EXCHANGE AGENT AGREEMENT
Citibank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
Dear Sirs:
Citicorp, a Delaware Corporation and Citicorp Capital X, Citicorp Capital XI,
Citicorp Capital XII, Citicorp Capital XIII, and Citicorp XIV, each a Delaware
statutory business trust (the "Trusts"), hereby respectively offer to exchange
the Trust Originated Preferred Securities of such Trust, for up to the Maximum
Number of the Depositary Shares (the "Shares"), each representing an interest in
a share of Citicorp's Preferred Stock, Series 16, Series 17, Series 20, Series
21 and Series 22, respectively, upon the terms and subject to the conditions set
forth in the Prospectus and the accompanying Letters of Transmittal ("LTs"),
including the instructions set forth therein (which together with the Prospectus
constitute the "Offers"). Definitive copies of each document being distributed
to stockholders of Citicorp in connection with the Offer have been previously
delivered to you.
Each Offer is commencing March , 1997 and will expire at 5:00 P.M., New York
City time, on April , 1997 unless extended by the Trust as provided in the Offer
(the last date to which an Offer is extended and on which it expires is herein
referred to as such offer's "Expiration Date").
This will confirm our agreement with you to act as the Exchange Agent in
connection with the Offers. In such capacity you will receive and make the
exchange for, on behalf of Citicorp and the Trusts, Shares tendered pursuant to
the terms of the Offers. In carrying out your duties as the Exchange Agent in
connection with each Offer, you are to act in accordance with the following
instructions:
1. You are directed to perform any of your duties hereunder by or through
Citicorp Data Distribution, Inc., a Delaware corporation ("CDDI"), and
you agree that any of your duties hereunder that relate to the final
acceptance of tendered Shares shall be performed by CDDI in the State of
New Jersey and shall not be performed by you as Exchange Agent.
2. You shall examine the LTs, the certificates for Shares and the other
documents delivered or mailed to you in connection with tenders of Shares
to ascertain whether they are completed and executed in accordance with
the instructions set forth in the LTs. In the event any LT has been
improperly completed or executed, or the certificates for Shares
accompanying such LT are not in proper form for transfer (as required by
the aforesaid instructions), or if some other apparent irregularity in
connection with any tender of Shares exists, you shall take such steps as
you deem necessary, which may include contacting Citicorp or other
entities party to the Offer, in order to correct such irregularity.
Determination of all questions as to the validity, form, eligibility
(including timeliness of receipt) and acceptance of any Shares tendered
or delivered shall be determined by you on behalf of Citicorp and the
Trust in the first instance, but final decisions on all such matters
shall be made by Citicorp and the Trust. Citicorp and the Trust will
reserve in the
Offer the absolute right to reject any or all tenders of any particular
Shares determined by them not to be in proper form or the acceptance of
or exchange for which may, in the opinion of Citicorp's counsel, be
unlawful and to waive any of the conditions of the Offer or any defect or
irregularity in the tender of any particular Shares, and Citicorp's
interpretation of the terms and conditions of the Offer will be final.
3. You shall in accordance with Rule 17Ad-14 promulgated under the
Securities Exchange Act of 1934, as amended, and the terms and conditions
of the Offer establish accounts with respect to the Shares at The
Depository Trust Company ("DTC"), or the Philadelphia Depository Trust
Company ("PDTC"), sometimes referred to collectively as "Book Entry
Transfer Facilities", within two business days after the date of the
Prospectus. Any financial institution that is a participant in any of the
Book Entry Transfer Facilities may make book-entry delivery of the Shares
by causing the facility to transfer such Shares into the appropriate
account in accordance with its procedure for transfer. The accounts shall
be maintained until all Shares tendered pursuant to the Offer shall have
been either accepted for payment or returned.
4. All Shares must be tendered in accordance with the terms and conditions
set forth in the Offer. Exchange for Shares tendered and accepted
pursuant to the Offer shall be made only after deposit with you of the
certificates therefor (or confirmation of book-entry transfer of the
Shares into the appropriate account), the LT(s) and any other required
documents identified in the schedule attached hereto.
5. A tendering stockholder may withdraw Shares tendered as set forth in the
Prospectus,in which event you shall, as promptly as possible after
notification of such withdrawal, return such Shares to, or in accordance
with the instruction of, such stockholder and such Shares shall no longer
be considered properly tendered. All questions as to the form and
validity of notices of withdrawal, including timeliness of receipt, shall
be determined by Citicorp and the Trust, in their sole discretion, which
determination shall be final and binding.
6. On each business day up to and including the Expiration Date you shall
advise by telephone, not later than 5:00 p.m., New York City time,
________________________________ and such other persons, not to exceed
three, as either of them may direct, of the number of Shares which have
been duly tendered on such day, stating separately the number of such
Shares tendered by book-entry delivery, by Guarantees of Delivery, the
number of Shares tendered about which you have questions concerning
validity and the cumulative number of Shares tendered through the time of
such call. Promptly thereafter (by the next day), you shall confirm such
advice to each of the above persons in writing, to be transmitted by
telecopier, pouch or other form of delivery mutually agreed upon. You
shall also inform the aforementioned persons, and such other persons as
may be designated by either of them upon request made from time to time,
of such other information as either of them may request, including,
without limitation, the names and addresses of registered holders of
tendered Shares.
7. LTs or letters, facsimile transmissions, telexes or telegrams submitted
in lieu thereof shall be stamped by you as of the date and time of
receipt thereof and preserved by you as permanent records until you are
otherwise instructed by Citicorp. You are to match Guarantees of Delivery
submitted with the Shares tendered pursuant thereto. If so instructed by
Citicorp, you shall contact any Eligible Institutions by telephone if
necessary,
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which have tendered a significant number of Shares by means of the
aforementioned procedures to ascertain information in connection
therewith.
8. Citicorp and the Trusts will notify you of any extension or amendment of
any Offer.
9. You shall follow and act upon any written amendments, modifications or
supplements to these instructions, and upon any further written
instructions in connection with the Offer, any of which may be given to
you by the Citicorp or such other Persons as it may authorize in writing,
all of the above to be effective only after delivery of such items to you
and acceptance by you.
10. Citicorp will from time to time (as mutually agreed upon by Citicorp and
you) deposit or cause to be deposited with you, as agent for Soliciting
Dealers, an amount equal to the aggregate amount of solicitation fees
xxxxxx.Xxx, as agent, will notify Citicorp by 4:00 P.M. EST on the day
prior to the release of checks of the amount to be deposited in order to
cover the checks as referenced above.
11. You shall comply with all the requirements of the Internal Revenue Code
of 1986, as amended and the Regulations promulgated thereunder
(collectively, the "federal income tax laws"), with respect to obtaining
and retaining all documents required to be so obtained and/or retained by
you with respect to tendered Shares which Citicorp and the Trusts have
accepted for exchange, including, without limitation, the obtaining and
retaining of substitute forms W 9. You shall also, pursuant to
Instruction 8 of the LTs, withhold any applicable back-up withholding
required to be so withheld and remit such withheld funds to the Internal
Revenue Service on a timely basis.
12. If, pursuant to the Provisions of Instruction 4 of the LTs, fewer than
all the Shares evidenced by any certificate submitted to you are to be
tendered, you shall, promptly after the Expiration Date, issue and
deliver or cause to be issued and delivered a new certificate for the
amount of shares not being tendered, registered in the same name as the
partially tendered certificate, or in another name in accordance with the
appropriate transfer instructions of the stockholder who has made the
partial tender of Shares deposited with you.
13. If, pursuant to an Offer, Citicorp do not accept the receipt of
instructions from a stockholder, you shall return the certificates for
such Shares to, or in accordance with the instructions of, the person who
deposited the same, together with a letter of notice provided by
Citicorp, explaining why the deposited Shares are being returned, and
return to Citicorp any surplus funds deposited by Citicorp with you.
14. Upon request by any person, you shall furnish to such person copies of
the Prospectus, any supplements to the Prospectus, the LTs, and the other
materials referred to in the Prospectus as being available to
stockholders. Citicorp will supply you with copies of such documents upon
your request.
15. As Exchange Agent you:
(a) shall have no obligation to make payment unless Citicorp shall have
provided the necessary funds to pay in full all amounts due and payable
with respect thereto;
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(b) shall have no duties or obligations other than those specifically set
forth herein or as may be subsequently requested of you by Citicorp and
agreed to by you, in writing;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any certificates for Shares or the Shares represented thereby deposited
with you pursuant to the Offers and will not be required and will make no
representations as to the validity, value or genuineness of any Offer;
(d) shall not be required to initiate any legal action hereunder without
written approval of Citicorp and then only upon such reasonable indemnity
as you may request;
(e) may rely on and shall be protected in acting upon any certificate,
instrument, opinion, notice, letter, telex, telegram or other document,
or any Share delivered to you, and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(f) may rely on and shall be protected in acting upon written or
facsimile instructions from Citicorp or its representatives with respect
to any matter relating to your actions as Exchange Agent specifically
covered by this Exchange Agent Agreement or supplementing or qualifying
any such actions, any such facsimile instructions to be confirmed in the
original as soon as practicable by the sender. Set forth in Exhibit __
hereto is a list of names and specimen signatures of the persons
authorized to issue instructions to you with regard to this Exchange
Agent Agreement. This list may be changed from time to time by
_____________ or by __________________;
(g) may consult with counsel satisfactory to you (including counsel for
Citicorp) and rely on the written advice or opinion of such counsel;
(h) shall not at any time advise any person as to the wisdom of making
any tender pursuant to an Offer, the value of the Shares or as to any
other financial or legal aspect of an Offer or any transaction related
thereto.
(i) shall not be liable or responsible for any recital or statement
contained in the Offers or any documents relating thereto;
(j) shall not be liable or responsible for any delay, failure,
malfunction, interruption or error in the transmission or receipt of
communications or messages through electronic means to or from a Book
Entry Transfer Facility, or for the action of any other person in
connection with any such message or communication.
16. It is understood and agreed that the securities, money, assets or
property (the "Property") to be deposited with or received by you from
Citicorp as Exchange Agent constitute a special, segregated account.
17. For services rendered as Exchange Agent hereunder, you shall be entitled
to payment as specified in a fee schedule or agreement as you may reach
with Citicorp from time to time.
18. Citicorp covenants and agrees to indemnify and to hold you harmless
against any costs, expenses (including reasonably fees of your legal
counsel), losses or damages, which may be paid, incurred or suffered by
you or to which you may become subject, arising from or out of, directly
or indirectly, any claim or liability resulting from your actions as
Exchange
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Agent pursuant hereto; provided that such covenant and agreement does not
extend to, and you shall not be indemnified and held harmless with
respect to, such costs, expenses, losses and damages incurred or suffered
by you as a result of, or arising out of, your negligence, bad faith, or
willful misconduct in the performance your obligations hereunder. In no
case will Citicorp be liable under this indemnity with respect to any
claim against you unless promptly after you have received any written
assertion of a claim or have been served with summons or other first
legal process giving information as to the nature and basis of the claim,
you notify Citicorp by letter or cable or telex confirmed by letter, of
the written assertion of such claim against you or of any action
commenced against you or of the service of any summons on you, or other
first legal process giving information as to the nature and basis of the
claim. Citicorp will be entitled to participate at its own expense in the
defense. If Citicorp so elects at any time after receipt of such notices
and agrees in writing that such claim is a claim for which you are
entitled to be indemnified and held harmless or if you in such notice
request and Citicorp agrees, Citicorp will assume the defense of any suit
brought to enforce such claim. In the event Citicorp assumes the defense
of any such suit Citicorp may select counsel of its own choosing for such
purposes provided such counsel is satisfactory to you, and Citicorp will
not be liable for the fees and expenses of any additional counsel
thereafter retained by you, except that if you have reasonably concluded
based on the written opinion of your counsel that there may be legal
defenses to you which are not available to Citicorp, you shall have the
right to select separate counsel and to otherwise participate in the
defense of such action.
19. All reports, notices, and other communications required or permitted
hereunder shall be in writing (unless otherwise provided herein) and
shall be deemed given when addressed and delivered by hand, courier,
facsimile, telex or first-class mail, postage prepaid, as follows:
To the Exchange Agent
Citibank, N.A.
Corporate Trust Department
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
To Citicorp
Citicorp
000 X. 00xx. Xxxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
This Exchange Agent Agreement shall be governed by and construed in accordance
with the laws of the State of New York and shall inure to the benefit of, and
the obligations created hereby shall be binding upon, the successors and assigns
of the parties hereto.
This Agreement may be executed in separate counterparts, each of which when
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same Agreement.
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If the foregoing is acceptable to you, please acknowledge receipt of this letter
and confirm the arrangements herein provided by signing and returning the
enclosed copy.
Very truly yours,
CITICORP
By:____________________________
Xxxxx Xxxxxxx
Vice president
Accepted as of the date first above written:
CITIBANK, N.A.
By:____________________________
Xxxx X. Xxxxxx
Agreed and Accepted:
by Citicorp Capital X
Citicorp Capital XI
Citicorp Capital XII
Citicorp Capital XIII
Citicorp Capital XIV
____________________________
Xxxxx Xxxxxxx
Regular Trustee
____________________________
Xxx Xxxxxxxx
Regular Trustee
____________________________
(Date)
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