500,000 CAPITAL SECURITIES CITIGROUP CAPITAL XVIII 6.829% Fixed Rate/Floating Rate Enhanced Trust Preferred Securities (Enhanced TruPSÒ) £1,000 Liquidation Amount Guaranteed to the extent set forth in the Prospectus dated June 22, 2007 by CITIGROUP...
500,000
CAPITAL SECURITIES
CITIGROUP
CAPITAL XVIII
6.829%
Fixed Rate/Floating Rate Enhanced Trust Preferred Securities (Enhanced
TruPSÒ)
£1,000
Liquidation Amount
Guaranteed
to the extent set forth in the
Prospectus
dated June 22, 2007 by
As
of
June 22, 2007
Citigroup
Global Markets Limited
Barclays
Bank PLC
Credit
Suisse Securities (Europe) Limited
The
Royal
Bank of Scotland plc
UBS
Limited
BNP
Paribas
Deutsche
Bank AG, London Branch
Xxxxxxx
Xxxxx International
ING
Belgium SA/NV,
as
Representatives of the several Underwriters
c/o
Citigroup Global Markets Limited
Citigroup
Centre, 00 Xxxxxx Xxxxxx
Canary
Wharf
London,
E14 5LB
United
Kingdom
Ladies
and Gentlemen:
Citigroup
Capital XVIII (the “Trust”), a statutory trust organized under the Statutory
Trust Act (the “Delaware Act”) of the State of Delaware (Chapter 38, Title 12,
of the Delaware Business Code, 12 Del. C. §3801
et
seq.),
proposes, upon the terms and conditions set forth herein, to issue and sell
500,000 6.829% Fixed Rate/Floating Rate Enhanced Trust Preferred Securities
(Enhanced TruPS®)
with an
aggregate liquidation amount equal to £500,000,000 (the “Capital Securities”) to
the several Underwriters named in Schedule I hereto (the “Underwriters”), for
whom you (the “Representatives”) are acting as representatives.
The
Capital Securities and the Common Securities (as defined herein) are to be
issued pursuant to the terms of an amended and restated declaration of trust,
dated as of June 28, 2007 (the “Declaration”), among Citigroup Inc., a
Delaware corporation (the “Company” and, together with the Trust, the
“Offerors”), as sponsor, the trustees named therein (the “Citigroup Capital
Trustees”) and the holders from time to time of undivided beneficial interests
in the assets of the Trust. The Declaration is qualified as an indenture under
the Trust Indenture Act. Pursuant to the Declaration, the number of Citigroup
Capital Trustees will initially be five. Three of the Citigroup Capital Trustees
(the “Regular Trustees”) will be persons who are employees or officers of the
Company. The fourth Citigroup Capital Trustee will be a financial institution
unaffiliated with the Company that will serve as property trustee under the
Declaration and as indenture trustee with respect to the Capital Securities
for
purposes of the Trust Indenture Act (the “Institutional Trustee”). The fifth
Citigroup Capital Trustee will be a financial institution or an affiliate
thereof which maintains a principal place of business in the State of Delaware,
meeting the requirements of the Delaware Act (the “Delaware Trustee”).
Initially, The Bank of New York, a New York banking association (“BoNY”), will
act as the Institutional Trustee and The Bank of New York (Delaware), a banking
association with its principal place of business in the State of Delaware,
will
act as the Delaware Trustee until removed or replaced by the holder of the
Common Securities. The Capital Securities will be guaranteed by the Company
on a
subordinated basis with respect to distributions and payments upon liquidation,
redemption or otherwise (the “Guarantee”) pursuant to the Capital Securities
Guarantee Agreement dated as of June 28, 2007 (the “Guarantee Agreement”)
between the Company and BoNY, as Trustee (the “Guarantee Trustee”).
The
assets of the Trust will consist of 6.829% Fixed Rate/Floating Rate Junior
Subordinated Deferrable Interest Debentures due June 28, 2067 (the
“Subordinated Debentures”) of the Company which will be issued under an
indenture, dated as of June 28, 2007 (as supplemented, the “Indenture”),
between the Company and BoNY, as Trustee (the “Indenture Trustee”). Under
certain circumstances, the Subordinated Debentures will be distributable to
the
holders of undivided beneficial interests in the assets of the Trust. The
Capital Securities, the Guarantee and the Subordinated Debentures are referred
to herein as the “Securities.”
The
Offerors wish to confirm as follows their agreement with you and the other
several Underwriters listed on Schedule I on whose behalf you are acting, in
connection with the several purchases of the Capital Securities by the
Underwriters. To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall
mean you, as Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. Any reference herein
to the Registration Statement, any Preliminary Prospectus or the Final
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 Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of any Preliminary Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any
Preliminary Prospectus or the Final Prospectus shall be deemed to refer to
and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of any Preliminary
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 21 hereof.
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1. Registration
Statement and Prospectus.
The
Offerors meet the requirements for use of Form S-3 under the Act and have
prepared and filed with the Commission an automatic shelf registration
statement, as defined in Rule 405 (File No. 333-135163), including a related
form of prospectus, for registration under the Act of the offering and sale
of
the Securities. Such Registration Statement, including any amendments thereto
filed prior to the date hereof, became effective upon filing. The Offerors
may
have filed with the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b), one or more preliminary prospectuses
relating to the Securities, each of which has previously been furnished to
you.
The Company will file with the Commission a final prospectus relating to the
Securities in accordance with Rule 424(b). As filed, such final prospectus
shall
contain all information required by the Act and the rules thereunder, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you
prior to the date hereof or, to the extent not completed by the date hereof,
shall contain only such specific additional information and other changes
(beyond that contained in any preliminary prospectus) as the Company has advised
you, prior to the date hereof, will be included or made therein. The
Registration Statement, as of the date hereof, meets the requirements set forth
in Rule 415(a)(1)(x). The initial Effective Date of the Registration
Statement was not earlier than the date three years before the date
hereof.
2. Agreements
to Sell and Purchase.
(a) The
Trust hereby agrees, subject to all the terms and conditions set forth herein,
to issue and sell to each Underwriter and, upon the basis of the
representations, warranties and agreements of the Offerors herein contained
and
subject to all the terms and conditions set forth herein each Underwriter
agrees, severally and not jointly, to purchase from the Trust, at a purchase
price of £1,000 per Capital Security, the number of Capital Securities set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
of
Capital Securities increased as set forth in Section 11 hereof).
The
Company agrees that, in view of the fact that the proceeds of the sale of the
Capital Securities will be invested in the Subordinated Debentures, it shall
pay
to the Underwriters as compensation (“Underwriters’ Compensation”) for their
arranging the investment of the proceeds therein, on the Closing Date (as
defined herein), £10 per Underwritten Security.
3. Terms
of Public Offering.
The
Offerors have been advised by you that the Underwriters propose to make a public
offering of their respective portions of the Capital Securities as soon as
the
Underwriters deem advisable after this Agreement has been executed and
delivered, and the Declaration, the Guarantee Agreement and the Indenture have
been qualified under the Trust Indenture Act. The entire proceeds from the
sale
of the Capital Securities will be combined with the entire proceeds from the
sale by the Trust to the Company of its common securities (the “Common
Securities”), and will be used by the Trust to purchase an equivalent amount of
the Subordinated Debentures.
4. Delivery
of the Capital Securities and Payment Therefor.
Delivery to the Underwriters of, and payment for, the Capital Securities shall
be made at the office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, Xxx Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at or prior to 8:30 A.M., New York City time,
on June 28, 2007 (the “Closing Date”). The place of closing for the Capital
Securities and the Closing Date may be varied by agreement between you and
the
Company.
3
Delivery
of the Capital Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters directly or through the Representatives of the net purchase price
thereof to or upon the order of the Trust by wire transfer payable in same-day
funds to an account specified by the Trust. Delivery of the Capital Securities
shall be made through the facilities of The Euroclear System and/or Clearstream
Banking, société
anonyme
unless
the Representatives shall otherwise instruct.
It
is
understood that the Representatives, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to
the
Company on behalf of any other Underwriter for Capital Securities to be
purchased by such Underwriter. Any such payment by the Representatives shall
not
relieve any such Underwriter of any of its obligations hereunder.
The
Company shall pay to the Representatives on the Closing Date for the accounts
of
the Underwriters any fee, commission or other compensation specified herein.
Such payment will be made by wire transfer payable in same-day funds to an
account specified by the Representatives.
5. Agreements
of the Offerors.
The
Offerors jointly and severally agree with the several Underwriters
that:
(a) Prior
to
the termination of the offering of the Securities, the Offerors will not file
any amendment of the Registration Statement or supplement to any Preliminary
Prospectus or the Final Prospectus unless the Company has furnished the
Representatives a copy for their review prior to filing and will not file any
such proposed amendment or supplement to which they reasonably object. The
Offerors will cause the Final Prospectus, properly completed, and any supplement
thereto, to be filed in a form acceptable to the Representatives with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (1) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b),
(2) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (3) of any request by the Commission or its staff for any
amendment of the Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (4) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by
the Offerors of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Offerors will use their
respective best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the Registration
Statement and, upon such issuance, occurrence or notice of objection, to obtain
as soon as possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an amendment to
the
Registration Statement or a new registration statement and using its best
efforts to have such amendment or new registration statement declared effective
as soon as practicable.
4
(b) The
Offerors will prepare a final term sheet, containing solely a description of
final terms of the Capital Securities and the offering thereof, in a form
acceptable to you (the “Final Term Sheet”) and to file such term sheet pursuant
to Rule 433(d) within the time required by such Rule.
(c) If,
at
any time prior to the filing of the Final Prospectus pursuant to Rule 424(b),
any event occurs as a result of which the Disclosure Package would include
any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made at such time not misleading, the Offerors will (1) notify
promptly the Representatives so that any use of the Disclosure Package may
cease
until it is amended or supplemented; (2) amend or supplement the Disclosure
Package to correct such statement or omission; and (3) supply any amendment
or
supplement to you in such quantities as you may reasonably request.
(d) If,
at
any time when a prospectus relating to the Capital Securities is required to
be
delivered under the Act (including in circumstances where such requirement
may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Final Prospectus as then supplemented would include any 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 amend the Registration Statement,
file a new registration statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, including
in connection with use or delivery of the Final Prospectus, the Company promptly
will (i) notify the Representatives of such event, (ii) prepare and
file with the Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement or new registration statement
which will correct such statement or omission or effect such compliance, (iii)
use its best efforts to have any amendment to the Registration Statement or
new
registration statement declared effective as soon as practicable in order to
avoid any disruption in use of the Final Prospectus and (iv) supply any
supplemented Final Prospectus to the Representatives in such quantities as
the
Representatives may reasonably request.
(e) As
soon
as practicable, the Offerors will make generally available to the Trust’s
security holders and to the Representatives a consolidated earnings statement
or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158.
(f) Upon
request, the Offerors will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a
prospectus by an Underwriter or dealer may be required by the Act (including
in
circumstances where such requirement may be satisfied pursuant to Rule 172),
as
many copies of any Preliminary Prospectus, the Final Prospectus and any Issuer
Free Writing Prospectus and any supplement thereto as the Representatives may
reasonably request. The Offerors will pay the expenses of printing or other
production of all documents relating to the offering that are required to be
prepared, furnished or delivered by the Offerors.
5
(g) The
Offerors will arrange, if necessary, for the qualification of the Securities
for
sale under the laws of such jurisdictions within the United States as the
Representatives reasonably may designate, will maintain such qualifications
in
effect so long as required for the distribution of the Securities and will
pay
any fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided
that in
no event shall either of the Offerors be obligated to qualify to do business
in
any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out
of
the offering or sale of the Securities, in any jurisdiction where it is not
now
so subject.
(h) (i)
Each
Offeror agrees that, unless it has obtained or will obtain, as the case may
be,
the prior written consent of the Representatives, and (ii) each Underwriter,
severally and not jointly, agrees with the Offerors that, unless it has obtained
or will obtain, as the case may be, the prior written consent of the Offerors,
it has not made and will not make any offer relating to the Capital Securities
that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be
filed by the Offerors with the Commission or retained by the Offerors under
Rule
433, other than the Final Term Sheet described above or other free writing
prospectuses containing solely a description of the final terms of the Capital
Securities and the offering thereof. Any such free writing prospectus consented
to by the Representatives or the Offerors is hereinafter referred to as a
“Permitted Free Writing Prospectus.” Each Offeror agrees that (x) it has treated
and will treat, as the case may be, each Permitted Free Writing Prospectus
as an
Issuer Free Writing Prospectus and (y) it has complied and will comply, as
the
case may be, with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping.
(i) The
Offerors will not, without the prior written consent of Citigroup Global Markets
Limited, offer, sell, contract to sell, pledge, or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company, the
Trust or any affiliate of the Company or the Trust or any person in privity
with
the Company, the Trust or any affiliate of the Company or the Trust) directly
or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any preferred
securities, any preferred stock or any other securities including any guarantee
of such securities (other than a guarantee of securities issued by Citigroup
Funding Inc.), of the Offerors, in each case that are substantially similar
to
the Capital Securities or any security convertible into or exchangeable for
the
Capital Securities or such substantially similar securities, or publicly
announce an intention to effect any such transaction, during the period
beginning the date hereof and ending 60 days after the Closing Date.
6
(j) The
Trust
will apply the net proceeds from the sale of the Capital Securities, and the
Company will apply the net proceeds from the sale of the Subordinated
Debentures, substantially in accordance with the description set forth in the
Final Prospectus.
(k) The
Company will comply with all applicable securities and other laws, rules and
regulations, including, without limitation, the Sarbanes Oxley Act of 2002,
and
use its best efforts to cause the Company’s directors and officers, in their
capacities as such, to comply with such laws, rules and regulations, including,
without limitation, the provisions of the Sarbanes Oxley Act of
2002.
(l) The
Offerors will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of either of the Offerors to facilitate the sale or resale
of
the Capital Securities, except that the Offerors makes no agreement as to the
activities of any Underwriter.
6. Representations
and Warranties of the Offerors.
The
Offerors jointly and severally represent and warrant to, and agree with, each
Underwriter that:
(a) On
each
Effective Date, the Registration Statement did, and when the Final Prospectus
is
first filed in accordance with Rule 424(b) and on the Closing Date, the
Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the
Trust Indenture Act and the respective rules thereunder; on each Effective
Date
and on the date hereof, the Registration Statement did not and will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and on the Effective Date and on the Closing Date,
the
Indenture and the Declaration did or will comply in all material respects with
the applicable requirements of the Trust Indenture Act and the rules thereunder;
on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not include
any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided,
however,
that
the Offerors make no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Citigroup
Capital Trustees or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in
reliance upon and in conformity with information furnished in writing to the
Offerors by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final Prospectus
(or any supplement thereto), it being understood and agreed that the only such
information furnished by or on behalf of any Underwriters consists of the
information described as such in Section 7 hereof.
7
(b) The
execution and delivery of, and the performance by the Company and the Trust
of
their respective obligations under, this Agreement have been duly and validly
authorized by the Company and the Trust, respectively, and this Agreement has
been duly executed and delivered by the Company and the Trust.
(c) The
Capital Securities have been duly and validly authorized by the Declaration
and,
when executed by the Trust and authenticated by the Institutional Trustee in
accordance with the Declaration and delivered to you against payment therefor
in
accordance with the terms hereof, will be validly issued and (subject to
Sections 9.8 and 3.10(a)(vi) of the Declaration) will be fully paid and
non-assessable undivided beneficial interests in the assets of the Trust, will
be entitled to the benefits of the Declaration and will conform in all material
respects to all statements relating thereto contained in the Registration
Statement, the Disclosure Package and the Final Prospectus, and any amendment
or
supplement thereto; the issuance of the Capital Securities is not subject to
preemptive or other similar rights; holders of Capital Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit under the General Corporation Law of the
State of Delaware; and the Capital Securities have been registered under the
Exchange Act and authorization for listing the Capital Securities on the New
York Stock Exchange has been given, subject to notice of official
issuance.
(d) The
Declaration has been duly and validly authorized by the Company and, at the
Closing Date, will have been duly executed and delivered by the Company and
the
Regular Trustees, and assuming due execution and delivery by the Institutional
Trustee and the Delaware Trustee, the Declaration will be a valid and legally
binding obligation of the Company and the Regular Trustees, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors’ rights
generally and general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity); and the Declaration has
been
(or will have been) duly qualified under the Trust Indenture Act and conforms
in
all material respects to the description thereof in the Registration Statement,
the Disclosure Package and the Final Prospectus, and any amendment or supplement
thereto.
(e) The
Guarantee has been duly and validly authorized by the Company and, at the
Closing Date, will have been duly executed and delivered by the Company, and
assuming due execution and delivery by the Guarantee Trustee, the Guarantee
will
be a valid and legally binding obligation of the Company, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors’ rights
generally and general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity); and the Guarantee has been
(or will have been) duly qualified under the Trust Indenture Act and conforms
in
all material respects to the description thereof in the Registration Statement,
the Disclosure Package and the Final Prospectus, and any amendment or supplement
thereto.
8
(f) The
Indenture has been duly and validly authorized by the Company, and, at the
Closing Date, will have been duly executed and delivered by the Company and
the
Indenture Trustee, and assuming due execution and delivery by the Company and
the Indenture Trustee, the Indenture will be a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except
as
enforcement thereof may be limited by bankruptcy, insolvency or other similar
laws affecting creditors’ rights generally and general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in
equity); and the Indenture has been (or will have been) duly qualified under
the
Trust Indenture Act and conforms in all material respects to the description
thereof in the Registration Statement, the Disclosure Package and the Final
Prospectus, and any amendment or supplement thereto.
(g) The
Subordinated Debentures have been duly and validly authorized by the Company
and, when authenticated by the Indenture Trustee in the manner provided for
in
the Indenture and issued in accordance with the Indenture and delivered to
the
Trust against payment therefor as described in the Registration Statement,
the
Disclosure Package and the Final Prospectus, and any amendment or supplement
thereto, will be valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as enforcement thereof may
be
limited by bankruptcy, insolvency or other similar laws affecting creditors’
rights generally, and general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity), and will
be
in the form contemplated by, and entitled to the benefits of, the Indenture
and
conform in all material respects to the description thereof in the Registration
Statement, the Disclosure Package and the Final Prospectus, and any amendment
or
supplement thereto.
(h) The
Trust
has been duly created and is validly existing and in good standing as a
statutory 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 Final Prospectus, and any amendment or supplement thereto, and to enter
into
and perform its obligations under this Agreement, the Capital Securities and
the
Declaration and is not required to be authorized to do business in any other
jurisdiction; the Trust is not a party to or otherwise bound by any agreement
other than those described in the Final Prospectus, and any amendment or
supplement thereto; the Trust will be classified as a grantor trust and not
as
an association taxable as a corporation for U.S. federal income tax purposes;
and the Trust is and will be treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles.
(i) The
Regular Trustees of the Trust are officers of the Company and have been duly
authorized by the Company to execute and deliver the Declaration.
(j) Neither
the Trust nor the Company is now, nor after giving effect to the transactions
contemplated hereby will be, and neither the Trust nor the Company is controlled
by, or acting on behalf of any person which is, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended.
9
(k) As
of the
date hereof, the Disclosure Package does not contain any untrue statement of
a
material fact or omit to state any material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to statements in
or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Offerors by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 7 hereof.
(l) (i)
At
the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3)
of
the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Offerors or any person acting on their behalf
(within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Capital Securities in reliance on the exemption in Rule 163
and
(iv) on the date hereof (with such date being used as the determination date
for
purposes of this clause (iv)), each of the Offerors was or is (as the case
may
be) a “well-known seasoned issuer” as defined in Rule 405. The Offerors agree to
pay the fees required by the Commission relating to the Capital Securities
within the time required by Rule 456(b)(1) without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r).
(m) (i)
At
the earliest time after the filing of the Registration Statement that the
Offerors or another offering participant made a bona
fide
offer
(within the meaning of Rule 164(h)(2)) of the Capital Securities and (ii) as
of
the date hereof (with such date being used as the determination date for
purposes of this clause (ii)), neither of the Offerors was or is an Ineligible
Issuer (as defined in Rule 405), without taking account of any determination
by
the Commission pursuant to Rule 405 that it is not necessary that the Offerors
be considered Ineligible Issuers.
(n) Neither
any Issuer Free Writing Prospectus nor the Final Term Sheet includes any
information that conflicts with the information contained in the Registration
Statement, including any document incorporated therein and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified.
The foregoing sentence does not apply to statements in or omissions from any
Issuer Free Writing Prospectus nor the Final Term Sheet based upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 7
hereof.
Any
certificate signed by any officer of the Company or trustee of the Trust and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Capital Securities shall be deemed a representation
and
warranty by either the Company or the Trust, as the case may be, as to matters
covered thereby, to each Underwriter.
10
7. Indemnification
and Contribution.
(a) Each
of
the Trust and the Company jointly and severally agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of
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 for the registration of the Capital
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus, the Final Prospectus, the Disclosure Package, any Issuer
Free Writing Prospectus, or in any amendment thereof or supplement thereto,
or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by
them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided,
however,
that
neither the Company nor the Trust will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Offerors by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which either the Company or the Trust
may
otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless
each
of the Company, the Trust, the Company’s directors, the Company’s officers and
the Regular Trustees who sign the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company and the Trust
to
each Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Offerors by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition
to
any liability that any Underwriter may otherwise have. The Offerors acknowledge
that the statements set forth in the last paragraph of the cover page regarding
delivery of the Capital Securities and, under the heading “Underwriting”,
(i) the list of Underwriters and their respective participation in the sale
of the Capital Securities, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in
any
Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or
the
Final Prospectus and any Issuer Free Writing Prospectus.
11
(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
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided,
however,
that
such counsel shall be satisfactory to the indemnified party. Notwithstanding
the
indemnifying party’s election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without
the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding.
(d) In
the
event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company, the Trust and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively “Losses”)
to
which the Company, the Trust and one or more of the Underwriters may be subject
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Trust on the one hand and by the Underwriters on the
other from the offering of the Capital Securities; provided,
however,
that in
no case shall (i) any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Capital Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Capital Securities purchased by such Underwriter hereunder.
If
the allocation provided by the immediately preceding sentence is unavailable
for
any reason, the Company, the Trust and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Trust
on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and the
Trust shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by the Trust, and benefits received by
the
Underwriters shall be deemed to be equal to the total underwriting discounts
and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact
or
the omission or alleged omission to state a material fact relates to information
provided by the Company and the Trust on the one hand or the Underwriters on
the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Trust and the Underwriters agree that it would not
be
just and equitable if contribution were determined by pro rata allocation or
any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 7, each person who controls an Underwriter within the meaning
of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company, as applicable, within
the
meaning of either the Act or the Exchange Act, each officer of the Company
and
the Regular Trustees who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company and the Trust, subject in each case to the applicable terms and
conditions of this paragraph (d).
12
8. Conditions
of the Underwriters’ Obligations.
The
obligations of the several Underwriters to purchase the Capital Securities
shall
be subject to the accuracy of the representations and warranties on the part
of
the Offerors contained herein as of the date hereof and the 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) The
Final
Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); the Final Term Sheet contemplated
by Section 5(b) hereto, and any other material required to be filed by the
Offerors pursuant to Rule 433(d) under the Act, shall have been filed with
the
Commission within the applicable time periods prescribed for such filings by
Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
13
(b) The
Offerors shall have requested and caused Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, special counsel to the Offerors, to have furnished to the
Representatives an opinion, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Capital
Securities, the Indenture, the Subordinated Debentures, the Declaration, the
Registration Statement, the Disclosure Package, the Final Prospectus (together
with any supplement thereto) and other related matters as the Representatives
may reasonably require. Insofar as such opinion involves factual matters, such
counsel may rely, to the extent such counsel deems proper, upon certificates
of
officers of the Company, its subsidiaries and the Trust and certificates of
public officials.
(c) The
Offerors shall have requested and caused Xxxxxxx X. Xxxxxxx, General Counsel,
Finance and Capital Markets of the Company, to have furnished to the
Representatives an opinion, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Capital
Securities, the Indenture, the Subordinated Debentures, the Declaration, the
Registration Statement, the Disclosure Package, the Final Prospectus (together
with any supplement thereto) and other related matters as the Representatives
may reasonably require.
(d) The
Offerors shall have requested and caused Xxxxxxx, Arps, Slate, Xxxxxxx &
Xxxx LLP, special tax counsel to the Offerors, to have furnished to the
Representatives an opinion, dated the Closing Date and addressed to the
Representatives, with respect to certain United States federal income tax matter
related to the Trust and the Subordinated Debentures and other related matters
as the Representatives may reasonably require.
(e) The
Offerors shall have requested and caused Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP,
counsel to XxXX, to have furnished to the Representatives an opinion or
opinions, dated the Closing Date and addressed to the Representatives, with
respect to the Institutional Trustee, the Delaware Trustee, the issuance and
sale of the Capital Securities and other related matters as the Representatives
may reasonably require.
(f) The
Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and
sale
of the Capital Securities, the Subordinated Debentures, the Indenture, the
Declaration, the Registration Statement, the Disclosure Package, the Final
Prospectus (together with any supplement thereto) and other related matters
as
the Representatives may reasonably require, and the Offerors shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(g) The
Company shall have furnished to the Representatives a certificate of the Company
and the Trust, signed, in the case of the Company, by the Chairman, any Vice
Chairman, the President, any Vice President, the Chief Financial Officer, the
Chief Accounting Officer, the General Counsel, the Controller or any Deputy
Controller and by the Treasurer, any Assistant Treasurer, the Secretary or
any
Assistant Secretary of the Company and, in the case of the Trust, signed by
one
of the Regular Trustees, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Registration Statement, the
Final Prospectus, the Disclosure Package and any supplements or amendments
thereto, and this Agreement and that:
14
(i) the
representations and warranties of each of the Company and the Trust in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and each of the Company and the Trust
has
complied with all the agreements and satisfied all the conditions on its part
to
be performed or satisfied at or prior to the Closing Date;
(ii) no
stop
order suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued and no proceedings for that purpose have
been instituted or, to their knowledge, threatened; and
(iii) since
the
date of the most recent financial statements included or incorporated by
reference in the Final Prospectus (exclusive of any supplement thereto), there
has been no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
including the Trust taken as a whole, or the Trust, as the case may be, whether
or not arising from transactions in the ordinary course of business, except
as
set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(h) The
Company shall have requested and caused KPMG LLP to
have
furnished to the Representatives, on and as of the date hereof and on and as
of
the Closing Date, customary “comfort letters” that are satisfactory in content
and form to the Representatives.
(i) Subsequent
to the date hereof or, if earlier, the dates as of which information is given
in
the Registration Statement (exclusive of any amendment thereof) , any
Preliminary Prospectus and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 8 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, including the Trust, taken
as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package
and
the Final Prospectus (exclusive of any supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives after consultation with the Company, so material
and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Capital Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof), the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto) and
any
Issuer Free Writing Prospectus.
15
(j) Subsequent
to the date hereof, there shall not have been any decrease in the rating of
the
Capital Securities or any of the Company’s senior or subordinated debt
securities by any “nationally recognized statistical rating organization” (as
defined for purposes of Rule 436(g) under the Act) or any notice given of
any intended or potential decrease in any such rating or of a possible change
in
any such rating that does not indicate the direction of the possible
change.
(k) The
Capital Securities shall have been registered under the Exchange Act and shall
have been listed or approved for listing, upon notice of issuance, on the New
York Stock Exchange.
(l) Prior
to
the Closing Date, the Company shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request.
If
any of
the conditions specified in this Section 8 shall not have been fulfilled when
and as provided in this Agreement with respect to the offering of the Capital
Securities, 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 Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled
with
respect to such offering at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company
in
writing or by telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 8 shall be delivered at
the
office of
Xxxxxx
Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, at Xxx Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, by 9:00a.m. (New York time) on the day before
the Closing Date.
9. Expenses.
The
Company agrees to pay the following costs and expenses and all other costs
and
expenses incident to the performance by it and by the Trust of its and the
Trust’s respective and joint obligations hereunder: (i) the preparation,
printing or reproduction, and filing with the Commission of the Registration
Statement (including financial statements and exhibits thereto), any Preliminary
Prospectus and the Final Prospectus (including filing fees), each amendment
or
supplement to any of them, this Agreement, the Declaration, the Guarantee,
the
Indenture and the Statement of Eligibility and Qualification of each of the
Institutional Trustee, the Guarantee Trustee and the Indenture Trustee; (ii)
the
printing (or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, any Preliminary Prospectus, the Final Prospectus, the documents
incorporated by reference in the Registration Statement, and all amendments
or
supplements to any of them, as may be reasonably requested for use in connection
with the offering and sale of the Capital Securities; (iii) the preparation,
printing (or reproduction), execution and delivery of the Declaration, the
Guarantee and the Indenture and the preparation, printing, authentication,
issuance and delivery of the Securities, including any stamp taxes in connection
with the original issuance and sale of the Capital Securities; (iv) the printing
(or reproduction) and delivery of this Agreement and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Capital Securities; (v) the registration of the Securities under the
Exchange Act and the listing of the Capital Securities on the New York Stock
Exchange; (vi) the registration or qualification of the Securities for offer
and
sale under the securities or Blue Sky laws of the several states as provided
in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing (or
reproduction), and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the filing fees and
the reasonable fees and expenses of counsel for the Underwriters in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc.; (viii) the fees and expenses of the Institutional Trustee, the
Delaware Trustee, the Guarantee Trustee and the Indenture Trustee; (ix) the
fees
and expenses associated with obtaining ratings for the Capital Securities from
nationally recognized statistical rating organizations; (x) the transportation
and other expenses incurred by or on behalf of representatives of the Offerors
(other than the Underwriters and their representatives) in connection with
presentations to prospective purchasers of the Capital Securities; and (xi)
the
fees and expenses of the Company’s accountants and the fees and expenses of
counsel (including local and special counsel) for the Offerors.
16
10. Reimbursement
of Underwriters’ Expenses.
If the
sale of the Capital Securities provided for herein is not consummated because
any condition to the obligations of the Offerors set forth in Section 8 hereof
is not satisfied, because of any termination pursuant to Section 11 hereof
or because of any refusal, inability or failure on the part of the Offerors
to
perform any agreement herein or comply with any provision hereof other than
by
reason of a default by any of the Underwriters, the Company will reimburse
the
Underwriters severally through the Representatives on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Capital Securities.
11. Default
by an Underwriter.
If any
one or more Underwriters shall fail to purchase and pay for any of the Capital
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance
of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the principal amount of Capital Securities set forth opposite their names
in Schedule I hereto bears to the aggregate principal amount of Capital
Securities set forth opposite the names of all the remaining Underwriters)
the
Capital Securities which the defaulting Underwriter or Underwriters agreed
but
failed to purchase; provided,
however,
that in
the event that the aggregate principal amount of Capital Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Capital Securities set forth
in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Capital
Securities, and if such nondefaulting Underwriters do not purchase all the
Capital Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Offerors. In the event of a default by any
Underwriter as set forth in this Section 11, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement
and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter
of
its liability, if any, to the Offerors and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
17
12. Termination
of Agreement.
This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Offerors prior to delivery of and
payment for the Capital Securities, if at any time prior to such time
(i) trading in the Company’s common stock shall have been suspended by the
Commission or the New York Stock Exchange, or trading in securities generally
on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or
war,
or other calamity or crisis the effect of which on financial markets is such
as
to make it, in the sole judgment of the Representatives after consultation
with
the Offerors, impractical or inadvisable to proceed with the offering or
delivery of the Capital Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
13. Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Trust, the Company or its officers or trustees and of 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 the Trust or the Company or any of the officers, directors,
trustees, employees, agents or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 10 hereof shall survive the termination or
cancellation of this Agreement.
14. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and
will be mailed, delivered or telefaxed if to Citigroup Global Markets Limited,
as Representatives of the several Underwriters, to Citigroup Centre, 00 Xxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxxxxx, X00 0XX, Xxxxxx Xxxxxxx, Attention: Debt
Syndicate, (fax no.: x00 (0) 00 0000 0000), and if to the Company, or to the
Trust care of the Company, at the office of the Company at 000 Xxxx Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, Finance and Capital
Markets (fax no.: x0 (000) 000-0000).
15. 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,
employees, agents and controlling persons referred to in Section 7 hereof,
and
no other person will have any right or obligation hereunder.
16. No
Fiduciary Duty.
The
Offerors hereby acknowledge that (i) the purchase and sale of the Capital
Securities pursuant to this Agreement is an arm’s-length commercial transaction
between the Company and the Trust, on the one hand, and the Underwriters and
any
affiliate through which it may be acting, on the other, (ii) the Underwriters
are acting as principal and not as an agent or fiduciary of the Offerors and
(iii) the Trust’s engagement of the Underwriters in connection with the
offering and the process leading up to the offering is as independent
contractors and not in any other capacity. Furthermore, each Offeror agrees
that
it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Underwriters has advised or is
currently advising either Offeror on related or other matters. Each Offeror
agrees that it will not claim that the Underwriters have rendered advisory
services of any nature or respect, or owe an agency, fiduciary or similar duty
to it, in connection with such transaction or the process leading
thereto.
18
17. Integration.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) among the Offerors and the Underwriters, or any of them, with respect
to
the subject matter hereof.
18. Applicable
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed within
the State of New York.
19. Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
20. Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
21. Definitions.
The
terms which follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended and the rules and regulations
of the Commission promulgated thereunder.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Preliminary Prospectus, if any, used most recently
prior to the date hereof, (ii) the Final Term Sheet described in Section 5(b)
and (iii) any Free Writing Prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package.
“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto became or become
effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Final
Prospectus” shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the date hereof.
19
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement which is used prior
to filing of the Final Prospectus.
“Registration
Statement” shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements and any
prospectus supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such registration
statement pursuant to Rule 430B, as amended on each Effective Date and, in
the
event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended.
“Rule
163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”,
“Rule 430B” and “Rule 433” refer
to
such rules under the Act.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
20
Please
confirm that the foregoing correctly sets forth the agreement among the Trust,
the Company and the several Underwriters.
| Very truly yours, | ||
| CITIGROUP CAPITAL XVIII | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxxxx | |
|
Xxxx X. Xxxxxxxx |
||
| as Regular Trustee | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
|
Name: Xxxxxxx X. Xxxxxxxxx |
||
| Title: Assistant Treasurer | ||
21
Confirmed
as of the date first
above
mentioned on behalf of
themselves
and the other several
Underwriters
named in Schedule I
hereto.
CITIGROUP
GLOBAL MARKETS LIMITED
BARCLAYS
BANK PLC
CREDIT
SUISSE SECURITIES (EUROPE) LIMITED
THE
ROYAL
BANK OF SCOTLAND PLC
UBS
LIMITED
BNP
PARIBAS
DEUTSCHE
BANK AG, LONDON BRANCH
XXXXXXX
XXXXX INTERNATIONAL
ING
BELGIUM SA/NV,
as
Representatives of the several Underwriters
| By: | CITIGROUP GLOBAL MARKETS LIMITED | |||
| By: | /s/ Xxxx Xxxxxx | |||
|
Name: Xxxx
Xxxxxx
Title: Duly
Authorised Attorney
|
SCHEDULE
I
CITIGROUP
CAPITAL XVIII
6.829%
Fixed Rate/Floating Rate Enhanced Trust Preferred Securities (Enhanced
TruPS®)
|
Underwriters
|
Number
of Capital Securities
|
|||
|
Citigroup
Global Markets Limited
|
410,000
|
|||
|
Barclays
Bank PLC
|
15,000
|
|||
|
Credit
Suisse Securities (Europe) Limited
|
15,000
|
|||
|
The
Royal Bank of Scotland plc
|
15,000
|
|||
|
UBS
Limited
|
15,000
|
|||
|
BNP
Paribas
|
7,500
|
|||
|
Deutsche
Bank AG, London Branch
|
7,500
|
|||
|
Xxxxxxx
Xxxxx International
|
7,500
|
|||
|
ING
Belgium SA/NV
|
7,500
|
|||
|
TOTAL
|
500,000
|
|||
I-1
