COMMERCIAL PAPER ISSUING AND PAYING AGENT AGREEMENT
COMMERCIAL
PAPER ISSUING AND PAYING AGENT
AGREEMENT
Agreement,
dated as of October 23, 2006, between Citibank, N.A., a national banking
association, having an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000
(“Citibank”) and Procter & Xxxxxx International Funding S.C.A., a
société
en commandite par actions
organized under the laws of the Grand Duchy of Luxembourg, having a registered
office at 0 xxx Xxxxxx Xxxxxxx, X-0000 Xxxxxxxxxx, RCS Luxembourg B 114 825 (the
“Issuer”) and The Procter & Xxxxxx Company, a corporation organized under
the laws of the State of Ohio, having an office at Xxx Xxxxxxx & Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxx 00000 (the “Guarantor”).
WITNESSETH:
THAT
WHEREAS,
the
Issuer and the Guarantor wish to appoint Citibank as their agent in connection
with the issuance and payment of certain short-term promissory notes
of the
Issuer described below and Citibank wishes to accept such appointment,
each on
the terms and conditions set forth herein;
NOW,
THEREFORE,
in
consideration of the premises and of the agreements hereinafter set forth,
the
parties hereby agree as follows:
Section
1. Appointment
and Acceptance
The
Issuer and the Guarantor hereby appoint Citibank as their agent in connection
with the issuance and payment of certain Notes (as defined below) of
the Issuer,
and Citibank agrees to act as such upon the terms and conditions set
forth in
this Agreement.
Section
2. Form
of Notes
The
short-term promissory notes to be issued by the Issuer and guaranteed
by the
Guarantor hereunder shall mean promissory notes of the Issuer, offered
for sale
in a transaction which is exempt from registration under Section 4(2)
of the
Securities Act of 1933, as amended (the “1933 Act), and having maturities of 397
days or less and will be book-entry notes only represented by a master
note
issued with a restrictive legend and executed by the Issuer and the Guarantor
in
connection with the book-entry commercial paper program of The Depository
Trust
Issuer (“DTC”) or other depository (book-entry notes herein called the “Notes”
and individually a “Note”).
Section
3. Issuance
of Notes; Authorized Agents
(A)
|
Pursuant
to the Citi Direct for Securities On Line User Agreement (the
“Agreement”) with
Citibank, Citibank will accept issuance and payment instructions
for the
Notes through Citi Direct for Securities-Issuing and Paying
Agent North
America (“CIPANA”) from certain officers and employees of the Issuer, the
Guarantor, dealers, or others authorized by the Issuer or the
Guarantor to
access CIPANA (the “Authorized Agents”). Upon receipt of such
instructions, the following will occur:
|
If
an Authorized Agent specifies that a Note shall be issued in
book-entry
form represented by a master note, the Authorized Agent shall
transmit its
instructions through CIPANA in accordance with the standard
prevailing
book-entry Note program procedures of the DTC. The release
by an
Authorized Agent of the issuance instructions to the DTC shall
consititute
the issuance of a book-entry Note.
|
(B)
The
Authorized Agents shall not instruct Citibank to issue any Note with
a maturity
date which is (i) greater than the tenor allowable under the applicable
law or
(ii) a day on which Citibank’s or, the appropriate depository’s offices in New
York, New York are not open for business. If applicable under this Agreement,
Commercial Paper Notes (“CPNs”) shall have maturities of 397 days or
less.
(C)
|
The
Issuer, the Guarantor or in the case of their dealers, the
dealer, will
supply Citibank with an incumbency certificate listing the
names of the
Authorized Agents together with specimens of their signatures.
Until
Citibank receives a subsequent incumbency certificate from
the Issuer or
the dealer, as the case may be, Citibank shall be entitled
to rely on the
last such certificate delivered to it for purposes of determining
the
Authorized Agents.
|
Section
4. Delivery
of Notes and Payment for Note
(A)
|
All
Notes shall be delivered in accordance with DTC
rules.
|
(B)
|
All
funds to be used in payment for Notes are to be credited to
the Issuer’s
account number 00000000 at Citibank (the “Issuer’s Account”). This account
may be changed upon written instruction from the Issuer or
the Guarantor,
accepted by Citibank.
|
Section
5. Payment
of Notes at Maturity
Citibank
agrees to effect payment on the Issuer’s or Guarantor’s behalf by debiting the
Issuer’s Account in the amount of the face value amount of such Note, plus
interest, if applicable, and to enter appropriate notations of payment.
The
Issuer and the Guarantor agree to maintain a sufficient credit balance
in said
account to pay each Note at maturity.
The
Issuer and the Guarantor acknowledge that nothing in this Agreement shall
obligate Citibank to extend credit, grant financial accommodation, or
otherwise
advance funds to the Issuer or the Guarantor for the purpose of making
any such
payments or part thereof or otherwise effecting such transactions.
Section
6. Instructions
(A)
|
The
Issuer and the Guarantor understand that all instructions,
whether in
telephone or in writing, are to be directed to Citibank’s Agency and Trust
Department. Notwithstanding the foregoing, any instructions
initially
provided by the Issuer or the Guarantor via telephone shall
be followed
immediately by written instructions. Instructions transmitted
through
computer terminals (including CIPANA) or by facsimile shall
be considered
written instructions for the purpose of this
Agreement.
|
(B)
|
All
instructions with respect to the issuance of Notes must be
given via
computer terminal (including CIPANA) by 1:00 p.m. New York
time.
|
(C)
|
Prepayment
instructions and cancellations of a previous issuance instruction
will be
accepted for book-entry issuances from an Authorized Agent
if received by
Citibank by 2:00 p.m. and, in the case of facsimile instructions,
only
after a confirming telephone call back to another Authorized
Agent of the
entity which gave the instruction. Regarding CPNs, notice that
the Issuer
will not redeem any Notes on the relevant Initial Redemption
Date (“as
defined in the applicable Commercial Paper Note Announcement”) must be
received in writing by Citibank by 11:00 a.m., New York time,
on such
Initial Redemption Date.
|
(D)
|
If
Citibank acts on any instruction sent or purported to be sent
by an
Authorized Agent, Citibank shall not, provided it complies
with this
Section 6, be responsible if that instruction is not an authorized
instruction of the Issuer or the Guarantor or is not in the
form the
Issuer or Guarantor sent or intended to send (whether due to
fraud,
distortion or otherwise) and the Issuer and Guarantor shall
jointly and
severally indemnify Citibank against any loss, liability claim
or expense
(including reasonable legal fees) it may incur in connection
with its
acting in accordance with that
instruction.
|
Section
7. Representations
and Warranties of the Issuer and the Guarantor
(A)
The
Issuer represents and warrants as follows:
(i)
|
The
Issuer is a duly organized and validly existing société
en commandite par actions under
the laws of the Grand Duchy of Luxembourg and has the power
and authority
to own its property, to carry on its business as presently
being
conducted, to execute and deliver this Agreement and the Notes,
and to
perform and observe the conditions hereof and
thereof.
|
(ii)
|
This
Agreement has been duly and validly authorized, executed and
delivered by
the Issuer and constitutes the legal, valid and binding agreement
of the
Issuer. The issuance and sale of Notes by the Issuer hereunder
have been
duly and validly authorized by the Issuer and when delivered
by Citibank
as provided in this Agreement, each Note will be the legal,
valid and
binding obligation of the Issuer.
|
(iii)
|
The
offer and sale by the Issuer of such Notes will constitute
exempt
transactions under Section 4(2) of the 1933 Act and, accordingly,
registration of the Notes under the 1933 Act will not be required.
Qualification of an indenture with respect to the Notes under
the Trust
Indenture Act of 1939, as amended, will not be required in
connection with
the offer, issuance, sale or delivery of the
Notes.
|
(iv)
|
Other
than filing with the Securities and Exchange Commission (the
“SEC”) a
notice on Form D in accordance with Rule 503 under the 1933
Act, if
necessary, no consent or action of, or filing or registration
with, any
governmental or public regulatory body or authority in the
United States
is required to authorize, or is otherwise required in connection
with, the
execution, delivery or performance of this Agreement or the
Notes.
|
(B) The
Guarantor represents and warrants as follows:
(i)
|
The
Guarantor is a duly organized and validly existing corporation
in good
standing under the laws of the State of Ohio and has the corporate
power
and authority to own its property, to carry on its business
as presently
being conducted, to execute and deliver this Agreement and
its guarantee
of the Notes, and to perform and observe the conditions hereof
and
thereof.
|
(ii)
|
This Agreement has been duly and validly authorized, executed and delivered by the Guarantor and constitutes the legal, valid and binding agreement of the Guarantor. The guarantee of each Note issued and distributed pursuant to this Agreement shall constitute legal, valid and binding obligation of the Guarantor. |
(iii)
|
The
guarantee and issuance of such Notes will constitute exempt
transactions
under Section 4(2) of the 1933 Act and, accordingly, registration
of the
Notes under the 1933 Act will not be required. Qualification
of an
indenture with respect to the guarantee of and the issuance
of the Notes
under the Trust Indenture Act of 1939, as amended, will not
be required in
connection with the offer, issuance, sale or delivery of the
Notes.
|
(iv)
|
Other
than filing with the SEC a notice on Form D in accordance with
Rule 503
under the 1933 Act, if necessary, no consent or action of,
or filing or
registration with, any governmental or public regulatory body
or authority
in the United States is required to authorize, or is otherwise
required in
connection with, the execution, delivery or performance of
this Agreement
or the guarantee of the Notes.
|
(C) Each
issuance of Notes by the Issuer and guarantee of such Notes by the Guarantor
shall be deemed a representation and warranty by the Issuer and the Guarantor
to
Citibank, as of the date thereof, that, both before and after giving
effect to
such issuance the representations and warranties of the Issuer and the
Guarantor
set forth in Section 7(A) hereof remain true and correct on and as of
such date
as if made on and as of such date (except to the extent such representations
and
warranties expressly relate solely to an earlier date).
Section
8. Governing
Law and Jurisdiction
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York. Any claims made under this Agreement shall be heard
and
determined in the Federal or state courts located in the State of New
York. EACH
OF CITIBANK, THE ISSUER AND THE GUARANTOR WAIVES ITS RIGHT TO TRIAL BY
JURY IN
ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
9. Fees
The
Issuer and the Guarantor agree to pay the fees and expenses for the services
rendered under this Agreement, as set forth in writing from time to time,
between the Issuer, the Guarantor and Citibank. The Issuer and the Guarantor
will be provided thirty (30) days advance notice of any prospective increase
in
fees.
Section
10. Indemnification
The
Issuer and the Guarantor agree to jointly and severally indemnify Citibank
and
its affiliates, their respective directors, officers, employees, and
agents, and
any successor thereto (each such person being an “Indemnified Person”) from and
against any and all losses, claims, damages and liabilities, joint or
several,
to which such Indemnified Person may become subject under any applicable
federal
or state law, or otherwise, related to or arising out of any matter or
transaction contemplated by this Agreement and the Citi Direct for Securities
On
Line User Agreement, and to the performance by Citibank of the services
contemplated by this Agreement and shall promptly reimburse any Indemnified
Person for all expenses (including, but not limited to, fees and disbursements
of internal and external counsel), as they are incurred, in connection
with the
investigation of, preparation for or defense of any pending or threatened
claim
or any action or proceeding arising therefrom, whether or not such Indemnified
Person is a party, provided,
however,
that
the Issuer and the Guarantor shall not be liable in any such case to
the extent
such loss, claim, damage or liability is finally judicially determined
to have
resulted from an Indemnified Person’s gross negligence or willful misconduct.
Section
11. Assignment
This
Agreement shall not be assignable by either party without the written
consent of
the other and any purported assignment made in contravention of this
Section 11,
shall be null and void and of no effect whatsoever. However, Citibank
shall have
the right to assign, transfer, or subcontract either in whole or in part,
any of
its rights or obligations under this Agreement to any affiliate of Citibank,
upon at least 30 days prior written notice to the Issuer.
Section
12. Force
Majeure
Either
party is excused from performance and shall not be liable for any delay
in
delivery or for nondelivery, in whole or in part, caused by the occurrence
of
any contingency beyond the control of the party including, but not limited
to,
fires, civil disobedience, riots, rebellions, accident, explosion, flood,
storm,
Acts of God and similar occurrences.
Section
13. Termination
This
Agreement may be terminated by either party upon 30 days prior written
notice to
the other. Termination of this Agreement shall not affect the Issuer’s or the
Guarantor’s liabilities to Citibank hereunder in connection with any Notes
issued prior to such termination. Citibank shall have a continuing obligation
to
act on behalf of the Issuer and the Guarantor in accordance with the
terms and
conditions of this Agreement with respect to Notes outstanding, as of
the
termination date, until such Notes have matured and been paid by the
Issuer or
Guarantor, but shall have no obligation with respect to the issuance
of Notes
after such termination date.
Section
14. Complete
Agreement; Counterparts.
This
Agreement, together with the Schedules attached hereto, constitutes the
entire
Agreement between the parties with respect to the subject matter hereof
and
supersedes in all respects all prior proposals, negotiations, conversations,
discussions and agreements between the parties concerning the subject
matter
hereof. This Agreement may be executed in counterparts, each of which
shall be
deemed an original, but all of which shall constitute one and the same
instrument.
IN
WITNESS WHEREOF,
the
parties hereto, through their duly authorized officers, have executed
this
Agreement as of the day and year set forth above.
PROCTER
& XXXXXX CITIBANK,
NA.
INTERNATIONAL
FUNDING S.C.A.,
as
Issuer
By:
___________________________ By:
__________________________
Name:
_________________________ Name:
________________________
(print)
(print)
Title:
___________________________ Title:
_________________________
Date:
___________________________ Date:
________________________
THE
PROCTER & XXXXXX
COMPANY,
as
Guarantor
By:
_____________________________
Name:
___________________________
(print)
Title:
_____________________________
Date:
_____________________________