Exhibit 1(a)
CITICORP CAPITAL I
__________________
__% ________________ Preferred Securities [(" ")(sm)]
(Liquidation Amount of $25 Per Preferred Security)
Underwriting Agreement
______________________
New York, New York
___________, 1996
[NAME OF REPRESENTATIVE[S]]
[ADDRESS[ES]]
As Representative[s] of the
several Underwriters named in
Schedule I hereto
Dear Sirs:
Citicorp Capital I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. xx.xx. 3801 et
seq.), and Citicorp, a Delaware corporation (together with the Trust, the
"Offerors"), confirm their agreement (this "Agreement") with [NAME OF
REPRESENTATIVE[S]] and each of the other Underwriters named in Schedule I hereto
(collectively, the "Underwriters"), for whom [NAME OF REPRESENTATIVE[S]] [is]
[are] acting as representative[s] (in such capacity, the "Representative[s]"),
with respect to the issuance and sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of an aggregate of __ shares
(the "Firm Shares") and, at the election of the Underwriters, up to __
additional shares (the "Optional Shares"), of __% ___________ Preferred
Securities (liquidation amount of $25 per preferred security) representing
preferred undivided beneficial interests in the Trust (the Firm Shares and the
Optional Shares, if any, which the Underwriters elect to purchase pursuant to
Section 2 hereof being referred to collectively as the "Preferred Securities").
The Preferred Securities will be guaranteed by Citicorp, to the extent set forth
in the Prospectus (as defined herein), with respect to distributions and
payments upon liquidation, redemption and otherwise (the "Preferred Securities
Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities Guarantee Agreement"), dated as of _______, 1996, between
Citicorp and [Wilmington Trust Company], as trustee
(the "Guarantee Trustee"), and will be entitled to the benefits of the
Indenture (as defined herein) and certain backup undertakings described in
the Prospectus (as defined herein) with respect to Citicorp's agreement
pursuant to the Declaration (as defined herein) and the Indenture (the
"Undertakings") to pay all costs, expenses, debts and obligations of the Trust
(other than payment obligations with respect to the Preferred Securities). The
Preferred Securities and the related Preferred Securities Guarantee are referred
to herein as the "Securities".
Prior to the purchase and public offering of the Preferred
Securities by the several Underwriters, the Offerors and the Representative[s],
acting on behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Offerors and the Representative[s] and
shall specify such applicable information as is indicated in Exhibit A hereto.
The offering of the Preferred Securities will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date of the execution
and delivery of the Pricing Agreement, this Agreement shall be deemed to
incorporate the Pricing Agreement, and references to the date of this Agreement
shall be deemed to refer to the date of the Pricing Agreement.
The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Representative[s]
deem[s] advisable after the Pricing Agreement has been executed and delivered
and the Declaration, the Indenture and the Preferred Securities Guarantee
Agreement have been qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). The entire proceeds to the Trust from the sale of
the Securities will be combined with the entire proceeds from the sale by the
Trust to Citicorp of its common securities (the "Common Securities"), and will
be used by the Trust to purchase the __% subordinated debt securities of
Citicorp (the "Subordinated Debt Securities") to be issued under the Indenture.
The Preferred Securities and the Common Securities will be issued pursuant to
the amended and restated declaration of trust of the Trust, dated as of
____________, 1996 (the "Declaration") among Citicorp, as sponsor, ____________
and ____________ (the "Regular Trustees") and [Wilmington Trust Company], a
Delaware banking corporation, as property trustee (the "Property Trustee and,
together with the Regular Trustees, the "Trustees"), and the holders from time
to time of undivided beneficial interests in the Trust. The
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Subordinated Debt Securities will be issued pursuant to the Indenture, dated
as of _____________, 1996 (the "Base Indenture"), between
Citicorp and [Wilmington Trust Company], as Trustee (the "Debt Trustee"), and a
supplement to the Base Indenture, in the form filed as an exhibit to the
Registration Statement, dated as of the First Closing Date (as defined herein),
between Citicorp and the Debt Trustee (the "Supplemental Indenture", and
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture").
1. Representations and Warranties. The Offerors jointly and
severally represent and warrant to, and agree with, each Underwriter as of the
date hereof and as of the date of the Pricing Agreement that:
(a) A registration statement (the "registration statement") on
Form S-3 (File No. 333-14917) relating to the Preferred Securities, the
Preferred Securities Guarantee and the Subordinated Debt Securities
(collectively, the "Registered Securities"), including a prospectus
which, as supplemented, shall be used in connection with the sale of
the Preferred Securities, has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective under
the Securities Act of 1933, as amended (the "Act"). The registration
statement, as amended to the date hereof, is hereinafter referred to as
the "Registration Statement"; such prospectus (which shall be in the
form in which it has been most recently filed, or transmitted for
filing, with the Commission on or before the Representation Date, as
the same is proposed to be added to or changed), as supplemented by a
prospectus supplement relating to the Registered Securities, filed or
transmitted for filing with the Commission pursuant to Rule 424 under
the Act and used in connection with the sale of the Preferred
Securities, is hereinafter referred to as the "Prospectus"; and such
prospectus supplement is hereinafter referred to as the "Prospectus
Supplement". Any reference herein to the Registration Statement or the
Prospectus 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 Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date hereof, and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange
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Act deemed to be incorporated therein by reference after the date
hereof.
(b) The Registration Statement, at the time it became
effective, and the Prospectus contained therein, and any amendments
thereof or supplements thereto filed on or prior to the date of this
Agreement, as of their respective effective or issue dates, conformed
in all material respects to the requirements of the Act, the Trust
Indenture Act and the respective rules and regulations of the
Commission thereunder; the Registration Statement and the Prospectus,
as of the date of the Prospectus Supplement, and any amendments thereof
and supplements thereto, as of their respective effective or issue
dates, will conform in all material respects to the requirements of the
Act, the Trust Indenture Act and the respective rules and regulations
of the Commission thereunder, and no such document, as of such
respective dates and, in the case of the Prospectus and any amendments
thereof or supplements thereto, as of each Closing Date (as hereinafter
defined), included or will include any untrue statement of a material
fact or omitted or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, provided that neither Citicorp nor the Trust makes any
representations or warranties as to (i) the Statements of Eligibility
(Forms T-1) under the Trust Indenture Act of the Debt Trustee, the
Property Trustee or the Guarantee Trustee or (ii) the information
contained in or omitted from the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with the
information, described in the last sentence of Section 7(b), furnished
in writing to Citicorp or the Trust by or on behalf of any Underwriter
through the Representative[s] specifically for use in connection with
the preparation of the Prospectus or any supplement thereto.
(c) Each of the Offerors meets, and at the respective time of
commencement and consummation of the offering of the Securities will
meet, the registrant requirements for use of Form S-3 under the Act and
the rules and regulations thereunder.
(d) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act with the power
and authority to own property and to conduct its business as described
in the Registration Statement and Prospectus and to enter into and
perform its obligations under this
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Agreement, the Pricing Agreement, the Preferred Securities, the Common
Securities and the Declaration; the Trust is not a party to or
otherwise bound by any agreement other than those described in the
Prospectus; the Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of Citicorp pursuant to
generally accepted accounting principles.
(e) Each of the Regular Trustees of the Trust is an employee
of Citicorp and has been duly authorized by Citicorp to execute and
deliver the Declaration; the Declaration has been duly authorized by
Citicorp and, at the First Closing Date, will have been duly executed
and delivered by Citicorp and the Regular Trustees, and assuming due
authorization, execution and delivery of the Declaration by the
Property Trustee, the Declaration will be a valid and binding
obligation of Citicorp and the Regular Trustees, enforceable against
Citicorp and the Regular Trustees in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting
creditors' rights generally and by general principals of equity; and,
at the First Closing Date, the Declaration will have been duly
qualified under the Trust Indenture Act.
(f) Neither Offeror is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, (a) the
Trust agrees to sell to each Underwriter, and each Underwriter, severally and
not jointly, agrees to purchase from the Trust, at the purchase price per
security set forth in the Pricing Agreement, the respective number of Firm
Shares set forth opposite such Underwriter's name in Schedule I hereto plus any
additional number of Preferred Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof and (b) in
the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Trust agrees to sell to each
Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Trust, at the purchase price per security set forth in the Pricing
Agreement, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by the
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Representative[s] so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the numerator of which
is the maximum number of Optional Shares which such Underwriter is entitled
to purchase as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the maximum number of the Optional
Shares which all of the Underwriters are entitled to purchase hereunder.
Citicorp hereby grants to the Underwriters the right to
purchase at their election up to __ Optional Shares, at the price per security
set forth in the Pricing Agreement, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised by written notice from the Representative[s] to
Citicorp, given within a period of 30 calendar days after the date of the
Pricing Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by the Representative[s] but in no event earlier than the First
Closing Date (as hereinafter defined) or, unless the Representative[s] and
Citicorp otherwise agree in writing, earlier than two or later than ten business
days after the date of such notice. As used herein, the term "business day"
shall mean any day on which the Commission's office in Washington, D.C. is open
for business.
The purchase price per security to be paid by the several
Underwriters for the Preferred Securities shall be an amount equal to the
initial public offering price. The initial public offering price per Preferred
Security shall be a fixed price to be determined by agreement between the
Representative[s] and the Offerors. The initial public offering price and the
purchase price per security, when so determined, shall be set forth in the
Pricing Agreement. In the event that such prices have not been agreed upon and
the Pricing Agreement has not been executed and delivered by all parties thereto
by the close of business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability of any
party to any other party, unless otherwise agreed to by the Offerors and the
Representative[s]. As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated Debt Securities of
Citicorp, Citicorp hereby agrees to pay at each Closing Date (as defined below)
to the Representative[s], for the accounts of the several Underwriters, the
compensation per Preferred Security set forth in the Pricing Agreement.
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3. Delivery and Payment. Delivery of and payment of the
purchase price for the Preferred Securities shall be made at the offices of
Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or at such other place as
shall be agreed upon by the Representative[s], the Trust and Citicorp, at
10:00 A.M. New York time on the third business day (unless postponed in
accordance with the provisions of Section 9) after execution of the
Pricing Agreement, or such other time not later than ten business days after
such date as shall be agreed upon by the Representative[s], the Trust and
Citicorp. Delivery of and payment for the Optional Shares shall be made at such
offices, on such date and at the time specified by the Representative[s] in the
written notice (if any) given by them to the Trust of the Underwriters' election
to purchase such Optional Shares, which date and time of delivery and payment
may be postponed by agreement between the Representative[s] and Citicorp. The
date and time of delivery of and payment for the Firm Shares is hereinafter
called the "First Closing Date"; such date and time of delivery for the Optional
Shares, if other than the First Closing Date, is hereinafter called the "Second
Closing Date," and each of the First Closing Date and the Second Closing Date is
herein called a "Closing Date". Payment shall be made to the Trust by [certified
or official bank check or checks drawn in New York Clearing House funds or
similar next day funds payable to the order of the Trust] to an account
designated by the Trust, against delivery to the Representative[s] for the
respective accounts of the Underwriters of certificates for the Preferred
Securities to be purchased by them. Certificates for the Preferred Securities
shall be in such denominations and registered in such names as the
Representative[s] may request in writing at least two business days in advance
of the applicable Closing Date. It is understood that each Underwriter has
authorized the Representative[s], for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Preferred
Securities which it has agreed to purchase.
The certificates for the Preferred Securities will be made
available for examination and packaging in New York, New York, no later than
10:00 A.M. on the last business day prior to the applicable Closing Date.
On each Closing Date, Citicorp will pay, or cause to be paid,
the compensation payable at such time to the Underwriters under Section 2 hereof
by certified or official bank check or checks payable to [NAME OF LEAD
REPRESENTATIVE] in New York Clearing House funds or other similar next day
funds.
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4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale as set forth in
the Prospectus.
5. Agreements. Each of the Offerors jointly and severally
agrees with the several Underwriters that:
(a) The Offerors will cause the Prospectus to be filed, or
transmitted for filing, pursuant to Rule 424 under the Act and will
promptly advise the Underwriters when the Prospectus has been so filed
or transmitted for filing, and prior to the termination of the offering
of the Securities to which such Prospectus relates also will promptly
advise the Underwriters (i) when any amendment to the Registration
Statement has become effective or any further supplement to the
Prospectus has been so filed or transmitted for filing, (ii) of any
request by the Commission for any amendment of the Registration
Statement or any supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, and (iv)
of the receipt by Citicorp or the Trust of any notification with
respect to the suspension of the qualification of the Securities or the
Subordinated Debt Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Offerors will use best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal
thereof. The Offerors will not file or transmit for filing any
amendment to the Registration Statement or supplement to the Prospectus
unless they have furnished the Underwriters a copy for their review
prior to filing or transmission for filing. Subject to the foregoing,
the Offerors will promptly prepare a Prospectus Supplement to reflect
the terms of the Securities and the Subordinated Debt Securities and
the terms of the offering. The Offerors will file or transmit for
filing the Prospectus Supplement pursuant to Rule 424(b) under the Act
not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing
Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any
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untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to supplement the Prospectus to comply with the Act or the
respective rules and regulations of the Commission thereunder, the
Offerors will notify the Underwriters and promptly will prepare and
file or transmit for filing with the Commission, subject to paragraph
(a) of this Section 5, a supplement which will correct such statement
or omission or effect such compliance.
(c) Citicorp will make generally available to its security
holders and to the Underwriters as soon as practicable, but not later
than 45 days after the close of the period covered thereby, an earnings
statement (which need not be audited) of Citicorp and its subsidiaries,
covering a 12-month period beginning not later than the first day of
Citicorp's fiscal quarter next following the "effective date" (as
defined in Rule 158(c) under the Act) of the Registration Statement,
which will satisfy the provisions of Section 11(a) of the Act.
(d) The Offerors will furnish to each of the Underwriters as
many copies of the Prospectus, each related preliminary prospectus
supplement and all amendments of and supplements to such documents as
may be reasonably requested.
(e) The Offerors will use best efforts to effect the listing
of the Preferred Securities (including the Preferred Securities
Guarantee with respect thereto) on the New York Stock Exchange; if
Subordinated Debt Securities are at any time distributed to holders of
Preferred Securities, the Offerors will use best efforts to effect the
listing of the Subordinated Debt Securities on the exchange on which
the Preferred Securities were then listed.
(f) During a period of 30 days from the date of the Pricing
Agreement, neither the Trust nor Citicorp will, without the prior
written consent of the Representative[s], directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise dispose
of, any Preferred Securities, any security convertible into or
exchangeable into or exercisable for Preferred Securities or the
Subordinated Debt Securities or any debt securities substantially
similar to the Subordinated Debt Securities or equity
9
securities substantially similar to the Preferred Securities (except
for the Subordinated Debt Securities and the Preferred Securities
issued pursuant to this Agreement and the Pricing Agreement).
(g) Citicorp will pay all expenses incident to the performance
of its and the Trust's obligations under this Agreement, and will pay
(i) the expenses of printing all documents relating to the offering,
(ii) any filing fee incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities and the Subordinated Debt Securities, (iii) any fees charged
for rating the Preferred Securities and the Subordinated Debt
Securities, (iv) all expenses incident to the preparation, issuance and
delivery of the certificates for the Preferred Securities and the
Subordinated Debt Securities, (v) all filing fees and counsel fees and
expenses related to the qualification of the Securities and the
Subordinated Debt Securities under securities or Blue Sky laws in
accordance with the provisions of Section 5(h), (vi) the fees and
expenses of the Debt Trustee, including the fees and disbursements of
counsel for the Debt Trustee in connection with the Indenture and the
Subordinated Debt Securities, (vii) the fees and expenses of the
Property Trustee and the Guarantee Trustee, including the fees and
disbursements of counsel for the Property Trustee in connection with
the Declaration and the Certificate of Trust, (viii) the fees and
expenses incurred in connection with the listing of the Preferred
Securities (and the related Preferred Securities Guarantee) and, if
applicable, the Subordinated Debt Securities on the New York Stock
Exchange, (ix) the cost and charges of any transfer agent or registrar
and (x) the cost of qualifying the Preferred Securities with The
Depository Trust Company. It is understood, however, that except as
provided in this Section and Section 7, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel.
(h) The Offerors will use best efforts to arrange for the
qualification of the Securities and the Subordinated Debt Securities
for sale under the laws of such jurisdictions as the Underwriters may
designate, to maintain such qualifications in effect so long as
required for the distribution of such securities and to arrange for the
determination of the legality of the Preferred Securities (and the
Preferred Security Guarantee in respect thereof) and Subordinated Debt
Securities for purchase by institutional investors;
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provided that neither Offeror shall be required to qualify to do
business in any jurisdiction where it is not now 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.
6. Conditions to the Obligations of the Under writers. The
obligations of the Underwriters to purchase the Preferred Securities on each
Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Offerors contained herein as of the date of the
Pricing Agreement and such Closing Date, to the accuracy of the statements of
the Offerors made in any certificates pursuant to the provisions hereof, to the
performance by each of the Offerors of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been insti tuted and be pending or have been
threatened as of such Closing Date.
(b) The Offerors shall have furnished to the Underwriters a
certificate or certificates, dated such Closing Date, of Citicorp,
signed by a Principal Financial Officer of Citicorp or, in the absence
of such officer, the Controller of Citicorp, and a certificate, dated
such Closing Date, of the Trust, signed by a Regular Trustee of the
Trust, to the effect that each signer of such certificate has carefully
examined the Registration Statement, the Prospectus and this Agreement
and that:
(i) The representations and warranties of the
Offerors in this Agreement are true and correct in all
material respects on and as of such Closing Date with the same
effect as if made on such Closing Date and the Offerors have
complied with all the agreements and satisfied all the
conditions on their part to be performed or satisfied at or
prior to such Closing Date;
(ii) No stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted and are
pending or, to the signer's knowledge, have been threatened as
of such date;
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(iii) The dollar amount of Preferred Securities
registered under the Registration Statement is no less than
$_____________. Prior to such Closing Date, no securities have
been sold by the Trust other than the issuance of the Common
Securities to Citicorp and, in the case of the Second Closing
Date, the issuance of Preferred Securities pursuant to this
Agreement; and
(iv) Since the date of the most recent
financial statements of Citicorp included in the Prospectus,
there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
Trust or Citicorp and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary
course of business, nor any material change in the debt
maturing more than one year after the date of issue of
Citicorp and its subsidiaries consolidated, except as set
forth in or contemplated by the Prospectus or as described in
such certificate.
(c) The Offerors shall have furnished to the Underwriters the
opinion, dated such Closing Date, of Xxxx X. Xxxxx, Esq., Executive
Vice President--Legal Affairs, or, in his absence, Xxxxxxx X. Xxxx,
Esq., Senior Vice President--Legal Affairs, of Citicorp, to the effect
that, in the course of such counsel's review of the Registration
Statement and the Prospectus and discussion of the same with certain
officers of Citicorp and its auditors, no facts came to the attention
of such counsel that caused such counsel to believe that any part of
the Registration Statement, at the time such part became effective,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus, as of
the date of the Prospectus Supplement or such Closing Date, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; the descriptions in each part of the
Registration Statement, at the time such part became effective, and in
the Prospectus, as of the date of the Prospectus Supplement and such
Closing Date, of statutes, legal and governmental proceedings and
contracts and other documents were accurate and fairly presented the
information required
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to be shown under the Act, the Exchange Act and the respective rules
and regulations of the Commission thereunder; and such counsel does not
know of any legal or governmental proceedings required to be described
in the Prospectus, as of the date of the Prospectus Supplement or such
Closing Date, which were not described as required, nor of any
contracts or documents of a character required to be described in any
part of the Registration Statement, at the time such part became
effective, or in the Prospectus, as of the date of the Prospectus
Supplement or such Closing Date, or to be filed as exhibits to the
registration statement, at the time it became effective, any amendment
thereto, as of its effective date, or the Prospectus, as of the date of
the Prospectus Supplement or such Closing Date, which were not
described or filed as required; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data contained or incorporated by reference in or omitted
from the registration statement, or any amendment thereto, or the
Prospectus, or any supplement thereto.
(d) The Offerors shall have furnished to the Underwriters the
opinion, dated such Closing Date, of Xxxxxxx X. Xxxxx, Esq., Associate
General Counsel of Citibank, N.A., to the effect that:
(i) Citicorp has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority under such laws to own its properties and conduct
its business as described in the Prospectus or any supplement
thereto;
(ii) Each of the Offerors meets the
registrant requirements for use of Form S-3 under the Act;
(iii) The Declaration has been duly authorized,
executed and delivered by Citicorp and each of the regular
Trustees, has been duly qualified under the Trust Indenture
Act and constitutes a valid and legally binding instrument of
Citicorp and each of the Regular Trustees, enforceable against
Citicorp and the Regular Trustees in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting
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creditors' rights and to general equity principles;
(iv) The Preferred Securities Guarantee
Agreement has been duly authorized, executed and delivered by
Citicorp, has been duly qualified under the Trust Indenture
Act and, assuming the due authorization, execution and
delivery thereof by the Guarantee Trustee, constitutes a valid
and legally binding instrument of Citicorp, enforceable
against Citicorp in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; and the Preferred Securities, when issued and
delivered against payment therefor in accordance with this
Agreement and the Pricing Agreement, will be entitled to the
benefits of the Preferred Securities Guarantee Agreement.
(v) The Indenture has been duly executed and
delivered by Citicorp, has been duly qualified under the Trust
Indenture Act and, assuming the due authorization, execution,
and delivery thereof by the Debt Trustee, constitutes a valid
and legally binding obligation of Citicorp, enforceable
against Citicorp in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(vi) The terms of the Subordinated Debt
Securities have been duly authorized and established in
conformity with the Indenture; and the Subordinated Debt
Securities have been duly authorized, executed and delivered
by Citicorp and, assuming authentication by the Debt Trustee
in the manner contemplated in its certificate delivered on
such Closing Date, will constitute valid and legally binding
obligations of Citicorp, enforceable against Citicorp in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles,
and entitled to the benefits provided by the Indenture;
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(vii) The Subordinated Debt Securities are
subordinate and junior in right of payment to all "Senior
Indebtedness" (as defined in the Indenture) of Citicorp;
(viii) Citicorp's obligations under the Preferred
Securities Guarantee are subordinate and junior in right of
payment to all liabilities of Citicorp and are pari passu with
the most senior preferred stock issued by Citicorp;
(ix) No authorization, approval, consent or
order of any court or governmental authority or agency is
required in connection with the issuance and sale of the
Common Securities, the offering of the Preferred Securities,
the Preferred Securities Guarantee or the Subordinated Debt
Securities, or the distribution of the Subordinated Debt
Securities upon the dissolution of the Trust in the
circumstances described in the Prospectus Supplement except
(a) such as may be required under the Act or the rules and
regulations thereunder or state securities laws, and (b) the
qualification of the Declaration, the Preferred Securities
Guarantee Agreement and the Indenture under the Trust
Indenture Act and the rules and regulations thereunder;
(x) Neither Citicorp nor the Trust is an
"investment company" within the meaning of the 1940 Act;
(xi) The Registration Statement has become
effective under the Act, and, to the best of the knowledge of
such counsel after due inquiry, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or threatened under the Act, and each part of the
Registration Statement, at the time such part became
effective, and the Prospectus, as of the date of the
Prospectus Supplement, and each supplement thereto, as of
their respective issue dates (except, in each case, for the
financial statements or other financial data contained or
incorporated by reference in or omitted from the registration
statement, the Registration Statement or the Prospectus),
appeared on their respective faces to be appropriately
responsive in all material respects to the requirements of the
Act,
15
the Exchange Act and the respective rules and regulations of
the Commission thereunder applicable to such documents as of
such respective dates, and the Declaration, the Indenture, the
Preferred Securities Guarantee Agreement and the Statements of
Eligibility on Forms T-1 with respect to each of the Property
Trustee, the Debt Trustee and the Guarantee Trustee filed with
the Commission as part of the Registration Statement complied
as to form in all material respects with the requirements of
the Trust Indenture Act and the regulations thereunder and,
with respect to the opinion expressed in this paragraph (xi),
such counsel has discussed the same with the Executive Vice
President--Legal Affairs, of Citicorp;
(xii) The statements in the Prospectus under the
captions "Description of the Preferred Securities,"
"Description of the Preferred Securities Guarantees," "The
Trusts," "Description of the Subordinated Debt Securities" and
"Effect of Obligations under the Subordinated Debt Securities
and the Preferred Securities Guarantees," and in the
Prospectus Supplement under the captions "Citicorp Capital
Trust," "Description of the Preferred Securities,"
"Description of the Guarantee," and "Description of the
Subordinated Debt Securities," insofar as they constitute
matters of law, summaries of legal matters, documents or
proceedings, or legal conclusions, have been reviewed by such
counsel and fairly present the information disclosed therein
in all material respects;
(xiii) The Subordinated Debt Securities, the
Preferred Security Guarantee, the Indenture and the Preferred
Security Guarantee Agreement conform in all material respects
to all statements relating thereto contained in the Prospectus
or any supplement thereto;
(xiv) As of such Closing Date, all of the issued
and outstanding Common Securities of the Trust are directly
owned by Citicorp free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right;
and no other person other than the holders of the Preferred
Securities holds any interest in the Trust; and
16
(xv) Each of this Agreement and the Pricing
Agreement has been duly authorized, executed and delivered by
Citicorp and the Trust.
(e) The Offerors shall have furnished to the Underwriters the
opinion, dated such Closing Date, of Morris, Nichols, Arsht & Xxxxxxx,
special Delaware counsel to the Trust, to the effect that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Act; all filings required under the laws of the
State of Delaware with respect to the formation and valid
existence of the Trust as a business trust have been made; the
Trust has all necessary power and authority to own property
and to conduct its business as described in the Registration
Statement and the Prospectus, or any amendment or supplement
thereto, and to enter into and perform its obligations under
this Agreement, the Pricing Agreement, the Preferred
Securities and the Common Securities; the Trust is duly
qualified and in good standing as a foreign company in any
other jurisdiction in which such qualification is necessary,
except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the
Trust; and the Trust is not a party to or otherwise bound by
any agreement other than those described in the Prospectus and
any supplement thereto;
(ii) The Common Securities have been duly
authorized for issuance and, when issued, delivered and paid
for in accordance with the Declaration and as described in the
Prospectus (including any supplement thereto), will be validly
issued and fully paid and non-assessable undivided beneficial
interests in the assets of the Trust, and the issuance of the
Common Securities is not subject to preemptive or other
similar rights;
(iii) The Preferred Securities have been duly
authorized for issuance and, when issued, delivered and paid
for in accordance with this Agreement, will be validly issued,
fully paid and non-assessable undivided beneficial interests
in the assets of the Trust; the Preferred Securities have the
rights set forth in the Declaration; the holders of the
Preferred Securities will be
17
entitled to the same limitation of personal liability under
Delaware law as is extended to stockholders of private
corporations for profit; and the issuance of the Preferred
Securities is not subject to preemptive or other similar
rights;
(iv) The Common Securities, the Preferred
Securities and the Declaration conform in all material
respects to all statements relating thereto contained in the
Prospectus or any supplement thereto;
(v) The issuance and sale by the Trust of
Preferred Securities and the Common Securities, the execution,
delivery and performance by the Trust of this Agreement and
the Pricing Agreement, the consummation by the Trust of the
transactions contemplated hereby and compliance by the Trust
with its obligations hereunder will not violate (a) any of the
provisions of the Certificate of Trust of the Trust or the
Declaration, or (b) any applicable Delaware law or
administrative regulation;
(vi) Assuming that the Trust derives no income
from or connected with services provided within the State of
Delaware and has no assets, activities (other than maintaining
the Property Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in
the State of Delaware, no authorization, approval, consent or
order of any Delaware court or governmental authority or
agency is required to be obtained by the Trust solely in
connection with the issuance and sale of the Preferred
Securities and the Common Securities or the performance by the
Trust of its obligations thereunder, provided, that in
rendering the opinion expressed in this paragraph (vi), such
counsel need express no opinion concerning the securities laws
of the State of Delaware;
(vii) Assuming that the Trust derives no income
from or connected with services provided within the State of
Delaware and has no assets, activities (other than maintaining
the Property Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in
the State of Delaware, the Trust's securityholders (other than
those holders of the Securities who reside or are domiciled in
the
18
State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable
for any income tax imposed by the State of Delaware; and
(viii) Each of this Agreement and the
Pricing Agreement has been duly authorized,
executed and delivered by the Trust.
(f) The Offerors shall have furnished to the Underwriters the
opinion, dated such Closing Date, of [ ], counsel of [Wilmington
Trust Company], as Property Trustee under the Declaration and
Guarantee Trustee under the Preferred Securities Guarantee Agreement,
to the effect that:
(i) The Property Trustee is a Delaware banking
corporation with trust powers, duly organized, validly
existing and in good standing under the laws of the State of
Delaware with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under
the terms of the Declaration and the Preferred Securities
Guarantee Agreement;
(ii) The execution, delivery and performance by
the Property Trustee of the Declaration and the execution,
delivery and performance by the Guarantee Trustee of the
Preferred Securities Guarantee Agreement have been duly
authorized by all necessary corporate action on the part of
the Property Trustee and the Guarantee Trustee, respectively.
The Declaration and the Preferred Securities Guarantee
Agreement have been duly executed and delivered by the
Property Trustee and the Guarantee Trustee, respectively, and
constitute the legal, valid and binding obligations of the
Property Trustee and the Guarantee Trustee, respectively,
enforceable against the Property Trustee and the Guarantee
Trustee, respectively, in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(iii) The execution, delivery and
performance of the Declaration and the Preferred
Securities Guarantee Agreement by the Property
19
Trustee and the Guarantee Trustee, respectively, does not
conflict with or constitute a breach of the Articles of
Organization or Bylaws of the Property Trustee and the
Guarantee Trustee, respectively; and
(iv) No consent, approval or authorization of,
or registration with or notice to, any Delaware or federal
banking authority is required for the execution, delivery or
performance by the Property Trustee and the Guarantee Trustee
of the Declaration and the Preferred Securities Guarantee
Agreement, respectively.
(g) The Offerors shall have furnished to the Underwriters the
opinion, dated such Closing Date, of ______________________, [special]
tax counsel to Citicorp and the Trust, to the effect that:
(i) Under current law, the Trust will be
classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a
corporation; accordingly, for United States federal income tax
purposes, each holder of Preferred Securities generally will
be considered the owner of an undivided interest in the
Subordinated Debt Securities, and each holder will be required
to include in its gross income any original issue discount
accrued with respect to its allocable share of the
Subordinated Debt Securities;
(ii) Although not entirely free from doubt,
under current law the Subordinated Debt Securities will be
classified for United States federal income tax purposes as
indebtedness of Citicorp; and
(iii) The discussion set forth in the Prospectus
Supplement under the heading "UNITED STATES FEDERAL INCOME
TAXATION" is a fair and accurate summary of the matters
addressed therein, based upon current law and the assumptions
stated or referred to therein.
Such opinion may be conditioned on, among other things, the
initial and continuing accuracy of the facts, financial and other
information, covenants and representations set forth in certificates of
officers
20
of Citicorp and the Trustees and other documents deemed necessary for
such opinion.
(h) The Underwriters shall have received from Xxxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to such matters as the Underwriters may
reasonably require.
(i) KPMG Peat Marwick LLP shall have furnished to the
Underwriters letters, dated as of the date of the Prospectus Supplement
and as of such Closing Date, in form and substance satisfactory to the
Underwriters, confirming that they are independent certified public
accountants within the meaning of the Act and the applicable published
rules and regulations thereunder and stating in effect that:
(i) In their opinion the audited financial
statements and financial statements schedules (if any)
included or incorporated by reference in the Registration
Statement and Prospectus, and reported on by them comply in
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations thereunder; they have made a
review in accordance with the standards established by the
America Institute of Certified Public Accounts of Citicorp's
interim financial statements as described in Statement on
Auditing Standards No. 71, Interim Financial Information, for
the period specified in such letter performed at the request
of Citicorp;
(ii) On the basis of a reading of the unaudited
financial statements included or incorporated in the
Registration Statement and the Prospectus, or used as the
basis for the summary of consolidated earnings in the
Prospectus and of the latest unaudited internal financial
statements made available by Citicorp and its subsidiaries;
the carrying out of certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders and board of directors and of the audit and
executive committees of Citicorp and the stockholders and
board of directors of
21
Citibank, N.A.; and inquiries of certain officials of Citicorp
who have responsibility for financial and accounting matters
of Citicorp and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited balance
sheet of Citicorp and its subsidiaries consolidated, nothing
came to their attention which caused them to believe that:
(1) the unaudited financial statements
included in Citicorp's Reports on Form 8-K and
quarterly reports on Form 10-Q incor porated by
reference in the Prospectus do not comply in form in
all material respects with the applicable accounting
requirements of the Exchange Act and the published
rules and regulations thereunder or are not presented
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements incorporated by reference in the
Prospectus; or
(2) the amounts in the unaudited sum xxxx
financial information included in the Registration
Statement and Prospectus were not determined on a
basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Registration Statement and
Prospectus; or
(3) at the date of the most recently
available unaudited internal financial statements
there was any net increase or decrease in total
capital stock of Citicorp and its subsidiaries
consolidated or any decrease in common stockholders'
equity of Citicorp and its subsidiaries consolidated
as compared with the amounts shown in the most recent
balance sheet of Citicorp and its subsidiaries
consolidated incorporated by reference in the
Prospectus; or for the period from the date of such
balance sheet to the date of the most recently
available unaudited internal financial statements
there was any decrease, as compared with the
corresponding period in the preceding year, in the
total amounts of net interest revenue or income
before taxes or in the total or per share amounts of
net income before cumulative
22
effect of accounting changes of Citicorp and its
subsidiaries consolidated, except in all instances
for changes or decreases that the Registration
Statement and Prospectus disclose have occurred or
may occur or as set forth in such letter; and
(iii) They have performed other specified procedures
as a result of which they determined that certain specified
information of an account ing, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
Citicorp) set forth in the Registration Statement or
Prospectus (other than documents incorporated by reference
therein) agrees with the accounting records of Citicorp and
its subsidi aries, excluding any questions of legal
interpretation.
(j) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change,
in or affecting the business or properties of the Trust or Citicorp or
its subsidiaries which the Underwriters conclude, after consultation
with Citicorp, in the judgment of the Underwriters materially impairs
the investment quality of the Securities so as to make it impractical
or inadvisable to proceed with the public offering or the delivery of
the Securities as contemplated by the Prospectus.
(k) The Offerors shall have furnished to the Underwriters and
their counsel such further information, certificates and documents as
they may reasonably request prior to such Closing Date.
(l) At such Closing Date, the Preferred Securities and the
Subordinated Debt Securities shall be rated in one of the four highest
rating categories for long term debt ("Investment Grade") by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) (a "Rating Agency"), and the
Trust shall have delivered to the Underwriters a letter, dated such
Closing Date, from such Rating Agency, or other evidence satisfactory
to the Underwriters, confirming that the Preferred Securities and the
Subordinated Debt Securities have Investment Grade ratings; and there
shall not have occurred any decrease in the ratings of any of the debt
securities of Citicorp or of the Preferred Securities
23
by any Rating Agency and such organization shall not have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the debt securities of
Citicorp or of the Preferred Securities.
(m) At such Closing Date, the Preferred Securities shall have
been approved for listing on the New York Stock Exchange, subject to
notice of issuance.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be reasonably satisfactory in form and
substance to the Underwriters and their counsel, this Agreement and the Pricing
Agreement and all obligations of the Underwriters hereunder and thereunder may
be cancelled by the Underwriters at, or at any time prior to, such Closing Date.
Notice of such cancellation shall be given to Citicorp and the Trust in writing
or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution. (a) The Offerors agree
jointly and severally to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter 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 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 or in any amendment thereof filed prior to the date
hereof, or in the Registration Statement or the Prospectus, or in any amendment
thereof or supplement thereto, or in any related preliminary prospectus supple
ment, 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 against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written
24
consent of the Offerors, and agrees to reimburse each such indemnified party for
any reasonable legal or other expenses, as incurred by them, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Offerors 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 the
written information, described in the last sentence of Section 7(b), furnished
to the Offerors by or on behalf of any Underwriter through the Representative
specifically for use in con nection with the preparation of the Prospectus or
any supplement thereto or any related preliminary prospectus supplement and (ii)
such indemnity with respect to any related preliminary prospectus supplement
shall not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Preferred Securities which are the subject thereof if a
copy of the Prospectus (or the Prospectus as amended or supplemented), excluding
documents incorporated therein by reference, was not sent or given to such
person at or prior to the confirmation of the sale of such Preferred Securities
to such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such related
preliminary prospectus supplement was corrected in the Prospectus (or the
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Offerors may otherwise have.
(b) Each Underwriter severally agrees to indem nify and hold
harmless the Offerors, their directors and trustees, each of Citicorp's officers
who signs the Registration Statement, and each person who controls the Offerors
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Offerors to each Underwriter, but only with
reference to written information furnished to the Offerors by such Underwriter
through the Representative[s] specifically for use in the preparation of the
Prospectus or any supplement thereto or any related preliminary prospectus
supplement. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Offerors each acknowledge that the
information set forth in the [last paragraph] of the cover page of the
Prospectus Supplement and any related preliminary prospectus supplement, the
table listing the names of the Underwriters and the number of Preferred
Securities to be purchased by
25
each Underwriter and the information set forth in the second and third
paragraphs under the heading "Underwriting" in the Prospectus Supplement and any
related preliminary prospectus supplement, constitute the only information
furnished in writing by or on behalf of the several Underwriters through the
Representative[s] for inclusion in the Prospectus or any supplement thereto or
any related preliminary prospectus supplement, and you, as the Underwriters,
confirm that such information is correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemni fying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided that, if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indem nified 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, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indem nifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Underwriters, representing the indemnified parties who are parties to such
action), (ii) the indemnifying party shall
26
not have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be unavail
able from the Offerors on grounds of policy or otherwise, the Offerors and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Offerors and one or more of
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriters' compensation appearing on the cover page of the Prospectus
Supplement bears to the public offering price appearing thereon and the Offerors
are responsible for the balance; provided that (y) in no case shall any
Underwriter (except as may be provided in any Agreement Among Underwriters) be
responsible for any amount in excess of the aggregate underwriters' compensation
payable with respect to the Preferred Securities purchased by such Underwriter
hereunder and (z) 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 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person who controls an Offeror within the meaning of
27
either the Act or the Exchange Act, each trustee of the Trust, each officer of
Citicorp who shall have signed the Registration Statement and each director of
Citicorp shall have the same rights to contribution as the Offerors, subject in
each case to clauses (y) and (z) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
(f) Citicorp agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever due from the Trust under this
Section 7.
8. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Underwriters with respect to Preferred
Securities to be delivered to the Underwriters on a Closing Date, by notice
given to the Offerors prior to delivery of and payment for the Preferred
Securities on such Closing Date, if prior to such time (i) trading in any
securities of Citicorp or securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Preferred Securities or (iv) there shall have occurred any decrease in the
ratings of any of the debt securities of Citicorp or of the Preferred Securities
by any Rating Agency or such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of any of the debt securities of Citicorp or of the Preferred Securities.
9. Substituted Underwriters. If, on the First Closing Date,
any one or more of the Underwriters shall fail or refuse to purchase Firm Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Firm
28
Shares to be purchased on the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Underwriters may agree, to
purchase the Firm Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the number of Firm Shares that any Underwriter has agreed to purchase
pursuant to Section 2 above be increased pursuant to this Section 9 by an amount
in excess of one-ninth of such number of Firm Shares without the written consent
of such Underwriter. If, on the First Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to the Underwriters and Citicorp for the purchase
of such Firm Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Offerors. In the event of any such default which does not
result in a termination of this Agreement, either the Underwriters or the
Offerors shall have the right to postpone the First Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this Section 9 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
Citicorp or its officers, the Trust or its trustees and the Underwriters 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 any Underwriter
or Citicorp or the Trust or any of the trustees, officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Preferred Securities. The provisions of Sections 5(g) and
7 hereof shall survive the termination or cancellation of this Agreement.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, trustees
29
and controlling persons referred to in Section 7 hereof, and no other person
will have any right or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
13. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
14. Action by Underwriters. Any action under
this Agreement taken by [NAME OF REPRESENTATIVE[S]] will be
binding upon all the Underwriters.
30
If the foregoing is in accordance with your under standing of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between Citicorp and the Trust and the several Underwriters.
Very truly yours,
CITICORP
By:_____________________
Title: Vice President
CITICORP CAPITAL I
By:_____________________
as Trustee
By:______________________
as Trustee
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
[NAME OF REPRESENTATIVE[S]]
[INSERT NAMES OF UNDERWRITERS]
By: [NAME OF REPRESENTATIVE[S]]
By:_____________________________
Name:
Title:
31
SCHEDULE I
Number of Preferred
Underwriter Securities to be Purchased
___________ __________________________
[NAME OF REPRESENTATIVE[S]]
[INSERT NAMES OF UNDERWRITERS]
TOTAL
32
Exhibit A
___________________ Preferred Securities
CITICORP CAPITAL I
(a Delaware business trust)
__% ________________ Preferred Securities
(Liquidation Amount of $25 Per Security)
PRICING AGREEMENT
________, 1996
[NAME OF REPRESENTATIVE[S]]
[ADDRESS OF REPRESENTATIVE[S]]
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
_______, 1996 (the "Underwriting Agreement"), relating to the purchase by the
several Underwriters named in Schedule I thereto, for whom
________________________ [is] [are] acting as representative[s] (the
"Representative[s]"), of the above __% ________________ Preferred Securities
(the "Preferred Securities"), of CITICORP CAPITAL I, a Delaware business trust
(the "Trust").
Pursuant to Section 2 of the Underwriting Agreement, the Trust
and Citicorp, a Delaware corporation, agree with each Underwriter as follows:
1. The initial public offering price per security for the
Preferred Securities, determined as provided in said Section 2, shall
be $_____.
2. The purchase price per security for the Preferred
Securities to be paid by the several Underwriters shall be $_____,
being an amount equal to the initial public offering price set forth
above.
3. The compensation per Preferred Security to be paid by
Citicorp to the several Underwriters in respect of their commitments
hereunder shall be _________; provided, however, that the compensation
per Preferred Security for sales of 10,000 or more Preferred Securities
to a single purchaser shall be __________.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and Citicorp in accordance with
its terms.
Very truly yours,
CITICORP
By:______________________
Name:
Title:
CITICORP CAPITAL I
By:______________________
Name:
Title: Trustee
By:______________________
Name:
Title: Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAME OF REPRESENTATIVE[S]]
For itself and as Representative[s] of the other
Underwriters named in the Underwriting Agreement
By:____________________________
Authorized Signatory
A-2
