EXHIBIT 4.02
CITIGROUP INC.
And
CITIBANK, N.A.,
As Fiscal Agent, Registrar, Calculation Agent and Principal Paying Agent
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AMENDED AND RESTATED AGENCY AGREEMENT
C$400,000,000 5.365% Subordinated Notes due 2036
Dated as of March 6, 2006
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THIS AMENDED AND RESTATED AGREEMENT is made in London as of Xxxxx 0, 0000, XX
(1) CITIGROUP INC. (the "Issuer").
(2) CITIBANK, N.A. ("Citibank, N.A."), which shall act as fiscal agent,
registrar, calculation agent and principal paying agent (hereinafter
referred to in such respective capacities as "Fiscal Agent",
"Registrar", "Calculation Agent" or as "Principal Paying Agent", which
expressions shall include any successor or successors thereto).
WHEREAS pursuant to the Terms Agreement dated February 23, 2006 (the
"Underwriting Agreement") between the Issuer and the Underwriters named therein,
the Issuer has agreed to issue its C$400,000,000 5.365% Subordinated Notes due
March 2036 (the "Notes");
WHEREAS the Issuer wishes to appoint Citibank, N.A. to act as Fiscal
Agent, Registrar, Calculation Agent and Principal Paying Agent in relation to
the Notes upon the terms and conditions set forth in this Agreement and the
Schedules hereto; and
WHEREAS the Issuer wishes to deposit the global notes representing the
Notes with The Canadian Depository for Securities Limited ("CDS") or a nominee
therefore.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS, INTERPRETATION
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The following terms shall, unless the context otherwise requires, have
the respective meanings indicated below:
"Agent(s)" means any of the Fiscal Agent, the Registrar, the Calculation
Agent and the Principal Paying Agent.
"Conditions" means the terms and conditions of the Notes, as contained
in the Global Notes, in the Prospectus Supplement dated February 23,
2006 and the Indenture.
"Global Notes" means the Global Notes in the form of Schedule 1 attached
hereto.
"Indenture" means the Indenture dated as of April 12, 2001, as amended
and supplemented to date, between the Issuer and X.X. Xxxxxx Trust
Company, N.A. (the "Trustee").
Terms not defined herein shall have the same meanings as are assigned
thereto in the Underwriting Agreement and the Conditions.
2. APPOINTMENTS
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2.1 The Issuer hereby appoints Citibank, N.A. to act as Fiscal Agent,
Registrar, Calculation Agent and Principal Paying Agent in respect of
the Notes and Global Notes.
2.2 Citibank, N.A. hereby accepts such appointments and the resulting
obligations, and agrees to act in such capacities, on the terms and
conditions set out in this Agreement and the Schedules hereto. In
particular, the Fiscal Agent agrees to effect any publication of notices
pursuant to the Conditions.
3. THE NOTES
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3.1 The Notes shall be represented by permanent Global Notes without
interest coupons as specified in the Conditions. The Global Notes shall be
substantially in the form attached hereto as Schedule 1, with such changes as
may be agreed between the Issuer and the Trustee. The Conditions shall be
attached to, or endorsed upon, each Global Note. In the event that individual
definitive Notes are issued, the parties shall enter into a supplement to this
Agreement to provide for the matters set forth herein with regard to such
definitive Notes.
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3.2 Each Global Note shall be signed manually by a duly authorized officer
of the Issuer and dated the Issue Date. Each Global Note shall be authenticated
manually by Citibank, N.A., as authenticating agent on behalf of the Trustee,
and delivered to CDS.
4. PAYING AGENCY
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4.1 The Issuer shall remit the funds necessary for the payment of interest
on and principal of the Notes to the Fiscal Agent, in Canadian dollars in
same-day funds, to such account at the Fiscal Agent in London or Canada as the
Fiscal Agent may from time to time specify (the "Redemption Account") on the
Business Day such payment is due as set forth in the Notes and Conditions.
The Issuer hereby authorizes and directs the Fiscal Agent, from the amounts so
paid to it, to make payment of the principal of, and interest on, the Notes on
the due date for payment set forth in the Conditions and this Agreement. If
applicable, the Fiscal Agent will, from funds so received from the Issuer,
credit to the account of the Paying Agent the amounts of all such payments made
by it in accordance with the provisions of this Agreement.
The Issuer shall confirm to the Fiscal Agent not later than 10:00 a.m. (London
time) on the second Business Day before the relevant date for such payment that
it has issued irrevocable payment instructions for such payment to be made.
The Fiscal Agent, in coordination with CDS, shall procure tax forms required for
exemption from withholding tax under the U.S. Internal Revenue Code.
4.2 If for any reason the Fiscal Agent does not receive unconditionally the
full amount payable by the Issuer on the relevant due date in respect of all the
outstanding or maturing Notes, the Fiscal Agent shall forthwith notify
immediately the Issuer by telephone followed by facsimile and the Fiscal Agent
shall not be bound to make any payment of principal or interest in respect of
the Notes until the Fiscal Agent has received to its order the full amount of
the monies then due and payable in respect of all outstanding or maturing Notes,
provided, however, that if the Fiscal Agent shall, in its discretion, make any
payment of principal or interest on or after the due date therefor in respect of
the Notes prior to its unconditional receipt of the full amount then due and
payable in respect of all outstanding Notes, the Issuer will promptly pay such
amount to the Fiscal Agent and will compensate the Fiscal Agent at a rate equal
to the Fiscal Agent's cost of funding.
4.3 Out of the sums paid to the Fiscal Agent in respect of interest and
principal on the Notes, the Fiscal Agent will make payment free of charge in
accordance with instructions from the registered holder of the Global Note as
stipulated in Clause 9 below, in the amounts specified in the Conditions. The
Fiscal Agent shall obtain from the Registrar, and the Registrar shall supply,
such details as are required for the Paying Agent to make payment as stated
above.
4.4 In respect of the monies paid to it relating to any Note, the
Fiscal Agent
4.4.1 shall not be entitled to exercise any lien, right of set-off or
similar claim (including without limitation any claim arising from or
relating to any other issue of securities by the Issuer),
4.4.2 shall not be required to account for interest thereon and
4.4.3 money held by it need not be segregated except as may be
required by applicable law.
5. DOCUMENTS FOR INSPECTION AND PUBLICATION OF NOTICES
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5.1 On behalf and at the request and expense of the Issuer, the Fiscal Agent
shall cause to be published any notices required to be given by the Issuer in
accordance with the Conditions.
5.2 The Issuer shall provide to the Fiscal Agent sufficient copies of all
documents required by the Conditions to be available for issue or inspection,
and the Fiscal Agent shall make such copies available to Noteholders upon their
request.
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5.3 To the extent practicable, the Issuer shall provide the Fiscal Agent
with a copy (prior to publication) of all notices to be issued in connection
with the Notes.
6. CANCELLATION OF THE GLOBAL NOTES
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6.1 Subject to the terms of the Indenture, promptly upon the Issuer's
request, the Registrar shall take all measures necessary to cancel any Notes
which the Issuer has repurchased or whose maturity has been accelerated pursuant
to the Conditions. The Registrar shall cause any such Notes to be cancelled in
accordance with the procedures established for that purpose by CDS, resulting in
a reduction in the aggregate amount of the Notes represented by the Global Note
by the aggregate amount of the Notes so cancelled.
6.2 On the same day such cancellation is effected, the Registrar shall
record such cancellation of Notes on the Register in such a way that the
aggregate principal amount of Notes cancelled at any time together with the
aggregate principal amount of Notes outstanding and represented by the Global
Notes shall equal the aggregate principal amount of Notes originally issued by
the Issuer.
6.3 The Registrar shall upon request furnish the Issuer with a notice of
cancellation signed by an authorized officer of the Registrar confirming the
cancellation of such Notes and the corresponding reduction of the relevant
Global Note(s).
7. DUTIES OF THE REGISTRAR
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7.1 The Registrar shall maintain the Register in London in accordance with
the Conditions. The Register shall show the aggregate amount of Notes
represented by the Global Note at the date of issue and all subsequent transfers
and exchanges involving a change in such amounts and the names and addresses of
the registered holders (each a "Payee"). On the first Business Day after the
Record Date for any interest payment on the Notes, the Registrar shall send
payment details in respect of the Payees and the Canadian dollar accounts to
which transfers should be made to the Fiscal Agent.
7.2 Transfers or exchanges of Notes will be made in accordance with the
Conditions, the procedures established for this purpose between CDS and the
Registrar, and CDS's regulations applicable to such transfers or exchanges.
7.3 The Registrar shall at all reasonable times during office hours make the
Register available to the Issuer and the Fiscal Agent or any person authorised
by either of them for inspection and for the taking of copies thereof or
extracts therefrom, and the Registrar shall deliver to such persons such
information contained in the Register or relating to the Notes as they may
reasonably request.
8. DUTIES OF THE TRANSFER AGENT
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If and to the extent so specified by the Conditions and in accordance therewith,
or if otherwise requested by the Issuer, the Transfer Agent shall make available
all relevant forms of transfer, inform the Registrar of the name and address of
the relevant person to be inserted in the Register and carry out such other acts
as may be necessary to give effect to the Conditions and this Agreement.
9. PAYMENTS TO NOTEHOLDERS
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9.1 All amounts of principal and interest due in respect of the Notes which
are represented by the Global Note (each a "CDS Amount") shall be paid in
Canadian dollars (each a "CAD Payment"), so long as the entire principal amount
of the Notes is held in or through CDS.
9.2 The Principal Paying Agent shall, from each CDS Amount received by it,
make CAD Payments in accordance with the Conditions.
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10. CONDITIONS OF APPOINTMENT
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10.1 The Issuer will pay to the Agents a remuneration for all services
rendered hereunder by the Agents in connection with the Notes together with any
expenses incurred as separately agreed upon by the Agents and the Issuer.
10.2 The Issuer will indemnify and hold harmless each of the Agents against
any loss, liability or expense which it may incur or any claim, action or demand
which may be made against it resulting from the negligence or wilful misconduct
on the part of the Issuer (or its officers, employees or agents (other than the
Agents and their officers, employees, and agents)) and arising out of or in
connection with such Agent's appointment or the exercise of its powers and
duties hereunder without negligence or wilful misconduct on the part of such
Agent.
10.3 Each Agent will indemnify and hold harmless the Issuer against any loss,
liability or expense incurred by the Issuer or any claim, action or demand which
may be made against the Issuer resulting from the negligence or wilful
misconduct on the part of such Agent (or such Agent's officers, employees or
agents) and arising out of or in connection with such Agent's duties hereunder.
Notwithstanding the foregoing, under no circumstances will any Agent be liable
to the Issuer or any other person for any consequential loss (being loss of
business, goodwill, opportunity or profit) even if advised to the possibility of
such loss or damages.
10.4 The indemnities above shall survive the termination or expiry of this
Agreement.
10.5 Each of the Agents shall be protected and shall incur no liability for
or in respect of any action taken, omitted or suffered in reliance upon any
instruction or communication from the Issuer or any document reasonably believed
by it to be genuine and to have been delivered, signed or sent by the proper
party or parties in accordance with the provisions hereof, except such as may
result from its own negligence or wilful misconduct or that of its officers,
employees or agents.
10.6 In acting hereunder and in connection with the Notes, the Agents do not
assume any relationship of agency and trust for the Noteholders, and shall not
have any obligation towards them except that all funds held by the Fiscal Agent
for payment of principal of or interest on the Notes shall be held exclusively
for the benefit of and for payment to the Noteholders and shall be applied as
set forth herein and in the Conditions. Except as otherwise required by
applicable law, no Agent will be required to segregate any funds held by it
hereunder from any of its other funds.
10.7 Nothing herein shall be deemed to require any Agent to advance its own
funds in the performance of its duties hereunder.
10.8 The Agents may consult with legal and other professional advisers
selected in good faith and satisfactory to them and the opinion of such advisers
shall be full and complete protection in respect of any action taken, omitted or
suffered hereunder in good faith and without negligence and in accordance with
the opinion of such advisers.
10.9 The Agents shall be obliged to perform such duties and only such duties
as are herein specifically set forth, and no implied duties or obligations shall
be read into this Agreement against the Agents. No Agent shall be under any
obligation to take any action hereunder which it expects will result in any
expense or liability of such Agent, the payment of which within a reasonable
time is not, in its opinion, assured to it. The obligations of the Agents
hereunder are several and not joint.
10.10 The Agents, their affiliates and their respective officers and
employees, in their individual or any other capacity, may become the owner of,
or acquire any interest in, any Notes with the same rights that the Agents would
have it they were not the Agents hereunder.
11. DUTIES AS CALCULATION AGENT
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The Calculation Agent shall, during the floating rate period (as defined in the
Conditions) for the Notes, obtain such quotes and rates relating to CDOR and/or
make such determinations, calculations, adjustments, notifications and
publications as may be required to be made by it by the Conditions at the times
and otherwise in accordance with the Conditions; and shall maintain a record of
all quotations obtained by it and of all amounts, rates and other items
determined or calculated by it and make such records available for inspection at
all reasonable times by the Issuer and the Principal Paying Agent.
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12. CHANGE IN AGENTS
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12.1 Each of the Fiscal Agent, Registrar, Calculation Agent and Principal
Paying Agent in its capacity as such may be removed at any time by the giving to
it of at least 30 days' written notice to that effect signed on behalf of the
Issuer specifying the date on which such removal shall become effective. Each
of the Fiscal Agent, Registrar, Calculation Agent and Principal Paying Agent may
at any time resign by giving at least 30 days' written notice (unless the Issuer
agrees to accept less notice) to that effect to the Issuer specifying the date
on which such resignation shall become effective. Notwithstanding the
foregoing, no such resignation or removal shall take effect within 30 days
before or after any due date for payment of any Notes or before a new Fiscal
Agent, Registrar, Calculation Agent and Principal Paying Agent, as the case may
be, shall have been appointed by the Issuer as hereinafter provided, and such
new Agent shall have accepted such appointment. Any change in any Agent shall
be notified by the Issuer to the other Agent(s).
12.2 The Issuer agrees with the Fiscal Agent that if, by the day falling 10
days before the expiry of any notice under Clause 12.1 above, the Issuer has not
appointed a replacement Fiscal Agent, then the Fiscal Agent shall be entitled,
on behalf of the Issuer, to appoint in its place any reputable financial
institution of good standing and the Issuer shall not unreasonably object to
such appointment.
12.3 Upon the effectiveness of the appointment of any successor Fiscal Agent,
Registrar, Calculation Agent and Principal Paying Agent, as the case may be,
pursuant to Clause 12.1, the Fiscal Agent, Registrar and Principal Paying Agent
so removed shall cease to be a Fiscal Agent, Registrar, Calculation Agent and
Principal Paying Agent, as the case may be, hereunder. Prior to the
effectiveness of such appointment, the Fiscal Agent, Registrar, Calculation
Agent and Principal Paying Agent shall hold all moneys deposited with it or held
by it hereunder in respect of the Notes to the order of the respective successor
Fiscal Agent, Registrar and Principal Paying Agent.
13. NOTICES
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Notices shall be in writing (including by facsimile) and addressed to the
relevant party hereto as follows:
(a) If to the Issuer:
Citigroup Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasury Department
Telephone: 000-000-0000
Telefax: 000-000-0000
(b) If to the Fiscal Agent, Registrar, Calculation Agent and Principal
Paying Agent:
Citibank, N.A.
Citigroup Centre
Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Attn: Agency & Trust, Bond Desk
Telefax: 00-000-0000-0000
or at any other address of which any of the foregoing shall have notified the
others, and shall be deemed to have been given when received by the relevant
party.
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14. APPLICABLE LAW, PLACE OF JURISDICTION
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14.1 This Agreement shall be subject to New York law.
14.2 The non-exclusive place for all proceedings arising out of this
agreement shall be New York.
15. MISCELLANEOUS
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15.1 The Fiscal Agent agrees to perform its obligations hereunder through its
London Branch to the extent that this is necessary or appropriate in order to
make payments to CDS or CDS Participants in accordance with the Conditions.
15.2 The Fiscal Agent shall promptly advise the Issuer of any notice,
including any notice declaring Notes due, which it may receive pursuant to the
Conditions.
15.3 Should any of the provisions of this Agreement be or become invalid, in
whole or in part, the other provisions of this Agreement shall remain in force.
Invalid provisions shall, according to the intent and purpose of this Agreement,
be replaced by such valid provisions which in their economic effect come as
close as legally possible to that of the invalid provisions.
15.4 This Agreement may be signed in two or more counterparts.
15.5 Terms not defined in this Agreement shall have the meanings ascribed to
them in the Underwriting Agreement or the Conditions, as the case may be.
15.6 If there is any conflict between the terms of this Agreement and the
terms of the Indenture, the terms of the Indenture shall control.
15.7 The provisions of the United States Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), shall be incorporated by reference herein
to the extent applicable. Each of the Agents agrees to abide by the Trust
Indenture Act, to the extent applicable in the performance of their respective
duties hereunder. If there is any conflict between the terms of this Agreement
and the Trust Indenture Act, the provisions of the Trust Indenture Act shall
govern to the extent of such conflict.
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This Agreement has been entered into effective the date stated at the beginning
hereof.
CITIGROUP INC.
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, Assistant Treasurer
CITIBANK, N.A.
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, Vice President, Agency and Trust
