EXECUTION VERSION
CITIGROUP FUNDING INC.
Retail Medium-Term Notes, Series F
GLOBAL SELLING AGENCY AGREEMENT
April 13, 2006
New York, New York
To the Agents listed on Schedule I hereto
Ladies and Gentlemen:
Citigroup Funding Inc., a Delaware corporation (the "Company") and
Citigroup Inc., a Delaware corporation (the "Guarantor"), confirm their
agreement with each of you with respect to the issue and sale by the Company of
its Retail Medium-Term Notes, Series F in registered form (the "Notes"), which
Notes are fully and unconditionally guaranteed (the "Guarantee") by the
Guarantor.
The Notes will be issued under an indenture (the "Senior Debt Indenture")
dated as of June 1, 2005, among the Company, the Guarantor, and JPMorgan Chase
Bank, N.A., as trustee (the "Trustee"). Unless otherwise specifically provided
for and set forth in the applicable Pricing Supplement (as defined below), the
Notes will be issued in minimum denominations of $1,000 and in denominations
exceeding such amount by integral multiples of $1,000 and will be issued only in
fully registered form, and the Notes will have the interest rates, maturities,
redemption provisions and other terms set forth in the applicable Pricing
Supplement.
The Notes will be issued, and the terms thereof established, in accordance
with the Senior Debt Indenture and the Retail Medium-Term Notes, Series F
Administrative Procedures attached hereto as Exhibit A (the "Administrative
Procedures") (unless a Terms Agreement (as defined in Section 2(b)) modifies or
otherwise supersedes such Administrative Procedures with respect to the Notes
issued pursuant to such Terms Agreement). The Administrative Procedures may only
be amended by written agreement of the Company, the Guarantor and Citigroup
Global Markets Inc., as purchasing agent (the "Purchasing Agent"), on behalf of
the Agents, after notice to, and with the approval of, the Trustee.
For purposes of this Agreement, the term "Agent" shall refer to any one of
you and to any additional agents appointed as a party to this Agreement pursuant
to Section 2(d) hereof; and the term "you" shall refer to you and any other
Agent collectively. In acting under this Agreement, each of you is acting
individually and not jointly.
Any reference herein to the Registration Statement, the Base Prospectus,
the Prospectus Supplement or any Pricing Supplement (each, as defined below)
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act
of 1934 (the "Exchange Act") on or before the most recent date and time that the
Registration Statement, any post-effective amendment or amendments thereto
became or become effective (the "Effective Date") or the issue date of the Base
Prospectus, the Prospectus Supplement or any Pricing Supplement, as the case may
be; and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Base Prospectus, the Prospectus
Supplement or any Pricing Supplement shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, the Prospectus
Supplement or any Pricing Supplement, as the case may be, deemed to be
incorporated therein by reference.
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) The Company and the Guarantor meet the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Securities Act") and have prepared
and filed with the Securities and Exchange Commission (the "Commission") an
automatic shelf registration statement, as defined in Rule 405, (File No.
333-132370), including a related base prospectus dated March 10, 2006 (the "Base
Prospectus") and a form of prospectus supplement relating to the Notes, for
registration under the Securities Act of the offering and sale of the Notes.
Such automatic shelf registration statement, including exhibits and financial
statements but excluding all Forms T-1, and any prospectus supplement or pricing
supplement relating to the Notes that is filed with the Commission pursuant to
Rule 424(b) and deemed part of such automatic shelf registration statement
pursuant to Rule 430B, as amended on each Effective Date is referred to herein
as the "Registration Statement". Such Registration Statement, including any
amendments thereto filed prior to the date of this Agreement, became effective
upon filing. The Company and the Guarantor will file with the Commission a final
prospectus supplement relating to the Notes in accordance with Rule 424(b) (the
"Prospectus Supplement", which together with the Base Prospectus is referred to
herein as the "Prospectus"). As filed, such Prospectus Supplement shall contain
all information required by the Act and the rules thereunder, and, except to the
extent the Agents shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the date of this
Agreement, shall contain only such specific additional information and other
changes (beyond that contained in the Base Prospectus) as the Company and has
advised you, prior to the date of this Agreement, will be included therein;
provided that the terms of a particular offering of the Notes will be set forth
in a supplement to the Prospectus Supplement (a "Pricing Supplement") which the
Company and the Guarantor will file with the Commission in accordance with Rule
424(b). The Registration Statement, as of the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the
Registration Statement was not earlier than the date three years before the date
of this Agreement;
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and incorporated by
reference in the Prospectus, or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder;
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(c) On each Effective Date, the Registration Statement did, and when the
Prospectus Supplement is first filed in accordance with Rule 424(b) and on the
Commencement Date (as defined in Section 2(b) below) and on the date of delivery
of and payment for a particular issue of Notes as specified in the related Terms
Agreement (as defined in Section 2(b) below) (the "Settlement Date"), the
Prospectus Supplement (and any supplement thereto) will comply in all material
respects with the applicable requirements of the Securities Act, the Exchange
Act and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder; on each Effective Date and at the time sales of a
particular offering of the Notes are confirmed (the "Time of Sale"), the
Registration Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and on the
Effective Date, on the Commencement Date and on the Settlement Date the
Indenture did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; on the date of
any filing pursuant to Rule 424(b), on the Commencement Date and on the
Settlement Date, the Prospectus (and any supplement thereto)will not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company and
the Guarantor make no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii)
the information contained in or omitted from the Registration Statement or the
Prospectus Supplement or applicable Pricing Supplement in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Agent through the Purchasing Agent specifically for inclusion in the
Registration Statement or Prospectus (and any supplement thereto):
(d) As of the Time of Sale, the Disclosure Package (as defined below),
when taken together with the specific pricing terms of the Notes set forth in
the applicable Pricing Supplement, does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Agent through the Purchasing Agent
specifically for use therein. The "Disclosure Package" means (i) the Base
Prospectus, as amended and supplemented most recently prior to the Time of Sale,
(ii) the Prospectus Supplement, (iii) the related preliminary Pricing
Supplement, if any, used most recently prior to the Time of Sale and (iv) any
applicable issuer free writing prospectus, as defined in Rule 433 under the Act
(each an "Issuer Free Writing Prospectus"), filed with the Commission under Rule
433 prior to the Time of Sale;
(e) (i) At the time of filing the Registration Statement, (ii) at the time
of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the
Exchange Act or form of prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Notes in reliance on the exemption in Rule 163
and (iv) at the Time of Sale (with such time being used as the determination
date for
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purposes of this clause (iv)), each of the Company and the Guarantor was or is
(as the case may be) a "well-known seasoned issuer" as defined in Rule 405. The
Company agrees to pay the fees required by the Commission relating to the Notes
within the time required by Rule 456(b)(1) without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r);
(f) (i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the
Time of Sale (with such time being used as the determination date for purposes
of this clause (ii)), neither the Company nor the Guarantor was and is an
Ineligible Issuer (as defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company or the Guarantor be considered an Ineligible Issuer;
(g) Each Issuer Free Writing Prospectus does not include any information
that conflicts with the information contained in the Registration Statement,
including any document incorporated therein and any prospectus supplement or
pricing supplement deemed to be a part thereof that has not been superseded or
modified. The foregoing two sentences do not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Agent through the Purchasing Agent
specifically for use therein;
(h) The Notes have been duly authorized and, when executed and
authenticated in accordance with the Senior Debt Indenture and delivered to and
duly paid for by the purchasers thereof, will constitute valid and binding
obligations of the Company, enforceable in accordance with their respective
terms and entitled to the benefits of the Senior Debt Indenture (subject, as to
enforcement, to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity regardless of whether such enforceability is considered in
a proceeding in equity or at law); the Senior Debt Indenture has been duly
authorized by the Company and qualified under the Trust Indenture Act; and the
Senior Debt Indenture conforms to the descriptions thereof in the Prospectus as
amended or supplemented to relate to such issuance of Notes;
(i) The Guarantees have been duly authorized and, when the Notes have been
executed, authenticated and delivered in accordance with the Senior Debt
Indenture, will constitute valid and binding obligations of the Guarantor,
enforceable in accordance with their terms and entitled to the benefits of the
Senior Debt Indenture; and
(j) Since the date of the most recent financial statements included in the
Prospectus or the Disclosure Package, each 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 or the Disclosure Package, each as
amended or supplemented.
2. Appointment of Agents. Subject to the terms and conditions stated
herein, the Company hereby (i) appoints and authorizes the Agents to act as its
agents to solicit offers for the purchase of all or part of the Notes from the
Company in accordance with the terms hereof
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and (ii) agrees that whenever the Company determines from time to time to sell
Notes pursuant to this Agreement, it will enter into a Terms Agreement (as
defined below) relating to such sale in accordance with the provisions of
Section 2(b) hereof between the Company and the Purchasing Agent, with the
Purchasing Agent purchasing such Notes as principal for resale to other Agents
or other dealers (the "Selected Dealers"), each of whom will purchase as
principal.
(a) Solicitations of Offers to Purchase Notes. Following the Commencement
Date (defined below), the Company shall notify the Purchasing Agent from time to
time as to the commencement of a period during which the Notes may be offered
and sold by the Agents (each period, commencing with such a notification and
ending at such time as the authorization for offers and sales through the Agents
shall have been suspended by the Company or the Agents as provided hereunder,
being herein referred to as an "Offering Period"). The initial Offering Period
shall begin on April 13, 2006 (the "Commencement Date"). On the basis of the
representations and warranties, and subject to the terms and conditions set
forth herein, each of the Agents agrees to use its reasonable best efforts to
solicit offers to purchase Notes from the Company upon the terms and conditions
set forth in the applicable Prospectus (and any supplement thereto) and in the
Administrative Procedures. The Purchasing Agent shall communicate to the
Company, orally or in writing, each reasonable offer or indication of interest
to purchase Notes received by each Agent. The Company shall have the sole right
to accept offers to purchase the Notes and may reject any such offer in whole or
in part. Each Agent shall have the right to reject, in its discretion reasonably
exercised, any offer received by it to purchase the Notes, in whole or in part,
and any such rejection shall not be deemed a breach of its agreements contained
herein. In soliciting offers to purchase the Notes, no Agent assumes any
obligation toward or relationship of agency or trust with any purchaser of the
Notes (other than any such obligation or relationship which the Agent assumes
independently of this Agreement). Each Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company.
Except as provided in Section 2(b) and Section 2(c) below, under no
circumstances will any Agent be obligated to purchase any Notes for its own
account. It is understood and agreed, however, that any of you may purchase
Notes as principal pursuant to Section 2(b) and Section 2(c) below, as
applicable.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of instructions from the
Company, the Agents will forthwith suspend solicitation of offers to purchase
Notes from the Company until such time as the Company has advised them that such
solicitation may be resumed.
Subject to the provisions of this Section 2 and to the Administrative
Procedures, as applicable, offers for the purchase of Notes may be solicited by
an Agent at such time and in such amounts as such Agent shall deem advisable.
The Company may from time to time offer Notes for sale otherwise than through an
Agent; provided, however, that so long as this Agreement is in effect the
Company shall not solicit or accept offers to purchase Notes through any agent
other than an Agent.
If the Company defaults in its obligations to deliver Notes to a purchaser
whose offer it has accepted, the Company and the Guarantor, shall indemnify and
hold each of you
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harmless against any loss, claim or damage arising from or as a result of such
default by the Company.
(b) Purchases of Notes. Subject to the terms and conditions stated herein,
each sale of Notes shall be made in accordance with the terms of this Agreement
and a supplemental agreement between the Company and the Purchasing Agent which
will provide for the sale of such Notes to, and the purchase of and reoffering
thereof by, the Purchasing Agent, as principal. Each such supplemental agreement
(which may be either an oral or written agreement) is herein referred to as a
"Terms Agreement". Each Terms Agreement shall describe the Notes to be purchased
by the Purchasing Agent pursuant thereto and shall specify the terms of the
offered Notes. A Terms Agreement may also specify certain provisions relating to
the reoffering of such Notes by the Purchasing Agent. Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The Purchasing
Agent's commitment to purchase Notes shall be deemed to have been made on the
basis of the representations and warranties of the Company and the Guarantor
herein contained and shall be subject to the terms and conditions herein set
forth.
Delivery of the Notes sold to the Purchasing Agent pursuant to a Terms
Agreement shall be made not later than the Settlement Date agreed to in such
Terms Agreement, against payment of funds to the Company in the net amount due
to the Company for such Notes by the method and in the form set forth in the
Administrative Procedures, as applicable, unless otherwise agreed to between the
Company and the Purchasing Agent in such Terms Agreement.
The Company agrees to pay the Purchasing Agent a commission on the
Settlement Date with respect to each sale of Notes by the Company as a result of
solicitations made by the Agents, in an amount equal to that percentage
specified in Schedule II hereto of the aggregate principal amount of the Notes
sold by the Company; provided, however, that the Company and the Purchasing
Agent may agree to a commission greater than or less than the percentages
specified in Schedule II hereto; and provided, further, that in no case shall
the commission exceed 8% of the initial offering proceeds. Such commission shall
be payable as specified in the Administrative Procedures, and the actual
aggregate commission with respect to each sale of Notes will be set forth in the
relevant Pricing Supplement. The Purchasing Agent and the other Agents or
Selected Dealers will share the above-mentioned commission in such proportions
as they may agree.
Unless otherwise agreed to between the Company and the Purchasing Agent in
a Terms Agreement, any Note sold to the Purchasing Agent (i) shall be purchased
by the Purchasing Agent at a price equal to 100% of the principal amount thereof
less a percentage equal to the applicable commission and (ii) may be resold by
the Purchasing Agent to other Agents or Selected Dealers, each of whom will
purchase as principal for resale to the public at a fixed public offering price
which shall be set forth in the applicable Terms Agreement and Pricing
Supplement. In connection with any resale of Notes purchased, without the
consent of the Company or unless otherwise set forth in the applicable Terms
Agreement, the Agents are not authorized to appoint subagents or to engage the
services of any other broker or dealer or to reallow any portion of the
commission paid to such Agent.
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(c) Unless otherwise agreed to by the Purchasing Agent, each Agent shall
purchase from the Purchasing Agent as principal for resale to the public such
aggregate principal amount of Notes with respect to which it has communicated
offers to purchase to the Purchasing Agent (the "Commitment Amount"). The
agreement of each Agent to purchase Notes from the Purchasing Agent shall be
deemed to be made on the basis of the representations, warranties and agreements
of the Company herein contained and shall be subject to the terms and conditions
herein set forth. Each Agent agrees to pay to the Purchasing Agent on the
Settlement Date (or on such later date as may be specified by the Purchasing
Agent) (i) an amount equal to the Offering Price, less the applicable commission
in respect of such Agent's Commitment Amount or (ii) such other amount as the
Purchasing Agent shall advise such Agent to or upon the order of the Purchasing
Agent by wire transfer payable in same-day funds to an account specified by the
Purchasing Agent. The Purchasing Agent will make payment to the Company against
delivery to the Purchasing Agent for each Agent's account of the Notes to be
purchased by each Agent, and the Purchasing Agent will deliver to each Agent the
Notes paid for by such Agent. If the Purchasing Agent has determined that
transactions in the Notes are to be settled through the facilities of The
Depository Trust Company or another clearinghouse facility, payment for and
delivery of Notes purchased by each Agent shall be made through such facilities,
if such Agent is a member, or, if such Agent is not a member, settlement shall
be made through such Agent's ordinary correspondent who is a member.
(d) Additional Agents. Notwithstanding paragraphs 2(a), 2(b) or 2(c)
above, the Company may from time to time appoint one or more additional
financial institutions experienced in the distribution of securities as an Agent
under this Agreement, for the duration of this Agreement (subject to Section 7
hereof) or on an issue by issue basis, pursuant to a letter (an "Agent Accession
Confirmation") substantially in the form of Exhibit C to this Agreement;
provided that any such additional party shall have first requested appointment
as such upon the terms and conditions of this Agreement in writing to the
Company pursuant to a letter (an "Agent Accession Letter") substantially in the
form of Exhibit D to this Agreement whereupon it shall, subject to the terms and
conditions of this Agreement, the Agent Accession Letter and the Agent Accession
Confirmation, become a party to this Agreement as an Agent, vested with all the
authority, rights and powers and subject to all the duties and obligations of an
Agent as if originally named as an Agent hereunder. The Company shall promptly
notify the Guarantor, the Trustee and the other Agents of any such appointment,
but only in the event that any such additional Agent is appointed for the
duration of this Agreement.
(e) Each Agent acknowledges and agrees, with respect to communications in
accordance with the Administrative Procedures via https://newissue.i-deal.com,
or such other website as may be from time to time maintained for use in
connection with the Notes (the "Notes Website"), (i) that it is responsible for
maintaining the confidentiality of the log-on and password it uses to access the
Notes Website, (ii) that it is fully responsible for all activities that occur
using its log-on and password, (iii) to notify the Company, the Guarantor and
the Purchasing Agent immediately of any unauthorized use of its log-on or
password or any other breach of security and (iv) that it will not use the
log-on or password of any other person at any time.
(f) Each Agent represents that it is a broker-dealer registered under the
Exchange Act.
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3. Offering and Sale of Notes. The Purchasing Agent, the other Agents and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Administrative Procedures, as the case
may be.
4. Agreements. (A) The Company and the Guarantor agree with each of you
that:
(a) At any time during an Offering Period or during the time a prospectus
relating to the Notes is required to be delivered under the Act, prior to
amending or supplementing either Registration Statement or the Prospectus, the
Company and the Guarantor will furnish the Purchasing Agent and Cleary Gottlieb
Steen & Hamilton LLP, counsel to the Agents, with a copy of each proposed
amendment or supplement (other than an amendment or supplement to be made
pursuant to incorporation by reference of a document filed under the Exchange
Act, or a Pricing Supplement or an amendment or supplement relating solely to an
offering of securities other than the Notes) and will not file any such proposed
amendment or supplement to which they reasonably object. The Company and the
Guarantor will promptly cause the Prospectus together with each amendment
thereof or supplement thereto to be filed with the Commission pursuant to Rule
424(b). 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 Securities Act and the Exchange Act. At any
time during an Offering Period or during the time a prospectus relating to the
Notes is required to be delivered under the 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 of any amendment to the Registration Statement, (iii) the receipt by the
Company or the Guarantor of comments from the Commission relating to or requests
by the Commission for any amendment of the Registration Statement or any
amendment of or supplement to the Prospectus or for any additional information,
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice objecting to its
use or the institution or threatening of any proceeding for that purpose and (v)
the receipt by the Company or the Guarantor of any notification with respect to
the suspension of the qualification of the Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose. The Company
and the Guarantor will use their reasonable best efforts to prevent the issuance
of any such stop order or the occurrence of any such suspension or objection to
the use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop
order or relief from such occurrence or objection, including, if necessary, by
filing an amendment to the Registration Statement or a new registration
statement and using their best efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b) If, at any time prior to the filing of the related Pricing Supplement
pursuant to Rule 424(b), any event occurs as a result of which the Disclosure
Package would include any untrue statement of a material fact or omit to state
any material fact necessary to
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make the statements therein in the light of the circumstances under which they
were made at such time not misleading, the Company and the Guarantor will (1)
notify promptly each Agent so that any use of the Disclosure Package may cease
until it is amended or supplemented; (2) amend or supplement the Disclosure
Package to correct such statement or omission; and (3) supply any amendment or
supplement to each Agent in such quantities as such Agent may reasonably
request.
(c) Within the time during which a prospectus relating to the Notes is
required to be delivered under the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), the Company and the
Guarantor will comply with all requirements imposed upon them by the Securities
Act, as now and hereafter amended, and by the rules and regulations of the
Commission thereunder, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Notes as contemplated by
the provisions hereof and the 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 or file a new registration statement to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder, the Company and the Guarantor promptly will notify each Agent to
suspend the solicitation of offers to purchase the Notes and to cease sales of
any Notes and, to the extent required under the provision in the last sentence
of this subsection (b), the Company and the Guarantor promptly will amend or
supplement the Registration Statement or the Prospectus or file a new
registration statement (at the expense of the Company and the Guarantor ) so as
to correct such statement or omission or effect such compliance and will use
their best efforts to have any amendment to the Registration Statement or new
registration statement declared effective as soon as practicable in order to
avoid any disruption in use of the Prospectus (and any supplements thereto). If
such amendment or supplement, and any documents, certificates, opinions and
letters furnished to the Agents pursuant to subsections (k), (l) and (m) of this
Section 4(A) in connection with the preparation and filing of such amendment or
supplement, are reasonably satisfactory in all respects to the Purchasing Agent,
in its sole discretion, upon the filing of such amendment or supplement with the
Commission or effectiveness of an amendment to the Registration Statement, the
Agents will resume solicitation of offers to purchase Notes hereunder.
Notwithstanding the foregoing, neither the Company nor the Guarantor shall be
required to comply with the provisions of subsection (b) of this Section 4(A)
during any period from the time any Agent shall have been notified to suspend
the solicitation of offers to purchase the Notes in its capacity as Agent
(whether under this subparagraph (b) or otherwise under this Agreement) to the
time the Company shall determine that solicitation of offers to purchase the
Notes should be resumed; provided that if any Agent holds any Notes purchased as
principal pursuant to a Terms Agreement or from the Purchasing Agent, the
Company and the Guarantor shall comply with the provisions of subsection (b) of
this Section 4(A) during the period when a Prospectus is required to be
delivered pursuant to the Act.
(d) The Guarantor will comply, in a timely manner, with all applicable
requirements under the Exchange Act relating to the filing with the Commission
of the Guarantor's reports pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act and, if then applicable, of the Guarantor's proxy statements
pursuant to Section 14 of the Exchange Act.
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(e) The Company and the Guarantor will use their best efforts to qualify
the Notes for sale under the securities laws of such jurisdictions as any Agent
reasonably designates, to maintain such qualifications in effect so long as
required for the distribution of the Notes, except that neither the Company nor
the Guarantor shall be required in connection therewith to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) Upon request, the Company and the Guarantor will furnish to the
Purchasing Agent and counsel for the Agents, without charge, signed copies of
the Registration Statement (including exhibits thereto) and the Prospectus and
to each other Agent a copy of the Registration Statement (without exhibits
thereto) and the Prospectus and, so long as delivery of a prospectus by an Agent
may be required by the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), as many copies of each preliminary and
final Pricing Supplement and each Issuer Free Writing Prospectus and any
supplement thereto as each Agent may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating to each
offering that are required to be prepared, furnished or delivered by it.
(g) (i) Each of the Company and the Guarantor agrees that, unless it has
obtained or will obtain, as the case may be, the prior written consent of the
Purchasing Agent, and (ii) each Agent, severally and not jointly, agrees with
the Company and the Guarantor that, unless it has obtained or will obtain, as
the case may be, the prior written consent of the Company and the Guarantor, it
has not made and will not make any offer relating to the Notes that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a "free writing prospectus" (as defined in Rule 405) required to be filed by the
Company or the Guarantor with the Commission or retained by the Company or the
Guarantor under Rule 433; provided that the prior written consent of the parties
hereto shall be deemed to have been given in respect of the Free Writing
Prospectuses, if any, included as a schedule to the applicable Terms Agreement.
Any such free writing prospectus consented to by the Purchasing Agent or the
Company and the Guarantor is hereinafter referred to as a "Permitted Free
Writing Prospectus." Each of the Company and the Guarantor agrees that (x) it
has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
(h) So long as any of the Notes are outstanding, the Guarantor agrees to
furnish to each Agent, upon its reasonable request, as soon as available, all
reports and financial statements filed by or on behalf of the Guarantor with the
Commission or any national securities exchange. The Guarantor shall be deemed to
have furnished such information to such Agent if (i) such reports and financial
statements are generally available on, and can be printed and/or downloaded
from, the Securities and Exchange Commission's internet website, www.sec.gov (or
any other website of which the Guarantor notifies such Agent), and (ii) such
Agent has been notified by the Guarantor that such reports and financial
statements have been filed with the Securities and Exchange Commission.
10
(i) The Company and the Guarantor shall, whether or not any sale of Notes
is consummated or this Agreement is terminated, pay all expenses incident to the
performance of their obligations under this Agreement and under any Terms
Agreement, including, without limitation, the fees and disbursements of its
accountants and counsel; the cost of printing (or other production) and delivery
of the Registration Statement, the Prospectus, any Pricing Supplement or Issuer
Free Writing Prospectus, all amendments thereof and supplements thereto, the
Senior Debt Indenture, and all other documents relating to the offering; the
cost of preparing, printing, packaging and delivering the Notes; the fees and
disbursements (including reasonable fees of counsel) incurred in connection with
the qualification of the Notes for sale and determination of eligibility for
investment of the Notes under the securities or blue sky laws of such
jurisdictions as any Agent may reasonably designate; the fees and disbursements
of the Trustee; the fees of any agency that rates the Notes, the fees and
expenses incurred with respect to any filing with the National Association of
Securities Dealers, Inc.; the reasonable fees and disbursements of Cleary
Gottlieb Steen & Hamilton LLP, as counsel for the Agents, or other counsel for
the Company and/or the Guarantor reasonably satisfactory to the Purchasing
Agent, the Company and the Guarantor; and such other expenses, including,
without limitation, advertising expenses as may be agreed upon by the Purchasing
Agent, the Company and the Guarantor; provided, however, that with respect to
any purchase of Notes by the Purchasing Agent pursuant to a Terms Agreement, the
fees and disbursements of Cleary Gottlieb Steen & Hamilton LLP or other counsel
to the Agents shall not be paid by either the Company or the Guarantor.
(j) 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 Pricing Supplement, any Issuer Free Writing Prospectus, any amendments
thereof or supplements thereto, the Senior Debt Indenture, the Notes, this
Agreement, the Administrative Procedures, any Terms Agreement and the
performance by the Company and the Guarantor of their obligations hereunder or
thereunder as any Agent may from time to time reasonably request. 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 Moody's 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).
(k) Each time the Registration Statement or the Prospectus is amended or
supplemented (other than by filing with the Commission: (i) a Pricing
Supplement, (ii) an amendment or supplement relating solely to an offering of
securities other than the Notes, (iii) a Current Report on Form 8-K (or any
successor item thereto), or (iv) any other amendment or supplement that the
Purchasing Agent reasonably deems immaterial), the Company and the Guarantor
will deliver or cause to be delivered forthwith to the Agents a certificate of
the Company and the Guarantor, signed by (A) on behalf of the Company, the
Chairman, the President or any Vice President and by the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary
and, (B) on behalf of the Guarantor, the Chairman, any Vice Chairman, any Vice
President, the principal financial officer, the General Counsel, the
11
Controller, any Deputy Controller or the principal accounting officer and by the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary (or
another officer or officers acceptable to the Purchasing Agent), dated the date
of the effectiveness of such amendment or the date of filing with the Commission
of such supplement or document, as the case may be, in form reasonably
satisfactory to the Purchasing Agent, to the effect that the statements
contained in the certificate referred to in Section 5(b) (iii) that was last
furnished to the Agents (either pursuant to Section 5(b) (iii) or pursuant to
this Section 4(A)(l)) are true and correct at the time of the effectiveness of
such amendment or the time of filing of such supplement or document, as the case
may be, as though made at and as of such time (except that such statements shall
be deemed to relate to the Registration Statement, as amended at the time of
effectiveness of such amendment, and to the Prospectus, as amended and
supplemented at the date of such certificate) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in Section
5(b) (iii) but modified, if necessary, to relate to the Registration Statement,
as amended at the time of the effectiveness of such amendment, and to the
Prospectus, as amended and supplemented at the date of such certificate.
(l) Each time the Registration Statement or the Prospectus is amended or
supplemented (other than by filing with the Commission: (i) a Pricing
Supplement, (ii) an amendment or supplement relating solely to an offering of
securities other than the Notes, (iii) a Current Report on Form 8-K (or any
successor item thereto), or (iv) any other amendment or supplement that the
Purchasing Agent reasonably deems immaterial), the Company and the Guarantor
shall furnish to or cause to be furnished forthwith to the Agents the written
opinion of the General Counsel, Finance and Capital Markets of the Guarantor, or
other counsel for the Company and/or the Guarantor reasonably satisfactory to
the Purchasing Agent, dated the date of the effectiveness of such amendment or
the date of filing with the Commission of such supplement or document, as the
case may be, in form reasonably satisfactory to the Purchasing Agent, to the
effect set forth in Exhibit F hereto. In lieu of such opinion, counsel last
furnishing such an opinion to the Agents may furnish to the Agents a letter to
the effect that the Agents may rely on such last opinion to the same extent as
though it were dated the date of such letter and authorizing reliance on such
last opinion (except that statements in such last opinion will be deemed to
relate to the Registration Statement, as amended at the time of the
effectiveness of such amendment, and to the Prospectus, as amended and
supplemented at the date of such letter).
(m) Each time that the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information
supplemented (other than by filing with the Commission: (i) a Pricing
Supplement, (ii) an amendment or supplement relating solely to an offering of
securities other than the Notes, (iii) a Current Report on Form 8-K (or any
successor item thereto), or (iv) any other amendment or supplement that the
Purchasing Agent reasonably deems immaterial), the Guarantor shall cause KPMG
LLP, Independent Registered Public Accounting Firm, forthwith to furnish the
Agents a letter, dated the date of the effectiveness of such amendment or the
date of filing of such supplement or document, as the case may be, in form
satisfactory to the Purchasing Agent, of the same tenor as the letter of such
independent public accountants referred to in Section 5(b)(iv) hereof but
modified to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Guarantor; provided, however, that if the
Registration Statement or the Prospectus is amended or
12
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.
(n) Each acceptance by the Company of an offer for the purchase of Notes
and each sale of Notes to the Purchasing Agent shall be deemed to be an
affirmation that the representations and warranties of the Company and the
Guarantor contained in or made pursuant to this Agreement are true and correct
in all material respects at the time of such acceptance or sale, as the case may
be, as though made at and as of such time, and an undertaking that such
representations and warranties will be true and correct in all material respects
at the time of delivery to the Purchasing Agent of the Notes relating to such
acceptance, as the case may be, as though made at and as of such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended and supplemented to each
such time).
(o) 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 and no Agent then holds any
Notes acquired by it as principal pursuant to a Terms Agreement or from the
Purchasing Agent, neither the Company nor the Guarantor shall be obligated to
furnish or cause to be furnished any notice, certificate, opinion or letter
otherwise required until such time as it shall determine that solicitation of
offers to purchase the Notes should be resumed; and provided, further, that,
prior to resuming such solicitation the Agents shall be entitled to receive any
such notices, certificates, opinions or letters not previously furnished,
accurate as of the date of such notice, certificate, opinion or letter.
5. Conditions to the Obligations of the Agents. The obligations of each
Agent under the terms of this Agreement will be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Company and the Guarantor herein contained, to the accuracy of the statements of
the officers of the Company and the Guarantor made in each certificate furnished
pursuant to the provisions hereof and to the performance and observance by the
Company and the Guarantor of all covenants and agreements herein contained on
their part to be performed and observed (in the case of any Agent's obligations
to solicit offers to purchase Notes, at the time of such solicitation, and, in
the case of any Agent's obligation to purchase Notes, at the time the Company
accepts the offer from the Purchasing Agent to purchase such Notes and at the
time of purchase by the Purchasing Agent) and (in each case) to the following
additional conditions precedent when and as specified:
(a) On the corresponding Settlement Date:
(i) The Prospectus, and any supplement thereto, have been filed in
the manner and within the time period required by Rule 424(b) and any
other material required to be filed by the Company pursuant to Rule
433(d), shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order
suspending the effectiveness of the Registration Statement or any notice
objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
13
(ii) There shall not have occurred any change, or any development
involving a prospective change, in or affecting the condition (financial
or otherwise), earnings, business or properties of the Company, the
Guarantor and their respective subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Disclosure Package and the
Prospectus and any final Pricing Supplement (exclusive of any supplement
thereto) the effect of which, in any case referred to above, is, in the
sole judgment of an Agent after consultation with the Company, so material
and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Notes as contemplated by the Prospectus, as
amended or supplemented, except as disclosed to the Agents in writing by
the Company and the Guarantor before the Company accepted the offer of the
Purchasing Agent to purchase such Notes.
(iii) There shall not have occurred any (x) suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of the Guarantor's common stock by the
Commission or the New York Stock Exchange, (y) declaration of a general
moratorium on commercial banking activities by either federal or New York
state authorities or exchange controls shall have been imposed by the
United States or (z) any outbreak or escalation of hostilities, any
declaration by the United States of war or national emergency or other
calamity or crisis the effect of which on financial markets is such to as
to make it, in the Purchasing Agent's sole judgment, after consultation
with the Company, impracticable or inadvisable to proceed with the
offering of the Notes as contemplated by the Prospectus, as amended or
supplemented, except for any such event occurring before the Company
accepted the offer of the Purchasing Agent to purchase such Notes.
(iv) There shall not have been any decrease in the rating of any of
the Company's or the Guarantor's senior debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g)) or any notice given of any intended or potential decrease in
any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change, except as disclosed to the
Agents in writing by the Company and the Guarantor before the Company
accepted the offer of the Purchasing Agent to purchase such Notes.
(b) On the Commencement Date and, if called for by any Terms Agreement, on
the corresponding Settlement Date:
(i) The Company and the Guarantor shall have furnished to the Agents
the opinion of the General Counsel, Finance and Capital Markets of the
Guarantor (or other counsel for the Company and/or the Guarantor
reasonably acceptable to the Agents) on the Commencement Date, and, on the
Settlement Date will furnish the opinion of the General Counsel, Finance
and Capital Markets of the Guarantor (or other counsel for the Company
and/or the Guarantor reasonably acceptable to the Agents) and, if called
for by a Terms Agreement, the opinion of other counsel, dated the
Commencement Date or the Settlement Date, as the case may be, to the
effect set forth in Exhibit F hereto.
14
(ii) The Agents shall have received from Cleary Gottlieb Steen &
Hamilton LLP, counsel for the Agents (or other counsel reasonably
acceptable to the Purchasing Agent, the Company and the Guarantor), an
opinion dated the Commencement Date or the Settlement Date, as the case
may be, to the effect set forth in Exhibit G hereto.
(iii) The Company and the Guarantor shall have furnished to the
Agents a certificate of the Company and the Guarantor, signed by (A) on
behalf of the Company -- the Chairman, the President or any Vice President
and by the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Assistant Secretary and (B) on behalf of the Guarantor --
the Chairman, any Vice Chairman, the President, any Vice President, Chief
Financial Officer, the Chief Accounting Officer, the General Counsel, the
Controller or any Deputy Controller and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary (or another officer or
officers acceptable to the Agents), dated the Commencement Date or the
Settlement Date, as the case may be, to the effect that each signatory of
such certificate has carefully examined the Registration Statement, as
amended as of the date of such certificate, the Prospectus, as amended and
supplemented as of the date of such certificate, the Disclosure Package
and this Agreement and that:
(A) the respective representations and warranties of the
Company and the Guarantor in this Agreement are true and correct on
and as of the date of such certificate with the same effect as if
made on the date of such certificate and the Company and the
Guarantor have complied in all material respects with all the
respective agreements and satisfied all the conditions on their part
to be performed or satisfied as a condition to the obligations of
the Agents under this Agreement;
(B) no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use has been
issued and no proceedings for that purpose have been instituted or,
to their knowledge, have been threatened or communicated by the
Commission to the Company or the Guarantor as being contemplated by
it under the Securities Act; and
(C) since the date of the most recent financial statements
included in the Prospectus or the Disclosure Package, each as
amended and supplemented, there has been no material adverse change
in the consolidated financial condition or results of operations of
the Guarantor and its subsidiaries, taken as a whole, which is not
disclosed in the Prospectus or the Disclosure Package, as amended or
supplemented.
(iv) KPMG LLP or another nationally recognized independent
registered public accounting firm shall have furnished to the Agents a
letter or letters, dated the Commencement Date or the Settlement Date, as
the case may be, in form and substance reasonably satisfactory to the
Agents, to the effect set forth in Exhibit H and Exhibit I hereto.
15
(v) The Company and the Guarantor shall have furnished to the Agents
such appropriate further information, certificates and documents as the
Agents may reasonably request.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cleary Gottlieb Steen & Hamilton LLP, counsel for the
Agents, at One Liberty Plaza, New York, New York 10006, on the Commencement Date
or the Settlement Date, as the case may be.
6. Indemnification and Contribution. (a) The Company and the Guarantor
agree to indemnify and hold harmless each Agent, the directors, officers,
employees and agents of each Agent and each person who controls any Agent within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Notes as originally filed or in any amendment thereof, or in the
Prospectus, any preliminary or final Pricing Supplement or any Issuer Free
Writing Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Guarantor will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company or the
Guarantor by or on behalf of any Agent through the Purchasing Agent specifically
for inclusion therein. This indemnity agreement will be in addition to any
liability which the Company and the Guarantor may otherwise have.
(b) Each Agent severally and not jointly agrees to indemnify and hold
harmless the Company and the Guarantor, each of their respective directors, each
of their respective officers who signs the Registration Statement, and each
person who controls the Company or the Guarantor within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company and the Guarantor to each Agent, but only with reference to written
information relating to such Agent furnished to the Company or the Guarantor by
or on behalf of such Agent through the Purchasing Agent specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability that any Agent may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless
16
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Guarantor and the Agents
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company, the Guarantor and one or more of the Agents may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor on the one hand and by the Agents on the other from
the offering of the Notes; provided, however, that in no case shall (i) any
Agent (except as may be provided in any agreement among Agents relating to the
offering of the Notes) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Notes purchased by such
Agent hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company, the Guarantor and the
Agents severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Guarantor on the one hand and of the Agents on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company and the Guarantor shall be deemed to be equal to the total net proceeds
17
from the offering (before deducting expenses) received by the Company, and
benefits received by the Agents shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth in the Pricing
Supplement. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company and the Guarantor on the one hand or the Agents on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Guarantor and the Agents agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each person who controls an Agent within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of an
Agent shall have the same rights to contribution as such Agent, and each person
who controls the Company or the Guarantor, as applicable, within the meaning of
either the Act or the Exchange Act, each officer of the Company or the
Guarantor, as applicable, who shall have signed the Registration Statement and
each director of the Company or the Guarantor, as applicable, shall have the
same rights to contribution as the Company or the Guarantor, as applicable,
subject in each case to the applicable terms and conditions of this paragraph
(d).
7. Termination. This Agreement will continue in effect until
terminated as provided in this Section 7. This Agreement may be terminated by
either the Company and the Guarantor as to any Agent, or by any Agent, insofar
as this Agreement relates to such Agent, by giving written notice of such
termination to such Agent or the Company and the Guarantor, as the case may be.
The termination of this Agreement shall not require termination of any agreement
by the Purchasing Agent to purchase Notes as principal, and the termination of
any such Agreement shall not require termination of this Agreement. If this
Agreement is terminated, neither the Company and the Guarantor, on the one hand,
nor any Agent, on the other hand, shall have any liability to each other, except
(i) as provided in the fourth paragraph of Section 2(a), clause 3 of Section
4(A)(b), the last proviso of Section 4(A)(c), and Sections 4(A)(i), 6, 8 and 11,
(ii) that the Company or, failing which, the Guarantor, shall reimburse the
Agents, through the Purchasing Agent, for all reasonable and documented
out-of-pocket expenses (including reasonable and documented fees and
disbursements of counsel) that shall have been incurred by them in connection
with any proposed but not completed purchase and sale of Notes, and (iii) that,
if at the time of termination an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the purchaser of the Note or
Notes relating thereto has not occurred, the representations and warranties of
the Company and the Guarantor stated in Section 2 and the Company's obligations
under the Administrative Procedures, and in Sections 2(c), 4(A)(a), 4(A)(b),
4(A)(c), 4(A)(d), 4(A)(f), 4(A)(g), 4(A)(j), 4(A)(k), 4(A)(l), 4(A)(m), 4(A)(n),
and 5 shall also remain in full force and effect and not be terminated until the
delivery of such Notes.
8. Representations and Indemnities to Survive. With respect to any
Agent's solicitation of offers to purchase Notes or the Purchasing Agent's
obligation to purchase Notes pursuant to any Terms Agreement or any Agent's
commitment to purchase Notes from the
18
Purchasing Agent, the respective agreements, representations, warranties,
indemnities and other statements of the Company and the Guarantor or their
officers and of any of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you, the Company, the Guarantor or any of the officers, directors or
controlling persons referred to in Section 6 hereof, and will survive delivery
of and payment for the Notes for a period extending to the earlier of (i) three
years from the corresponding Settlement Date for such Notes or (ii) the
expiration of any applicable statute of limitations governing such solicitation
or purchase of Notes.
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to an Agent, will be delivered or sent
by mail or transmitted by any standard form of telecommunication and confirmed
to such Agent, at the address specified in Schedule I hereto; or, if sent to the
Company, will be delivered or sent by mail or transmitted by any standard form
of telecommunication and confirmed to it at Citigroup Funding Inc., 388
Greenwich Street, 38th Floor, New York, New York 10013, Attention: Assistant
Treasurer (fax no: (212) 816-3619); and if sent to the Guarantor, will be
delivered or sent by mail or transmitted by any standard form of
telecommunication and confirmed to it at Citigroup Inc., 425 Park Avenue, New
York, New York 10043, Attention: General Counsel, Finance and Capital Markets.
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. Neither any failure nor delay on the part of any party
to exercise any right, remedy, power or privilege under this Agreement (singly
and collectively referred to as a "Right") shall operate as a waiver of such
Right, nor shall any single or partial exercise of any Right preclude any other
or further exercise of any Right, nor shall any waiver of any Right with respect
to any occurrence be construed as a waiver of any Right with respect to any
other occurrence.
12. No Fiduciary Duty. The Company and the Guarantor hereby
acknowledge that (i) the purchase and sale of the Notes pursuant to this
Agreement is an arm's-length commercial transaction between the Company and the
Guarantor, on the one hand, and the Agents and any affiliate through which it
may be acting, on the other, (ii) the Agents are acting as principal and not as
an agent or fiduciary of the Company or the Guarantor and (iii) the
19
Company's engagement of the Agents in connection with the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, each of the Company and the Guarantor agrees that
it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Agents has advised or is currently
advising the Company or the Guarantor on related or other matters). The Company
and the Guarantor agree that they will not claim that the Agents have rendered
advisory services of any nature or respect, or owe an agency, fiduciary or
similar duty to the Company or the Guarantor, in connection with such
transaction or the process leading thereto.
13. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company, the Guarantor and
the Agents, or any of them, with respect to the subject matter hereof.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
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: /s/ Mark Handsman
-------------------------------------------
Name: Mark Handsman
Title: Executive Vice President
CITIGROUP INC.
By: /s/ Charles E. Wainhouse
-------------------------------------------
Name: Charles E. Wainhouse
Title: Assistant Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date hereof:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Jack D. McSpadden
---------------------------------
Name: Jack D. McSpadden
Title: Managing Director
A.G. EDWARDS & SONS, INC.
By: /s/ Joyce P. Opinsky
---------------------------------
Name: Joyce P. Opinsky
Title: Vice President
21
EDWARD D. JONES & CO., L.P.
By: /s/ Lawrence E. Thomas
---------------------------------
Name: Lawrence E. Thomas
Title: Principal
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Diane Kenna
---------------------------------
Name: Diane Kenna
Title: Authorized Signatory
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
---------------------------------
Name: Michael Fusco
Title: Executive Director
UBS FINANCIAL SERVICES INC.
By: /s/ Karen A. Rockey
---------------------------------
Name: Karen Rockey
Title: Senior Vice President
UBS FINANCIAL SERVICES INC.
By: /s/ James LeBlanc
---------------------------------
Name: James LeBlanc
Title: Senior Vice President
WACHOVIA SECURITIES, LLC
By: /s/ George J. Curci
---------------------------------
Name: George J. Curci
Title: Sr. VP
22
SCHEDULE I
AGENT CONTACT INFORMATION
Citigroup Global Markets Inc.
388 Greenwich Street, 35th Floor
New York, NY 10013
Attention: Jack McSpadden
Telephone: (212) 816-4521
Facsimile: (212) 816-0910
E-Mail: jack.d.mcspadden@citigroup.com
A.G. Edwards & Sons, Inc.
1 North Jefferson Avenue
St. Louis, MO 63103
Attention: Joyce Opinsky
Telephone: (314) 955-4098
Facsimile: (314) 955-5989
E-Mail: opinskyj@agedwards.com
Edward D. Jones & Co., L.P.
Corporate Bond Department
12555 Manchester Road
St. Louis, MO 63131
Attention: David Lee
Telephone: (314) 515-5116
Facsimile: (314) 515-3502
E-Mail: david.lee@edwardjones.com
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center, Floor 15
New York, NY 10080
Attention: Transaction Management Group
Telephone: (212) 449-7476
Facsimile: (212) 449-2234
E-Mail: scott_primrose@ml.com
Morgan Stanley & Co. Incorporated
1585 Broadway, 4th Floor
New York, NY 10036
Attention: Greg Hamwi
Telephone: (212) 761-2206
Facsimile: (212) 507-2460
E-Mail: greg.hamwi@morganstanley.com
with a copy to:
S-I
Morgan Stanley & Co. Incorporated
1585 Broadway, 4th Floor
New York, NY 10036
Attention: Financing Services Group
Telephone: (212) 761-1890
Facsimile: (212) 202-9159
UBS Financial Services Inc.
800 Harbor Blvd.
Weehawken, NJ 07086-6791
Attention: Corporate Desk
Telephone: (201) 352-7150
Facsimile: (201) 352-6900
E-Mail: james.Leblanc@ubs.com
with a copy to:
UBS Financial Services Inc.
800 Harbor Blvd.
Weehawken, NJ 07086-6791
Attention: Karen Rockey
Telephone: (201) 352-7796
Facsimile: (201) 617-8456
E-Mail: Karen.rockey@ubs.com
Wachovia Securities, LLC
901 E. Byrd Street
Richmond, VA 23219-4069
Attention: George Curci
Telephone: (804) 868-2205
Facsimile: (804) 782-3773
E-Mail: george.curci@wachoviasec.com
with a copy to:
Wachovia Securities, LLC
901 E. Byrd Street
Richmond, VA 23219-4069
Attention: Craig Noble
Telephone: (804) 868-2201
Facsimile: (804) 782-3773
E-Mail: craig.noble@wachoviasec.com
2
SCHEDULE II
SCHEDULE OF COMMISSIONS
The following commissions are payable as a percentage of the non-discounted
public offering price of each note sold through the Purchasing Agent.
Term of Note Commission Rate
- ------------ ---------------
One Year 0.20%
Two Years 0.40%
Three Years 0.60%
Five Years 1.00%
Seven Years 1.25%
Ten Years 1.50%
Fifteen Years 2.00%
Twenty Years 2.50%
Twenty-five Years 2.50%
Thirty Years 2.50%
S-II
EXHIBIT A
CITIGROUP FUNDING INC.
Retail Medium-Term Notes, Series F Administrative Procedures
April 13, 2006
The Retail Medium-Term Notes, Series F (the "Notes") of Citigroup
Funding Inc. (the "Company"), the payments due under which are fully and
unconditionally guaranteed (the "Guarantees") by Citigroup Inc. (the
"Guarantor"), are to be offered on a continuing basis. Citigroup Global Markets
Inc. (the "Purchasing Agent"), A.G. Edwards & Sons, Inc., Edward D. Jones & Co.,
L.P., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, UBS Financial Services Inc., Wachovia Securities, LLC, each as
agents (collectively, the "Agents") have agreed to solicit purchases of Notes
issued in fully registered form. No Agent will be obligated to purchase Notes
for its own account. The Notes are being sold pursuant to a Global Selling
Agency Agreement among the Company, the Guarantor and the agents named therein
(including the Agents) dated the date hereof (the "Agency Agreement") and one or
more terms agreement substantially in the form attached as Exhibit B to the
Agency Agreement (each a "Terms Agreement"). The Notes have been registered with
the Securities and Exchange Commission (the "Commission"). JPMorgan Chase Bank,
N.A., as trustee (the "Trustee"), is the trustee under the Indenture, dated as
of June 1, 2005, under which the Notes will be issued (the "Indenture"). The
Notes will constitute part of the senior debt of the Company and will rank
equally with all other unsecured and unsubordinated debt of the Company. The
Guarantees will constitute part of the senior debt of the Guarantor and will
rank equally with all other unsecured and unsubordinated debt of the Guarantor.
The Agency Agreement provides that whenever the Company determines
from time to time to sell Notes pursuant to the Agency Agreement, it will enter
into a Terms Agreement relating to such sale between the Company and the
Purchasing Agent, with the Purchasing Agent purchasing such Notes as principal
for resale to other Agents or dealers (the "Selected Dealers") each of whom will
purchase as principal. Each Agent or participating Selected Dealer will then
resell the Notes directly to its customers pursuant to a Master Selected Dealer
Agreement attached as Exhibit J to the Agency Agreement.
Unless otherwise specified in the applicable Pricing Supplement, the
Notes will be issued in book-entry form (each, a "Book-Entry Note") and will be
represented by a fully registered master global note certificate (the "Master
Global Note"). The Master Global Note shall be in a form approved by the
Company, the Agents, The Depository Trust Company ("DTC") and the Trustee. Prior
to the issuance of any Notes, the Trustee shall authenticate the Master Global
Note and the DTC Agent (as defined below) will hold it as custodian for DTC.
Except under the limited circumstances described in the Indenture, beneficial
owners of Book-Entry Notes will not be entitled to receive a certificate
representing such Notes.
A-1
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by its Treasury Department. The Company will
advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agent and the Trustee are to
communicate regarding orders to purchase Notes and the details of their
settlement. The term "Trustee" as used in these procedures means the Trustee and
any other agents appointed by the Trustee or the Company.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth below, as adjusted in accordance with
changes in DTC's operating requirements. Unless otherwise defined herein, terms
defined in the Indenture, the Agency Agreement, the Notes or the Prospectus
Supplement or the Pricing Supplement relating to the Notes shall be used herein
as therein defined. Notes for which interest is calculated on the basis of a
fixed interest rate are referred to herein as "Fixed Rate Notes". Notes for
which interest is calculated on the basis of a floating interest rate are
referred to herein as "Floating Rate Notes". To the extent the procedures set
forth below conflict with the provisions of the Notes, the Indenture, DTC's
operating requirements or the Agency Agreement, the relevant provisions of the
Notes, the Indenture, DTC's operating requirements and the Agency Agreement
shall control.
Administrative Procedures for Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Citibank, N.A. (the "DTC
Agent") will perform the custodial, document control and administrative
functions described below. Citibank, N.A. will perform such functions in
accordance with its respective obligations under a Bring-Down Letter of
Representations from the Company and Citibank, N.A. to DTC dated as of the date
hereof and a Medium-Term Note Certificate Agreement between Citibank, N.A. and
DTC, dated as of October 31, 1988 and as amended to date, and its obligations as
a participant in DTC, including DTC's Same-Day Funds Settlement system ("SDFS").
Issuance: All Book-Entry Notes will be represented initially by a
single Master Global Note in fully registered form
without coupons. The Master Global Note will be dated and
issued as of the date of its authentication by the DTC
Agent. The Master Global Note will not represent any Note
in certificated form.
Identification The Company has arranged with the CUSIP Service Bureau
Numbers: of Standard & Poor's Ratings Services (the "CUSIP
Service Bureau") for the reservation of a series of CUSIP
numbers, which series consists of approximately 900 CUSIP
numbers and relates to the Book-Entry Notes. The Company
has obtained from the CUSIP Service Bureau a written list
of such reserved CUSIP numbers. The DTC Agent will assign
CUSIP numbers to Book-Entry Notes as described below
under Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
A-2
the DTC Agent has assigned to Book-Entry Notes. The DTC
Agent will notify the Company at any time when fewer than
100 of the reserved CUSIP numbers remain unassigned to
Book-Entry Notes, and, if it deems necessary, the Company
will reserve additional CUSIP numbers for assignment to
Book-Entry Notes. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such
additional CUSIP numbers to the DTC Agent, as needed, and
to DTC.
Registration: The Master Global Note will be registered in the name of
CEDE & CO., as nominee for DTC, on the securities
register for the Notes (the "Securities Register")
maintained under the Indenture. The beneficial owner of
a Book-Entry Note (or one or more indirect participants
in DTC designated by such owner) will designate one or
more participants in DTC (with respect to such
Book-Entry Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions
provided by such Participants, a credit balance with
respect to such beneficial owner in such Book-Entry Note
in the account of such Participants. The ownership
interest of such beneficial owner (or such participant)
in such Book-Entry Note will be recorded through the
records of such Participants or through the separate
records of such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of interests in a Book-Entry Note will be
accomplished by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Consolidation and The DTC Agent may deliver to DTC and the CUSIP Service
Exchanges: Bureau at any time a written notice of consolidation (a
copy of which shall be maintained in the records of the
DTC Agent described below) specifying (i) the CUSIP
numbers of two or more outstanding Book-Entry Notes that
have the same Terms and for which interest has been paid
to the same date, (ii) a date, occurring at least thirty
days after such written notice is delivered and at least
thirty days before the next Interest Payment Date for
such Book-Entry Notes shall be consolidated, and (iii) a
new CUSIP number to be assigned to such consolidated
Book-Entry Notes. Upon receipt of such a notice, DTC will
send to its Participants (including the DTC Agent) a
written reorganization notice to the effect that such
consolidation will occur on such date. Prior to the
specified consolidation date, the DTC Agent will deliver
to the CUSIP Service Bureau a written notice setting
forth such consolidation date and such new CUSIP number
and stating that, as of such consolidation date, the
CUSIP numbers of the Book-Entry Notes to be consolidated
will no longer be valid. On
A-3
the specified consolidation date, the DTC Agent will
consolidate on its records such Book-Entry Notes as a
single Book-Entry Note bearing the new CUSIP number and
dated the last Interest Payment Date to which interest
has been paid on the underlying Book-Entry Notes, and the
CUSIP numbers of the consolidated Book-Entry Notes will,
in accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Maturities: Each Note will mature on a date (the "Maturity Date")
nine months or more after the issue date for such Note,
except in the case of indexed Notes, for which the
maturity may be shorter. A Floating Rate Note will mature
only on an Interest Payment Date for such Note.
Denominations: Unless otherwise agreed to by the Company, the Notes
will be issued in principal amounts of $1,000 or any
amount in excess thereof that is an integral multiple of
$1,000.
Notice of Redemption The DTC Agent will give notice to DTC prior to each
Dates: Redemption Date (as specified in the Note) if any at the
time and in the manner set forth in the Letter.
Interest: General. Unless otherwise indicated in the applicable
Pricing Supplement, interest, if any, on each Note will
accrue from the Original Issue Date (or such other date
on which interest otherwise begins to accrue, if
different than the Original Issue Date) of such Note for
the first interest period or the last date to which
interest has been paid, if any, for each subsequent
interest period and will be calculated and paid in the
manner and on the Interest Payment Dates described in
the Prospectus (as defined in the Agency Agreement), as
supplemented by the applicable Pricing Supplement. Each
payment of interest on a Note will include interest
accrued to but excluding the Interest Payment Date;
provided that in the case of Floating Rate Notes that
reset daily or weekly, interest payments will include
interest accrued to but excluding the next preceding
Regular Record Date, except that at stated Maturity, the
interest payable will include interest accrued to, but
excluding, the Maturity Date.
The Regular Record Date with respect to any Interest
Payment Date for a Fixed Rate Note shall be the date
(whether or not a Business Day) fifteen calendar days
immediately preceding such Interest Payment Date. The
Regular Record Date with respect to any Interest Payment
Date for a Floating Rate Note shall be the dates
specified in the applicable Pricing Supplement.
Standard & Poor's Ratings Services will use the
information received in the pending deposit message
described under Settlement Procedure "C" below in order
to include the amount of any interest payable and certain
other information regarding the related Notes in the
A-4
appropriate daily bond report published by Standard &
Poor's Ratings Services.
Unless otherwise specified in the applicable Pricing
Supplement, interest on each Note will be payable either
monthly, quarterly, semiannually or annually on each
Interest Payment Date and at Maturity (or on the date of
redemption or repayment if a Note is repurchased by the
Company prior to maturity pursuant to mandatory or
optional redemption or repayment provisions of the
Survivor's Option). Interest will be payable to the
person in whose name a Note is registered at the close of
business on the Regular Record Date next preceding each
Interest Payment Date; provided, however, interest
payable at Maturity, on a date of redemption or repayment
or in connection with the exercise of the Survivor's
Option will be payable to the person to whom principal
shall be payable.
Unless otherwise specified in the applicable Pricing
Supplement, the Interest Payment Dates for a Fixed Rate
Note that provides for monthly interest payments shall be
the fifteenth day of each calendar month, commencing in
the calendar month that next succeeds the month in which
the Note is issued. In the case of a Fixed Rate Note that
provides for quarterly interest payments, the Interest
Payment Dates shall be the fifteenth day of each third
month, commencing in the third succeeding calendar month
following the month in which the Note is issued. In the
case of a Fixed Rate Note that provides for semi-annual
interest payments, the Interest Payment dates shall be
the fifteenth day of each sixth month, commencing in the
sixth succeeding calendar month following the month in
which the Note is issued. In the case of a Fixed Rate
Note that provides for annual interest payments, the
Interest Payment Date shall be the fifteenth day of every
twelfth month, commencing in the twelfth succeeding
calendar month following the month in which the Note is
issued.
The Interest Payment Dates for a Floating Rate Note will
be the dates specified in the applicable Pricing
Supplement.
The interest rates the Company will agree to pay on
newly-issued Notes are subject to change without notice
by the Company from time to time, but no such change will
affect any Notes already issued or as to which an offer
to purchase has been accepted by the Company.
Business Day: "Business Day" means, unless otherwise specified in the
applicable Pricing Supplement, any weekday that is (1)
not a legal holiday in New York, New York and (2) not a
day on which banking institutions in New York, New York
are authorized or required by law or
A-5
regulation to be closed.
Payments of Principal Payment of Interest Only. Promptly after each Regular
and Interest: Record Date, the DTC Agent will deliver to the Company
and DTC a written notice setting forth, by CUSIP number,
the amount of interest to be paid on each Book-Entry Note
on the following Interest Payment Date (other than an
Interest Payment Date coinciding with Maturity) and the
total of such amounts. DTC will confirm the amount
payable on each Book-Entry Note on such Interest Payment
Date by reference to the appropriate daily bond reports
published by Standard & Poor's Ratings Services. The
Company will pay to the DTC Agent the total amount of
interest due on such Interest Payment Date (other than at
Maturity), and the DTC Agent will pay such amount to DTC,
at the times and in the manner set forth below under
"Manner of Payment". If any Interest Payment Date for a
Book-Entry Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business
Day and no interest shall accrue as a result of such
delayed payment.
Payments at Maturity or Upon Redemption. On or about the
first Business Day of each month, the DTC Agent will
deliver to the Company, DTC and the DTC Agent a written
list of principal and interest to be paid on each
Book-Entry Note maturing either on a Maturity Date or on
a Redemption Date in the following month. The DTC Agent,
the Company and DTC will confirm the amounts of such
principal and interest payments with respect to each
Book-Entry Note on or about the fifth Business Day
preceding the Maturity Date or Redemption Date of such
Book-Entry Note. On or before such Maturity or
Redemption, the Company will pay to the DTC Agent the
principal amount of such Book-Entry Note, together with
interest due on such Maturity Date. The DTC Agent will
pay such amount to DTC at the times and in the manner set
forth below under "Manner of Payment". If any Maturity of
a Book-Entry Note is not a Business Day, the payment due
on such day shall be made on the next succeeding Business
Day and no interest shall accrue on such payment for the
period from and after such Maturity Date or Redemption
Date. Promptly after payment to DTC of the principal and
interest due on the Maturity Date or on the Redemption
Date of such Book-Entry Note, the DTC Agent will cancel
such Book-Entry Note in accordance with the provisions of
the Indenture and record an appropriate debit advice on
the Master Global Note.
Manner of Payment. The total amount of any principal and
interest due on Book-Entry Notes on any Interest Payment
Date or at Maturity or upon redemption shall be paid by
the Company to the
A-6
DTC Agent in immediately available funds no later than
9:30 A.M. (New York City time) on such date. The Company
will make such payment on such Book-Entry Notes by
instructing the DTC Agent to withdraw funds from an
account maintained by the Company with the DTC Agent. The
Company will confirm any such instructions in writing to
such DTC Agent. Prior to 10:00 A.M. (New York City time)
on the Maturity Date or as soon as possible thereafter,
such DTC Agent will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously
specified by DTC) to an account at the Federal Reserve
Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment of
principal (together with interest thereon) due on a
Book-Entry Note on such Maturity Date or Redemption Date.
On each Interest Payment Date (other than at Maturity),
interest payments shall be made to DTC, in same day
funds, in accordance with existing arrangements between
the DTC Agent and DTC. On each such date, DTC will pay,
in accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate use
to the respective Participants in whose names the
Book-Entry Notes are recorded in the book-entry system
maintained by DTC. None of the Company, the Guarantor or
the DTC Agent shall have any direct responsibility or
liability for the payment by DTC to such Participants of
the principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment
on a Book-Entry Note will be determined and withheld by
the Participant, indirect participant in DTC or other
Person responsible for forwarding payments and materials
directly to the beneficial owner of such Note.
Procedures upon Company Notice to DTC Agent regarding Company's Exercise
Company Notice of Optional Redemption. At least 60 days prior to the
regarding Company's date on which it intends to redeem any Book-Entry Note,
Exercise of Optional the Company will notify the DTC Agent (with a copy to the
Redemption: Trustee) that it is exercising such option with respect
to such Book-Entry Note on such date.
DTC Agent Notice to DTC regarding Company's Exercise of
Optional Redemption. After receipt of notice that the
Company is exercising its option to redeem any Book-Entry
Note, the DTC Agent will, at least 30 days before the
redemption date for such Book-Entry Note, hand deliver to
DTC a notice identifying such Book-Entry Note by CUSIP
number and informing DTC of the Company's exercise of
such option with respect to such Book-Entry Note.
Deposit of Redemption Price. On or before any redemption
date, the Company shall deposit with the DTC Agent an
amount of money
A-7
sufficient to pay the redemption price, plus interest
accrued to such redemption date, for all the Book-Entry
Notes or portions thereof that are to be repaid on such
redemption date. The DTC Agent will use such money to
repay such Book-Entry Notes pursuant to the terms set
forth in such Notes.
Payments of Principal DTC Agent Notice to Company of Option to be Repaid.
and Interest Upon Upon receipt of notice of exercise of the option for
Exercise of Optional repayment, the DTC Agent shall give notice to the
Repayment: Company (with a copy of such notice to the Trustee) not
less than 20 days prior to each Optional Repayment Date
of such Optional Repayment Date and of the principal
amount of Book-Entry Notes to be repaid on such Optional
Repayment Date.
Deposit of Repayment Price. On or prior to any Optional
Repayment Date, the Company shall deposit with the DTC
Agent an amount of money sufficient to pay the optional
repayment price, and accrued interest thereon to such
date, of all the Book-Entry Notes or portions thereof
which are to be repaid on such date. The DTC Agent will
use such money to repay such Book-Entry Notes pursuant to
the terms set forth in such Notes.
Procedure for Rate The Company and the Purchasing Agent will discuss from
Setting and Posting: time to time the aggregate principal amount of, the
issuance price of, and the interest rates to be borne by,
Notes that may be sold as a result of the solicitation of
orders by the Agents. If the Company decides to set
prices of, and rates borne by, any Book-Entry Notes in
respect of which the Agents are to solicit orders to
purchase (the setting of such prices and rates to be
referred to herein as "Posting") or if the Company
decides to change prices or rates previously posted by
it, it will promptly advise the Agents of the prices and
rates to be posted.
The DTC Agent will assign a separate CUSIP number for
each tranche of Notes to be posted, and will so advise
and notify the Company, the Trustee and the Purchasing
Agent of said assignment by telephone and/or by
telecopier or by other electronic transmission. The
Purchasing Agent will include the assigned CUSIP number
on all Posting notices communicated to the Agents and
Selected Dealers.
Offering of Notes: In the event that there is a Posting, the Purchasing
Agent will communicate to each of the Agents and
Selected Dealers the relevant terms of, including the
Maturities of and the interest rates to be borne by,
each tranche of Notes that is the subject of the
Posting. Thereafter, the Purchasing Agent, along with
the other Agents and Selected Dealers, will solicit
offers to purchase the Note accordingly.
A-8
Purchase of Notes by The Purchasing Agent will no later than 12:00 noon (New
Purchasing Agent: the York City time) on the seventh day subsequent to the
day on which such Posting occurs, or if such seventh day
is not a Business Day on the preceding Business Day, or
on such other Business Day and time as shall be mutually
agreed upon by the Company and the Agents (any such day,
a "Trade Day"), (i) complete, execute and deliver to the
Company a Terms Agreement that sets forth, among other
things, the amount of each tranche that the Purchasing
Agent is offering to purchase or (ii) inform the Company
that none of the Notes of a particular tranche will be
purchased by the Purchasing Agent.
Acceptance and Unless otherwise instructed by the Company, the
Rejection of Orders: Purchasing Agent will advise the Company promptly by
telephone or by other electronic transmission of all
orders to purchase Notes received by each Agent, other
than those rejected by it in whole or in part in the
reasonable exercise of its discretion. Unless otherwise
agreed by the Company and the Agents, the Company has the
sole right to accept orders to purchase Notes and may
reject any such orders in whole or in part.
Upon receipt of a completed and executed Terms Agreement
from the Purchasing Agent, the Company will (i) promptly
execute and return such Terms Agreement to the Purchasing
Agent or (ii) inform the Purchasing Agent that its offer
to purchase the Notes of a particular tranche has been
rejected, in whole or in part. The Purchasing Agent will
thereafter promptly inform the other Agents and
participating Selected Dealers of the action taken by the
Company.
Preparation of If any order to purchase a Book-Entry Note is accepted
Pricing Supplement: by or on behalf of the Company, the Company will prepare
a pricing supplement (substantially in the form attached
to the Agency Agreement as Exhibit E, each a "Pricing
Supplement") reflecting the terms of such Book-Entry
Note, will file such Pricing Supplement with the
Commission in accordance with the applicable paragraph of
Rule 424(b) under the Act, will deliver such number of
copies thereof to the Agent as the Agent shall request
and will, on the Agent's behalf, file such Pricing
Supplement with the National Association of Securities
Dealers, Inc. (the "NASD"). The Company shall use its
reasonable best efforts to send such Pricing Supplement
by email or facsimile to the Purchasing Agent and the
Trustee by 3:00 P.M. (New York City time) on the
applicable Trade Date. The Purchasing Agent shall use its
reasonable best efforts to send such Pricing Supplement
and the Prospectus by email or telecopy or overnight
express (for delivery by the close of business on the
applicable Trade Date) to each Agent (or Selected Dealer)
which made or presented the offer to purchase the
applicable Note and the Trustee at the following
A-9
applicable address:
If to A.G. Edwards & Sons, Inc., to:
1 North Jefferson Avenue
St. Louis, MO 63103
Attention: Joyce Opinsky
Telephone: (314) 955-4098
Facsimile: (314) 955-5989
E-Mail: opinskyj@agedwards.com
If to Edward D. Jones & Co., L.P., to:
Corporate Board Department
12555 Manchester Road
St. Louis, MO 63131
Attention: David Lee
Telephone: (314) 515-5116
Facsimile: (314) 515-3502
E-Mail: david.lee@edwardjones.com
If to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, to:
Merrill Lynch & Co.
Merrill Lynch Production Technologies
4 Corporate Place
Piscataway, NJ 08854
Attention: Diane Walker
Telephone: (732) 878-6536
Facsimile: (732) 878-6481
E-Mail: mtnsuppl@na2.us.ml.com
If to Morgan Stanley & Co. Incorporated, to:
1585 Broadway, 4th Floor
New York, NY 10036
Attention: Greg Hamwi
Telephone: (212) 761-2206
Facsimile: (212) 507-2460
E-Mail: greg.hamwi@morganstanley.com
with a copy to:
ADP
1155 Long Island Avenue
Edgewood, NY 11717
Attn: Morgan Stanley Prospectuses
If to UBS Financial Services Inc
800 Harbor Blvd.
Weehawken, NJ 07086-6791
A-10
Attention: Corporate Desk
Telephone: (201) 352-7150
Facsimile: (201) 352-6900
E-Mail: james.leblanc@ubs.com
If to Wachovia Securities, LLC, to:
901 E. Byrd Street
Richmond, VA 23219-4069
Attention: George Curci
Telephone: (804) 868-2205
Facsimile: (804) 782-3773
E-Mail: george.curci@wachoviasec.com
with a copy to:
Wachovia Securities, LLC
901 E. Byrd Street
Richmond, VA 23219-4069
Attention: Craig Noble
Telephone: (804) 868-2201
Facsimile: (804) 782-3773
E-Mail: craig.noble@wachoviasec.com
If to the Trustee, to:
JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, NY 10004
Attention: James Heaney
Telephone: (212) 623-5395
Facsimile: (212) 623-6274
E-Mail: jim.heaney@jpmorgan.com
Each such Agent (or Selected Dealer), in turn, pursuant
to the terms of the Agency Agreement and the Master
Selected Dealer Agreement will cause to be delivered a
copy of the Prospectus and the applicable Pricing
Supplement to each purchaser of Notes from such Agent or
Selected Dealer or otherwise will comply with the
requirements of Rule 173(a) under the Securities Act.
Outdated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained for
files) will be destroyed.
Suspension of Subject to the representations, warranties and covenants
Solicitation; of the Company and the Guarantor contained in the Agency
Amendment or Agreement, the Company may instruct the Agents to
Supplement: suspend at any time, for any period of time or
permanently, the solicitation of orders to purchase
Notes. Upon receipt of such instructions, each Agent will
forthwith suspend solicitation until such time as the
Company has advised it that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly
advise the Agents, the Trustee and the DTC Agent whether
such orders may be settled and whether copies of the
Prospectus as in effect at the time of the suspension,
together with the appropriate Pricing Supplement (or the
notice provided for in Rule 173(a) under the Securities
Act, if applicable), may be delivered in connection with
the settlement of such orders. The Company will
A-11
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 (or the notice provided
for in Rule 173(a) under the Securities Act, if
applicable) may not be so delivered.
Delivery of A copy of the Prospectus and a Pricing Supplement
Prospectus: relating to a Note must accompany or precede the
earliest of any written offer of such Note, confirmation
of the purchase of such Note and payment for such Note by
its purchaser. If notice of a change in the terms of the
Notes is received by an Agent or Selected Dealer between
the time an order for a Note is placed and the time
written confirmation thereof is sent by the Agent or
Selected Dealer to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and
Pricing Supplement setting forth the terms in effect when
the order was placed. Unless the Agents or Selected
Dealers comply with the requirements of Rule 173(a) under
the Securities Act, each Agent or Selected Dealer will
deliver a Prospectus and Pricing Supplement as herein
described with respect to each Note sold by it. Unless
the Company complies with the requirements of Rule 173(a)
under the Securities Act, the Company will make such
delivery if such Note is sold directly by the Company to
a purchaser (other than an Agent or Selected Dealer).
Confirmation: For each order to purchase a Note solicited by an Agent
and accepted by or on behalf of the Company, the
Purchasing Agent will issue a confirmation, which
confirmation may be delivered by facsimile or other
electronic transmission, to each Agent or Selected
Dealer, with a copy to the Company, setting forth the
details set forth above and delivery and payment
instructions.
In addition, unless the Agent or Selected Dealer complies
with the requirements of Rule 173(a) under the Securities
Act, if available, the Purchasing Agent, other Agent or
Selected Dealer, as the case may be, will deliver to
investors purchasing the Notes the Prospectus (including
the Pricing Supplement) in relation to such Notes prior
to or simultaneously with delivery of the confirmation of
sale or delivery of the Notes.
A-12
Settlement:
The receipt by the Company of immediately available
funds in payment for a Note and the entry by the DTC
Agent of an SDFS deliver order through DTC's Participant
Terminal System to credit such Note to the account of a
Participant purchasing, or acting for the purchaser of
such Note, shall constitute "settlement" with respect to
such Note, and the date of such settlement, the
"Settlement Date." All orders accepted by the Company
will be settled on the third Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the Purchasing Agent agree to settlement on
another day which shall be no earlier than the Business
Day succeeding the date of sale. In all cases, the
Company will notify the Trustee and the DTC Agent on the
date issuance instructions are given.
Settlement Unless otherwise specified in the applicable Terms
Procedures: Agreement, Settlement Procedures with regard to each
Book-Entry Note sold by the Company through the Agents
shall be as follows:
A. After the acceptance of an offer by the Company
with respect to a Note, the Purchasing Agent will
communicate the following details of the terms of
such offer (the "Note Sale Information") to the
Company by telephone (confirmed in writing) or by
facsimile transmission or other electronic
transmission:
1. Principal amount of the purchase.
2. Stated Maturity.
3. In the case of a Fixed Rate Note, the interest
rate and redemption and repayment provisions
(if any) or, in the case of a Floating Rate
Note, the Base Rate, Initial Interest Rate (if
known at such time), Interest Reset Period,
Interest Reset Dates, Spread and/or Spread
Multiplier (if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if any) and
redemption and repayment provisions (if any).
4. Interest Payment Dates and the Interest Payment
Period.
5. Settlement Date and Issue Date, if different.
6. Trade Date.
7. Purchasing Agent's commission, determined as
provided in the Agency Agreement.
A-13
8. Net proceeds to the Company.
9. Price to Public.
10. If a Note is redeemable by the Company or
repayable by the Noteholder, such of the
following as are applicable:
(i) The date on and after which such Note may
be redeemed/repaid (the "Redemption/
Repayment Commencement Date"),
(ii) Initial redemption/repayment price (% of
par), and
(iii) Amount (% of par) that the initial
redemption/repayment price shall decline
(but not below par) on each anniversary
of the Redemption/Repayment Commencement
Date.
11. Whether the Note has a Survivor's Option.
12. Whether the Note is an OID Note and, if so, the
total amount of OID, the yield to maturity and
the initial accrual period OID.
13. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Book-Entry Note.
14. Any other terms necessary to describe the
Book-Entry Note.
B. The Company will advise the DTC Agent and the
Purchasing Agent by telephone (confirmed in writing
at any time on the same date), written
telecommunication or other electronic transmission
of the information set forth in Settlement
Procedure "A" above. Each such communication by the
Company shall constitute a representation and
warranty by the Company to the DTC Agent, the
Trustee and the Agents that (i) such Note is then,
and at the time of issuance and sale thereof will
be, duly authorized for issuance and sale by the
Company; (ii) such Note will conform with the terms
of the Indenture for such Note; and (iii) upon
issuance of such Book-Entry Note, the aggregate
principal amount of all Notes issued under the
Indenture will not exceed the aggregate principal
amount of Notes authorized for issuance at such
time by the
A-14
Company. The DTC Agent will then assign a CUSIP
number to the Book-Entry Note and notify the
Purchasing Agent and the Company by telephone
(confirmed in writing at any time on the same
date), written telecommunication or other
electronic transmission of such CUSIP number as
soon as practicable.
C. The DTC Agent will enter a pending deposit message
through DTC's Participant Terminal System providing
the following settlement information to DTC,
Standard & Poor's Ratings Services, Interactive
Data Corporation, the Agents and, upon request, the
Trustee:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Note or a
Floating Rate Note.
3. The Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related Regular Record Date and
the amount of interest payable on such Initial
Interest Payment Date.
4. The Interest Payment Period.
5. The CUSIP number of the Book-Entry Note
representing such Notes.
6. The participant account numbers maintained by
DTC on behalf of the Trustee and the Purchasing
Agent.
7. Whether such Book-Entry Note will represent any
other Notes (to the extent known at such time).
D. The DTC Agent will complete the Master Global Note
as it relates to such Note by filing the applicable
Pricing Supplement relating to such Note in the
records maintained by it, which records, taken with
the Master Global Note, shall evidence such Note.
E. DTC will credit such Note to the DTC Agent's
participant account at DTC.
F. The DTC Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the DTC
Agent's participant account and credit such Note to
the Purchasing Agent's participant
A-15
account and (ii) debit the Purchasing Agent's
settlement account and credit the DTC Agent's
settlement account for an amount equal to the price
of such Note less the Purchasing Agent's
commission. The entry of such a deliver order shall
constitute a representation and warranty by the DTC
Agent to DTC that (i) the Master Global Note
representing such Note has been issued and
authenticated and (ii) the DTC Agent is holding
such Master Global Note pursuant to the Medium Term
Note Certificate Agreement between the DTC Agent
and DTC.
G. The Purchasing Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Purchasing Agent's participant account and credit
such Note to the participant accounts of the Agents
with respect to such Note and (ii) to debit the
settlement accounts of such Agents and credit the
settlement account of the Purchasing Agent for an
amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS
operating procedures in effect on the Settlement
Date.
I. The DTC Agent will, upon receipt of funds from the
Purchasing Agent in accordance with Settlement
Procedure "F", credit to an account of the Company
maintained at the DTC Agent funds available for
immediate use in the amount transferred to the DTC
Agent in accordance with Settlement Procedure "F".
J. Each Agent and participating Selected Dealer will
confirm the purchase of such Note to the purchaser
either by transmitting to the Participants with
respect to such Note a confirmation order or
orders through DTC's institutional delivery system
or by mailing a written confirmation to such
purchaser. In all cases, the Prospectus as most
recently amended or supplemented must accompany or
precede such confirmation or Rule 173(a) under the
Securities Act must be complied with, if available.
K. Monthly, the DTC Agent will send to the Company a
statement setting forth the principal amount of
Registered Notes outstanding as of the date of such
statement and setting forth a brief description of
any sales of which the Company has advised the DTC
Agent but which have not yet been
A-16
settled.
Settlement Procedures For sales by the Company of Notes solicited by the
Timetable: Agents and accepted by the Company for settlement,
Settlement Procedures "A" through "K" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set forth
below:
Settlement
Procedure Time
--------- ---------------------------
A 4:00 P.M. on the trade date
B 5:00 P.M. on the trade date
C 2:00 P.M. on the day before
settlement
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
K Monthly or at the request of the
Company
Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in SDFS
operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, the DTC Agent, after receiving notice from the
Company or the Purchasing Agent, will deliver to DTC,
through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
2:00 P.M. on the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle: If settlement of a Book-Entry Note is rescheduled and
the DTC Agent for such Note has not entered an SDFS
deliver order with respect to a Note pursuant to
Settlement Procedure "F", after receiving notice from
the Company or the Purchasing Agent, the DTC Agent shall
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable, a withdrawal message
instructing DTC to debit such Book-Entry Note to such
DTC Agent's participant account. DTC will process the
withdrawal message, provided that the DTC Agent's
participant account contains a principal amount of Notes
that are at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to the Notes represented by a Book-Entry Note,
the DTC Agent will mark the Pricing Supplement in its
records relating to such Book-Entry Note "cancelled",
make appropriate entries in the DTC Agent's records and
record an
A-17
appropriate debit advice on the Master Global Note. The
CUSIP number assigned to such Book-Entry Note shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
If the purchase price for any Note is not timely paid to
any relevant Participant with respect to such Note by
the beneficial purchaser thereof (or a Person, including
an indirect participant in DTC, acting on behalf of such
purchaser), such Participant and, in turn, the
Presenting Agent may enter SDFS deliver orders through
DTC's Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "F" and "G",
respectively. Thereafter, the DTC Agent will deliver the
withdrawal message and take the related actions
described in the preceding paragraph. If such failure
shall have occurred for any reason other than a default
by the relevant Agent in the performance of its
obligations hereunder and under the Agency Agreement,
then the Company will reimburse such Agent for the loss
of the use of the funds during the period when they were
credited to the account of the Company. Notwithstanding
the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect
to one or more, but not all, of the Notes to have been
represented by a Book-Entry Note, the DTC Agent will
provide, in accordance with Settlement Procedures "D".
Procedure for Rate Each time after a Posting, if a decision has been
Changes: reached to change the interest rates of the Notes
subject to such Posting, the Company will promptly
advise the Purchasing Agent, which will in turn promptly
advise the other Agents; and the Agents will forthwith
suspend solicitation of offers to purchase Notes at the
prior rates. The Purchasing Agent may telephone the
Company with recommendations as to the changed interest
rates.
The DTC Agent Not to Nothing herein shall be deemed to require the DTC Agent
Risk Funds: to risk or expend its own funds in connection with any
payment to the Company, DTC, the Agents or the
purchasers, it being understood by all parties that
payments made by the DTC Agent to the Company, DTC, the
Agents or the purchasers shall be made only to the
extent that funds are provided to the DTC Agent for such
purpose.
Advertising Costs: The Company shall have the sole right to approve the
form and substance of any advertising an Agent may
initiate in connection with such Agent's solicitation to
purchase the Notes. The expense of such advertising will
be solely the responsibility of such Agent, unless
otherwise agreed to by the Company.
A-18
EXHIBIT B
FORM OF TERMS AGREEMENT
Citigroup Funding Inc.
388 Greenwich Street, 38th Floor
New York, NY 10013
Attention: Assistant Treasurer
Subject in all respects to the terms and conditions contained in the Global
Selling Agency Agreement dated April 13, 2006 (the "Agency Agreement"), among
Citigroup Funding Inc. (the "Company"), Citigroup Inc. (the "Guarantor"),
Citigroup Global Markets Inc. (the "Purchasing Agent") and the additional Agents
named therein, the undersigned agrees to purchase the following aggregate
principal amount of the Company's Retail Medium-Term Notes, Series F (the
"Notes"), which Notes are fully and unconditionally guaranteed by the Guarantor:
Principal Amount: $ CUSIP Number:
Purchaser: Citigroup Global Markets Inc. Original Issue Date:
Stated Maturity:
Interest Rate: [ ] Fixed %
[ ] Floating (see below)
Reoffering Price: 100% of Principal Amount
Interest Payment Dates: Accrue to Pay: [ ] Yes [ ] No
Interest Reset Period or Interest Reset Dates:
Survivor's Option: [ ] Yes [ ] No
Base Rate: [ ] CD Rate [ ] Commercial Paper Rate [ ] Federal Funds Rate [ ]
LIBOR Telerate
[ ] LIBOR Reuters [ ] Treasury Rate [ ] Treasury Rate Constant Maturity [ ]
Prime Rate
[ ] Indexed Interest Rate (see attached)
Spread Multiplier: Spread (+/-):
Spread Reset: The Spread or Spread Multiplier may not be changed prior to Stated
Maturity.
Index Maturity:
Maximum Interest Rate: Minimum Interest Rate:
Optional Redemption: [ ] Yes [ ] No
Optional Redemption Dates:
Optional Redemption Prices:
Optional Repayment: [ ] Yes [ ] No
Optional Repayment Dates:
Optional Repayment Prices:
B-1
Discount Note: [ ] Yes [ ] No
Total Amount of OID:
Yield to Maturity:
Settlement Date, Time and Place:
Requirements for delivery, if any, of opinions of counsel, certificates from the
Company and the Guarantor or their respective officers or a letter from the
Guarantor's independent registered public accountants:
Other terms:
The provisions of the Global Selling Agency Agreement and the
related definitions are incorporated by reference herein and shall be deemed to
have the same force and effect as if set forth in full herein.
Date:
CITIGROUP GLOBAL MARKETS INC.
By:
---------------------
Name:
Title:
Accepted:
CITIGROUP FUNDING INC.
By:
---------------------
Name:
Title:
B-2
EXHIBIT C
FORM OF AGENT ACCESSION CONFIRMATION
[date]
To: [Name and address of new Agent]
Re: Citigroup Funding Inc. Series F Retail Medium-Term Notes Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated April 13, 2006 (which
agreement, as amended from time to time, is herein referred to as the "Agency
Agreement") entered into in respect of the above Series F Retail Medium-Term
Notes Program and hereby acknowledge receipt of your Agent Accession Letter to
us dated [date].
In accordance with Section 2(d) of the Agency Agreement we hereby confirm that,
with effect from the date hereof, you shall become a party to, and a Agent
under, the Agency Agreement, vested with all the authority, rights and powers,
and subject to all the duties and obligations of an Agent as if originally named
as such under the Agency Agreement.
Yours faithfully,
CITIGROUP FUNDING INC.
By:
---------------------------------
Name:
Title:
cc: DTC Agent
Trustee
Existing Agents
Guarantor
C-1
EXHIBIT D
FORM OF AGENT ACCESSION LETTER
[date]
To: Citigroup Funding Inc.
388 Greenwich Street, 38th Floor
New York, New York 10013
Attention: Assistant Treasurer
Re: Citigroup Funding Inc. Series F Retail Medium-Term Notes Program
Ladies and Gentlemen:
We refer to the Global Selling Agency Agreement dated April 13, 2006, entered
into in respect of the above Series C Retail Medium-Term Note Program and made
among Citigroup Funding Inc. (the "Company"), Citigroup Inc. (the "Guarantor"),
Citigroup Global Markets Inc. (the "Purchasing Agent") and the other Agents
party thereto (which agreement, as amended from time to time, is herein referred
to as the "Agency Agreement").
We confirm that we are in receipt of the documents referenced below (except to
the extent we have waived delivery of such documents):
-- a copy of the Agency Agreement;
-- a copy of all documents referred to in Section 5 of the Agency
Agreement; and
-- a letter in a form approved by ourselves from each of the legal advisers
referred to in Section 5 of the Agency Agreement addressed to ourselves
and giving us the full benefit of the existing legal opinions as of the
date of such existing legal opinions, and have found them to our
satisfaction.
For the purposes of Section 9 of the Agency Agreement our notice details are as
follows: (insert name, address, telephone, facsimile and attention).
In consideration of the Company appointing us as an Agent under the Agency
Agreement, we hereby undertake, for the benefit of the Company, the Guarantor
and each of the other Agents, that we will perform and comply with all the
duties and obligations expressed to be assumed by an Agent under or pursuant to
the Agency Agreement. We also undertake to deliver to The Depository Trust
Company of New York such pricing letters as it may reasonably require from us in
connection with the offer and sale of the Notes.
D-1
This letter is governed by, and shall be construed in accordance with, the laws
of the State of New York.
Yours faithfully,
[Name of new Agent]
By:
-------------------------
Name:
Title:
cc:DTC Agent
Trustee
Existing Agents
Guarantor
D-2
EXHIBIT E
FORM OF PRICING SUPPLEMENT
(Fixed Rate Note)
Pricing Supplement No.
Pricing Supplement Dated:
Rule 424(b)(3)
File Nos. 333-132370, 333-132370-01
(To Prospectus Supplement Dated April 13, 2006 and Prospectus Dated March 10,
2006)
Citigroup Funding Inc.
Retail Medium-Term Notes, Series F
Payments Due from Citigroup Funding, Inc.
Fully and Unconditionally Guaranteed by Citigroup Inc.
Trade Date: '
Original Issue Date:
Lead Agent: Citigroup Global Markets Inc.
Agents:
CUSIP:
Aggregate Principal Amount: $
Price to Public: %
Concession: %
Net Proceeds to Issuer: $
Interest Rate: %
Interest Payment Frequency:
First Interest Payment Date:
Stated Maturity:
Calculation Agent:
Survivor's Option: Yes/No
Product Ranking:
Form of Note: Global/Book-Entry Only
Redemption Information:
Other Terms:
E-1
FORM OF PRICING SUPPLEMENT
(Floating Rate Note)
Pricing Supplement No.
Pricing Supplement Dated:
Rule 424(b)(3)
File Nos. 333-132370, 333-132370-01
(To Prospectus Supplement Dated April 13, 2006 and Prospectus Dated March 10,
2006)
Citigroup Funding Inc.
Retail Medium-Term Notes, Series F
Payments Due from Citigroup Funding Inc.
Fully and Unconditionally Guaranteed by Citigroup Inc.
Trade Date:
Original Issue Date:
Lead Agent: Citigroup Global Markets Inc.
Agents:
CUSIP:
Aggregate Principal Amount: %
Price to Public: %
Concession: $
Net Proceeds to Issuer: $
Stated Maturity:
Authorized Denominations (if other than as set forth in the Prospectus
Supplement):
Form of Note: Global/Book-Entry Only
Interest Payment Dates:
First Interest Payment Date:
Accrue to Pay: Yes/No
Initial Interest Rate:
Base Rate:
Indexed Interest Rate:
Calculation Agent:
Computation of Interest (if other than as set forth in the Prospectus
Supplement):
Interest Rest Dates:
Rate Determination Dates (if other than as set forth in the Prospectus
Supplement):
Index Maturity:
Spread:
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
E-2
Survivor's Option: Yes/No
Product Ranking:
Optional Redemption: Yes/No
Optional Redemption Dates:
Redemption Prices:
Redemption:
Optional Repayment: Yes/No
Optional Repayment Dates:
Optional Repayment Prices:
Discount Note: Yes/No
Total Amount of OID:
Bond Yield to Call:
Bond Yield to Maturity:
Yield to Maturity:
Other Terms:
E-3
EXHIBITS F-I
FORMS OF OPINIONS, CERTIFICATES AND COMFORT LETTERS
EXHIBIT J
MASTER SELECTED DEALER AGREEMENT