph 2(a) above, the
Company may from time to time appoint one or more additional financial
institutions experienced in the distribution of securities as a U.S. Agent or
International 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
D or Exhibit F to this Agreement, as appropriate, provided that any such
additional party shall have first requested appointment as such upon the terms
and conditions of this Agreement in writing to the Company pursuant to a letter
(an "Agent Accession Letter") substantially in the form of Exhibit E or Exhibit
G to this Agreement, as appropriate, whereupon it shall, subject to the terms
and conditions of this Agreement, the relevant Agent Accession Letter and the
relevant Agent Accession Confirmation, become a party to this Agreement as a
U.S. Agent, or an International Agent, as specified in the relevant Agent
Accession Letter, 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 Trustees 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.
3. Offering and Sale of Notes. The U.S. Agent, the International
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the U.S. or Euro Procedures, as
the case may be.
In connection with any offering of Euro Medium-Term Notes, the
International Agent may act as stabilizing agent (the "Stabilizing Agent"), and
as Stabilizing Agent may over-allot or effect transactions which stabilize or
maintain the market price of the Euro Medium-Term Notes at a level which might
not otherwise prevail. Such stabilizing, if commenced, may be discontinued at
any time. The Stabilizing Agent, whose identity shall be disclosed in the
applicable supplement to the Prospectus relating to such offering of Euro
Medium-Term Notes, shall comply with all applicable laws.
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 each Agent and such
Agent's counsel 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
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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 Registration Statement, (iii)
the receipt by the Company or the Guarantor of comments from the Commission
relating to or requests by the Commission for any amendment of the Registration
Statement or any amendment of or supplement to the Prospectus or for any
additional information, (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or 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 in its capacity as
Agent and to cease sales of any Notes it may then own as principal 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 or 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 each Agent pursuant to subsections (j), (k) and (1) of this Section
4(A) in connection with the preparation and filing of such amendment or
supplement, are reasonably satisfactory in all respects to such Agent, upon the
filing of such amendment or supplement with the Commission or effectiveness of
an amendment to the Registration Statement, such Agent 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)
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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 subsection (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 such Agent holds any Notes as
principal purchased pursuant to a Terms Agreement or otherwise pursuant to this
Agreement, 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 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 and, if requested by such
Agent, to arrange for the determination of the legality of the Notes for
purchase by institutional investors, except that neither the Company nor the
Guarantor shall be required in connection therewith to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action which
would subject it to general or unlimited service of process in any jurisdiction
where it is not now so subject.
(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.
(g) The Guarantor will make generally available to security holders
of the Company and to each Agent as soon as practicable, but in any event not
later than 15 months after the end of the Guarantor's current fiscal quarter, an
earnings statement (which need not be audited) covering a 12-month period
beginning after the date upon which any amendment of or supplement to the
Prospectus (other than a Pricing Supplement or an amendment or supplement
relating solely to an offering of debt securities other than the Notes) is filed
pursuant to Rule 424 under the Act, which shall satisfy the provisions of
Section 11(a) of the Act.
(h) 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
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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 Indentures,
and all other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and disbursements
(including reasonable fees of counsel) incurred in connection with the
qualification of the Notes for sale and determination of eligibility for
investment of the Notes under the securities or blue sky laws of such
jurisdictions as the Agent may designate, the fees and disbursements of the
Trustees, the fees of any agency that rates the Notes, the fees and expenses in
connection with any listing of the Notes on the Luxembourg Stock Exchange or
such other securities exchange agreed to in writing by the Company, 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
reasonably satisfactory to each of the Agents, the Company and the Guarantor,
and such other expenses, including, without limitation, advertising expenses as
may be agreed upon by the Agents, the Company and the Guarantor; provided,
however, that with respect to any purchase of Notes by one of you as principal
pursuant to a Terms Agreement, the fees and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or other counsel to you shall not be paid by either the
Company or the Guarantor.
(i) 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 Indentures, the
Notes, this Agreement, the Procedures, any Terms Agreement and the performance
by the Company and the Guarantor of their obligations hereunder or thereunder as
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.
(j) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by a Pricing Supplement, an amendment or
supplement relating solely to an offering of securities other than the Notes, or
an amendment or supplement made pursuant to the incorporation by reference of a
document filed under the Exchange Act), if requested by any Agent, the Company
and the Guarantor will deliver or cause to be delivered forthwith to such Agent
a certificate of the Company and the Guarantor, signed by the Chairman of the
Board, any Vice Chairman or any Vice President and by the principal financial
officer, the principal accounting officer or the Treasurer of the Company and
the Guarantor (or another officer or officers acceptable to such 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 such Agent, to the effect that the statements
contained in the certificate referred to in Section 5(b) (iii) that was last
furnished to such Agent (either pursuant to Section 5(b) (iii) or pursuant to
this Section 4(A)(j)) are true and correct at the time of the effectiveness of
such amendment or the time of filing of such supplement or
10
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.
(k) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by a Pricing Supplement, an amendment or
supplement relating solely to an offering of securities other than the Notes, or
an amendment or supplement made pursuant to the incorporation by reference of a
document filed under the Exchange Act), if requested by either Agent, the
Company and the Guarantor shall furnish to or cause to be furnished forthwith to
such Agent the written opinion of the General Counsel or a Deputy General
Counsel of the Company and the Guarantor, or other counsel reasonably
satisfactory to such 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 such Agent, to
the effect set forth in Exhibit C hereto. In lieu of such opinion, counsel last
furnishing such an opinion to such Agent may furnish to such Agent a letter to
the effect that such Agent 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).
(l) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information (other than by a Pricing Supplement, an amendment or supplement
relating solely to an offering of securities other than the Notes, or an
amendment or supplement made pursuant to the incorporation by reference of a
document filed under the Exchange Act), if requested by either Agent, the
Guarantor shall cause KPMG LLP, Independent Registered Public Accounting Firm,
forthwith to furnish such Agent 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 such Agent, of the same tenor as the letter
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.
(m) Each acceptance by the Company of an offer for the purchase of
Notes and each sale of Notes to any of you as principal 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
11
delivery to the purchaser or his agent, or an Agent, or any of you acting as
principal, 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).
(n) 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 Notes in each Agent's capacity as
Agent of the Company and any Agent does not then hold any Notes acquired by it
as principal pursuant to a Terms Agreement, neither the Company nor the
Guarantor shall be obligated to furnish or cause to be furnished any notice,
certificate, opinion or letter otherwise required until such time as it shall
determine that solicitation of offers to purchase the Notes should be resumed;
and provided, further, that, prior to resuming such solicitation the Agents
shall be entitled to receive any such notices, certificates, opinions or letters
not previously furnished, accurate as of the date of such notice, certificate,
opinion or letter.
(o) The Company, the Guarantor and their respective affiliates will
comply with the provisions of U.S. Treasury Regulations 1.163-5(c)(2)(i)(D)(1)
and (2).
(p) If any issue of Euro Medium-Term Notes is to be listed on the
Luxembourg Stock Exchange, as specified in the applicable Pricing Supplement,
the Company and the Guarantor will use their best efforts to obtain the listing
of such issue of Euro Medium-Term Notes on the Luxembourg Stock Exchange, to
furnish to such Exchange all documents, information and undertakings that may be
reasonably necessary in order to effect such listing, and to cause such listing
to be continued so long as any of the Euro Medium-Term Notes of such issue
remain outstanding.
(q) The Company and the Guarantor, or their respective designated
agent(s) shall submit such reports or information as may be required from time
to time by applicable law, regulations and guidelines promulgated by Japanese
governmental and regulatory authorities in respect of the issue and purchase of
Notes denominated in Japanese yen.
(B) Each Agent represents to and agrees with the Company and the
Guarantor that:
(a) Except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold, and during
the restricted period will not offer or sell, Euro Medium-Term Notes to a person
who is within the United States or its possessions or to a United States person,
and (ii) it has not delivered and will not deliver within the United States or
its possessions definitive Euro Medium-Term Notes that are sold during the
restricted period.
(b) It has and throughout the restricted period will have in effect
procedures reasonably designed to ensure that its employees or agents who are
directly engaged in selling Euro Medium-Term Notes are aware that such Euro
Medium-Term Notes may not be offered or
12
sold during the restricted period to a person who is within the United States or
its possessions or to a United States person, except as permitted by the D
Rules.
(c) If it is a United States person, it represents that it is
acquiring the Euro Medium-Term Notes for purposes of resale in connection with
their original issuance, and if it retains Euro Medium-Term Notes for its own
account, it will only do so in accordance with the requirements of U.S. Treas.
Reg. Section 1.163-5(c)(2)(i)(D)(6).
(d) With respect to each of its affiliates that acquires Euro
Medium-Term Notes from it for the purpose of offering or selling such Euro
Medium-Term Notes during the restricted period, it repeats and confirms the
representations and agreements contained in Sections 4(B)(a), (b) and (c) on
such affiliate's behalf.
(e) It has not entered and will not enter into any contractual
arrangement with respect to the distribution or delivery of Euro Medium-Term
Notes, except with their affiliates or with the prior written consent of the
Company and the Guarantor.
Terms used in this Section 4(B) have the meanings given to them by
the U.S. Internal Revenue Code and regulations thereunder, including the D
Rules. For these purposes, the "restricted period" with respect to a Euro
Medium-Term Note generally ends upon the expiration of the 40-day period
beginning on the issue date of such Euro Medium-Term Note, unless the
International Agent holds such Euro Medium-Term Note as part of an unsold
allotment or subscription, in which case the "restricted period" continues for
so long as the International Agent holds such Euro Medium-Term Note.
(f) It has not offered or sold and, prior to the expiration of the
period of six months from the date of issue of any Notes having a maturity of
one year or greater, will not offer or sell any Notes to persons in the United
Kingdom, except to those persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments, as principal or agent,
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
for purposes of the Public Offers of Securities Regulations 1995.
(g) It has complied and will comply with all applicable provisions
of the Financial Services and Markets ▇▇▇ ▇▇▇▇ ("FSMA") with respect to anything
done by it in relation to the Notes in, from or otherwise involving the United
Kingdom.
(h) It has only communicated or caused to be communicated and it
will only communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of FSMA)
received by it in connection with the issue or sale of the Notes in
circumstances in which Section 21(1) of FSMA does not apply to either the
Company or the Guarantor.
(i) It will not offer or sell any Notes directly or indirectly in
Japan or to, or for the benefit of, any Japanese person or to others, for
re-offering or re-sale directly or indirectly in Japan or to any Japanese person
except under circumstances which will result in compliance with all applicable
laws, regulations and guidelines promulgated by the relevant governmental and
regulatory authorities in effect at the relevant time. For purposes of this
paragraph,
13
"Japanese person" means any person resident in Japan, including any corporation
or other entity organized under the laws of Japan.
5. Conditions to the Obligations of the Agents. Each Agent's
obligations to solicit offers to purchase Notes as agent of the Company, any of
your obligations to purchase Notes as principal pursuant to any Terms Agreement
or otherwise and the obligation of any other Purchaser to purchase Notes from
the Company will be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company and the Guarantor
herein contained, to the accuracy of the statements of the officers of the
Company and the Guarantor made in each certificate furnished pursuant to the
provisions hereof and to the performance and observance by the Company and the
Guarantor of all covenants and agreements herein contained on their part to be
performed and observed (in the case of any Agent's obligations to solicit offers
to purchase Notes, at the time of such solicitation, and, in the case of any
Purchaser's obligation to purchase Notes, at the time the Company accepts the
offer to purchase such Notes and at the time of purchase) and (in each case) to
the following additional conditions precedent when and as specified:
(a) On the corresponding Settlement Date:
(i) 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 the Agent's judgment,
makes it impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus except, in the case of any purchase of
Notes by any Agent as principal, as disclosed to such Agent in writing by
the Company and the Guarantor before the Company accepted the offer to
purchase such Notes.
(ii) (A) With respect to the Medium-Term Notes: 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 by any country
the currency of which will be used to make any payment in respect of the
Notes 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 (ii)(A)(x) through (z), such event makes it,
in the Agent's judgment, impracticable to market the Notes on the terms
and in the manner contemplated by the Prospectus, as amended or
supplemented, except, in the case of any purchase of Notes by any Agent as
principal, for any such event occurring before the Company accepted the
offer to purchase such Notes.
(B) With respect to the Euro Medium-Term Notes: There shall
not have occurred any (x) suspension or material limitation of trading in
securities generally
14
on the New York Stock Exchange, London Stock Exchange or Luxembourg Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of 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 by bank regulatory authorities in London or
Luxembourg, or exchange controls shall have been imposed by the United
States or by any country the currency of which will be used to make any
payment in respect of the Notes or (z) any outbreak or escalation of major
hostilities in which the United States or the United Kingdom is involved,
any declaration of war by Congress or Parliament 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 (ii)(B)(x) through (z), such event makes it, in the
Agent's judgment, impracticable to market the Notes on the terms and in
the manner contemplated by the Prospectus, as amended or supplemented,
except, in the case of any purchase of Notes by any Agent as principal,
for any such event occurring before the Company accepted the offer to
purchase such Notes.
(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, in the case
of any purchase of Notes by any Agent as principal, as disclosed to the
Agent in writing by the Company and the Guarantor before the Company
accepted the offer to purchase such Notes.
(b) On the Commencement Date and, if called for by any agreement by
any Agent to purchase Notes as principal, on the corresponding Settlement Date:
(i) The Company and the Guarantor shall have furnished to each
Agent the opinion of the General Counsel or a Deputy General Counsel of
the Company and the Guarantor (or other counsel for the Company and/or the
Guarantor reasonably acceptable to the Agent) on the Commencement Date,
and, on the Settlement Date will furnish the opinion of the General
Counsel or a Deputy General Counsel of the Company and the Guarantor (or
other counsel for the Company and/or the Guarantor reasonably acceptable
to such Agent) 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 H hereto.
(ii) Each Agent shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, counsel for the Agents (or other counsel reasonably
acceptable to such 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 I hereto.
(iii) The Company and the Guarantor shall have furnished to
the Agent a certificate of the Company and the Guarantor, signed by the
Secretary of the Company and by the Chairman of the Board, any Vice
Chairman, the Treasurer or any Vice
15
President and by the principal financial officer, the Controller or the
principal accounting officer of the Guarantor (or another officer or
officers acceptable to such Agent), dated the Commencement Date or the
Settlement Date, as the case may be, to the effect that each signatory of
such certificate has carefully examined the Registration Statement, as
amended as of the date of such certificate, the 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 such Agent under this Agreement;
(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 independent registered public
accounting firm shall have furnished to each Agent a letter or letters,
dated the Commencement Date or the Settlement Date, as the case may be, in
form and substance reasonably satisfactory to such Agent, to the effect
set forth in Exhibit J and Exhibit K hereto.
(v) The Company and the Guarantor shall have furnished to each
Agent such appropriate further information, certificates and documents as
such Agent may reasonably request.
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, 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
16
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 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, 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
17
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 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 proportion
to their respective underwriting obligations 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
18
(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 Company and the Guarantor who
has signed the Registration Statement and to each person, if any, who controls
the Company or the Guarantor, as the case may be, 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 any of you to purchase Notes as principal, and the termination of any such
Agreement shall not require termination of this Agreement. If this Agreement is
terminated, neither the Company and the Guarantor, on the one hand, nor any
Agent, on the other hand, shall have any liability to each other, except as
provided in the first sentence of the fourth paragraph of Section 2(a), the last
proviso of Section 4(A)(b), and Sections 4(A)(g), 4(A)(h), 6, 8 and 11, and
except that, if at the time of termination an offer to purchase any of the Notes
has been accepted by the Company but the time of delivery to the purchaser or
its agent of the 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 U.S. Procedures and the Euro
Procedures, and in Sections 2(c), 4(A)(a), 4(A)(b), 4(A)(c), 4(A)(e), 4(A)(i),
4(A)(j), 4(A)(k), 4(A)(1), 4(A)(m), 4(A)(o), 4(A)(q), 4(A)(r) 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 as agent of the Company or any
of your obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise, 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.
19
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to an Agent, will be mailed, delivered
or telegraphed and confirmed to such Agent, at the address specified in Schedule
I hereto; or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at Citigroup Funding Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: [Treasurer]; and if sent to the Guarantor, will be
mailed, delivered or telegraphed and confirmed to it at Citigroup Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [ ].
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.
20
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: ____________________________
Name:
Title:
CITIGROUP INC.
By: ____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof:
CITIGROUP GLOBAL MARKETS INC.
By: __________________________________
Name:
Title:
Citigroup Global Markets Limited
By: __________________________________
Name:
Title:
21
EXHIBIT A
CITIGROUP FUNDING INC.
Medium-Term Notes, Series A and Series B, Administrative Procedures
May ___, 2005
The Medium-Term Notes, Series A (the "Series A Notes") and
Medium-Term Notes, Series B (the "Series B Notes," and, together with the Series
A Notes, the "Notes") of Citigroup Funding Inc. (the "Company"), fully and
unconditionally guaranteed by Citigroup Inc. (the "Guarantor"), are to be
offered on a continuing basis. Citigroup Global Markets Inc. has agreed, as
agent, to solicit purchases of Notes issued in fully registered form. (The term
"Agent" when used in these Administrative Procedures, means Citigroup Global
Markets Inc.) The Agent will not 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
Agent) dated the date hereof (the "Agency Agreement"). The Notes have been
registered with the Securities and Exchange Commission (the "Commission").
JPMorgan Chase Bank, N.A. is the trustee under the Indenture, dated as of May
____, 2005, under which the Series A Notes will be issued (the "Senior Debt
Indenture"). Deutsche Bank Trust Company Americas is the trustee (together with
JPMorgan Chase Bank, N.A., the "Trustees") under the Indenture, dated as of May
?, 2005, under which the Series B Notes will be issued (the "Subordinated Debt
Indenture," and, together with the Senior Debt Indenture, the "Indentures"). The
Series A 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 Series B Notes will be subordinate and junior in the right of payment to all
Senior Indebtedness of the Company and the Guarantor, to the extent and in the
manner set forth in the Subordinated Debt Indenture.
The Agency Agreement provides that Notes may also be purchased by
the Agent acting solely as principal and not as agent. In the event of any such
purchase, the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by the Agent acting
solely as principal, unless otherwise agreed to between the Company, the
Guarantor and the Agent acting as principal.
Each Note will be represented by either a Global Security (as
defined hereinafter) or a certificate delivered to the Holder thereof or a
Person designated by such Holder (a "Certificated Note"). Each Global Security
representing Series A Notes will be delivered to Citibank, N.A., and each Global
Security representing Series B Notes will be delivered to Deutsche Bank Trust
Company Americas, each acting as agent for The Depository Trust Company or any
successor depositary selected by the Company ("DTC", which term, as used herein,
includes any successor depositary selected by the Company), and will be recorded
in the book-entry system maintained by DTC (a "Book-Entry Note"). An owner of a
Book-Entry Note will not be entitled to receive a certificate representing such
Note.
A-1
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agent and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by [its Treasury Department]. The Company will
advise the Agent and the Trustees in writing of those persons handling
administrative responsibilities with whom the Agent and the Trustees are to
communicate regarding orders to purchase Notes and the details of their
delivery. The term "Trustees" as used in these procedures means the Trustees and
any other agents appointed by the Trustees 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 in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Indentures, the
Notes or the Prospectus 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, which may be zero, are referred to herein as "Fixed Rate Notes".
Notes for which interest is calculated on the basis of a floating interest rate
are referred to herein as "Floating Rate Notes". To the extent the procedures
set forth below conflict with the provisions of the Notes, the Indentures, DTC's
operating requirements or the Agency Agreement, the relevant provisions of the
Notes, the Indentures, DTC's operating requirements and the Agency Agreement
shall control.
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Citibank, N.A. and
Deutsche Bank Trust Company Americas (together, the "DTC Agents") will perform
the custodial, document control and administrative functions described below for
the Series A Notes and the Series B Notes, respectively. Citibank, N.A. will
perform such functions in accordance with its respective obligations under a
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"). Deutsche Bank Trust Company Americas will perform such
functions in accordance with its respective obligations under a Letter of
Representations from the Company and Deutsche Bank Trust Company Americas to DTC
dated as of the date hereof and a Certificate Agreement between DTC and Deutsche
Bank Trust Company Americas, dated as of December 5, 1997 and as amended to
date, and its obligations as a participant in DTC, including DTC's SDFS.
A-2
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons
(a "Global Security") representing up to U.S
$500,000,000 principal amount of all such
Book-Entry Notes of the same Series that have the
same Original Issue Date, Original Issue Discount
provisions, if any, Interest Payment Dates,
Regular Record Dates, Interest Payment Period,
redemption repayment and extension provisions, if
any, Stated Maturity, and, in the case of Fixed
Rate Notes, interest rate, and amortization
schedule, if any, or, in the case of Floating Rate
Notes, Initial Interest Rate, Base Rate, Index
Maturity, Interest Reset Period, Interest Reset
Dates, Spread and/or Spread Multiplier, if any,
Minimum Interest Rate, if any, and Maximum
Interest Rate, if any and, in each case, any other
relevant terms (collectively, the "Terms"). Each
Global Security will be dated and issued as of the
date of its settlement. Each Global Security will
bear an Original Issue Date, which will be (i)
with respect to an original Global Security (or
any portion thereof), the Original Issue Date
specified in such Global Security and (ii)
following a consolidation of Global Securities,
with respect to the Global Security resulting from
such consolidation, the most recent Interest
Payment Date to which interest has been paid or
duly provided for on the predecessor Global
Securities, regardless of the date of
authentication of such resulting Global Security.
No Global Security will represent (i) both Fixed
Rate and Floating Rate Book-Entry Notes, (ii) any
Certificated Note, or (iii) both Series A Notes
and Series B Notes.
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 two
Series of CUSIP numbers, one for Series A Notes
and one for Series B Notes, each of which series
consists of approximately 900 CUSIP numbers and
relates to Global Securities representing
Book-Entry Notes and book-entry medium-term notes
issued by the Company with other Series
designations. The DTC Agents, the Company and DTC
have obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers. The
DTC Agents will assign CUSIP numbers to Global
Securities as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
DTC Agents have assigned to Global Securities.
Each DTC Agent will notify the Company at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, and, if it
deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global
Securities. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such
additional CUSIP numbers to either or both DTC
Agents, as needed, and to DTC.
A-3
Registration: Global Securities will be issued only in fully
registered form without coupons. Each Global
Security will be registered in the name of CEDE &
CO., as nominee for DTC, on the securities
register for the Notes (the "Securities Register")
maintained under the Indentures. 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 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.
Exchanges: Each DTC Agent may deliver to DTC and the CUSIP
Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached
to the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more
outstanding Global Securities that represent (A)
Fixed Rate Book-Entry Notes of the same Series and
having the same Terms and for which interest has
been paid to the same date or (B) Floating Rate
Book-Entry Notes of the same Series and having the
same Terms and for which interest has been paid to
the same date, (ii) a date, occurring at least
thirty days after such written notice is delivered
and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which
such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new
CUSIP number to be assigned to such replacement
Global Security. Upon receipt of such a notice,
DTC will send to its participants (including the
DTC Agent for such replacement Global Security) a
written reorganization notice to the effect that
such exchange will occur on such date. Prior to
the specified exchange date, such DTC Agent will
deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and such
new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be
valid. On the specified exchange date, such DTC
Agent will exchange such Global Securities for a
single Global Security bearing the new CUSIP
number and a new Original Issue Date, which shall
be the last date to which interest has been paid
on the underlying
A-4
Book-Entry Notes, and the CUSIP numbers of the
exchanged Global Securities will, in accordance
with CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. Upon such
exchange, the DTC Agent will ▇▇▇▇ the predecessor
Global Security "canceled", make appropriate
entries in the DTC Agent's records and destroy
such canceled Global Security in accordance with
the terms of the Indenture and deliver a
certificate of destruction to the Company.
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed U.S $500,000,000
in aggregate principal amount, one Global Security
will be authenticated and issued to represent each
U.S. $500,000,000 of principal amount of the
exchanged Global Securities and an additional
Global Security will be authenticated and issued
to represent any remaining principal amount of
such Global Securities (see "Denominations"
below).
Maturities: Each Book-Entry Note will mature on a date not
less than nine months after the issue date for
such Note. A Floating Rate Book-Entry Note will
mature only on an Interest Payment Date for such
Note. Any Note denominated in Japanese yen will
mature on a date not less than one year from the
Original Issue Date (as defined below) for such
Note. Any Note denominated in Pounds Sterling will
mature on a date not less than one year, nor more
than five years, after its Original Issue Date.
Denominations: Book-Entry Notes will be issued in principal
amounts of U.S.$1,000 or any amount in excess
thereof that is an integral multiple of
U.S.$1,000. If Book-Entry Notes are denominated in
a Specified Currency other than U.S. dollars, the
denominations of such Notes will be determined
pursuant to the provisions of the applicable
Pricing Supplement. Global Securities will be
denominated in principal amounts not in excess of
U.S.$500,000,000 (or the equivalent thereof). If
one or more Book-Entry Notes having an aggregate
principal amount in excess of U.S.$500,000,000 (or
the equivalent thereof) would, but for the
preceding sentence, be represented by a single
Global Security, then one Global Security will be
authenticated and issued to represent each
U.S.$500,000,000 principal amount (or the
equivalent thereof) of such Book-Entry Note or
Notes and an additional Global Security will be
authenticated and issued to represent any
remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global
Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Notice of Redemption Dates: Each DTC Agent will, with respect to the Notes for
which it is Trustee, 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.
A-5
Interest: General. Unless otherwise indicated in the
applicable Pricing Supplement, interest, if any,
on each Book-Entry Note will accrue from the
Original Issue Date (or such other date on which
interest otherwise begins to accrue, if different
than the Original Issue Date) of the Global
Security representing such Book-Entry Note for the
first interest period or the last date to which
interest has been paid, if any, for each
subsequent interest period, on the Global Security
representing such Book-Entry Note, and will be
calculated and paid in the manner and on the
Interest Payment Dates described in such
Book-Entry Note and in the Prospectus (as defined
in the Agency Agreement), as supplemented by the
applicable Pricing Supplement. Each payment of
interest on a Book-Entry Note will include
interest accrued to but excluding the Interest
Payment Date; provided that in the case of
Floating Rate Notes that reset daily or weekly,
interest payments will include interest accrued to
but excluding the next preceding Regular Record
Date, except that at stated Maturity, the interest
payable will include interest accrued to, but
excluding, the Maturity. Interest payable at the
Maturity of a Book-Entry Note will be payable to
the Person to whom the principal of such Note is
payable. Standard & Poor's 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 Global Security
in the appropriate (daily or weekly) bond report
published by Standard & Poor's Ratings Services.
Regular Record Dates. The Regular Record Date with
respect to any Interest Payment Date for a
Floating-Rate Note, Fixed Rate Note or Indexed
Rate Note shall be the date (whether or not a
Business Day) fifteen calendar days immediately
preceding such Interest Payment Date.
Payments of Principal and Payment of Interest Only. Promptly after each
Interest: Regular Record Date, the DTC Agent for each Global
Security will deliver to the Company and DTC a
written notice setting forth, by CUSIP number, the
amount of interest to be paid on each Global
Security on the following Interest Payment Date
(other than an Interest Payment Date coinciding
with Maturity) and the total of such amounts. DTC
will confirm the amount payable on each Global
Security on such Interest Payment Date by
reference to the appropriate (daily or weekly)
bond reports published by Standard & Poor's
Ratings Services. The Company will pay to the
Trustee for the Notes represented by such Global
Security the total amount of interest due on such
Interest Payment Date (other than at Maturity),
and such Trustee will pay such amount to DTC at
the times and in the manner set forth below under
"Manner of Payment". If any Interest Payment Date
for a Book-Entry Note is not a Business Day, the
payment due on such day
A-6
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, each
DTC Agent will, with respect to the Global
Securities for which it acts as DTC Agent, deliver
to the Company, DTC and the applicable Trustee a
written list of principal and interest to be paid
on each Global Security maturing either at
Maturity or on a Redemption Date in the following
month. The DTC Agent for each Global Security, the
Company and DTC will confirm the amounts of such
principal and interest payments with respect to
each such Global Security on or about the fifth
Business Day preceding Maturity or any Redemption
Date of such Global Security. On or before such
Maturity or Redemption, the Company will pay to
the Trustee for the Notes represented by such
Global Security the principal amount of such
Global Security, together with interest due at
such Maturity. Such Trustee will pay such amount
to DTC at the times and in the manner set forth
below under "Manner of Payment". If any Maturity
of a Global Security representing Book-Entry Notes
is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for
the period from and after such Maturity date or
Redemption Date. Promptly after payment to DTC of
the principal and interest due at Maturity Date or
on any Redemption Date of such Global Security,
the Trustee for such Global Security will cancel
and destroy such Global Security in accordance
with the applicable Indenture and deliver a
certificate of destruction to the Company.
Manner of Payment. The total amount of any
principal and interest due on Global Securities on
any Interest Payment Date or at Maturity or upon
redemption shall be paid by the Company to the
Trustee for the Notes represented by such Global
Security in immediately available funds no later
than 9:30 A.M., New York City time, on such date.
The Company will make such payment on such Global
Securities by instructing such Trustee to withdraw
funds from an account maintained by the Company
with the DTC Agent for the Notes represented by
such Global Securities. The Company will confirm
any such instructions in writing to such Trustee.
Prior to 10:00 A.M., New York City time, on the
date of Maturity or as soon as possible
thereafter, such Trustee will pay by separate wire
transfer (using Fedwire message entry instructions
in a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available
for immediate use by DTC, each payment of
principal (together with interest thereon) due on
a Global Security on such date of Maturity or
Redemption Date. On each Interest Payment Date
(other than at Maturity), interest payments shall
be made to DTC, in same day
A-7
funds, in accordance with existing arrangements
between the relevant DTC Agent and DTC. On each
such date, DTC will pay, in accordance with its
SDFS operating procedures then in effect, such
amounts in funds available for immediate use to
the respective Participants in whose names the
Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system
maintained by DTC. None of the Company (as issuer
or as paying agent), the Guarantor, the Trustee or
such DTC Agent shall have any direct
responsibility or liability for the payment by DTC
to such Participants of the principal of and
interest on the Book-Entry Notes. If an issue of
Notes is denominated in a currency other than the
U.S. dollar, the Company will make payments of
principal and any interest in the currency in
which the Notes are denominated (the "foreign
currency") or in U.S. dollars. DTC has elected to
have all such payments of principal and interest
in U.S. dollars unless notified by any of its
Participants through which an interest in the
Notes is held that it elects, in accordance with
and to the extent permitted by the applicable
Pricing Supplement and the Note, to receive such
payment of principal or interest in the foreign
currency. On or prior to the third Business Day
after the record date for payment of interest and
twelve days prior to the date for payment of
principal, such Participant shall notify DTC of
(i) its election to receive all, or the specified
portion, of such payment in the foreign currency
and (ii) its instructions for wire transfer of
such payment to a foreign currency account.
DTC will notify the applicable Trustee on or prior
to the fifth Business Day after the record date
for payment of interest and ten days prior to the
date for payment of principal of the portion of
such payment to be received in the foreign
currency and the applicable wire transfer
instructions, and the applicable Trustee shall use
such instructions to pay the Participants
directly. If DTC does not so notify the applicable
Trustee, it is understood that only U.S. dollar
payments are to be made. The applicable Trustee
shall notify DTC on or prior to the second
Business Day prior to payment date of the
conversion rate to be used and the resulting U.S.
dollar amount to be paid per U.S.$1,000 face
amount. In the event that the applicable Trustee's
quotation to convert the foreign currency into
U.S. dollars is not available, the applicable
Trustee shall notify DTC's Dividend Department
that the entire payment is to be made in the
foreign currency. In such event, DTC will ask its
Participants for payment instructions and forward
such instructions to the applicable Trustee and
the applicable Trustee shall use such instructions
to pay the Participants directly.
A-8
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 Trustee regarding Exercise of
Company's Exercise of Optional Reset. Not less than 45 or more than 60
Optional Reset or days before an Optional Reset Date as set forth in
Optional Extension of a Book-Entry Note, the Company will notify the
Maturity: Trustee for such Book-Entry Note whether it is
exercising its option to reset the interest rate
or Spread or Spread Multiplier, as the case may
be, for such Book-Entry Note, and if so, (i) the
new interest rate or Spread or Spread Multiplier,
as the case may be, for such Book-Entry Note
during the period from such Optional Reset Date to
the next Optional Reset Date as set forth in such
Book-Entry Note or, if there is no such next
Optional Reset Date, to the Stated Maturity of
such Book-Entry Note (the "Subsequent Interest
Period"); and (ii) the provisions, if any, for
redemption of such Book-Entry Note during such
Subsequent Interest Period, including the date or
dates on which or the period or periods during
which such redemption may occur during such
Subsequent Interest Period.
Company Notice to Trustee regarding Exercise of
Optional Extension of Maturity. If the Company
elects to exercise an option, as set forth in a
Book-Entry Note, to extend the Stated Maturity of
such Note, it will so notify the Trustee for such
Book-Entry Note no less than 45 or more than 60
days before the Stated Maturity of such Book-Entry
Note, and will further indicate (i) the new Stated
Maturity; (ii) the interest rate or Spread or
Spread Multiplier, as the case may be, applicable
to the extension period; and (iii) the provisions,
if any, for redemption of such Book-Entry Note
during such extension period, including the date
or dates on which or the period or periods during
which such redemption may occur during such
extension period.
Trustee Notice to DTC regarding Company's Exercise
of Optional Extension or Reset. Upon receipt of
notice from the Company regarding the Company's
exercise of either an optional extension of
maturity or an optional reset, the Trustee for the
Book-Entry Note will hand-deliver a notice to DTC
not less than 40 days before the Optional Reset
Date (in which case a "Reset Notice") or the
Stated Maturity (in which case an "Extension
Notice"), as the case may be, which Reset Notice
or Extension Notice shall identify such Book-Entry
Note by CUSIP number and shall contain the
information required by the terms of the
Book-Entry Note.
A-9
Trustee Notice to Company regarding Option to be
Repaid. If, after receipt of either a Reset Notice
or an Extension Notice, DTC exercises the option
for repayment by tendering the Global Security
representing the Book-Entry Note to be repaid as
set forth in such Note, the Trustee for such
Book-Entry Note shall give notice to the Company
not less than 22 days before the Optional Reset
Date or the old Stated Maturity, as the case may
be, of the principal amount of Book-Entry Notes to
be repaid on such Optional Reset Date or old
Stated Maturity, as the case may be.
Company Notice regarding New Interest Rate or New
Spread or Spread Multiplier. If the Company elects
to revoke the interest rate or Spread or Spread
Multiplier provided for in the Reset Notice and
establish a higher interest rate or Spread or
Spread Multiplier for an Optional Reset Period or
extension period, as the case may be, it shall,
not less than 20 days before such Optional Reset
Date or old Stated Maturity, so notify the Trustee
for the affected Book-Entry Note. Such Trustee
will immediately thereafter notify DTC of the new
interest rate or Spread or Spread Multiplier
applicable to such Book-Entry Note.
Trustee Notice to Company regarding DTC Revocation
of Option to be Repaid. If, after DTC has tendered
any Book-Entry Notes for repayment pursuant to an
Extension Notice or an Optional Reset Notice, DTC
then revokes such tender for repayment, the
Trustee for such Book-Entry Notes shall give
notice to the Company not less than five days
prior to the Stated Maturity or Optional Reset
Date, as the case may be, of such revocation and
of the principal amount of Book-Entry Notes for
which tender for repayment has been revoked.
Deposit of Repayment Price. On or before any old
Stated Maturity where the Maturity has been
extended, and on or before any Optional Reset
Date, the Company shall deposit with such Trustee
an amount of money sufficient to pay the principal
amount, plus interest accrued to such old Stated
Maturity or Optional Reset Date, as the case may
be, for all the Book-Entry Notes or portions
thereof for which such Trustee serves as Trustee
and which are to be repaid on such old Stated
Maturity or Optional Reset Date, as the case may
be. Such Trustee will use such money to repay such
Book-Entry Notes pursuant to the terms set forth
in such Notes.
Procedures upon Company Company Notice to Trustee regarding Company's
Notice to Trustee regarding Exercise of Optional Redemption. At least 45 days
Company's Exercise of prior to the date on which it intends to redeem a
Optional Redemption: Book-Entry Note, the Company will notify the
Trustee for such Book-Entry Note that it is
exercising such option with respect to such
Book-Entry Note on such date.
A-10
Trustee Notice to DTC regarding Company's Exercise
of Optional Redemption. After receipt of notice
that the Company is exercising its option to
redeem a Book-Entry Note, the Trustee will, at
least 30 days before the redemption date for such
Book-Entry Note, 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
such Trustee an amount of money sufficient to pay
the redemption price, plus interest accrued to
such redemption date, for all the Book-Entry Notes
or portions thereof for which such Trustee serves
as Trustee and which are to be repaid on such
redemption date. Such Trustee will use such money
to repay such Book-Entry Notes pursuant to the
terms set forth in such Notes.
Payments of Principal and Trustee Notice to Company of Option to be Repaid.
Interest Upon Exercise Upon receipt of notice of exercise of the option
of Optional Repayment for repayment and the Global Securities
(Except Pursuant to representing the Book-Entry Notes so to be repaid
Company's Exercise of as set forth in such Notes, the Trustee for such
Optional Reset or Optional Book-Entry Notes shall (unless such notice was
Extension): received pursuant to the Company's exercise of an
optional reset or an optional extension of
maturity, in each of which cases the relevant
procedures set forth above are to be followed)
give notice to the Company not less than 20 days
prior to each Optional Repayment Date of such
Optional Repayment Date and of the principal
amount of Book-Entry Notes to be repaid on such
Optional Repayment Date.
Deposit of Repayment Price. On or prior to any
Optional Repayment Date, the Company shall deposit
with such Trustee an amount of money sufficient to
pay the optional repayment price, and accrued
interest thereon to such date, of all the
Book-Entry Notes or portions thereof which are to
be repaid on such date. Such Trustee will use such
money to repay such Book-Entry Notes pursuant to
the terms set forth in such Notes.
Procedure for Rate Setting The Company and the Agent will discuss from time
and Posting: to time the aggregate principal amount of, the
issuance price of, and the interest rates to be
borne by, Book-Entry Agent. If the Company decide
to set prices of, and rates borne by, any
Booktting of such prices and rates to be referred
to herein as "posting" posted by it, it will
promptly advise the Agent of the prices and rates
to be posted.
Acceptance and Unless otherwise instructed by the Company, the
Rejection of Orders: Agent will advise
A-11
the Company promptly by telephone of all orders to
purchase Book-Entry Notes received by the 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
Agent, the Company has the right to accept orders
to purchase Book-Entry Notes and may reject any
such orders in whole or in part.
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 (a
"Pricing Supplement") reflecting the terms of such
Book-Entry Note, will file ten copies thereof 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 five copies of such Pricing
Supplement with the National Association of
Securities Dealers, Inc. (the "NASD"). The Agent
will cause a Prospectus and such Pricing
Supplement to be delivered to the purchaser of
such Book-Entry Note.
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.
Copies of the appropriate number of Pricing
Supplements shall be delivered to the Agent at the
following address by 11:00 A.M., New York City
time, on the Business Day following the acceptance
of an offer by or on behalf of the Company: [to
Citigroup Global Markets Inc., Prospectus
Department, Brooklyn Army Terminal, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, with a
copy to Citigroup Global Markets Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: MTN Program Manager.]
Suspension of Subject to the representations, warranties and
Solicitation; covenants of the Company and the Guarantor
Amendment or contained in the Agency Agreement, the Company
Amendment or may instruct the Agent to suspend at any
Supplement: time, for any period of time or permanently, the
solicitation of orders to purchase Book-Entry
Notes. Upon receipt of such instructions, the
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 Agent, the Trustees and
the DTC Agents 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
A-12
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 Book-Entry Note must accompany or
precede the earliest of any written offer of such
Book-Entry Note, confirmation of the purchase of
such Book-Entry Note and payment for such
Book-Entry Note by its purchaser. If notice of a
change in the terms of the Book-Entry Notes is
received by the Agent between the time an order
for a Book-Entry Note is placed and the time
written confirmation thereof is sent by the Agent
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. The Agent will deliver a
Prospectus and Pricing Supplement as herein
described with respect to each Book-Entry Note
sold by it. The Company will make such delivery if
such Book-Entry Note is sold directly by the
Company to a purchaser (other than the Agent).
Confirmation: For each order to purchase a Book-Entry Note
solicited by the Agent and accepted by or on
behalf of the Company, the Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
and the authentication and issuance of the Global
Security representing such Book-Entry Note shall
constitute "settlement" with respect to such
Book-Entry Note, and the date of such settlement,
the "Settlement Date". All orders accepted by the
Company will be settled on the third Business Day
next succeeding the date of acceptance pursuant to
the timetable for settlement set forth below
unless the Company and the purchaser agree to
settlement on another day which shall be no
earlier than the Business Day succeeding the date
of sale.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company to or through
the Agent, except pursuant to a Terms Agreement,
shall be as follows:
A. The Agent will advise the Company by telephone
(or by facsimile or other acceptable written
means) that such Note is a Book-Entry Note and
of the following settlement information:
A-13
1. Principal or face amount.
2. Series.
3. Stated Maturity.
4. In the case of a Fixed Rate Book-Entry
Note, the interest rate and reset,
redemption, repayment and extension
provisions (if any) or, in the case of a
Floating Rate Book-Entry Note, the Base
Rate, Initial Interest Rate (if known at
such time) Interest Reset Period,
Interest Reset Dates, Index Maturity,
Spread and/or Spread Multiplier (if any),
Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and reset,
redemption, repayment and extension
provisions (if any).
5. Interest Payment Dates and the Interest
Payment Period.
6. Amortization provisions, if any.
7. Settlement date and Issue Date, if
different.
8. Specified currency.
9. Denominated currency, Indexed Currency,
Base Exchange Rate, and the Determination
Date, if applicable.
10. Price.
11. Agent's commission, determined as
provided in the Agency Agreement.
12. Whether, in the case of Series A Notes,
the Notes will have a Survivor's Option.
13. Whether such Book-Entry Note is an OID
Note and, if so, the total amount of OID,
the yield to maturity and the initial
accrual period OID.
14. Any other terms necessary to describe the
Book-Entry Note.
B. The Company will advise the relevant DTC Agent
by telephone (confirmed in writing at any time
on the same date), written telecommunication
or electronic transmission of the
A-14
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 for
such Note, the Trustee for such Note and the
Agent that (i) such Note is then, and at the
time of issuance and sale thereof will be,
duly authorized for issuance and sale by the
Company and (ii) such Note, and the Global
Security representing such Note, will conform
with the terms of the Indenture for such Note.
The DTC Agent will then assign a CUSIP number
to the Global Security representing such
Book-Entry Note and notify the Agent and the
Company by telephone (confirmed in writing at
any time on the same date), written
telecommunication or electronic transmission
of such CUSIP number as soon as practicable.
C. Such 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
Agent and, upon request, the Trustee for such
Notes:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
3. The Initial Interest Payment Date for
such Book-Entry Note, number of days by
which such date succeeds the related
Regular Record Date and amount of
interest payable on such Interest Payment
Date.
4. The Interest Payment Period.
5. The CUSIP number of the Global Security
representing such Book-Entry Note.
6. The participant account numbers
maintained by DTC on behalf of such
Trustee and such Agent.
7. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
D. To the extent the Company has not already done
so, the Company will deliver to the Trustee
for such Notes a Global Security in a form
that has been approved by the Company,
A-15
the Agent and such Trustee.
E. Such Trustee will complete such Book-Entry
Note, stamp the appropriate legend, as
instructed by DTC, if not already set forth
thereon, and authenticate the Global Security
representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to such
DTC Agent's participant account at DTC.
G. Such DTC Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such
Book-Entry Note to such DTC Agent's
participant account and credit such Book-Entry
Note to the Agent's participant account and
(ii) debit the Agent's settlement account and
credit such DTC Agent's settlement account for
an amount equal to the price of such
Book-Entry Note less the Agent's commission.
The entry of such a deliver order shall
constitute a representation and warranty by
such DTC Agent to DTC that (i) the Global
Security representing such Book-Entry Note has
been issued and authenticated and (ii) such
DTC Agent is holding such Global Security
pursuant to the Medium Term Note Certificate
Agreement between such DTC Agent and DTC.
H. Unless the Agent is purchasing such Note as
principal, the Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Agent's
participant account and credit such Book-Entry
Note to the participant accounts of the
Participants with respect to such Book-Entry
Note and (ii) to debit the settlement accounts
of such Participants and credit the settlement
account of the Agent for an amount equal to
the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. Such DTC Agent will, upon receipt of funds
from the Agent in accordance with Settlement
Procedure "G", credit to an account of the
Company maintained at such DTC Agent funds
available for immediate use in the amount
transferred to such DTC Agent in accordance
with Settlement Procedure "G".
A-16
K. Unless the Agent is purchasing such Book-Entry
Note as principal, the Agent will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such Book-Entry
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
L. Monthly, each 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 such
DTC Agent but which have not yet been settled.
Settlement Procedures For sales by the Company of Book-Entry Notes
Timetable: solicited by the Agent and accepted by the Company
(except pursuant to a Terms Agreement) for
settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "K"
set forth above shall be completed as soon as
possible but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
--------- --------------------------------------
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures
"A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 12:00
Noon and 2:00 P.M., respectively, on the first
Business Day after the sale date. If the Initial
Interest Rate for a Floating Rate Book-Entry Note
has not been determined at the time that
Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon
as such rate has been determined but no later than
12:00 Noon and 2:00 P.M., respectively, on the
Business Day before the settlement date.
Settlement Procedure "I" is subject to extension
in accordance with any extension of Fedwire
closing deadlines and in the other events
specified in SDFS operating procedures in effect
on
A-17
the settlement date.
If settlement of a Book-Entry Note is rescheduled
or canceled, the DTC Agent for such Book-Entry
Note, after receiving notice from the Company or
the Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 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 Book-Entry Note has not
entered an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure
"G", after receiving notice from the Company or
the Agent, such 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 such DTC Agent's
participant account contains a principal amount of
the Global Security representing such Book-Entry
Note that is at least equal to the principal
amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee for
the Notes represented by such Global Security will
▇▇▇▇ such Global Security "canceled", make
appropriate entries in its records and destroy
such canceled Global Security in accordance with
the applicable Indenture and deliver a certificate
of destruction to the Company. The CUSIP number
assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned.
If a withdrawal message is processed with respect
to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, the DTC
Agent for such Book-Entry Notes will exchange such
Global Security for two Global Securities, one of
which shall represent such Book-Entry Notes and
shall be canceled immediately after issuance and
the other of which shall represent the other
Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Book-Entry Note by the beneficial
purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of
such purchaser), such Participants and, in turn,
the Presenting Agent may enter SDFS deliver orders
through DTC's Participant Terminal System
reversing the orders entered pursuant to
Settlement Procedures "H" and "G",
A-18
respectively. Thereafter, the DTC Agent for such
Book-Entry Note will deliver the withdrawal
message and take the related actions described in
the preceding paragraph. If such failure shall
have occurred for any reason other than a default
by the Agent in the performance of its obligations
hereunder and under the Agency Agreement, then the
Company will reimburse the Agent for the loss of
the use of the funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the DTC
Agent for such Book-Entry Note or Notes will
provide, in accordance with Settlement Procedures
"E" and "G", for the authentication and issuance
of a Global Security representing the other
Book-Entry Notes to have been represented by such
Global Security and will make appropriate entries
in its records.
Trustees Not to Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payment to the Company, DTC,
the Agent or the purchaser, it being understood by
all parties that payments made by either Trustee
to the Company, DTC, the Agent or the purchaser
shall be made only to the extent that funds are
provided to either Trustee for such purpose.
Authenticity of Signatures: The Company will cause each of the Trustees to
furnish the Agent from time to time with the
specimen signatures of each of such Trustee's
officers, employees or agents who has been
authorized by such Trustee to authenticate
Book-Entry Notes, but the Agent will not have any
obligation or liability to the Company or the
Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the
Company or such Trustee on any Book-Entry Note.
Payment of Expenses: The Agent shall forward to the Company, on a
monthly basis, a statement of the out-of-pocket
expenses incurred by such Agent during that month
that are reimbursable to it pursuant to the terms
of the Agency Agreement. The Company will remit
payment to the Agent currently on a monthly basis.
Advertising Costs: The Company will determine with the Agents the
amount of advertising that may be appropriate in
soliciting offers to purchase the Book-Entry
Notes. Advertising expenses will be paid by the
Company.
A-19
PART II
Administrative Procedures for Certificated Notes
Each Trustee will serve as registrar and transfer agent in
connection with the Certificated Notes for which it serves as Trustee.
Issuance: Each Certificated Note will be dated and issued as
of the date of its authentication by the
applicable Trustee. Each Certificated Note will
bear an Original Issue Date, which will be (i)
with respect to an original Certificated Note (or
any portion thereof), its original issuance date
(which will be the settlement date) and (ii) with
respect to any Certificated Note (or portion
thereof) issued subsequently upon transfer or
exchange of a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note, the
Original Issue Date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Maturities: Each Certificated Note will mature on a date not
less than nine months after the issue date for
such Note. A Floating Rate Certificated Note will
mature only on an Interest Payment Date for such
Note. Any Note denominated in Japanese yen will
mature on a date not less than one year from the
Original Issue Date (as defined below) for such
Note. Any Note denominated in Pounds Sterling will
mature on a date not less than one year, nor more
than five years, after its Original Date.
Currency: The Specified Currency for a Certificated Note
shall be as set forth therein and in the
applicable Pricing Supplement.
Denominations: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in
a Specified Currency other than U.S. dollars shall
be determined as set forth in the applicable
Pricing Supplement.
Interest: General. Unless otherwise indicated in the
applicable Pricing Supplement, interest, if any,
on each Certificated Note will accrue from the
Original Issue Date (or such other date on which
interest otherwise begins to accrue (if different
from 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, on such Note, and will
be calculated and paid in the manner and on the
dates described in such Note and in the
Prospectus, as supplemented
A-20
by the applicable Pricing Supplement. Unless
otherwise specified therein, each payment of
interest on a Certificated Note will include
interest accrued to but excluding the Interest
Payment Date (provided that, in the case of
Certificated Notes which reset daily or weekly,
interest payments will include accrued interest to
and including the next preceding Regular Record
Date), except that at stated Maturity, the
interest payable will include interest accrued to,
but excluding, the stated Maturity (other than a
Maturity of a Fixed Rate Certificated Note
occurring on the 31st day of a month, in which
case such payment of interest will include
interest accrued to but excluding the 30th day of
such month or the last day of the month in the
case of February).
Regular Record Dates. The Regular Record Dates
with respect to any Interest Payment Date for a
Fixed Rate Note, Floating Rate Note or Indexed
Rate Note shall be the date (whether or not a
Business Day) fifteen calendar days immediately
preceding such Interest Payment Date.
Payments of Interest: The applicable Trustee will pay the principal
amount of each Certificated Note at Maturity or
upon redemption upon presentation and surrender of
such Note. Such payment, together with payment of
interest due at Maturity or upon redemption of
such Note, will be made in funds available for
immediate use by such Trustee or paying agent and
in turn by the holder of such Note. Certificated
Notes presented to such Trustee or paying agent at
Maturity or upon redemption for payment will be
canceled and destroyed by such Trustee or paying
agent, and a certificate of destruction will be
delivered to the Company. All interest payments on
a Certificated Note (other than interest due at
Maturity or upon redemption) will be made by check
drawn on such Trustee and mailed by such Trustee
to the person entitled thereto as provided in such
Note and the Indenture; provided, however, that
the holder of U.S.$10,000,000 or more of Notes
having the same Interest Payment Dates will, upon
written request prior to the Regular Record Date
in respect of an Interest Payment Date, be
entitled to receive payment by wire transfer of
immediately available funds. Following each
Regular Record Date, such Trustee or paying agent
will furnish the Company with a list of interest
payments to be made on the following Interest
Payment Date for each Certificated Note and in
total for all Certificated Notes. Interest at
Maturity or upon redemption will be payable to the
person to whom the payment of principal is
payable. Such Trustee or paying agent will provide
monthly to the Company lists of principal and
interest, to the extent ascertainable, to be paid
on Certificated Notes maturing or to be redeemed
in the next month.
A-21
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Certificated Note will
be determined and withheld by such Trustee.
The Company will be responsible for withholding
taxes on interest paid on Certificated Notes as
required by applicable law.
If any interest Payment Date for or the Maturity
of a Certificated 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 account of such delayed payment.
Procedure for Rate Setting The Company and the Agent will discuss from time
and Posting: 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 Agent. If the
Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agent is to
solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise
the Agent of the prices and rates to be posted.
Acceptance and Rejection Unless otherwise instructed by the Company, the
of Orders: Agent will advise the Company promptly by
telephone of all orders to purchase Certificated
Notes received by the 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 Agent, the
Company has the sole right to accept orders to
purchase Certificated Notes and may reject any
such orders in whole or in part. Before accepting
any order to purchase a Certificated Note to be
settled in less than three Business Days, the
Company shall verify that the Trustee for such
Certificated Note will have adequate time to
prepare and authenticate such Note.
Preparation of Pricing If any order to purchase a Certificated Note is
Supplement: accepted by or on behalf of the Company, the
Company will prepare a Pricing Supplement
reflecting the terms of such Certificated Note,
will file ten copies thereof 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 five copies of the Pricing Supplement with
the NASD. The Agent will cause a Prospectus and
Pricing Supplement to be delivered to the
purchaser of such Certificated Note.
Copies of the appropriate number of Pricing
Supplements shall be delivered to the Agent at the
following addresses by 11:00 A.M., New York City
time, on the Business Day following the acceptance
of an offer by or on behalf of the Company: [to
Citigroup Global
A-22
Markets Inc., Prospectus Department, Brooklyn Army
Terminal, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇, with a copy to Citigroup Global
Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, attention: MTN Program Manager.]
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to 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 Agent to suspend at any time for any
period of time or permanently, the solicitation of
orders to purchase Certificated Notes. Upon
receipt of such instructions, the Agent will
forthwith suspend solicitation until such time as
the Company has advised them 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 Agent and the Trustee for
such Certificated Notes 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 Certificated Note must accompany or
precede the earliest of any written offer of such
Certificated Note, confirmation of the purchase of
such Certificated Note and payment for such
Certificated Note by its purchaser. If notice of a
change in the terms of the Certificated Notes is
received by the Agent between the time an order
for a Certificated Note is placed and the time
written confirmation thereof is sent by the Agent
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. The Agent will deliver a
Prospectus and Pricing Supplement as herein
described with respect to each Certificated Note
sold by it. The Company will make such delivery if
such Certificated Note is sold directly by the
Company to a purchaser (other than the Agent).
A-23
Confirmation: For each order to purchase a Certificated Note
solicited by the Agent and accepted by or on
behalf of the Company, the Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note delivered to the Agent and the
Agent's delivery of such Certificated Note against
receipt of immediately available funds shall, with
respect to such Certificated Note, constitute
"settlement". All orders accepted by the Company
will be settled on the fifth Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless
the Company and the purchaser agree to settlement
on another day which shall be no earlier than the
next Business Day following the date of sale.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company to or
through the Agent, as agent (except pursuant to a
Terms Agreement), shall be as follows:
A. The Agent will advise the Company by telephone
or by facsimile transmission or other
acceptable written means) that such Note is a
Certificated Note and of the following
settlement information, in time for the
Trustee for such Certificated Note to prepare
and authenticate the required Note:
1. Name in which such Certificated Note is to
be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal or face amount.
5. Series.
6. Stated Maturity.
7. In the case of a Fixed Rate Certificated
Note, the Interest Rate and reset
provisions (if any) or, in the case of a
Floating Rate Certificated Note, the Base
Rate, Initial Interest Rate (if known at
such time), Interest Reset Period,
Interest Reset Dates, Index Maturity,
Spread and/or Spread Multiplier (if any),
A-24
Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and reset
provisions (if any).
8. Interest Payment Dates and the Interest
Payment Period.
9. Specified Currency.
10. Denominated Currency, Indexed Currency,
Base Exchange Rate and the Determination
Date, if applicable.
11. Redemption, repayment, amortization or
extension provisions, if any.
12. Settlement date.
13. Price (including currency).
14. Agent's commission, if any, determined as
provided in the Agency Agreement.
15. Whether such Certificated Note an OID
Note, and, if so, the total amount of OID
and the yield to maturity.
16. Any other terms necessary to describe the
Certificated Note.
B. The Company will advise the relevant Trustee
by telephone, (confirmed in writing at any
time on the sale date) written
telecommunication or electronic transmission
of the information set forth in Settlement
Procedure "A" above and the name of the
Presenting Agent.
C. The Company will deliver to the relevant
Trustee a pre-printed four-ply packet for such
Certificated Note, which packet will contain
the following documents in forms that have
been approved by Company, the Agents and the
Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One--For Trustee.
3. Stub Two -- For Agent.
4. Stub Three -- For the Company.
A-25
D. The relevant Trustee will complete such
Certificated Note and will authenticate such
Certificated Note and deliver it (with the
confirmation) and Stubs One and Two to the
Agent, and the Agent will acknowledge receipt
of the Note by stamping or otherwise marking
Stub One and returning it to such Trustee.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Agent for
payment to such account as the Company shall
have specified in funds available for
immediate use, of an amount equal to the price
of such Certificated Note less the Agent's
commission. In the event that the instructions
given by the Agent for payment to the account
of the Company are revoked, the Company will
as promptly as possible wire transfer to the
account of the Agent an amount of immediately
available funds equal to the amount of such
payment made.
E. Unless the Agent purchased the Note as
Principal, the Agent will deliver such
Certificated Note (with the confirmation) to
the customer against payment in immediately
payable funds. The Agent will obtain the
acknowledgment of receipt of such Certificated
Note by retaining Stub Two.
F. The relevant Trustee will send Stub Three to
the Company by first-class mail.
Settlement Procedures For orders of Certificated Notes solicited by
Timetable: the Agent, as agent, and accepted by the
Company, Settlement Procedures "A" through "F"
set forth above shall be completed on or
before the respective times (New York City
time) set forth below:
Settlement
Procedure Time
---------- ----------------------------------------------------
A 2:00 P.M. on the day before settlement
B On the day two Business Days before settlement date.
C 2:15 P.M. two Business Days before settlement
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Procedures upon Company's Company Notice to Trustee regarding Exercise of
Exercise of Optional Reset Optional Reset. Not less than 45 or more than 60
or Optional Extension of days before an Optional Reset Date as set forth in
Maturity: a Certificated Note, the Company will notify the
Trustee for such Certificated Note whether it is
exercising its option
A-26
to reset the interest rate or Spread or Spread
Multiplier, as the case may be, for such
Certificated Note, and if so, (i) the new interest
rate or Spread or Spread Multiplier, as the case
may be, for such Certificated Note during the
period from such Optional Reset Date to the next
Optional Reset Date as set forth in such
Certificated Note or, if there is no such next
Optional Reset Date, to the Stated Maturity of
such Certificated Note (the "Subsequent Interest
Period"); and (ii) the provisions, if any, for
redemption of such Certificated Note during such
Subsequent Interest Period, including the date or
dates on which or the period or periods during
which such redemption may occur during such
Subsequent Interest Period.
Company Notice to Trustee regarding Exercise of
Optional Extension of Maturity. If the Company
elects to exercise an option, as set forth in a
Certificated Note, to extend the Stated Maturity
of such Note, it will so notify the Trustee for
such Certificated Note not less than 45 or more
than 60 days before the Stated Maturity of such
Certificated Note, and will further indicate (i)
the new Stated Maturity; (ii) the interest rate or
Spread or Spread Multiplier, as the case may be,
applicable to the extension period; and (iii) the
provisions, if any, for redemption of such
Certificated Note during such extension period,
including the date or dates on which or the period
or periods during which such redemption may occur
during such extension period.
Trustee Notice to Holders regarding Company's
Exercise of Optional Extension or Reset. Upon
receipt of notice from the Company regarding the
Company's exercise of either an optional extension
of maturity or an optional reset, the Trustee for
the Certificated Note will mail a notice, first
class, postage prepaid, to the Holder of such
Certificated Note not less than 40 days before the
Optional Reset Date (in which case a "Reset
Notice") or the Stated Maturity (in which case an
"Extension Notice"), as the case may be, which
Reset Notice or Extension Notice shall contain the
information required by the terms of the
Certificated Note.
Trustee Notice to Company regarding Option to be
Repaid. If, after receipt of either a Reset Notice
or an Extension Notice, any Holder of a
Certificated Note exercises the option for
repayment by tendering the Certificated Note to be
repaid as set forth in such Note, the Trustee for
such Certificated Note shall give notice to the
Company not less than 22 days before the Optional
Reset Date or the old Stated Maturity, as the case
may be, of the principal amount of Certificated
Notes to be repaid on such Optional Reset Date or
old Stated Maturity, as the case may be.
Company Notice regarding New Interest Rate or New
Spread or Spread Multiplier. If the Company elects
to revoke the interest rate
A-27
or Spread or Spread Multiplier provided for in the
Reset Notice and establish a higher interest rate
or Spread or Spread Multiplier for an Optional
Reset Period or extension period, as the case may
be, it shall, not less than 20 days before such
Optional Reset Date or old Stated Maturity, so
notify the Trustee for the affected Certificated
Note. The Trustee will immediately thereafter
notify the Holder of such Certificated Note, by
first class mail, postage prepaid, of the new
interest rate or Spread or Spread Multiplier
applicable to such Certificated Note.
Trustee Notice to Company regarding Holder
Revocation of Option to be Repaid. If, after the
Holder of a Certificated Note has tendered such
Note for repayment pursuant to an Extension Notice
or an Optional Reset Notice, such Holder then
revokes such tender for repayment, the Trustee for
such Certificated Note shall give notice to the
Company not less than five days prior to the
Stated Maturity or Optional Reset Date, as the
case may be, of such revocation and of the
principal amount of Certificated Notes for which
tender for repayment has been revoked.
Deposit of Repayment Price. On or before any old
Stated Maturity where the Maturity has been
extended, and on or before any Optional Reset
Date, the Company shall deposit with such Trustee
an amount of money sufficient to pay the principal
amount, plus interest accrued to such old Stated
Maturity or Optional Reset Date, as the case may
be, for all the Certificated Notes or portions
thereof for which such Trustee serves as Trustee
and which are to be repaid on such old Stated
Maturity or Optional Reset Date, as the case may
be. Such Trustee will use such money to repay such
Certificated Notes pursuant to the terms set forth
in such Notes.
Procedures upon Company's Company Notice to Trustee regarding Exercise of
Exercise of Optional Optional Redemption. At least 45 days prior to the
Redemption: date on which it intends to redeem a Certificated
Note, the Company will notify the Trustee for such
Certificated Note that it is exercising such
option with respect to such Note on such date.
Trustee Notice to Holders regarding Company's
Exercise of Optional Redemption. After receipt of
notice that the Company is exercising its option
to redeem a Certificated Note, the Trustee for
such Certificated Note will, at least 30 days
before the redemption date for such Certificated
Note, mail a notice, first class, postage prepaid,
to the Holder of such Certificated Note, informing
such Holder of the Company's exercise of such
option with respect to such Certificated Note.
Payments of Principal Trustee Notice to Company of Option to be Repaid.
Upon receipt of
A-28
and Interest Upon Exercise of notice of exercise of the option for repayment and
Optional Repayment (Except the Certificated Notes to be repaid as set forth
Pursuant to Company's in such Notes, the Trustee for such Certificated
Exercise of Optional Reset Notes shall (unless such notice was received
or Optional Extension): pursuant to the Company's exercise of an optional
reset or an optional extension of maturity, in
each of which cases the relevant procedures set
forth above shall be followed) give notice to the
Company not less than 20 days prior to each
Optional Repayment Date of such Optional Repayment
Date and of the principal amount of Certificated
Notes to be repaid on such Optional Repayment
Date.
Failure to Settle: If a purchaser fails to accept delivery of and
make payment for any Certificated Note, the Agent
will notify the Company and the applicable Trustee
by telephone and return such Note to the
applicable Trustee. Upon receipt of such notice,
the Company will immediately wire transfer to the
account of the Agent an amount equal to the amount
previously credited thereto in respect of such
Note. Such wire transfer will be made on the
settlement date, if possible, and in any event not
later than the Business Day following the
settlement date. If the failure shall have
occurred for any reason other than a default by
the Agent in the performance of its obligations
hereunder and under the Agency Agreement with the
Company, then the Company will reimburse the Agent
or the applicable Trustee, as appropriate, on an
equitable basis for its loss of the use of the
funds during the period when they were credited to
the account of the Company. Immediately upon
receipt of the Certificated Note in respect of
which such failure occurred, the applicable
Trustee will ▇▇▇▇ such Note "canceled", make
appropriate entries in the applicable Trustee's
records and send such Note to the Company.
Trustees Not to Risk Funds: Nothing herein shall be deemed to require either
Trustee to risk or expend its own funds in
connection with any payment to the Company, the
Agent or the purchaser, it being understood by all
parties that payments made by either Trustee to
the Company, the Agent or the purchaser shall be
made only to the extent that funds are provided to
such Trustee for such purpose.
Authenticity of Signatures: The Company will cause each Trustee to furnish the
Agent from time to time with the specimen
signatures of each of such Trustee's officers,
employees or agents who has been authorized by
such Trustee to authenticate Certificated Notes,
but the Agent will not have any obligation or
liability to the Company or a Trustee in respect
of the authenticity of the signature of any
officer, employee or agent of the Company or a
Trustee on any Certificated Note.
Payment of Expenses: The Agent shall forward to the Company, on a
monthly basis, a statement of the out-of-pocket
expenses incurred by the Agent during that month
that are reimbursable to it pursuant to the terms
of the
A-29
Agency Agreement. The Company will remit payment
to the Agent currently on a monthly basis.
Advertising Costs: The Company will determine with the Agent the
amount of advertising that may be appropriate in
soliciting orders to purchase the Certificated
Notes. Advertising expenses will be paid by the
Company.
A-30
EXHIBIT B
CITIGROUP FUNDING INC.
Euro Medium-Term Note Administrative Procedures
(For Medium Term Notes, Series A and Series B, in Bearer Form)
May ___, 2005
The Medium-Term Notes, Series A (the "Series A Notes") and the
Medium-Term Notes, Series B (the "Series B Notes," and, together with the Series
A Notes, the "Notes") of Citigroup Funding Inc. (the "Company"), fully and
unconditionally guaranteed by Citigroup Inc. (the "Guarantor"), are to be
offered on a continuing basis. Citigroup Global Markets Limited has agreed to
act as agent in the solicitation of Notes issuable in bearer form (the "Bearer
Notes"), which will be represented by Global Securities that may be exchanged
for individual Bearer Notes. (The term "Agent" as used in these Administrative
Procedures means Citigroup Global Markets Limited). The Agent will not be
obligated to purchase Notes for its own account. The Bearer Notes are being sold
pursuant to a Global Selling Agency Agreement among the Company, the Guarantor,
and the agents named therein (including the Agent) dated the date hereof (the
"Agency Agreement"). The Notes have been registered with the Securities and
Exchange Commission (the "Commission"). JPMorgan Chase Bank, N.A. is the trustee
under the Indenture, dated as of May ___, 2005, covering the Series A Notes (the
"Senior Debt Indenture"). Deutsche Bank Trust Company Americas is the trustee
(together with JPMorgan Chase Bank, N.A., the "Trustees") under the Indenture,
dated as of May ___, 2005, covering the Series B Notes (the "Subordinated Debt
Indenture," and, together with the Senior Debt Indenture, the "Indentures"). The
Series A 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 Series B Notes will be subordinate and junior in the right of payment to all
Senior Indebtedness of the Company and the Guarantor, to the extent and in the
manner set forth in the Subordinated Debt Indenture.
The Agency Agreement provides that Notes may also be purchased by
the Agent acting solely as principal and not as agent. In the event of any such
purchase, the Agent acting solely as principal shall perform the functions of
both the Agent and the beneficial owner under the administrative procedures set
forth below, unless otherwise agreed to between the Company and the Agent acting
as principal.
The Company has appointed the principal office of Citibank, N.A. in
London as principal paying agent for the payment of the principal of and
interest on the Series A Bearer Notes and has appointed the principal office of
Deutsche Bank U.K. in London as principal paying agent (together, the "Principal
Paying Agents") for the payment of the principal of and interest on the Series B
Bearer Notes. The Company has appointed Kredietbank S.A. Luxembourgeoise in
Luxembourg as an additional paying agent for the Series A Notes and has
appointed Deutsche Bank Luxembourg, S.A. as an additional paying agent for the
Series B Notes (each, a "Paying Agent").
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agent and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by [its
B-1
Treasury Department]. The Company will advise the Agent and the Trustees in
writing of those persons handling administrative responsibilities with whom the
Agent and the Trustees are to communicate regarding orders to purchase Bearer
Notes and the details of their delivery.
If the Notes are to be listed on the Luxembourg Stock Exchange, the
Company will advise the Principal Paying Agents and the Agent as to the entity
it has appointed as listing agent (the "Listing Agent"), which will coordinate
with the Principal Paying Agents and the Agent on a regular basis for the
purpose of providing the Luxembourg Stock Exchange with such information
regarding Bearer Notes issued and outstanding as such Exchange may require.
Administrative procedures and specific terms of the offering are
explained below. Unless otherwise defined herein, terms defined in the
Indentures, the Prospectus or the Notes shall be used as therein defined. To the
extent the procedures set forth below conflict with the provisions of the Bearer
Notes, the Indentures or the Agency Agreement, the relevant provisions of the
Bearer Notes, the Indentures and the Agency Agreement shall control.
Maturities: Each Bearer Note will mature on a date not less
than nine months after the settlement date for
such Note. A Floating Rate Bearer Note will mature
only on an Interest Payment Date for such Bearer
Note. Any Note denominated in Japanese yen will
mature on a date not less than one year from the
Original Issue Date (as defined below) for such
Note. Any Note denominated in Pounds Sterling will
mature on a date not less than one year, nor more
than five years, after its Original Issue Date.
Currency: The Specified Currency for a Certificated Note
shall be as set forth therein and in the
applicable Pricing Supplement.
Denominations: The denomination of any Bearer Note denominated in
U.S. dollars will be a minimum of U.S.$10,000 or
any larger amount that is an integral multiple of
U.S.$1,000. The authorized denominations of Bearer
Notes denominated in any other currency will be
set forth in such Bearer Notes.
Bearer Form: Bearer Notes will be issued only in bearer form.
Date of Issuance: Each Bearer Note will be dated and issued as of
its original issue date by the Principal Paying
Agent for such Bearer Note. Each Bearer Note will
bear an Original Issue Date, which will be (i)
with respect to a temporary Global Security (or
any portion thereof), the date of its original
issue as specified in such Global Security and
(ii) with respect to any Permanent Global Security
or individual Bearer Note (or portion thereof)
issued subsequently upon transfer or exchange of a
Bearer Note or in lieu of a destroyed, lost or
stolen Bearer Note, the Original Issue Date of the
predecessor Bearer Note, regardless of the date of
authentication of such subsequently issued Bearer
Note.
Temporary Global Securities; Until the 40th day following the date of issuance
Definitive Global of a Bearer Note (the "Exchange Date") and until
Securities; and Individual Final Certification (as defined below) with
Bearer Notes: respect to such Bearer Note has occurred, such
Bearer
B-2
Note, together with all other Bearer Notes that
have the same rank, Original Issue Date, currency
of denomination, redemption and repayment
provisions, Stated Maturity and either fixed
interest rate (in the case of Fixed Rate Notes) or
Base Rate, Initial Interest Rate, interest reset
period, Interest Payment Dates, Minimum Interest
Rate, Maximum Interest Rate, Spread or Spread
Multiplier and Index Maturity (in the case of
Floating Rate Notes) (all such Bearer Notes herein
referred to collectively as a "Tranche"), will be
represented by a single temporary Global Security
in bearer form without interest coupons. The
Company shall execute, and the Principal Paying
Agent for the Bearer Notes represented by such
temporary Global Security shall authenticate, such
temporary Global Security upon the same conditions
and in substantially the same manner, and with the
same effect, as a Permanent Global Security. On or
prior to the Closing Date (which should also be
the Original Issue Date), with respect to such
Bearer Notes, the Principal Paying Agent for such
Bearer Notes shall deposit the temporary Global
Security with a common depositary (the
"Depositary") for Clearstream International,
("Clearstream") and Euroclear Bank S.A./N.V., as
operator of the Euroclear System ("Euroclear"), in
the manner specified below under "Details for
Settlement". The interest of each beneficial owner
of such temporary Global Security will be credited
to the appropriate account with Clearstream or
Euroclear, as specified below under "Details for
Settlement".
On or after the Exchange Date and provided that
Final Certification (as described below) has
occurred, the interest of the beneficial owner of
such Bearer Note in the temporary Global Security
shall be canceled and such Bearer Note, together
with all other Bearer Notes of the Tranche as to
which Final Certification has occurred, shall
thereafter be represented by a Permanent Global
Security in bearer form without interest coupons
held in London by the Depositary. The interest of
the beneficial owner of such Bearer Note in such
Permanent Global Security will be credited to the
appropriate account with Clearstream or Euroclear.
The beneficial owner of an interest in a Permanent
Global Security may, at any time, upon 30 days'
notice to the Principal Paying Agent for the
Bearer Notes represented by such Permanent Global
Security, given by such beneficial owner through
either Clearstream or Euroclear, as the case may
be, exchange its beneficial interest in such
Permanent Global Security for one or more
individual Bearer Notes (with coupons attached, if
appropriate) equal in aggregate principal amount
to such beneficial interest. To effect such
exchange, the interest of the beneficial owner of
such Bearer Note in such Permanent Global Security
shall be canceled and one or more individual
Bearer Notes shall be issued to such beneficial
owner,
B-3
through Euroclear or Clearstream, as the case may
be.
In all events, Bearer Notes will be delivered by
the Principal Paying Agents only outside the
United States.
Final Certification: Final Certification with respect to a temporary
Global Security shall mean the delivery by
Euroclear or Clearstream, as the case may be, to
the Principal Paying Agent for the Bearer Notes
represented by such temporary Global Security of a
signed certificate (a "Clearance System
Certificate") in the form set forth in Appendix 1
hereto with respect to the Bearer Notes, dated no
earlier than the Exchange Date for such Bearer
Notes or, if an interest payment on the Bearer
Notes shall be due prior to the Exchange Date,
dated no earlier than such Interest Payment Date,
to the effect that Euroclear or Clearstream, as
the case may be, has received certificates
("Certificates of Non-U.S. Beneficial Ownership")
in the form set forth in Appendix 2 hereto with
respect to each of such Bearer Notes, dated no
earlier than ten days before such Exchange Date or
Interest Payment Date, as the case may be, signed
by the account holders appearing on its records as
entitled to such Bearer Notes, to the effect that
such Bearer Notes (i) are not beneficially owned
by United States persons and have not been
acquired by or on behalf of United States persons,
(ii) are owned by United States persons that are
(a) foreign branches of United States financial
institutions purchasing for their own account or
for resale or (b) United States persons who
acquired the Bearer Notes through foreign branches
of U.S. financial institutions and who hold the
Bearer Notes through such U.S. financial
institutions (and in either case (a) or (b), each
such financial institution has agreed that it will
comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986 and the regulations thereunder), or
(iii) are owned by United States or foreign
financial institutions for purposes of resale
during the restricted period, in which event such
financial institutions (whether or not also
described in clause (i) or (ii)) shall have
certified that they have not acquired the Bearer
Notes for purposes of resale directly or
indirectly to a United States person or to a
person within the United States or its
possessions.
Payments of Principal: Upon presentation of a Note, the Principal Paying
Agent for such Bearer Note will pay the principal
amount of such Note and the final installment of
interest at Maturity in immediately available
funds. Notes presented to the Principal Paying
Agent for such Bearer Notes at Maturity for
payment will be canceled in accordance with the
Indenture under which such Bearer Notes have been
issued.
Interest Payments: Interest on each Bearer Note will accrue from the
Original Issue Date of such Bearer Note and will
be calculated and paid in the manner described in
such Bearer Note and the Prospectus, each as
defined in
B-4
the Agency Agreement, as supplemented by the
applicable Pricing Supplement; provided, however,
that interest in respect of any portion of a
temporary Global Security for which Final
Certification has not been made shall not be paid
until Final Certification is received in respect
of that portion.
Payments of Principal and Upon receipt of Bearer Notes to be repaid as set
Interest Upon Exercise of forth in such Notes, the Trustee or Principal
Optional Repayment: Paying Agent for such Notes shall give notice to
the Company not less than 20 calendar days prior
to each Optional Repayment Date of such Optional
Repayment Date and of the principal amount of
Bearer Notes to be repaid on such Optional
Repayment Date.
On or prior to any Optional Repayment Date, the
Company shall deposit with such Trustee or such
Principal Paying Agent an amount of money
sufficient to pay the Optional Repayment Price,
and accrued interest thereon to such date, of all
the Notes or portions thereof which are to be
repaid on such date. Such Trustee or such
Principal Paying Agent will use such money to
repay such Notes pursuant to the terms set forth
in such Notes.
Procedure for Rate Setting The Company and the Agent will discuss from time
and Posting: to time the aggregate principal amount of, the
issuance price of, and the interest rates to be
borne by, Bearer Notes that may be sold as a
result of the solicitation of orders by the Agent.
If the Company decides to set prices of, and rates
borne by, any Bearer Notes in respect of which the
Agent is to solicit orders (the setting of such
prices and rates to be referred to herein as
"posting") or if the Company decides to change
prices or rates previously posted by it, it will
promptly advise the Agent of the prices and rates
to be posted.
Acceptance of Orders: If the Company posts prices and rates as provided
above, the Agent as agent for and on behalf of the
Company shall promptly accept orders received by
it to purchase Bearer Notes at the prices and
rates so posted, subject to (1) any instructions
from the Company received by the Agent concerning
the aggregate principal amount of Bearer Notes to
be sold at the prices and rates so posted or the
period during which such posted prices and rates
are to be in effect, (2) any instructions from the
Company received by the Agent changing or revoking
any posted prices and rates, (3) compliance with
the securities laws of the United States and all
other jurisdictions and with the selling
restrictions contained in the Agency Agreement and
(4) the Agent's right to reject any such offer as
provided below.
If the Company does not post prices and rates and
the Agent receives an order to purchase Bearer
Notes, or, if while posted prices and rates are in
effect, the Agent receives an order to purchase
Bearer Notes on terms other than those posted by
the Company, the Agent will
B-5
promptly advise the Company by telephone of any
such order other than orders rejected by the Agent
as provided below. The Company will have the sole
right to accept any such order to purchase Bearer
Notes and may reject any such order in whole or in
part.
The Agent may, in its discretion reasonably
exercised, reject any order to purchase Bearer
Notes received by it in whole or in part.
Preparation of Pricing If any order to purchase a Bearer Note is accepted
Supplement: by or on behalf of the Company, the Company, with
the approval of the Agent, will prepare a pricing
supplement (a "Pricing Supplement") reflecting the
terms of such Bearer Note, will file ten copies
thereof with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act,
will supply such copies thereof to the Agent as
the Agent may request, will supply one copy to the
Principal Paying Agent for such Bearer Note and
will, on the Agent's behalf, file five copies of
such Pricing Supplement with the National
Association of Securities Dealers, Inc. (the
"NASD"). The Principal Paying Agent for such
Bearer Note will cause such Pricing Supplement to
be delivered to the Trustee for such Bearer Note,
to each additional Paying Agent for such Bearer
Note outside the United States and to the Listing
Agent. The Agent will cause a Pricing Supplement
to be delivered to the purchaser of the Bearer
Note.
In each instance that a Pricing Supplement is
prepared, the Agent will affix copies of the
Pricing Supplement to 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; The Company reserves the right, in its sole
Amendment or Supplement: discretion, to instruct the Agent to suspend at
any time, for any period of time or permanently,
the solicitation of orders to purchase Bearer
Notes. Upon receipt of such instructions, the
Agent will forthwith suspend solicitation of
orders to purchase Bearer Notes from the Company
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 Agent and each of the
Principal Paying Agents 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. If the Company and the
B-6
Guarantor decide to amend or supplement the
Registration Statement (as defined in the Agency
Agreement) or the Prospectus (except for an
amendment or supplement relating to an offering of
Securities other than the Notes or to an offering
of Warrants or providing solely for the
specification of or a change in the maturity
dates, the interest rates, the issuance prices or
other terms of any Notes), they promptly will
advise the Agent and the Trustees and will furnish
the Agent and the Trustees with the proposed
amendment or supplement and with such certificates
and opinions as are required, all in accordance
with the terms of the Agency Agreement. The
Company and the Guarantor will file with the
Commission any supplement to the Prospectus
relating to the Bearer Notes, provide the Agent
with copies of any such supplement, and confirm to
the Agent that such supplement has been filed with
the Commission pursuant to the applicable
paragraph of Rule 424(b).
Delivery of Prospectus: A copy of the Prospectus and a Pricing Supplement
relating to a Bearer Note must accompany or
precede 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 Bearer Notes is
received by the Agent between the time an order
for a Bearer Note is placed and the time written
confirmation thereof is sent by the Agent 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. Subject to the second preceding
paragraph, the Agent will deliver a Prospectus and
Pricing Supplement as herein described with
respect to each Bearer Note sold by it. The
Principal Paying Agent for such Bearer Note will
make such delivery if such Note is sold directly
by the Company to a purchaser (other than the
Agent).
Confirmation: For each order to purchase a Bearer Note solicited
by the Agent and accepted by or on behalf of the
Company, the Agent will issue a confirmation to
the purchaser, with a copy to the Company, setting
forth the details set forth below, delivery and
payment instructions and the language required by
the U.S. Treasury Regulations.
Settlement: Subject to Section 5 of the Agency Agreement, the
Closing Date with respect to any order to purchase
Bearer Notes accepted by or on behalf of the
Company will be the third day next succeeding the
date of acceptance, or if such day is a day on
which commercial banks in New York City or London
or Clearstream or Euroclear are required or
authorized to be closed, the next succeeding day
on which commercial banks in New York City and
London and Euroclear and Clearstream are not
required or authorized to be closed (a "Business
Day") unless otherwise agreed by the purchaser and
the Company and shall be specified upon acceptance
of such offer.
B-7
Details for Settlement: For each offer to purchase a Bearer Note that is
accepted by or on behalf of the Company, the Agent will
provide (unless provided by the purchaser directly to
the Company) by telephone the following information to
the Company:
1. Principal or face amount.
2. Series.
3. Stated Maturity.
4. In the case of a Fixed Rate Book-Entry Note, the
interest rate and reset, redemption, repayment and
extension provisions (if any) or, in the case of a
Floating Rate Book-Entry Note, the Base Rate,
Initial Interest Rate (if known at such time)
Interest Reset Period, Interest Reset Dates, Index
Maturity, Spread and/or Spread Multiplier (if
any), Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and reset, redemption,
repayment and extension provisions (if any).
5. Interest Payment Dates and the Interest Payment
Period.
6. Amortization provisions, if any.
7. Settlement date and Issue Date, if different.
8. Specified currency.
9. Denominated currency, Indexed Currency, Base
Exchange Rate, and the Determination Date, if
applicable.
10. Price.
11. Agent's commission, determined as provided in the
Agency Agreement.
12. Whether such Book-Entry Note is an OID Note and,
if so, the total amount of OID, the yield to
maturity and the initial accrual period OID.
13. Any other terms necessary to describe the
Book-Entry Note.
14. Agent's account number at Clearstream or
Euroclear.
The Agent will advise the Company and the Principal
Paying Agent for such Bearer Note of the foregoing
information (unless provided by the purchaser directly
to the Company) for each offer to purchase a Bearer Note
solicited by the Agent and accepted by the Company in
time for the Principal Paying Agent for such Bearer Note
to prepare
B-8
and authenticate the temporary Global Security and
deliver it at least one day prior to settlement to the
Depositary in London. The Principal Paying Agent for
such Bearer Note will instruct Euroclear or Clearstream,
as the case may be, to credit such Bearer Note to the
distribution account of such Principal Paying Agent with
Euroclear or Clearstream, as the case may be, for onward
credit to the account of the Agent against payment.
Concurrently therewith and in consideration thereof, the
Agent for such Bearer Note will give instructions to
Euroclear or Clearstream, as the case may be, to credit
the account of the Principal Paying Agent for such
Bearer Note against delivery of such Bearer Note with an
amount equal to the initial public offering price of
such Bearer Note, less the applicable commission
determined as provided in Section 2 of the Agency
Agreement. The Principal Paying Agent for such Bearer
Note will remit all such funds received to the
designated account of the Company. The Principal Paying
Agent for such Bearer Note will notify the Agent of both
the Euroclear and Clearstream Reference Numbers for such
Bearer Note and will notify the Listing Agent of the
issuance of such Bearer Note. Before accepting any order
to purchase a Bearer Note to be settled in less than
three Business Days, the Company shall verify that the
Principal Paying Agent for such Bearer Note will have
adequate time to prepare and authenticate the temporary
Global Security that will represent such Bearer Note.
The Agent will provide appropriate documentation to the
Principal Paying Agent for such Bearer Note, including
the information necessary for the preparation and
authentication of the temporary Global Security that
will represent such Bearer Note. Prior to preparing such
temporary Global Security for delivery (but in any case
no later than 10:00 A.M., London time, on the Business
Day next preceding the Closing Date therefor), the
Principal Paying Agent for such Bearer Note will confirm
receipt of such instruction to the Agent by telephone.
Bearer Note Deliveries Upon receipt of appropriate documentation and
and Cash Payment: instructions with respect to the Bearer Notes
constituting a Tranche, the Company will cause the
Principal Paying Agent for such Bearer Notes to prepare
and authenticate a temporary Global Security
representing such Tranche and to insert thereon (1) the
rank, (2) the principal amount of such Tranche, (3) the
Original Issue Date, (4) the Stated Maturity, (5) the
interest rate (in the case of a Fixed-Rate Note) and
redemption and repayment provisions (if any) or the Base
Rate, Initial Interest Rate, Index Maturity, Spread or
Spread Multiplier, Minimum Interest Rate and Maximum
Interest Rate (in the case of a Floating Rate Note) and
redemption and repayment provisions (if any) and (6) any
other terms required to be inserted thereon.
B-9
'
On the Closing Date, the Principal Paying Agent for the
Bearer Notes represented by such Tranche will credit
such Bearer Note to its distribution account with
Clearstream or Euroclear and the Agent will make payment
to such Principal Paying Agent against delivery of such
Bearer Note, through Euroclear or Clearstream, as the
case may be, in immediately available funds, in an
amount equal to the issuance price of such Bearer Note
less the Agent's commission. The Principal Paying Agent
for such Bearer Note will remit all such funds received
to the designated account of the Company. Such payment
shall be made by the Agent only upon prior receipt by
the Agent of immediately available funds from or on
behalf of the purchaser unless the Agent decides, at its
option, to advance its own funds for such payment
against subsequent receipt of funds from the purchaser.
Failure to Settle: If on the relevant Issue Date the Agent does not pay the
subscription price due from it in respect of any Note
(the "Defaulted Note") and, as a result, the Defaulted
Note remains in the distribution account of the
Principal Paying Agent for such Note with Euroclear or
Clearstream after such Issue Date (rather than being
credited to the Agent's account against payment), such
Principal Paying Agent will continue to hold the
Defaulted Note to the order of the Company.
If such Principal Paying Agent pays an amount (the
"Advance") to the Company on the basis that a payment
(the "Payment") has been, or will be, received from the
relevant Agent and if the Payment has not been, or is
not, received by such Principal Paying Agent on the date
such Principal Paying Agent pays the Company, the
Company shall upon being requested to do so repay to
such Principal Paying Agent the Advance and shall pay
interest (on a 360 days basis) sufficient to cover any
overdraft costs incurred by such Principal Paying Agent,
as certified by such Principal Paying Agent, until the
earlier of repayment in full of the Advance and receipt
in full by such Principal Paying Agent of the Payment.
If the Agent, at its own option, has advanced its own
funds for payment against subsequent receipt of funds
from the purchaser, and if the purchaser shall fail to
make payment for the Bearer Note on the Closing Date
therefor, the Agent will promptly notify the Principal
Paying Agent for such Bearer Note, the Depositary and
the Company by telephone, promptly confirmed in writing
(but no later than the next Business Day). In such event
the Agent shall instruct Euroclear or Clearstream, as
the case may be, to transfer such Defaulted Note to the
distribution account of the Principal Paying Agent for
such Bearer Note who will continue to hold the Defaulted
Note to the order of the Company. Upon (i) confirmation
from such Principal Paying Agent in writing (which may
be by telex or telecopy) that such Principal Paying
Agent is holding the Defaulted Note for the account of
the Company, and (ii) confirmation from the Agent in
writing (which
B-10
may be given by telex or telecopy) that the Agent has
not received payment from the purchaser (the matters
referred to in clauses (i) and (ii) are referred to
hereinafter as the "Confirmations"), the Company will
promptly pay to the Agent an amount in immediately
available funds equal to the amount previously paid by
the Agent in respect of such Bearer Note. Such payment
will be made not later than the Business Day following
the date of receipt of the Confirmations. The Principal
Paying Agent for such Bearer Note and the Depositary
will make such revisions to the temporary Global
Security representing such Bearer Note as are necessary
to reflect the cancellation of such portion of such
Global Security.
If a purchaser shall fail to make payment for such
Bearer Note for any reason other than the failure of the
Agent to provide the necessary information to the
Company as described above for settlement or to provide
a confirmation to the purchaser within a reasonable
period of time as described above or otherwise to
satisfy its obligation hereunder or in the Agency
Agreement, and if the Agent shall have otherwise
complied with its obligations hereunder and in the
Agency Agreement, the Company will reimburse the Agent
on an equitable basis for its loss of the use of funds
during the period when they were credited to the account
of the Company.
Principal Paying Agents Nothing herein shall be deemed to require Principal
Not to Risk Funds: Paying Agent expend its own funds in connection with any
payment to the Company, or the Agent or the purchaser,
it being understood by all parties that payments made by
the Principal Paying Agents to the Company, or the Agent
or a purchaser shall be made only to the extent that
funds are provided to the Principal Paying Agents for
such purpose.
Authenticity of The Company will cause each Principal Paying Agent to
Signatures: furnish the Agent from time to time with the specimen
signatures of each of such Principal Paying Agent's
officers, employees or agents who has been authorized by
such Principal Paying Agent to authenticate Bearer Notes
(including Global Securities representing Bearer Notes),
but the Agent will have no obligation or liability to
the Company or to either Principal Paying Agent in
respect of the authenticity of the signature of any
officer, employee or agent of the Company or either
Principal Paying Agent on any Bearer Note.
Payment of Expenses: The Agent shall forward to the Company, on a monthly
basis, a statement of the out-of-pocket expenses
incurred by the Agent during that month that are
reimbursable to it pursuant to the terms of the Agency
Agreement. The Company will remit payment to the Agent
currently on a monthly basis.
Advertising Costs: The Company will determine with the Agent the amount of
advertising that may be appropriate in soliciting orders
to purchase
B-11
the Bearer Notes. Advertising expenses will be paid by
the Company.
B-12
APPENDIX 1
[FORM OF CERTIFICATION TO BE GIVEN
BY EUROCLEAR OR CLEARSTREAM]
CERTIFICATION
Citigroup Funding Inc.
Medium Term Notes, Series [A] [B]
(the "Notes")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Medium-Term Note Administrative Procedures
attached to the Selling Agency Agreement relating to the Notes, as of the date
hereof, $ principal amount of the above-captioned Notes (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that are (a)
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) United States persons who
acquired the Notes through foreign branches of United States financial
institutions and who hold the Notes through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution has agreed, on its own behalf or through its agent,
that we may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Notes for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary global Note excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as the date hereof.
B-Appendix 1-1
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: ______________, 200_ (1)
Yours faithfully,
[EUROCLEAR BANK, S.A./N.V.,
as operator of the Euroclear System]
or
[CLEARSTREAM, S.A.]
By
----------
(1) [The earlier of the Exchange Date and the first Interest Payment Date on the
applicable Notes.]
B-Appendix 1-2
APPENDIX 2
[FORM OF CERTIFICATION TO BE GIVEN
BY AN ACCOUNT HOLDER OF EUROCLEAR OR CLEARSTREAM]
CERTIFICATION
Citigroup Funding Inc.
Medium Term Notes, Series [A] [B]
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Notes (the "Notes") held by you for our account
(i) are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source ("United States person(s)"), (ii) are owned by United States
person(s) that are (a) foreign branches of United States financial institutions
(as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Notes through foreign branches of United
States financial institutions and who hold the Notes through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the
Notes is a United States or foreign financial institution described in clause
(iii) above (whether or not also described in clause (i) or (ii)) this is to
further certify that such financial institution has not acquired the Notes for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the Notes
in accordance with your Operating Procedures if any applicable statement herein
is not correct on such date, and in the absence of any such notification it may
be assumed that this certification applies as of such date.
This certification excepts and does not relate to $ principal
amount of the Notes as to which we are not able to certify and as to which we
understand exchange and delivery of definitive Notes (or, if relevant, exercise
of any rights or collection of any interest) cannot be made until we do so
certify.
B-Appendix 2-1
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: _________________, 20__
[To be dated no earlier than the 10th day before the earlier of the Exchange
Date and the first Interest Payment Date on the Notes]
[Name of Account Holder]
By:_________________________
(Authorized Signatory)
Name:
Title:
B-Appendix 2-2
EXHIBIT C
FORM OF TERMS AGREEMENT
Attention: Subject in all respects to the terms and conditions contained in the
Global Selling Agency Agreement dated _________________, 20__ (the "Global
Selling Agency Agreement"), among Citigroup Global Markets Inc., Citigroup
Global Markets Limited, Citigroup Funding Inc. and Citigroup Inc., the
undersigned agrees to purchase the following Notes of Citigroup Funding Inc.:
Principal Amount: Issue Price:
Purchaser: Original Issue Date:
Initial Interest Rate: Stated Maturity:
Reoffering Rate:
Reoffering Price:
[ ] Varying prices from time to time related to prevailing prices at the
time of resale
[ ] Fixed price of __% of Principal Amount
Specified Currency (If other than U.S. dollars):
Survivor's Option:
Authorized Denominations:
(If other than as set forth in the Prospectus Supplement)
Dual Currency Note: [ ] Yes (see attached) [ ] No
Optional Payment Currency:
Designated Exchange Rate:
Base Rate: [ ] CD Rate [ ] Commercial Paper Rate [ ] Federal Funds Rate [ ]
LIBOR Telerate [ ] LIBOR Reuters [ ] Treasury Rate [ ]
Treasury Rate Constant Maturity [ ] Prime Rate [ ]
Eleventh District Cost of Funds Rate [ ] Euribor [ ] Other (see attached)
Index Maturity:
Interest Reset Period or Interest Reset Dates:
Interest Payment Dates: Accrue to Pay: [ ] Yes [ ] No
Indexed Principal Note: [ ] Yes (see attached) [ ] No
Floating Rate: [ ] Indexed Interest Rate: [ ] (see attached) Spread Multiplier:
Spread (+/-):
Spread Reset [ ] The Spread or Spread Multiplier may not be changed prior to
Stated Maturity.
[ ] The Spread or Spread Multiplier may be changed prior to Stated Maturity (see
attached).
C-1
Optional Reset Dates (if applicable):
Maximum Interest Rate: Minimum Interest Rate:
Inverse Floating Rate Note: [ ] Yes (see attached) [ ] No
Initial Fixed Interest Rate: Reset Fixed Reference Rate:
Floating Rate / Fixed Rate Note: [ ] Yes (see attached) [ ] No
Amortizing Note: [ ] Yes [ ] No
Amortization Schedule:
Optional Redemption: [ ] Yes [ ] No
Optional Redemption Dates:
Redemption Prices:
Bond Yield to Maturity: Bond Yield to Call:
Optional Repayment: [ ] Yes [ ] No
Optional Repayment Dates: Optional Repayment Prices:
Optional Extension of Stated Maturity: [ ] Yes [ ] No
Final Maturity:
Discount Note: [ ] Yes [ ] No
Total Amount of OID: Yield to Maturity:
Renewable Note: [ ] Yes (see attached) [ ] No
Special Election Interval (if applicable):
Amount (if less than entire principal amount) as to which election may
be exercised:
Place of Delivery of Notes:
Method of Payment for the Notes:
Requirements for delivery, if any, of opinions of counsel, certificates from the
Company and the Guarantor or their officers or a letter from the Guarantor's
independent 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.
Between the date of this Agreement and the Settlement Date with
respect to this Agreement, you will not, without the undersigned's prior
consent, offer, sell, contract to sell or
C-2
otherwise dispose of any debt securities of the Company substantially similar to
the Medium-Term Notes (other than (i) the Medium-Term Notes to be sold pursuant
to this Agreement and (ii) commercial paper issued in the ordinary course of
business), except as may otherwise be provided herein.
Date:
[Purchaser]
By:__________________________
Accepted: CITIGROUP FUNDING INC.
By:__________________________
C-3
EXHIBIT D
FORM OF AGENT ACCESSION CONFIRMATION - PROGRAM
To: [Name and address of new Agent]
[date]
Citigroup Funding Inc.
U.S.$[ ] Series A and Series B Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated as of __________________,
20__ (which agreement, as amended from time to time, is herein referred to as
the "Agency Agreement") entered into in respect of the above Medium-Term Note
Program and hereby acknowledge receipt of your Agent Accession Letter to us
dated [ ].
In accordance with Section 2(c) of the Agency Agreement we hereby confirm that,
with effect from the date hereof, you shall become a party to, and a[n] [U.S.
Agent] [International Agent] under, the Agency Agreement, vested with all the
authority, rights and powers, and subject to all the duties and obligations of
a[n] [U.S.] [International] Agent as if originally named as such under the
Agency Agreement.
Yours faithfully,
CITIGROUP FUNDING INC.
By:__________________________
Name:
Title:
cc: Principal Paying Agents
Trustees
Existing Agents
Guarantor
D-1
EXHIBIT E
FORM OF AGENT ACCESSION LETTER - PROGRAM
To: Citigroup Funding Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[date]
Citigroup Funding Inc.
U.S.$[ ] Series A and Series B Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated as of __________________,
20__, entered into in respect of the above Medium-Term Note Program and made
among Citigroup Funding Inc. (the "Company"), Citigroup Inc. and the Agents
party thereto (which agreement, as amended from time to time, is herein referred
to as the "Agency Agreement").
We confirm that we are in receipt of the documents referenced below (except to
the extent we have waived delivery of such documents):
-- a copy of the Agency Agreement;
-- a copy of all documents referred to in Section 5 of the Agency Agreement;
and
-- a letter in a form approved by ourselves from each of the legal advisers
referred to in Section 5 of the Agency Agreement addressed to ourselves
and giving us the full benefit of the existing legal opinions as of the
date of such existing legal opinions, and have found them to our
satisfaction.
For the purposes of Section 9 of the Agency Agreement our notice details are as
follows: (insert name, address, telephone, telecopy, telex and attention).
In consideration of the Company appointing us as a[n] [U.S.] [International]
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 a[n]
[U.S.] [International] 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.
E-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: Principal Paying Agents
Trustees
Existing Agents
Guarantor
E-2
EXHIBIT F
FORM OF AGENT ACCESSION CONFIRMATION - NOTE ISSUE
To: [Name and address of new Agent]
[date]
Citigroup Funding Inc.
U.S.$[ ] Series A and Series B Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated as of ___________________,
20__ (which agreement, as amended from time to time, is herein referred to as
the "Agency Agreement") entered into in respect of the above Medium-Term Note
Program and hereby acknowledge receipt of your Agent Accession Letter to us
dated [ ].
In accordance with Section 2(c) of the Agency Agreement we hereby confirm that,
with effect from the date hereof solely in respect of the issue of [ ] Notes due
[ ] (the "Issue"), you shall become a party to, and a[n] [U.S.] [International]
Agent under, the Agency Agreement, vested with all the authority, rights and
powers, and subject to all duties and obligations of a[n] [U.S.] [International]
Agent in relation to the Issue as if originally named as such under the Agency
Agreement.
Such appointment is limited to the Issue and is not for any other issue of Notes
of the Company pursuant to the Agency Agreement and such appointment will
terminate upon issue of the Notes comprising the Issue but without prejudice to
any rights, duties or obligations which have arisen prior to such termination.
Yours faithfully,
CITIGROUP FUNDING INC.
By:__________________________
Name:
Title:
cc: Principal Paying Agents
Trustees
Guarantor
F-1
EXHIBIT G
FORM OF AGENT ACCESSION LETTER - NOTE ISSUE
Citigroup Funding Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
U.S.$[ ] Series A and Series B
Medium-Term Note Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated as of ________________,
20__, entered into in respect of the above Medium-Term Note Program and made
among the Company, Citigroup Inc. and the Agents party thereto (which agreement,
as amended from time to time, is herein referred to as the "Global Selling
Agency Agreement").
We confirm that we are in receipt of the documents referenced below (except to
the extent that we have waived delivery of such documents):
-- a copy of the Agency Agreement; and
-- a copy of all documents referred to in Section 5 of the Agency Agreement
and have found them to our satisfaction.
For the purposes of Section 9 of the Agency Agreement our notice details are as
follows: (insert name, address, telephone, telecopy, telex and attention).
In consideration of the Company appointing us as a[n] [U.S.] [International]
Agent solely in respect of the issue of [ ] Notes due [ ] (the "Issue") under
the Agency Agreement, we hereby undertake, for the benefit of the Company, the
Guarantor and each of the other Agents, that in relation to the Issue we will
perform and comply with all the duties and obligations expressed to be assumed
by a[n] [U.S.] [International] Agent under or pursuant to the Agency Agreement.
We acknowledge that such appointment is limited to the Issue and is not for any
other issue of Notes of the Company pursuant to the Agency Agreement and that
such appointment will terminate upon issue of the Notes comprising the Issue but
without prejudice to any rights, duties or obligations which have arisen prior
to such termination.
G-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:__________________________
Title:
cc: Principal Paying Agents
Trustees
Guarantor
G-2
EXHIBITS H-K
FORMS OF OPINIONS, CERTIFICATES AND COMFORT LETTERS