CITIBANK CREDIT CARD ISSUANCE TRUST CITIBANK (SOUTH DAKOTA), NATIONAL ASSOCIATION $3,000,000,000 Floating Rate Class 2009-A1 Notes of March 2012 (Legal Maturity Date March 2014) Citiseries Citibank Credit Card Issuance Trust UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Copy
CITIBANK
CREDIT CARD ISSUANCE TRUST
CITIBANK
(SOUTH DAKOTA), NATIONAL ASSOCIATION
$3,000,000,000
Floating Rate Class 2009-A1 Notes of March 2012
(Legal
Maturity Date March 2014)
Citiseries
Citibank
Credit Card Issuance Trust
March
19, 2009
Citigroup
Global Markets Inc.,
as
Representative of the Several Underwriters,
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Ladies
and Gentlemen:
Citibank
Credit Card Issuance Trust, a Delaware statutory trust (the “Issuer”), proposes to sell,
and Citibank (South Dakota), National Association (“Citibank (South Dakota)”),
as the owner of all the beneficial interests in the Issuer, proposes to cause
the Issuer to sell, to the underwriters named in Schedule I hereto (the “Underwriters”) for whom you
are acting as representative (the “Representative”),
$3,000,000,000 aggregate principal amount of Floating Rate Class 2009-A1 Notes
of March 2012 (Legal Maturity Date March 2014) to be issued on or about March
25, 2009 (the “Class 2009-A1
Notes”) of the Citiseries, subject to the provisions of this Underwriting
Agreement (this “Agreement”) among the
Issuer, Citibank (South Dakota), and the Underwriters.
On
October 1, 2006, Citibank (Nevada), National Association (“Citibank (Nevada)”), merged
with and into Citibank (South Dakota), with Citibank (South Dakota) as the
surviving entity. In connection with the merger, Citibank (South
Dakota) assumed the performance of every covenant and obligation of Citibank
(Nevada) under the Pooling and Servicing Agreement (as defined
below). Accordingly, Citibank (South Dakota) will be liable for any
breach of the representations, warranties, covenants and indemnities of Citibank
(Nevada) under the Pooling and Servicing Agreement.
Citibank
(South Dakota)—and Citibank (Nevada) prior to its merger with Citibank (South
Dakota)— conveyed and Citibank (South Dakota) proposes to continue to convey
credit card receivables (the “Receivables”) arising from
revolving credit card accounts and other rights to the Citibank Credit Card
Master Trust I (the “Master
Trust”). Citibank (South Dakota), as Seller and successor by
merger to Citibank (Nevada), as Seller, Citibank (South Dakota), as
Servicer,
and Deutsche Bank Trust Company Americas, as trustee (the “Master Trust Trustee”) have
entered into the Pooling and Servicing Agreement, dated as of May 29, 1991, as
Amended and Restated as of October 5, 2001 (as modified or amended from time to
time, the “Base
P&S”), and the Series 2000 Supplement to the Base P&S, dated as
of September 26, 2000 (as modified or amended from time to time, the “Series 2000
Supplement”). The Base P&S and the Series 2000 Supplement
are referred to herein collectively as the “Pooling and Servicing
Agreement”. Pursuant to the Pooling and Servicing Agreement,
Citibank (South Dakota) and Citibank (Nevada) caused the Master Trust to issue
to the Issuer a Credit Card Participation Certificate, Series 2000 (the “Collateral
Certificate”). The Collateral Certificate represents undivided
interests in certain assets of the Master Trust.
The Class
2009-A1 Notes will be issued pursuant to the Indenture, dated as of
September 26, 2000 (as modified or amended from time to time the “Indenture”), between the
Issuer and Deutsche Bank Trust Company Americas, as trustee (the “Indenture
Trustee”). The Class 2009-A1 Notes will be secured by certain
assets of the Issuer and will be sold pursuant to this Agreement.
Capitalized
terms used in this Agreement that are not defined herein have the meanings
provided in the Indenture, or if not defined therein, in the Pooling and
Servicing Agreement. The Pooling and Servicing Agreement, the Trust
Agreement, the Indenture, any Derivative Agreement relating to the Class 2009-A1
Notes, the Depository Agreement between the Issuer and The Depository Trust
Company (“DTC”) and this Agreement are collectively referred to as the “Basic
Documents”.
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Execution
Time, will contain only such specific additional information and other changes
(beyond that contained in the latest preliminary prospectus that has previously
been furnished to the Representative) as Citibank (South Dakota) has advised the
Underwriters, before the Execution Time, will be included or made
therein. If the Registration Statement contains the undertakings
specified by item 512(a) of Regulation S-K, the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
The terms
that follow, when used in this Agreement, will have the meanings
indicated. The term “Effective Date” will mean
each date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. “Execution Time” will mean
the date and time as of which this Agreement is executed and delivered by the
parties hereto, which shall be deemed to have occurred on the date
hereof. “Pricing
Time” will mean 3:50 p.m., New York time, on the date hereof. “Preliminary
Prospectus” will mean any preliminary prospectus referred to in the
preceding paragraph. “Basic Prospectus” will mean
the prospectus referred to above contained in the Registration Statement at the
Effective Date. “Prospectus” will mean the
final prospectus supplement relating to the Class 2009-A1 Notes that is first
filed pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus (as such Basic Prospectus may have been amended and together with any
supplements thereto) or, if no filing pursuant to Rule 424(b) is required, will
mean the prospectus supplement relating to the Class 2009-A1 Notes, including
the Basic Prospectus, included in the Registration Statement at the Effective
Date. “Registration
Statement” will mean the registration statement referred to in the
preceding paragraph and any registration statement required to be filed under
the Securities Act or rules thereunder, including incorporated documents,
exhibits, financial statements and any prospectus supplement relating to the
Class 2009-A1 Notes that is first filed with the Commission pursuant to Rule
424(b) of the Securities Act after the Execution Time and deemed part of such
registration statement pursuant to Rule 430 of the Securities Act, in the form
in which it has or will become effective and, in the event any post-effective
amendment thereto becomes effective before the Closing Date, will also mean such
registration statement as so amended. “Rule 424”, “Rule 415,” “Rule
430” and “Regulation
S-K” refer to such rules or regulations under the Securities
Act.
Any
reference herein to the Registration Statement, the Basic Prospectus or
Prospectus will be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before
the Effective Date of the Registration Statement or the issue date of the Basic
Prospectus or Prospectus, as the case may be; and any reference herein to the
terms “amend”, “amendment” or “supplement” with respect to
the Registration Statement, the Basic Prospectus or Prospectus will be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of the Basic
Prospectus or Prospectus, as the case may be, deemed to be incorporated therein
by reference.
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pursuant
to Rule 405 of the Securities Act that it is not necessary that the Issuer
be considered an Ineligible Issuer.
(f) Citibank (South Dakota)’s
Organization and Power. Citibank (South Dakota) is an
association duly organized, validly existing and in good standing as a licensed
national banking association under the laws of the United States, and has all
requisite power and authority to own its properties and conduct its business as
presently conducted and to execute, deliver and perform each of the Basic
Documents to which it is a party and to authorize the issuance of and increase
in the Invested Amount of the Collateral Certificate and to consummate the
transactions contemplated by the Basic Documents to which it is a
party.
(g) Citibank (South Dakota)’s
Authorization and Execution of Basic Documents. The execution,
delivery and performance by Citibank (South Dakota) of each of the Basic
Documents to which it is a party, the issuance of and increase in the Invested
Amount of the Collateral Certificate by the Master Trust, Citibank (South
Dakota)’s actions causing the Issuer to enter into the Basic Documents to which
it is a party and to issue and sell the Notes and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary action or proceedings.
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contemplated
hereby and thereby have been duly and validly authorized by all necessary action
or proceedings.
(k) Execution and Delivery of
Underwriting Agreement. This Agreement has been duly executed
and delivered by the Issuer and Citibank (South Dakota).
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7
holders
of the Notes or upon the ability of Citibank (South Dakota) to perform its
obligations under any of the Basic Documents to which it is a
party.
(v) TALF. On the
Closing Date, (i) the Issuer and Citibank (South Dakota) will have taken all
action required by the Federal Reserve Bank of New York for the Class 2009-A1
Notes to be eligible collateral under the Term Asset-Backed Securities Loan
Facility of the Federal Reserve Bank of New York (the “TALF Program”), and (ii) the
Class 2009-A1 Notes will be eligible collateral under the TALF Program; provided, however, that neither
the Issuer nor Citibank (South Dakota) makes any representation or warranty with
respect to the availability of, or the eligibility of a borrower for, loans
under the TALF Program. The statements in the Prospectus in the
“Certification as to TALF Eligibility” and under the heading “Summary of
Terms--TALF Eligibility” are true and correct, and the Issuer and Citibank
(South Dakota) will promptly perform their obligations and undertakings
contained in the Certification as to TALF Eligibility and in their separate
undertaking delivered to the Federal Reserve Bank of New York in connection with
the issuance of the Class 2009-A1 Notes.
SECTION
3. Delivery and
Payment. Delivery of and payment for the Class 2009-A1 Notes
will be made at the offices of Citigroup Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at 10:00 a.m., New York City time, on March 25, 2009, or at such later
date (not later than April 1, 2009) as the Underwriters designate, which date
and time may be postponed by agreement between the Underwriters and Citibank
(South Dakota) (such date and time of delivery and payment for the Class 2009-A1
Notes being referred to herein as the “Closing
Date”). Delivery of one or more global notes representing the
Class 2009-A1 Notes will be made to the accounts of the several Underwriters
against payment by the several Underwriters of the purchase price therefor to or
upon the order of Citibank (South Dakota) by one or more wire transfers or
checks in Federal (same day) Funds. The global notes to be so
delivered will be registered in the name of Cede & Co., as nominee for
DTC. The interests of beneficial owners of the Class 2009-A1 Notes
will be represented by book entries on the records of DTC and participating
members thereof. Definitive Class 2009-A1 Notes representing the
Class 2009-A1 Notes will be available only under limited
circumstances.
The
Issuer and Citibank (South Dakota) agree to have the global notes available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 p.m., New York City time, on the business day before the
Closing Date.
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(b) Each
Underwriter agrees that if it is a foreign broker or dealer not eligible for
membership in the National Association of Securities Dealers, Inc. (the “NASD”),
it will not effect any transaction in the Class 2009-A1 Notes within the United
States or induce or attempt to induce the purchase of or sale of the Class
2009-A1 Notes within the United States, except that it will be permitted to make
sales to the other Underwriters or to its United States affiliates; provided that such sales are
made in compliance with an exemption of certain foreign brokers or dealers under
Rule 15a-6 under the Exchange Act, and in conformity with the Rules of Fair
Practice of the NASD as such Rules apply to non-NASD brokers or
dealers.
(c) Each
Underwriter represents and agrees that in connection with the initial
distribution of the Class 2009-A1 Notes that: (i) it has complied and will
comply with all applicable provisions of the Financial Services and Markets Act
2000 (the “FSMA”) with respect to anything done by it in relation to the Class
2009-A1 Notes in, from or otherwise involving the United Kingdom; and (ii) it
has only communicated or caused to be communicated or will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activities (within the meaning of Section 21 of the FSMA) received by it in
connection with the issue or sale of any of the Class 2009-A1 Notes in
circumstances in which Section 21(1) of the FSMA does not apply to the
Issuer.
(d) Each
Underwriter severally but not jointly represents and agrees that it will not at
any time transfer, deposit or otherwise convey any Notes into a trust or other
type of special purpose vehicle that issues securities or other instruments
backed in whole or in part by, or that represents interests in, such Notes
without the prior written consent of the Issuer and Citibank (South
Dakota).
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their
distribution of the Class 2009-A1 Notes, and after such filing if the
Underwriters have completed their distribution of the Class 2009-A1
Notes. Citibank (South Dakota) and the Issuer will use their
reasonable efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or prevention and, upon such issuance,
occurrence or prevention, to obtain as soon as possible the withdrawal of such
stop order or relief from such occurrence or prevention, 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.
(b) [Reserved.]
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requirement
may be satisfied pursuant to Rule 172 of the Securities Act), as many copies of
each Preliminary Prospectus, the Preliminary Prospectus Supplement, the
Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as
the Underwriters may reasonably request.
(h) Each
of the Issuer and Citibank (South Dakota) agrees that, unless it obtains the
prior written consent of the Representative, and each Underwriter, severally and
not jointly, agrees with each of the Issuer and Citibank (South Dakota) that,
unless it has obtained or will obtain, as the case may be, the prior written
consent of each of the Issuer and Citibank (South Dakota), it has not made and
will not make any offer, relating to the Class 2009-A1 Notes that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a Free Writing Prospectus required to be filed by the Issuer with the Commission
or retained by the Issuer under Rule 433 of the Securities Act. Any
such Free Writing Prospectus consented to by the Representative or the Issuer
and Citibank (South Dakota) is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Issuer 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
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and 433
of the Securities Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record
keeping.
(k) Ratings. To the
extent, if any, that any rating provided with respect to the Class 2009-A1 Notes
set forth in Section 6(q) hereof is conditional upon the furnishing of documents
reasonably available to Citibank (South Dakota) or the Issuer, Citibank (South
Dakota) or the Issuer will furnish such documents.
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(i) the
representations and warranties of Citibank (South Dakota) in this Agreement are
true and correct at and as of the Closing Date as if made on and as of the
Closing Date (except to the extent they expressly relate to an earlier date, in
which case the representations and warranties of Citibank (South Dakota) are
true and correct as of such earlier date);
(ii)
Citibank (South Dakota) has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied by it under this
Agreement at or before the Closing Date;
(iii) no
stop order suspending the effectiveness of the Registration Statement or any
notice that would prevent its use has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the signer,
threatened;
(iv)
since the date of the most recent publicly available financial statements of
Citibank (South Dakota), there has been no material adverse change in the
condition (financial or otherwise) of Citibank (South Dakota), except as set
forth in or contemplated in the Registration Statement, Disclosure Package and
the Prospectus; and
(v) since
the date of the most recent publicly available financial statements of the
Master Trust, there has been no material adverse change in the condition
(financial or otherwise) of the Master Trust or in the earnings, business or
prospects of Citibank (South Dakota)’s credit card business relating to the
credit card accounts included in the Master Trust, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Registration Statement, Disclosure Package and the
Prospectus.
(i) the
representations and warranties of the Issuer in this Agreement are true and
correct at and as of the Closing Date as if made on and as of the Closing Date
(except to the extent they expressly relate to an earlier date, in which case
such representations and warranties of the Issuer are true and correct as of
such earlier date);
(ii) the
Issuer has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied by it under this Agreement at or before
the Closing Date;
(iii) no
stop order suspending the effectiveness of the Registration Statement or any
notice that would prevent its use has been issued and no
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proceedings
for that purpose have been instituted or, to the knowledge of the signer,
threatened; and
(iv)
since the date of the most recent publicly available financial statements of the
Issuer, there has been no material adverse change in the condition (financial or
otherwise) of the Issuer, except as set forth in or contemplated in the
Registration Statement, Disclosure Package and the Prospectus.
(i)
Citibank (South Dakota) has been duly organized as an association licensed as a
national banking association and is validly existing and in good standing under
the laws of the United States, is duly qualified to do business and is in good
standing under the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts material business, and
has full power and authority to own its properties, to conduct its business as
described in the Registration Statement and the Prospectus, to enter into and
perform its obligations under each of the Basic Documents to which it is a
party, to execute the Collateral Certificate, to cause the Issuer to enter into
the Basic Documents to which it is a party, to cause the Issuer to issue the
Class 2009-A1 Notes under the Indenture, and to consummate the transactions
contemplated by the Basic Documents to which Citibank (South Dakota) is a
party.
(ii) Each
of the Basic Documents to which Citibank (South Dakota) is a party has been duly
authorized, executed and delivered by Citibank (South Dakota). The increase in
the Invested Amount of the Collateral Certificate effected by the issuance of
the Class 2009-A1 Notes has been duly authorized by Citibank (South
Dakota).
(iii)
Neither the execution nor the delivery of any of the Basic Documents to which
Citibank (South Dakota) is a party, nor the issuance and delivery of the
Collateral Certificate and the Class 2009-A1 Notes, nor the increase in the
Invested Amount of the Collateral Certificate effected by the issuance of the
Class 2009-A1 Notes, nor the consummation of any of the transactions
contemplated in the Basic Documents, nor the fulfillment of the terms thereof,
did or will conflict with or violate, result in a material breach of or
constitute a default under
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(A)
|
any
term or provision of the charter or bylaws of Citibank (South Dakota) or
any federal statute or regulation currently applicable to Citibank (South
Dakota) or any South Dakota statute or regulation currently applicable to
Citibank (South Dakota), the Master Trust or the
Issuer,
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(B)
|
any
term or provision of any order known to such counsel to be currently
applicable to Citibank (South Dakota), the Master Trust or the Issuer of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over Citibank (South Dakota), the Master Trust or the
Issuer, as the case may be, or
|
|
(C)
|
any
term or provision of any indenture or other agreement or instrument known
to such counsel to which Citibank (South Dakota), the Master Trust or the
Issuer is a party or by which any of them or any of their properties are
bound.
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(iv)
Except as otherwise disclosed in the Prospectus or the Registration Statement,
there is no pending or, to the best knowledge of such counsel, threatened
action, suit or proceeding before any court or governmental agency, authority or
body or any arbitrator with respect to the Master Trust, the Issuer, the Basic
Documents or any of the transactions contemplated therein or with respect to
Citibank (South Dakota) which, in the case of any such action, suit or
proceeding with respect to Citibank (South Dakota) if adversely determined,
would have a material adverse effect on the Master Trust, the Issuer, the
holders of the Class 2009-A1 Notes, or upon the ability of Citibank (South
Dakota) to perform its obligations under the Basic Documents to which it is a
party. To the best knowledge of such counsel, there is no material
contract, franchise or document relating to the Master Trust, the property
conveyed to the Master Trust, the Issuer or the Issuer’s property other than as
disclosed in the Prospectus. The statements included in the
Registration Statement and the Prospectus describing statutes, legal
proceedings, contracts and other documents relating to Citibank (South Dakota),
the Accounts, the Receivables, the business of Citibank (South Dakota), the
Master Trust and the Issuer fairly summarize the matters therein
described.
(v) Such
counsel has no reason to believe (A) that the Registration Statement, at the
time it became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that the Prospectus as of its
issue date or the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (C) that the
information contained in the Disclosure Package, including the documents
referred to therein and the documents incorporated by reference into such
documents, at the Pricing Time, when taken together as a whole, 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 are made, not misleading (but such counsel need
express no opinion as to the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Indenture Trustee or as to the
financial statements or other financial data contained or incorporated by
reference in or omitted from the Registration
15
Statement
or any amendment thereto or the Prospectus or any supplement thereto or as to
statements regarding tax or ERISA matters). Such opinion may be
limited to information relating to Citibank (South Dakota), its credit card
business, the Accounts and the Receivables.
(vi) No
approval, authorization, consent, order, registration, filing, qualification,
license or permit of or with any court or governmental agency or body is
required for the consummation by Citibank (South Dakota), the Master Trust or
the Issuer (except that, with respect to the Master Trust and the Issuer, this
opinion may be limited to any court or governmental agency or body of the State
of South Dakota) of the transactions contemplated in the Basic Documents, except
such as have been obtained under the Securities Act and such as may be required
under the blue sky laws of any jurisdiction inside the United States in
connection with the purchase and distribution of the Class 2009-A1 Notes by the
Underwriters and such filings or other approvals (specified in such opinion) as
have been made or obtained.
(vii)
Citibank (South Dakota) or one of its affiliates is the sole owner of all right,
title and interest in, and has good and marketable title to, the
Accounts. With respect to all Receivables transferred by Citibank
(South Dakota) to the Master Trust, at the time of such transfer, Citibank
(South Dakota) was the sole owner of all right, title and interest in, and had
good and marketable title to, such Receivables. The assignment of
such Receivables, all documents and instruments relating thereto and all
proceeds thereof to the Master Trust Trustee, pursuant to the Pooling and
Servicing Agreement, vested in the Master Trust Trustee all interests which were
purported to be conveyed thereby (except to the extent that the assignment of
such Receivables is held by a court to constitute a grant of a security interest
in such Receivables, as described in clause (x) below), free and clear of any
liens, security interests or encumbrances except as specifically permitted
pursuant to the Pooling and Servicing Agreement.
(viii)
The Receivables constitute “accounts” as defined in the Uniform Commercial Code
in effect in the State of South Dakota.
(ix) A
Uniform Commercial Code financing statement with respect to the
Certificateholders’ Interest in the Receivables transferred and to be
transferred by Citibank (South Dakota) to the Master Trust and the proceeds
thereof has been filed in the office of the South Dakota Secretary of
State. No other filings or other actions, with respect to the Master
Trust Trustee’s interest in such Receivables, are necessary to perfect and
maintain the interest of the Master Trust Trustee in such Receivables, and
proceeds thereof, against third parties, except that appropriate continuation
statements must be filed at five-year intervals.
(x) The
assignment of the Receivables, all documents and instruments relating thereto
and all proceeds thereof to the Master Trust Trustee, pursuant to the Pooling
and Servicing Agreement, is intended to be a sale and if a court concludes that
it is a sale, such assignment transferred all the right, title and
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interest
of Citibank (South Dakota) in and to such Receivables in existence on May 29,
1991 and all Receivables which have come into existence from May 29, 1991 to the
date of such opinion to the Master Trust, free and clear of any Liens then
existing or thereafter created, but subject to the rights of the Seller as
holder of the Seller’s Certificate. With respect to Receivables which
come into existence after the date of such opinion, such sale will transfer all
of the right, title and interest of Citibank (South Dakota) in and to such
Receivables to the Master Trust free and clear of any Liens, but subject to the
rights of the Seller as holder of the Seller’s Certificate. The
Pooling and Servicing Agreement and the transactions provided for by the Pooling
and Servicing Agreement constitute a grant by Citibank (South Dakota) to the
Master Trust Trustee of a valid security interest and, together with the filing
of the financing statement referred to in clause (ix) above, create a first
priority perfected security interest in the Receivables transferred and to be
transferred by Citibank (South Dakota) to the Master Trust, all documents and
instruments relating thereto and all proceeds thereof. In rendering
such opinion counsel may take such exceptions as are appropriate and reasonably
acceptable under the circumstances.
(xi) A
Uniform Commercial Code financing statement with respect to the Indenture
Trustee’s security interest in the Collateral has been filed in the office of
the South Dakota Secretary of State.
(xii)
Assuming that the Indenture constitutes a grant by the Issuer to the Indenture
Trustee of a valid security interest and such security interest has attached
upon filing of the financing statement referred to in clause (xi) above with the
South Dakota Secretary of State, the Indenture Trustee will have a first
priority perfected security interest in the Issuer’s rights in such Collateral
to the extent a security interest may be perfected by filing such financing
statement in the State of South Dakota. No other filings or other
actions are necessary to perfect and maintain the Indenture Trustee’s security
interest in the Collateral against third parties, except that appropriate
continuation statements must be filed at five-year intervals. In
rendering such opinion, counsel may take such exceptions as are appropriate and
reasonable under the circumstances.
(xiii)
The statements in the Prospectus under the heading “Legal aspects could affect
the timing and amount of payments to you”, to the extent that they constitute
statements of matters of law or legal conclusions with respect thereto, are
correct in all material respects.
(xiv) The
Class 2009-A1 Notes have been duly authorized and established by all action
required on the part of Citibank (South Dakota).
In
rendering such opinion, counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of South Dakota and
the United States, to the extent deemed proper and stated in such opinion, upon
the opinion of other counsel of good standing believed by such counsel to be
reliable and acceptable to the Representative and counsel to the Representative,
and (B) as to matters of fact, to
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the
extent deemed proper and as stated therein, on certificates of responsible
officers of Citibank (South Dakota), the Master Trust, the Issuer and public
officials.
(i) Each
of the Basic Documents to which Citibank (South Dakota) is a party has been duly
authorized, executed and delivered by Citibank (South Dakota). Each
of the Basic Documents to which either of Citibank (South Dakota) or the Issuer
is a party (other than this Agreement) constitutes the legal, valid and binding
agreement of Citibank (South Dakota) or the Issuer, as the case may be,
enforceable in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and
other laws affecting creditors’ rights generally from time to time in effect and
to the application of general principles of equity).
(ii) The
Collateral Certificate has been duly authorized and executed by Citibank (South
Dakota) and Citibank (Nevada) in accordance with the terms of the Pooling and
Servicing Agreement. The Collateral Certificate is validly issued and
outstanding, enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors’ rights generally from time to
time in effect and to the application of general principles of equity) and is
entitled to the benefits of the Pooling and Servicing Agreement.
(iii) The
Class 2009-A1 Notes have been duly authorized and established in conformity with
the Indenture and, when executed and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be validly issued and outstanding, enforceable in
accordance with their terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors’ rights generally from time to time in effect and to the
application of general principles of equity) and will be entitled to the
benefits of the Indenture.
(iv)
Neither the execution nor the delivery of any of the Basic Documents to which
Citibank (South Dakota) or the Issuer is a party nor the issuance and delivery
of the Collateral Certificate or the Class 2009-A1 Notes, nor any increase in
the Invested Amount of the Collateral Certificate, nor the consummation of any
of the transactions contemplated by the Basic Documents, nor the fulfillment of
the terms thereof, will conflict with or violate, result in a material breach of
or constitute a default under any Federal or New York statute or regulation
currently applicable to Citibank (South Dakota), the Master Trust or the
Issuer.
(v) No
approval, authorization, consent, order, registration, filing, qualification,
license or permit of or with any Federal or New York court or
18
governmental
body or agency is required for the consummation by Citibank (South Dakota), the
Master Trust or the Issuer of the transactions contemplated by the Basic
Documents or in connection with the issuance of the Collateral Certificate or
the Class 2009-A1 Notes, except such as have been obtained under the Securities
Act and such as may be required under the blue sky laws of any jurisdiction
inside the United States in connection with the purchase and distribution of the
Class 2009-A1 Notes by the Underwriters and such filings or approvals as have
been made and obtained and except where the failure to obtain any thereof would
not have a material adverse effect on the ability of Citibank (South Dakota),
the Master Trust or the Issuer to perform its respective obligations under any
of the Basic Documents.
(vi) The
Registration Statement has become effective under the Securities
Act. Any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b). To the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any notice that
would prevent its use has been issued, and no proceedings for that purpose have
been instituted or threatened; the Registration Statement, at the time it became
effective, and the Prospectus as of the date of any such supplement and as of
the date of such opinion, appeared on their faces to be appropriately responsive
in all material respects to the requirements of the Securities Act, the Trust
Indenture Act and the respective rules and regulations of the Commission
thereunder (but such counsel need express no opinion as to the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Indenture Trustee or as to the financial statements or other financial data
contained or incorporated by reference in or omitted from the Registration
Statement or any amendment thereto or the Prospectus or any supplement thereto
or as to statements regarding tax or ERISA matters).
(vii)
Such counsel has no reason to believe (A) that the Registration Statement, at
the time it became effective, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or (B) that the Prospectus as of
its issue date or the Closing Date included or includes any untrue statement of
a material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (C) that the
information contained in the Disclosure Package, including the documents
referred to therein and the documents incorporated by reference into such
documents, at the Pricing Time, when taken together as a whole, 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 are made, not misleading (but such counsel need
express no opinion as to the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Indenture Trustee or as to the
financial statements or other financial data contained or incorporated by
reference in or omitted from the Registration
19
Statement
or any amendment thereto or the Prospectus or as to statements regarding tax or
ERISA matters). Such counsel has discussed the opinion described in
this clause with the counsel giving the opinion referred to in clause
(d).
(viii)
The Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act. The Indenture has been duly qualified under the Trust
Indenture Act. Neither the Master Trust nor the Issuer is required to
be registered under the Investment Company Act of 1940, as amended.
(ix) The
assignment of the Receivables, all documents and instruments relating thereto
and all proceeds thereof to the Master Trust Trustee, pursuant to the Pooling
and Servicing Agreement, is intended to be a sale and if a court concludes that
it is a sale, such sale transferred all the rights, titles and interests of
Citibank (South Dakota) in and to such Receivables in existence on May 29, 1991
and all Receivables that have come into existence from May 29, 1991 to the date
of such opinion to the Master Trust, free and clear of any Liens then existing
or thereafter created, but subject to the rights of the Seller as holder of the
Seller’s Certificate. With respect to Receivables that come into
existence after the date of such opinion, such sale will transfer all of the
right, title and interest of Citibank (South Dakota) in and to such Receivables
to the Master Trust free and clear of any Liens, but subject to the rights of
the Seller as holder of the Seller’s Certificate. The Pooling and
Servicing Agreement and the transactions provided for by the Pooling and
Servicing Agreement constitute a grant by Citibank (South Dakota) to the Master
Trust Trustee of a valid security interest and create a valid security interest
in the Receivables, all documents and instruments relating thereto and all
proceeds thereof. In rendering such opinion counsel may take such
exceptions as are appropriate and reasonably acceptable under the
circumstances.
(x) The
Collateral Certificate is either a “certificated security” within the meaning of
Section 8-102(a)(4) of the New York Uniform Commercial Code (the “New York UCC”), or a
“general intangible” within the meaning of Section 9-102(a)(42) of the New York
UCC. The Indenture and the applicable terms document are effective to create a
valid security interest in favor of the Indenture Trustee, for the benefit of
the secured parties described in the Indenture, in the Issuer’s right, title and
interest in and to (a) the Collateral Certificate and the proceeds (as defined
in Section 9-102(a)(64) of the New York UCC) thereof, and (b) the other
Collateral consisting of “accounts”, “documents”, “general intangibles”,
“instruments” and “investment property” within the meaning of the New York UCC
to the extent that such Collateral is listed in the description of Collateral in
the Indenture and the applicable terms document. If the Collateral
Certificate is a “certificated security” within the meaning of Section
8-102(a)(4) of the New York UCC, the delivery on or before the date on which the
Indenture was executed and delivered to, and continued possession thereafter by,
the Indenture Trustee of the Collateral Certificate in the State of New York
will perfect the security interest in the Collateral Certificate and, if the
Collateral Certificate is accompanied by an effective endorsement (whether in
the name of
20
the
Indenture Trustee or in blank), the Indenture Trustee will have the status of a
protected purchaser with respect to the Collateral Certificate. In
rendering such opinion counsel may take such exceptions as are appropriate and
reasonably acceptable under the circumstances.
(xi) The
Basic Documents conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(xii) The
statements in the Prospectus under the heading “Legal aspects could affect the
timing and amount of payments to you” (other than those under the subheading
“Changes in consumer protection laws may impede Citibank (South Dakota)’s
collection efforts”), to the extent that they constitute statements of matters
of law or legal conclusions with respect thereto, are correct in all material
respects.
In
rendering such opinion, counsel may rely (A) as to matters involving the
application of laws other than the General Corporation Law of the State of
Delaware or laws of any jurisdiction other than the State of New York and the
United States, to the extent deemed proper and stated in such opinion, upon the
opinion of other counsel of good standing believed by such counsel to be
reliable and acceptable to the Representative and counsel to the Representative,
and (B) as to matters of fact, to the extent deemed proper and as stated
therein, on certificates of responsible officers of Citibank (South Dakota), the
Master Trust, the Issuer and public officials.
(i) The
Master Trust Trustee has been duly incorporated and is validly existing as a
banking corporation under the laws of the State of New York, and has the power
and authority (corporate and other) to enter into, and to take all action
required of it under the Base P&S and the Series 2000
Supplement.
(ii) Each
of the Base P&S and the Series 2000 Supplement has been duly authorized,
executed and delivered by the Master Trust Trustee and each constitutes a legal,
valid and binding agreement of the Master Trust Trustee, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance,
moratorium or other laws relating to or affecting the enforcement of rights of
creditors generally, the application of general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity
21
or at
law) and the limitations on rights to indemnification and contribution which may
be imposed by applicable law or equitable principles.
(iii) The
Collateral Certificate has been duly authenticated and delivered by the Master
Trust Trustee.
(iv) The
execution and delivery by the Master Trust Trustee of each of the Base P&S
and the Series 2000 Supplement and the performance by the Master Trust Trustee
of the terms of each do not conflict with or result in a violation of (A) any
law or any regulation of the United States of America or the State of New York
governing the banking or trust powers of the Master Trust Trustee, or (B) the
articles of incorporation or bylaws of the Master Trust Trustee.
(v) No
approval, authorization or other action by, or filing with, any governmental
authority of the United States of America or the State of New York having
jurisdiction over the banking or trust powers of the Master Trust Trustee is
required in connection with its execution and delivery of each of the Base
P&S and the Series 2000 Supplement or the performance by the Master Trust
Trustee of the terms of each of the Base P&S and the Series 2000
Supplement.
(i) The
Issuer has been duly formed and is validly existing as a statutory trust under
Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq. (the “Delaware ST Act”), and has
the power and authority under the Trust Agreement and the Delaware ST Act to
execute, deliver and perform its obligations under the Basic Documents to which
it is a party.
(ii) The
Basic Documents to which the Issuer is a party have been duly authorized,
executed and delivered by the Issuer and the Class 2009-A1 Notes have been duly
authorized by the Issuer.
(iii) The
Trust Agreement is a legal, valid and binding obligation of the parties thereto,
enforceable against the parties thereto, in accordance with its terms subject to
(A) applicable bankruptcy, insolvency, moratorium, receivership, reorganization,
fraudulent transfer and similar laws relating to and affecting the rights and
remedies of creditors generally, (B) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (C) applicable public policy with
respect to the enforceability of provisions relating to indemnification or
contribution.
(iv) Neither
the execution, delivery and performance by the Issuer of the Basic Documents to
which it is a party, nor the consummation by the Issuer of any of the
transactions contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the
filing,
22
registration
or qualification with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware, other than the filing
of the Certificate of Trust of the Issuer with the Secretary of State (which
Certificate of Trust has been duly filed).
(v) Neither
the execution, delivery and performance by the Issuer of the Basic Documents to
which it is a party, nor the consummation by the Issuer of the transactions
contemplated thereby, is in violation of the Trust Agreement or of any law, rule
or regulation of the State of Delaware applicable to the Issuer.
(vi) A
Uniform Commercial Code financing statement naming the Issuer as debtor and the
Indenture Trustee as secured party has been filed in the office of the Delaware
Secretary of State.
(vii) Assuming
that the Indenture constitutes a grant by the Issuer to the Indenture Trustee of
a valid security interest and such security interest has attached upon filing of
the financing statement referred to in clause (vi) above with the Delaware
Secretary of State, the Indenture Trustee will have a first priority perfected
security interest in the Issuer’s rights in such Collateral to the extent a
security interest may be perfected by filing such financing statement in the
State of Delaware. No other filings or other actions are necessary to
perfect and maintain the Indenture Trustee’s security interest in the Collateral
against third parties, except that appropriate continuation statements must be
filed at five-year intervals. In rendering such opinion, counsel may
take such exceptions as are appropriate and reasonable under the
circumstances.
(viii) After
due inquiry as of a specified recent date, limited to, and solely to the extent
disclosed thereupon, court dockets for active cases of the Court of Chancery of
the State of Delaware in and for New Castle County, Delaware, of the Superior
Court of the State of Delaware in and for New Castle County, Delaware, and of
the United States District Court sitting in the State of Delaware, such counsel
is not aware of any legal or governmental proceeding pending against the
Issuer.
(i) The
Issuer Trustee is duly incorporated and is validly existing and in good standing
as a banking corporation under the laws of the State of Delaware and has the
power and authority to execute, deliver and perform the Trust
Agreement.
(ii) The
Trust Agreement has been duly authorized, executed and delivered by the Issuer
Trustee.
(iii) Neither
the execution, delivery and performance by the Issuer Trustee of the Trust
Agreement, nor the consummation of any of the transactions by the
23
Issuer
Trustee contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action in respect
of, any governmental authority or agency of the State of Delaware or the United
States of America governing the banking or trust powers of the Issuer
Trustee.
(iv) Neither
the execution, delivery and performance by the Issuer Trustee of the Trust
Agreement, nor the consummation of any of the transactions by the Issuer Trustee
contemplated thereby, is in violation of the charter or bylaws of the Issuer
Trustee or of any law, governmental rule or regulation of the State of Delaware
or of the United States of America governing the banking or trust powers of the
Issuer Trustee or, to our knowledge, without independent investigation, of any
indenture, mortgage, bank credit agreement, note or bond purchase agreement,
long-term lease, license or other agreement or instrument to which it is a party
or by which it is bound or, to our knowledge, without independent investigation,
of any judgment or order applicable to the Issuer Trustee.
(v) To
such counsel’s knowledge, without independent investigation, there are no
proceedings pending or threatened against the Issuer Trustee in any court or
before any governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would have a material adverse effect on
the right, power and authority of the Issuer Trustee to enter into or perform
its obligations under the Trust Agreement.
(i) The
Indenture Trustee has been duly incorporated and is validly existing as a
banking corporation under the laws of the State of New York, and has the power
and authority (corporate and other) to enter into, and to take all action
required of it under the Basic Documents to which it is a party.
(ii) Each
of the Basic Documents to which the Indenture Trustee is a party has been duly
authorized, executed and delivered by the Indenture Trustee. Each of
the Basic Documents to which the Indenture Trustee is a party constitutes a
legal, valid and binding agreement of the Indenture Trustee, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance,
moratorium or other laws relating to or affecting the enforcement of rights of
creditors generally, the application of general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law) and the limitations on rights to indemnification and contribution which may
be imposed by applicable law or equitable principles.
24
(iii) The
Class 2009-A1 Notes have been duly authenticated and delivered by or on behalf
of the Indenture Trustee.
(iv) The
execution and delivery of each of the Basic Documents to which the Indenture
Trustee is a party and the performance by the Indenture Trustee of the terms of
each do not conflict with or result in a violation of (A) any law or regulation
of the United States of America or the State of New York governing the banking
or trust powers of the Indenture Trustee, or (B) the articles of incorporation
or bylaws of the Indenture Trustee.
(v) No
approval, authorization or other action by, or filing with, any governmental
authority of the United States of America or the State of New York having
jurisdiction over the banking or trust powers of the Indenture Trustee is
required in connection with its execution and delivery of the Basic Documents to
which it is a party or the performance by the Indenture Trustee of the terms of
the Basic Documents to which it is a party.
25
that they
are certified independent public accountants and stating in effect that (i) they
have performed certain specified procedures as a result of which they determined
that certain information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical information derived
from the general accounting records of the Issuer and Citibank (South Dakota))
set forth or incorporated in the Preliminary Prospectus Supplement, in the
Registration Statement and in the Prospectus, agrees with the accounting records
of the Issuer and Citibank (South Dakota), excluding any questions of legal
interpretation, and (ii) they have performed certain specified procedures with
respect to the computer programs used to select the Eligible Accounts and to
generate information with respect to the Accounts set forth in the Registration
Statement and the Prospectus.
(q) Ratings. The Class
2009-A1 Notes will be given a rating of not less than “AAA” (or the equivalent)
by Standard and Poor’s Ratings Service and Xxxxx’x Investors Service,
Inc.
(u) Certification
as to TALF Eligibility and Indemnity Undertaking. On or
prior to the date that the final Prospectus is filed with the Commission
pursuant to Rule 424(b), the Representative shall have received evidence that
the Issuer and Citibank (South Dakota) have executed and included in the final
Prospectus a Certification as to TALF Eligibility and have delivered to the
Federal Reserve Bank of New York the executed Certification as to TALF
Eligibility and related Indemnity Undertaking, in form and substance
substantially similar in all material respects to the most recent Form of
Certification as to TALF Eligibility and Indemnity Undertaking published by the
Federal Reserve Bank of New York prior to such date.
26
material
respects to the most recent Form of Auditor Attestation published by the Federal
Reserve Bank of New York prior to such date, with respect to management’s
assertion that the Class 2009-A1 notes are eligible collateral under the TALF
Program.
All
letters and opinions to be delivered to the Underwriters will be addressed to
the Representative.
If any of
the conditions specified in this Section 6 has not been fulfilled in all
material respects when and as provided in this Agreement, or if any of the
opinions or certificates mentioned above or elsewhere in this Agreement is not
in all material respects reasonably satisfactory in form and substance to the
Underwriters and counsel to the Underwriters, this Agreement and all obligations
of the Underwriters hereunder may be canceled at, or at any time before, the
Closing Date by the Underwriters. Notice of such cancellation will be
given to the Issuer and Citibank (South Dakota) in writing or by telephone or
telegraph confirmed in writing.
27
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 Issuer or Citibank
(South Dakota) by or on behalf of any Underwriter specifically for use in
connection with the preparation thereof. The Issuer’s obligation to
indemnify the Underwriters will be limited to Finance Charge Collections from
the Collateral Certificate received by the Issuer after making all required
payments and required deposits under the Indenture with respect to the Indenture
Trustee’s fees and expenses, principal, interest and reimbursements with respect
to the Notes, and payments to Derivative Counterparties. This indemnity
agreement will be in addition to any liability which the Issuer or Citibank
(South Dakota) may otherwise have.
(b) Each
Underwriter, severally, agrees to indemnify and hold harmless the Issuer,
Citibank (South Dakota), each of its directors, each of the officers who signs
the Registration Statement, and each person who controls the Issuer or Citibank
(South Dakota) within the meaning of the Securities Act, to the same extent as
the foregoing indemnities from the Issuer and Citibank (South Dakota) to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Issuer or Citibank (South Dakota) by or on behalf
of such Underwriter specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise
have. The Issuer and Citibank (South Dakota) acknowledge that the
statements relating to the Underwriters and this Agreement set forth in the
second sentence under the heading “Risk Factors—Your ability to resell Notes may
be limited” and the statements in the fourth paragraph under the heading “Plan
of Distribution” in the Basic Prospectus and the statements in the first
paragraph (including the information in the table), and the second, third,
fifth, sixth and seventh paragraphs under the heading “Underwriting” in the
Preliminary Prospectus Supplement and the Prospectus Supplement constitute the
only information furnished in writing by or on behalf of any Underwriter for
inclusion in any Issuer Free Writing Prospectus, Preliminary Prospectus, the
Basic Prospectus, the Preliminary Prospectus Supplement or the Prospectus, and
each Underwriter confirms that such statements are correct.
(c) Promptly
after receipt by an indemnified party under this Section 8 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 8,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled, jointly with any other indemnifying party similarly
notified, to appoint counsel satisfactory to such indemnified party to represent
the indemnified party in such action; provided, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, the indemnified party or parties will have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified
28
party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party has employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party will not be liable
for the expenses of more than one separate counsel, approved by the Underwriters
in the case of paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party has not employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability will be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) To
provide for just and equitable contribution in circumstances in which the
indemnification provided for in paragraph (a) of this Section 8 is due in
accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Issuer and Citibank (South
Dakota), on the one hand, and the Underwriters, on the other, will contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
to which the Issuer, Citibank (South Dakota) and the Underwriters may be subject
in such proportion so that the Underwriters will be responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the public offering price appearing
thereon and the Issuer and Citibank (South Dakota) will be jointly and severally
responsible for the balance; provided, that (i) in no case
will any Underwriter (except as may be provided in the agreement among
underwriters relating to the offering of the Class 2009-A1 Notes) be responsible
for any amount in excess of the underwriting discount applicable to the Class
2009-A1 Notes purchased by such Underwriter hereunder and (ii) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls any Underwriter within the meaning of the
Securities Act will have the same rights to contribution as such Underwriter,
and each person who controls the Issuer or Citibank (South Dakota) within the
meaning of the Securities Act, each officer of the Issuer or of Citibank (South
Dakota) who has signed the Registration Statement and each director of Citibank
(South Dakota) will have the same rights to contribution as the Issuer and
Citibank (South Dakota), as the case may be, subject in each case to clauses (i)
and (ii) of this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against any other party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
29
suspended
or limited, (ii) a banking moratorium will have been declared by Federal, New
York or South Dakota state authorities or (iii) there will have occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States of America, Japan
or Europe is such as to make it, in the judgment of the Underwriters,
impractical or inadvisable to market the Class 2009-A1 Notes.
30
Issuer or
Citibank (South Dakota), in connection with such transaction or the process
leading thereto.
31
process
of any governmental authority for the purpose of commencing or sustaining a case
against the Issuer under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or any substantial part of
its property or ordering the winding-up or liquidation of the
Issuer.
32
If you
are in agreement with the foregoing, please sign four counterparts hereof and
return one to each of Citibank (South Dakota) and the Issuer, whereupon this
letter and your acceptance will become a binding agreement among Citibank (South
Dakota), the Issuer and the several Underwriters.
Very
truly yours,
CITIBANK
(SOUTH DAKOTA), NATIONAL ASSOCIATION,
by
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Vice President
CITIBANK
CREDIT CARD ISSUANCE TRUST,
by
Citibank (South Dakota), National Association, as Managing
Beneficiary
by
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Vice President
ACCEPTED
AND AGREED:
CITIGROUP
GLOBAL MARKETS INC.,
by
/s/ Xxxxx Xxxxxxxxx
------------------------------------
Name:
Xxxxx Xxxxxxxxx
Title:
Director
For
itself and the other several Underwriters named in
Schedule
I to the foregoing Agreement.
33
SCHEDULE
I
Underwriter
|
Principal
Amount of Class 2009-A1 Notes
|
Citigroup
Global Markets
Inc.
|
$
450,000,000
|
Banc
of America Securities LLC
|
425,000,000
|
Barclays
Capital Inc.
|
425,000,000
|
Credit
Suisse Securities (USA) LLC
|
425,000,000
|
Deutsche
Bank Securities Inc.
|
425,000,000
|
Greenwich
Capital Markets,
Inc
|
425,000,000
|
X.X.
Xxxxxx Securities Inc.
|
425,000,000
|
Total
|
$3,000,000,000
|
34
SCHEDULE
II
Pricing
Information
$3,000,000,000
Floating Rate Class 2009-A1 Notes of March 2012
|
|
Principal
Amount:
|
$3,000,000,000
|
Interest
Rate:
|
One-month
LIBOR plus 1.75% per annum
|
Expected
Issuance Date:
|
March
25, 2009
|
Price
to Public:
|
$3,000,000,000
(or 100.000%)
|
Underwriting
Discount:
|
$ 5,250,000
(or 0.175%)
|
Proceeds
to issuance trust:
|
$2,994,750,000
(or 99.825%)
|
Underwriters
and allocations:
|
Citi,
$450,000,000
Banc
of America Securities LLC, $425,000,000
Barclays
Capital, $425,000,000
Credit
Suisse, $425,000,000
Deutsche
Bank Securities, $425,000,000
JPMorgan,
$425,000,000
RBS
Greenwich Capital, $425,000,000
|
35