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Exhibit 4.03
CITIGROUP INC.
AND
CITIBANK, N.A.
AS FISCAL AGENT, REGISTRAR AND EXCHANGE AGENT
AND
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG, SOCIETE ANONYME
AS PAYING AGENT AND TRANSFER AGENT
AGENCY AGREEMENT
EURO 1,350,000,000 4.75% FIXED RATE/FLOATING RATE SUBORDINATED NOTES DUE 2019
DATED AS OF FEBRUARY 10, 2004
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THIS AGREEMENT is made in London as of February 10, 2004, BY
(1) CITIGROUP INC. (the "ISSUER").
(2) CITIBANK, N.A. ("CITIBANK, N.A."), which shall act as fiscal agent,
registrar and exchange agent (hereinafter referred to in such
respective capacities as "FISCAL AGENT", "REGISTRAR" or as "EXCHANGE
AGENT", which expressions shall include any successor or successors
thereto).
(3) DEXIA BANQUE INTERNATIONALE A LUXEMBOURG, SOCIETE ANONYME, which shall
act as paying agent and transfer agent (hereinafter referred to as
"PAYING AGENT" and "TRANSFER AGENT", which expression shall include any
successor or successors thereto).
WHEREAS pursuant to the Terms Agreement dated January 30, 2004 (the
"UNDERWRITING AGREEMENT") between the Issuer and the Underwriters named therein,
the Issuer has agreed to issue its Euro 1,350,000,000 4.75% Fixed/Floating Rate
Subordinated Notes due February 2019 (the "NOTES"); and
WHEREAS the Issuer wishes to appoint Citibank, N.A. to act as Fiscal
Agent, Registrar and Exchange Agent and Dexia Banque Internationale a
Luxembourg, societe anonyme as Paying Agent and Transfer Agent in relation to
the Notes upon the terms and conditions set forth in this Agreement and the
Schedules hereto.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS, INTERPRETATION
The following terms shall, unless the context otherwise requires, have
the respective meanings indicated below:
"AGENT(S)" means any of the Fiscal Agent, the Registrar, the Paying
Agent and the Transfer Agent.
"CONDITIONS" means the terms and conditions of the Notes, as contained
in the Global Notes, in the Prospectus Supplement dated October 31,
2003 and the Indenture.
"GLOBAL NOTES" means either one or both of (i) the International Global
Note in the form of Schedule 1 attached hereto and (ii) the DTC Global
Notes in the form of Schedule 2 attached hereto (also referred to
herein as the "DTC GLOBAL NOTE" and the "INTERNATIONAL GLOBAL NOTE",
respectively).
"INDENTURE" means the Indenture dated as of April 12, 2001, as amended
and supplemented to date, between the Issuer and J.P. Morgan Trust
Company, N.A. (the "TRUSTEE").
Terms not defined herein shall have the same meanings as are assigned
thereto in the Underwriting Agreement and the Conditions.
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2. APPOINTMENTS
2.1 The Issuer hereby appoints Citibank, N.A. to act as Fiscal Agent,
Registrar and Exchange Agent in respect of the Notes and Global Notes.
2.2 Citibank, N.A. hereby accepts such appointments and the resulting
obligations, and agrees to act in such capacities, on the terms and conditions
set out in this Agreement and the Schedules hereto. In particular, the Fiscal
Agent agrees to effect any publication of notices pursuant to the Conditions.
2.3 The Issuer hereby appoints Dexia Banque Internationale a Luxembourg,
societe anonyme to act as Paying Agent and Transfer Agent in respect of the
Notes and Global Notes.
2.4 Dexia Banque Internationale a Luxembourg, societe anonyme hereby
accepts such appointments and the resulting obligations, and agrees to act in
such capacities, on the terms and conditions set out in this Agreement and the
Schedules hereto.
2.5 The obligations of the Agents are several and not joint.
3. THE NOTES
3.1 The Notes shall be represented by permanent Global Notes without
interest coupons as specified in the Conditions. The International Global Note
and the DTC Global Note shall be substantially in the forms attached hereto as
Schedules 1 and 2, respectively, in each case with such changes as may be agreed
between the Issuer and the Trustee. The Conditions shall be attached to, or
endorsed upon, each Global Note. In the event that individual definitive Notes
are issued, the parties shall enter into a supplement to this Agreement to
provide for the matters set forth herein with regard to such definitive Notes.
3.2 Each Global Note shall be signed manually by a duly authorised officer
of the Issuer and dated the Issue Date. Each Global Note shall be authenticated
manually by Citibank, N.A., as authenticating agent on behalf of the Trustee,
and delivered to (i) in the case of the International Global Note, Citibank,
N.A. as common depositary for Euroclear and Clearstream, and (ii), in the case
of the DTC Global Notes, Citibank, N.A., London office as custodian for The
Depository Trust Company, New York ("DTC").
4. PAYING AGENCY
4.1 The Issuer shall remit the funds necessary for the payment of interest
on and principal of the Notes to the Fiscal Agent, in Euros in same-day funds,
to such account at the Fiscal Agent in London as the Fiscal Agent may from time
to time specify (the "REDEMPTION ACCOUNT") on the Business Day such payment is
due, provided always that, if any due date shall not be a Business Day, the
Issuer shall make such transfer to the account of the Fiscal Agent on the next
succeeding Business Day (for the purposes of this Clause 4, Business Day shall
mean (x) a day on which commercial banks and foreign exchange markets settle
payments and are open for general business in each of London and The City of New
York and (y) a day which is a TARGET business day).
The Issuer hereby authorizes and directs the Fiscal Agent, from the amounts so
paid to it, to make payment of the principal of, and interest on, the Notes on
the due date for payment set forth in the Conditions and this Agreement. If
applicable, the Fiscal Agent will, from funds so received from the Issuer,
credit to the account of the Paying Agent the amounts of all such payments made
by it in accordance with the provisions of this Agreement.
The Issuer shall confirm to the Fiscal Agent not later than 10:00 a.m. (London
time) on the second Business Day before the relevant date for such payment that
it has issued irrevocable payment instructions for such payment to be made.
4.2 If for any reason the Fiscal Agent does not receive unconditionally the
full amount payable by the Issuer on the relevant due date in respect of all the
outstanding or maturing Notes, the Fiscal Agent
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shall forthwith notify immediately the Issuer by telephone followed by facsimile
and the Fiscal Agent shall not be bound to make any payment of principal or
interest in respect of the Notes until the Fiscal Agent has received to its
order the full amount of the monies then due and payable in respect of all
outstanding or maturing Notes, provided, however, that if the Fiscal Agent
shall, in its discretion, make any payment of principal or interest on or after
the due date therefor in respect of the Notes prior to its unconditional receipt
of the full amount then due and payable in respect of all outstanding Notes, the
Issuer will promptly pay such amount to the Fiscal Agent and will compensate the
Fiscal Agent at a rate equal to the Fiscal Agent's cost of funding.
4.3 Out of the sums paid to the Fiscal Agent in respect of interest and
principal on the Notes, the Fiscal Agent will make payment free of charge to the
registered holder of the International Global Note and the DTC Global Note as
stipulated in Clause 9 below, in the amounts specified in the Conditions. The
Fiscal Agent shall obtain from the Registrar, and the Registrar shall supply,
such details as are required for the Paying Agent to make payment as stated
above.
4.4 In respect of the monies paid to it relating to any Note, the Fiscal
Agent
4.4.1 shall not be entitled to exercise any lien, right of set-off
or similar claim (including without limitation any claim arising from
or relating to any other issue of securities by the Issuer),
4.4.2 shall not be required to account for interest thereon and
4.4.3 money held by it need not be segregated except as may be
required by applicable law.
5. DOCUMENTS FOR INSPECTION AND PUBLICATION OF NOTICES
5.1 On behalf and at the request and expense of the Issuer, the Fiscal
Agent shall cause to be published any notices required to be given by the Issuer
in accordance with the Conditions.
5.2 The Issuer shall provide to the Fiscal Agent sufficient copies of all
documents required by the Conditions to be available for issue or inspection,
and the Fiscal Agent shall make such copies available to Noteholders upon their
request.
5.3 To the extent practicable, the Issuer shall provide the Fiscal Agent
with a copy (prior to publication) of all notices to be issued in connection
with the Notes.
6. CANCELLATION OF THE GLOBAL NOTES
6.1 Subject to the terms of the Indenture, promptly upon the Issuer's
request, the Registrar shall take all measures necessary to cancel any Notes
which the Issuer has repurchased or whose maturity has been accelerated pursuant
to the Conditions. The Registrar shall cause any such Notes (i) to the extent
represented by the International Global Note, to be cancelled resulting in a
reduction in the aggregate amount of the Notes represented by the International
Global Note by the aggregate amount of Notes so cancelled, and (ii) to the
extent represented by the DTC Global Note, to be cancelled in accordance with
the procedures established for that purpose by DTC, resulting in a reduction in
the aggregate amount of the Notes represented by the DTC Global Note by the
aggregate amount of the Notes so cancelled.
6.2 On the same day such cancellation is effected, the Registrar shall
record such cancellation of Notes on the Register in such a way that the
aggregate principal amount of Notes cancelled at any time together with the
aggregate principal amount of Notes outstanding and represented by the Global
Notes shall equal the aggregate principal amount of Notes originally issued by
the Issuer.
6.3 The Registrar shall upon request furnish the Issuer with a notice of
cancellation signed by an authorized officer of the Registrar confirming the
cancellation of such Notes and the corresponding reduction of the relevant
Global Note(s).
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7. DUTIES OF THE REGISTRAR
7.1 The Registrar shall maintain the Register in London in accordance with
the Conditions. The Register shall show the aggregate amount of Notes
represented by each Global Note at the date of issue and all subsequent
transfers and exchanges involving a change in such amounts and the names and
addresses of the registered holders (each a "PAYEE"). On the first Business Day
after the Record Date for any interest payment on the Notes, the Registrar shall
send payment details in respect of the Payees and the Euros accounts to which
transfers should be made to the Fiscal Agent.
7.2 Transfers or exchanges of Notes will be made in accordance with the
Conditions, the procedures established for this purpose between Euroclear,
Clearstream, DTC and the Registrar, and Euroclear, Clearstream and DTC's
regulations applicable to such transfers or exchanges. Any such transfer or
exchange which results in a change in the aggregate principal amount of Notes
held by Euroclear, Clearstream and DTC shall be notified by Euroclear,
Clearstream and DTC to the Registrar. The Registrar shall promptly enter details
of the transfer or exchange in the Register, which entry shall, without further
action, cause the aggregate principal amount represented by each Global Note to
be amended accordingly.
7.3 The Registrar shall at all reasonable times during office hours make
the Register available to the Issuer and the Fiscal Agent or any person
authorised by either of them for inspection and for the taking of copies thereof
or extracts therefrom, and the Registrar shall deliver to such persons such
information contained in the Register or relating to the Notes as they may
reasonably request.
8. DUTIES OF THE TRANSFER AGENT
If and to the extent so specified by the Conditions and in accordance therewith,
or if otherwise requested by the Issuer, the Transfer Agent shall make available
all relevant forms of transfer, inform the Registrar of the name and address of
the relevant person to be inserted in the Register and carry out such other acts
as may be necessary to give effect to the Conditions and this Agreement.
9. PAYMENTS TO DTC NOTEHOLDERS
9.1 All amounts of principal and interest due in respect of the Notes which
are represented by the DTC Global Note (each a "DTC AMOUNT") shall be paid in
U.S. dollars (each such payment being referred to herein as a "U.S. DOLLAR
PAYMENT"), unless DTC has advised the Fiscal Agent that the relevant Noteholder
has made an effective election to receive all or a portion of its payment in
Euros outside DTC (each a "EUROS PAYMENT").
9.2 The Paying Agent shall, from each DTC Amount received by it, make U.S.
Dollar Payments in accordance with the Conditions and Euros Payments in
accordance with the Conditions.
10. DUTIES OF EXCHANGE AGENT
For the purposes of this Clause 10, a "payment date" shall be each date
on which the Issuer is obligated to remit funds to the Fiscal Agent
pursuant to Clause 4.1.
The Exchange Agent shall:
(i) accept Euros by remittance to an account maintained by the Exchange
Agent of the total amount of interest or principal due on any payment
date on Notes held by Cede & Co. (as nominee of DTC) on the Record
Date. The Exchange Agent shall be advised by Cede & Co. (as nominee of
DTC) if any beneficial holders of the Notes held by Cede & Co. (as
nominee of DTC) have elected to receive payment in Euros and, if so,
the amount of Notes held by such holders and the accounts to which such
payments in Euros are to be wired. On the payment date, the Exchange
Agent shall wire payment in the appropriate Euro amounts to the
accounts indicated. The remainder on such payment date shall be
exchanged by the Exchange Agent pursuant to sub-clause (ii) below into
U.S. dollars and, after deduction of any costs relating to such
exchange, shall be paid to Cede & Co. (as nominee of DTC) on the
payment date; and
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(ii) at or prior to 11:00 a.m., London time, on the second London business
day preceding the applicable payment date, enter into a contract for
the purchase of U.S. dollars with the Specified Amount of Euros for
settlement on such payment date. "SPECIFIED AMOUNT" shall mean the
aggregate amount of Euros payable to all Noteholders holding Notes
through participants of DTC that have not elected to receive payments
in Euros. The amount of U.S. dollars payable in respect of a particular
payment under the DTC Global Note will be equal to the amount of Euros
otherwise payable exchanged into U.S. dollars at the Euro/U.S.$
exchange rate prevailing as at 11:00 a.m. (London time) on the second
London business day prior to the relevant payment date, less any costs
incurred by the Exchange Agent for such conversion (such costs to be
shared pro rata among holders under the DTC Global Note accepting U.S.
dollar payments in proportion of their respective holdings). If an
exchange rate bid quotation is not so available, the Exchange Agent
shall obtain a bid quotation from a leading foreign exchange bank in
London selected by the Exchange Agent after consultation with the
Issuer. If no bid quotation is so available, payment will be made in
Euros to the account or accounts specified by DTC to the Exchange
Agent. In this sub-clause (ii), the term "London business day" shall
mean any day on which commercial banks and foreign exchange markets
settle payments in New York City and London.
11. CONDITIONS OF APPOINTMENT
11.1 The Issuer will pay to the Agents a remuneration for all services
rendered hereunder by the Agents in connection with the Notes together with any
expenses incurred as separately agreed upon by the Agents and the Issuer.
11.2 The Issuer will indemnify and hold harmless each of the Agents against
any loss, liability or expense which it may incur or any claim, action or demand
which may be made against it resulting from the negligence or wilful misconduct
on the part of the Issuer (or its officers, employees or agents (other than the
Agents and their officers, employees, and agents)) and arising out of or in
connection with such Agent's appointment or the exercise of its powers and
duties hereunder without negligence or wilful misconduct on the part of such
Agent.
11.3 Each Agent will indemnify and hold harmless the Issuer against any
loss, liability or expense incurred by the Issuer or any claim, action or demand
which may be made against the Issuer resulting from the negligence or wilful
misconduct on the part of such Agent (or such Agent's officers, employees or
agents) and arising out of or in connection with such Agent's duties hereunder.
Notwithstanding the foregoing, under no circumstances will any Agent be liable
to the Issuer or any other person for any consequential loss (being loss of
business, goodwill, opportunity or profit) even if advised to the possibility of
such loss or damages.
11.4 The indemnities above shall survive the termination or expiry of this
Agreement.
11.5 Each of the Agents shall be protected and shall incur no liability for
or in respect of any action taken, omitted or suffered in reliance upon any
instruction or communication from the Issuer or any document reasonably believed
by it to be genuine and to have been delivered, signed or sent by the proper
party or parties in accordance with the provisions hereof, except such as may
result from its own negligence or wilful misconduct or that of its officers,
employees or agents.
11.6 In acting hereunder and in connection with the Notes, the Agents do not
assume any relationship of agency and trust for the Noteholders, and shall not
have any obligation towards them except that all funds held by the Fiscal Agent
for payment of principal of or interest on the Notes shall be held exclusively
for the benefit of and for payment to the Noteholders and shall be applied as
set forth herein and in the Conditions. Except as otherwise required by
applicable law, no Agent will be required to segregate any funds held by it
hereunder from any of its other funds.
11.7 Nothing herein shall be deemed to require any Agent to advance its own
funds in the performance of its duties hereunder.
11.8 The Agents may consult with legal and other professional advisers
selected in good faith and satisfactory to them and the opinion of such advisers
shall be full and complete protection in respect of
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any action taken, omitted or suffered hereunder in good faith and without
negligence and in accordance with the opinion of such advisers.
11.9 The Agents shall be obliged to perform such duties and only such duties
as are herein specifically set forth, and no implied duties or obligations shall
be read into this Agreement against the Agents. No Agent shall be under any
obligation to take any action hereunder which it expects will result in any
expense or liability of such Agent, the payment of which within a reasonable
time is not, in its opinion, assured to it. The obligations of the Agents
hereunder are several and not joint.
11.10 The Agents, their affiliates and their respective officers and
employees, in their individual or any other capacity, may become the owner of,
or acquire any interest in, any Notes with the same rights that the Agents would
have it they were not the Agents hereunder.
12. CHANGE IN AGENTS
12.1 Each of the Fiscal Agent, Registrar, Exchange Agent, Paying Agent and
Transfer Agent in its capacity as such may be removed at any time by the giving
to it of at least 30 days' written notice to that effect signed on behalf of the
Issuer specifying the date on which such removal shall become effective. Each of
the Fiscal Agent, Registrar, Exchange Agent, Paying Agent and Transfer Agent may
at any time resign by giving at least 30 days' written notice (unless the Issuer
agrees to accept less notice) to that effect to the Issuer specifying the date
on which such resignation shall become effective. Notwithstanding the foregoing,
no such resignation or removal shall take effect within 30 days before or after
any due date for payment of any Notes or before a new Fiscal Agent, Registrar,
Exchange Agent, Paying Agent and Transfer Agent, as the case may be, shall have
been appointed by the Issuer as hereinafter provided, and such new Agent shall
have accepted such appointment. Any change in any Agent shall be notified by the
Issuer to the other Agent(s).
12.2 The Issuer agrees with the Fiscal Agent that if, by the day falling 10
days before the expiry of any notice under Clause 12.1 above, the Issuer has not
appointed a replacement Fiscal Agent, then the Fiscal Agent shall be entitled,
on behalf of the Issuer, to appoint in its place any reputable financial
institution of good standing and the Issuer shall not unreasonably object to
such appointment.
12.3 Upon the effectiveness of the appointment of any successor Fiscal
Agent, Registrar, Exchange Agent, Paying Agent and Transfer Agent, as the case
may be, pursuant to Clause 12.1, the Fiscal Agent, Registrar, Exchange Agent,
Paying Agent and Transfer Agent so removed shall cease to be a Fiscal Agent,
Registrar, Exchange Agent, Paying Agent and Transfer Agent, as the case may be,
hereunder. Prior to the effectiveness of such appointment, the Fiscal Agent,
Registrar, Exchange Agent, Paying Agent and Transfer Agent shall hold all moneys
deposited with it or held by it hereunder in respect of the Notes to the order
of the respective successor Fiscal Agent, Registrar, Exchange Agent, Paying
Agent and Transfer Agent.
13. NOTICES
Notices shall be in writing (including by facsimile) and addressed to the
relevant party hereto as follows:
(a) If to the Issuer:
Citigroup Inc.
153 East 53rd Street
New York, New York 10043
Attention: Treasury Department
Telephone: 212-559-3553
Telefax: 212-793-5629
(b) If to the Fiscal Agent, Registrar and Exchange Agent:
Citibank, N.A.
P.O. Box 18055
8
5 Carmelite Street
London EC4Y 0PA
Attn: Agency & Trust, Bond Desk
Telefax: 44-020-7508-3878
(c) If to the Paying Agent:
Dexia Banque Internationale a Luxembourg, societe anonyme
69, route d'Esch
L-2953 Luxembourg
Telephone: 352-45-90-1
Telefax: 352-45-90-42-27
or at any other address of which any of the foregoing shall have notified the
others, and shall be deemed to have been given when received by the relevant
party.
14. APPLICABLE LAW, PLACE OF JURISDICTION
14.1 This Agreement shall be subject to New York law.
14.2 The non-exclusive place for all proceedings arising out of this
agreement shall be New York.
15. MISCELLANEOUS
15.1 The Fiscal Agent agrees to perform its obligations hereunder through
its London Branch to the extent that this is necessary or appropriate in order
to make payments to DTC or DTC Participants in accordance with the Conditions.
15.2 The Fiscal Agent shall promptly advise the Issuer of any notice,
including any notice declaring Notes due, which it may receive pursuant to the
Conditions.
15.3 Should any of the provisions of this Agreement be or become invalid, in
whole or in part, the other provisions of this Agreement shall remain in force.
Invalid provisions shall, according to the intent and purpose of this Agreement,
be replaced by such valid provisions which in their economic effect come as
close as legally possible to that of the invalid provisions.
15.4 This Agreement may be signed in two counterparts.
15.5 Terms not defined in this Agreement shall have the meanings ascribed to
them in the Underwriting Agreement or the Conditions, as the case may be.
15.6 If there is any conflict between the terms of this Agreement and the
terms of the Indenture, the terms of the Indenture shall control.
15.7 The provisions of the United States Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), shall be incorporated by reference herein
to the extent applicable. Each of the Agents agrees to abide by the Trust
Indenture Act, to the extent applicable in the performance of their respective
duties hereunder. If there is any conflict between the terms of this Agreement
and the Trust Indenture Act, the provisions of the Trust Indenture Act shall
govern to the extent of such conflict.
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This Agreement has been entered into effective the date stated at the beginning
hereof.
CITIGROUP INC.
/s/ Eric Wentzel
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Eric Wentzel, Assistant Treasurer
CITIBANK, N.A.
/s/ Jillian Hamblin
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Jillian Hamblin, Vice President
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG, SOCIETE ANONYME
/s/ Pierre-Francois Henrion /s/ Jean-Jacques Kinnen
- ------------------------------------ --------------------------------
Pierre-Francois Henrion Jean-Jacques Kinnen
Assistant Vice President