EXHIBIT 1.1
CITIBANK CREDIT CARD ISSUANCE TRUST
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
Series [ ] Class [ ] Notes
Citibank Credit Card Issuance Trust
[ ]% Interest Rate
UNDERWRITING AGREEMENT
[ ], 2000
Salomon Smith Barney Inc.,
as Representative of the Several Underwriters,
388 Greenwich Street, 6th Floor
New York , New York 10013
Ladies and Gentlemen:
Citibank Credit Card Issuance Trust, a Delaware statutory business
trust (the "Issuer"), proposes to, and Citibank (South Dakota), N.A.
("Citibank (South Dakota)") and Citibank (Nevada), National Association
("Citibank (Nevada)") (each individually a "Bank" and collectively the
"Banks"), as owners of all beneficial interests in the Issuer, propose 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"), $[ ] aggregate principal amount of [ ]% Class [ ] Notes,
Series [ ] (the "Class [ ] Notes"), subject to the provisions of this
Underwriting Agreement (this "Agreement") among the Issuer, the Banks, and the
Underwriters.
The Banks have conveyed and propose to continue to convey credit
card receivables (the "Receivables") arising from consumer revolving credit
card accounts and other rights to the Citibank Credit Card Master Trust I (the
"Master Trust"). The Banks, as Sellers, Citibank (South Dakota), as Servicer,
and Bankers Trust Company, as trustee (the "Master Trust Trustee") have
entered into the Pooling and Servicing Agreement, dated as of May 29, 1991 (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 [ ], 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, the Banks have
caused the Master Trust to issue to the Issuer a Credit Card Participation
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Certificate, Series 2000 (the "Collateral Certificate"). The Collateral
Certificate represents undivided interests in certain assets of the Master
Trust.
The Class [ ] Notes will be issued pursuant to the Indenture, dated
as of [ ], 2000 (as modified or amended from time to time the "Indenture"),
between the Issuer and Bankers Trust Company, as trustee (the "Indenture
Trustee"). The Class [ ] 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
Collateral Certificate, the Trust Agreement, the Indenture, the Notes, any
Derivative Agreement relating to the Class [ ] Notes, the Depository Agreement
among [ ] and this Agreement are collectively referred to as the "Basic
Documents".
SECTION 1. Representations and Warranties of the Issuer and the
Banks. The Issuer and the Banks, jointly and severally, represent and warrant
to, and agree with, each Underwriter as set forth in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (a) below.
(a) Registration Statement And Prospectus. The Banks meet the
requirements for use of Form S-3 under the Securities Act of 1933,
as amended (the "Act"), and have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
(Registration No. 333-80743) on such Form, including a related
preliminary prospectus, for registration under the Act of the
offering and sale of the Class [ ] Notes. The Banks may have filed
one or more amendments thereto, including the related preliminary
prospectus, each of which amendments has previously been furnished
to the Representative. The Banks will next file with the Commission
a final basic prospectus and final prospectus supplement relating to
the Class [ ] Notes in accordance with Rules 415 and 424(b)(2) or
(5) under the Act. The Banks have included in such registration
statement, as amended at the Effective Date, all information
required by the Act and the rules thereunder to be included in such
registration statement. As filed, such amendment and form of final
prospectus supplement, or such final basic prospectus or final
prospectus supplement, will include all such required information,
with respect to the Class [ ] Notes and the offering thereof and,
except to the extent the Underwriters agree in writing to a
modification, will be in all substantive respects in the form
furnished to the Representative before the Execution Time or, to the
extent not completed at the 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 the Banks have 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
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and any post-effective amendment or amendments thereto became or
become effective. "Execution Time" will mean the date and time that
this Agreement is executed and delivered by the parties hereto.
"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
prospectus supplement relating to the Class [ ] 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 [ ] 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 Act or rules thereunder,
including incorporated documents, exhibits and financial statements,
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" and "Regulation S-K" refer to such
rules or regulations under the 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.
(b) Securities Act. On the Effective Date, the Registration
Statement did or will comply in all material respects with the
applicable requirements of the Act and the rules thereunder; on the
Effective Date and when the Prospectus is first filed (if required)
in accordance with Rule 424(b) and on the Closing Date, the
Prospectus (as amended and together with any supplements thereto)
will comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective
Date, the Registration Statement did not or 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, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will
not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Prospectus (as amended and together with any
supplements 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 light of the circumstances under
which they were made, not misleading; provided, that the Issuer and
the Banks make no representations or warranties as to the
information contained in or omitted from the Registration Statement
or the Prospectus (or any
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supplements thereto) in reliance upon and in conformity with
information furnished in writing to the Banks by or on behalf of any
Underwriter specifically for use in connection with the preparation
of the Registration Statement or the Prospectus (or any supplements
thereto).
(c) Banks' Organization and Power. Each of the Banks 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.
(d) Banks' Authorization and Execution of Basic Documents. The
execution, delivery and performance by the Banks 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, the Banks' 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.
(e) The Master Trust's Authorization and Execution of the
Collateral Certificate. The Collateral Certificate has been
authorized, authenticated, issued and delivered by the Master Trust
in accordance with the Pooling and Servicing Agreement, and issued
to the Issuer. Each increase in the Invested Amount of the
Collateral Certificate will have been authorized and effected in
accordance with the Pooling and Servicing Agreement as of the
applicable settlement date of each subclass of Notes.
(f) Issuer's Organization and Power. The Issuer has been duly
formed and is validly existing as a business trust under the laws of
the State of Delaware, and has all requisite trust power and
authority to own its properties and conduct its business as
presently conducted and to execute, deliver and perform the Basic
Documents to which it is a party, and to authorize the issuance of
the Class [ ] Notes, and to consummate the transactions contemplated
by the Basic Documents to which it is a party.
(g) Issuer's Authorization and Execution of Basic Documents.
The execution, delivery and performance by the Issuer of the Basic
Documents to which it is a party, the issuance of the Class [ ]
Notes and the consummation of the transactions contemplated hereby
and thereby have been duly and validly authorized by all necessary
action or proceedings.
(h) Execution and Delivery of Underwriting Agreement. This
Agreement has been duly executed and delivered by the Issuer and the
Banks.
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(i) Conveyance of Receivables. The Banks have authorized the
conveyance of the Receivables to the Master Trust.
(j) Bank's Financial Reports. The Banks have advised each
Underwriter of the availability of (i) publicly available portions
of the Consolidated Reports of Condition and Income of the Banks for
the years ended December 31, 1998 and 1999, as submitted to the
Comptroller of the Currency; and (ii) the December 31, 1997, 1998
and 1999, audited consolidated balance sheets of Citigroup Inc.
(parent of the Banks) which are included in Citigroup's 1999 Annual
Report on Form 10-K. Except as set forth in or contemplated in the
Registration Statement and the Prospectus, there has been no
material adverse change in the condition (financial or otherwise) of
the Banks since [ ].
(k) Master Trust Financial Reports. The Master Trust has
advised each Underwriter of the availability of each Annual Report
on Form 10-K and each Current Report on Form 8-K for the most recent
fiscal year of the Master Trust for which such reports are available
as filed with the Commission. Except as set forth in or contemplated
in the Registration Statement and the Prospectus, 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 the
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, since the end of the most recent fiscal
period of the Master Trust for which the Master Trust has filed an
Annual Report on Form 10-K or a Current Report on Form 8-K.
(l) Issuer Financial Reports. The Issuer has advised each
Underwriter of the availability of each of its Current Reports, if
any, on Form 8-K and Annual Reports, if any, on Form 10-K since the
date of creation of the Issuer, as filed with the Commission. Except
as set forth or contemplated in the Registration Statement and the
Prospectus, there has been no material adverse change in the
condition (financial or otherwise) earnings, business or prospects
of the Issuer, since the end of the most recent fiscal period for
which the Issuer has filed an Annual Report on Form 10-K or a
Current Report on Form 8-K.
(m) Taxes, Fees, etc. Any taxes, fees and other governmental
charges in connection with the execution, delivery and performance
of the Basic Documents and the Class [ ] Notes have been paid or
will be paid by the Banks at or before the Closing Date to the
extent then due.
(n) Collateral Certificate Issued and Outstanding. The
Collateral Certificate is issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement. The Notes have been
duly and validly authorized. The Class [ ] Notes, when validly
authenticated, issued and delivered in accordance with the Indenture
and sold to the Underwriters as provided herein, will conform in all
material respects to the descriptions thereof contained in the
Prospectus and will be validly issued and outstanding and entitled
to the benefits of the Indenture.
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(o) Independent Certified Public Accountants. KPMG LLP is an
independent certified public accountant as required by the Act and
the rules and regulations of the Commission thereunder.
(p) No Consents. Except for permits and authorizations required
under the securities or Blue Sky laws of any jurisdiction, no filing
with, and no approval, authorization or other action of, any
governmental authority is legally required for the execution,
delivery or performance of any of the Basic Documents by the Issuer
or the Banks or the consummation by the Issuer or the Banks of the
transactions contemplated by the Basic Documents.
(q) No Conflicts. None of the issuance of the Collateral
Certificate to the Issuer, any increase in the Invested Amount of
the Collateral Certificate, the issuance and sale of the Class [ ]
Notes, the execution, delivery and compliance by the Banks, the
Master Trust or the Issuer with the provisions of each of the Basic
Documents to which it is a party, nor the consummation of the
transactions contemplated thereby, will conflict with or result in a
violation of any of the provisions of, or constitute a default
under, any agreement or instrument to which the Banks, the Master
Trust or the Issuer is a party or by which the Banks, the Master
Trust or the Issuer is bound or to which any of the property of the
Banks, the Master Trust or the Issuer is subject, which conflict,
violation or default would be material to the issuance of the
Collateral Certificate, the issuance and sale of the Notes or the
other transactions contemplated by the Basic Documents to which the
Banks, the Master Trust or the Issuer, respectively, are party, nor
will such action result in any violation of the provisions of the
articles of association or bylaws of the Banks or the Trust
Agreement of the Issuer or any statute, order, rule or regulation of
any court or governmental agency or authority having jurisdiction
over the Banks, the Master Trust or the Issuer or any of their
properties.
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(r) No Litigation. Except as otherwise disclosed in the
Prospectus or the Registration Statement, there is no pending or, to
the knowledge of the Banks or the Issuer 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 in the
Basic Documents, or with respect to either Bank which, in the case
of any such action, suit or proceeding with respect to either Bank
if adversely determined, would have a material adverse effect on the
Master Trust, the Issuer or the holders of the Notes or upon the
ability of either Bank to perform its obligations under any of the
Basic Documents to which it is a party.
SECTION 2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the covenants, representations and warranties herein
set forth, the Issuer agrees to sell (and the Banks agree to cause the
Issuer to sell) to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase, the respective initial principal
amount of Class [ ] Notes set forth opposite such Underwriter's name in
Schedule I hereto. The purchase price for the Class [ ] Notes will be
equal to [ ] of the aggregate initial principal amount of the Class [ ]
Notes.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Class [ ] Notes will be made at the offices of Citigroup Inc., 425 Park
Avenue, New York, New York, at 10:00
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a.m., New York City time, on [ ], 2000, or at such later date (not later
than [ ], 2000) as the Underwriters designate, which date and time may be
postponed by agreement between the Underwriters and the Banks (such date
and time of delivery and payment for the Class [ ] Notes being referred
to herein as the "Closing Date"). Delivery of one or more global notes
representing the Class [ ] 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 the Banks 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 The Depository Trust Company ("DTC"). The interests of beneficial
owners of the Class [ ] Notes will be represented by book entries on the
records of DTC and participating members thereof. Definitive Class [ ]
Notes representing the Class [ ] Notes will be available only under
limited circumstances.
The Issuer and the Banks 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.
SECTION 4. Offering by Underwriters. (a) It is understood that the
Underwriters propose to offer the Class [ ] Notes for sale to the public
as set forth in the Prospectus.
(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 [ ] Notes within the United States or induce or attempt to induce
the purchase of or sale of the Class [ ] 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 (i) it has complied
and will comply with all applicable provisions of the Financial Services
Act 1986 with respect to anything done by it in relation to the Class [ ]
Notes in, from or otherwise involving the United Kingdom; (ii) it has
only issued, distributed or passed on and will only issue, distribute or
pass on in the United Kingdom any document received by it in connection
with the issue of the Class [ ] Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or persons to whom such document
may otherwise lawfully be issued, distributed or passed on; (iii) if it
is an authorized person under Chapter III of Part I of the Financial
Services Act 1986, it has only promoted and will only promote (as that
term is defined in Regulation 1.02(2) of the Financial Services
(Promotion of Unregulated Schemes) Regulations 1991) to any person in the
United Kingdom the scheme described in the Prospectus if that person is
of a kind described either in section 76(2) of the Financial Services Act
1986 or in Regulation 1.04 of the Financial Services (Promotion of
Unregulated Schemes) Regulations 1991; and (iv) it is a person of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996.
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(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 the Banks.
SECTION 5. Agreements. The Issuer and the Banks, jointly and
severally, covenant and agree with the Underwriters that:
(a) Filing of Prospectus. The Banks will use their best efforts
to cause the Registration Statement, and any amendment thereto, if
not effective at the Execution Time, to become effective. If filing
of the Prospectus is required under Rule 424(b), the Banks will file
the Prospectus, pursuant to Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Underwriters of such timely filing. The Banks will promptly advise
the Representative (i) when the Registration Statement, and any
amendment thereto, if not yet effective at the Execution Time, has
become effective, (ii) when the Prospectus has been filed with the
Commission pursuant to Rule 424(b), (iii) of any request by the
Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose and (v) of the receipt by
the Banks or the Issuer of any notification with respect to the
suspension of the qualification of the Class [ ] Notes for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Banks will not file any amendment of the
Registration Statement or supplement to the Prospectus unless a copy
has been furnished to the Representative, for review by the
Underwriters before such filing if the Underwriters have not yet
completed their distribution of the Notes, and after such filing if
the Underwriters have completed their distribution of the Notes. The
Banks and the Issuer will use their reasonable efforts to prevent
the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) Amendments to Prospectus. If, at any time when a Prospectus
relating to the Notes is required to be delivered under the Act, any
event occurs as a result of which such 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 light of the circumstances under which they were made not
misleading, or if it is necessary to supplement such Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, the Banks promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 5, a supplement
that will correct such statement or omission or an amendment that
will effect such compliance.
(c) Earnings Statement. As soon as practicable, and in no case
later than 16 months after the Closing Date, the Banks will make
generally available to Noteholders and to the Underwriters an
earnings statement or statements of the Master Trust that will
satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
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(d) Copies of Prospectus. The Issuer will furnish to the
Underwriters and counsel to the Underwriters, without charge,
conformed copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the Act, as many copies of each
Preliminary Prospectus and the Prospectus and any supplement thereto
as the Underwriters may reasonably request.
(e) Expenses. The Issuer and/or the Banks will pay all expenses
incidental to the performance of their obligations under this
Agreement, including, without limitation, (i) expenses of preparing,
printing and reproducing all documents relating to this offering and
the Class [ ] Notes, (ii) any fees charged by any rating agency for
the rating of the Class [ ] Notes, (iii) any expenses (including
reasonable fees and disbursements of counsel) incurred by the
Underwriters in connection with qualification of the Class [ ] Notes
for sale under the laws of such jurisdictions as the Underwriters
designate, (iv) reasonable fees and expenses of Cravath, Swaine &
Moore in its role as special Federal tax and ERISA counsel for the
Banks and the Issuer, (v) any expenses incurred by the Underwriters
in connection with listing the Class [ ] Notes on the Luxembourg
Stock Exchange, (vi) the cost of delivering the Class [ ] Notes to
the offices of the Underwriters, insured to the satisfaction of the
Underwriters, (vii) the fees and expenses of the Indenture Trustee
and the Master Trust Trustee and their respective counsel and (viii)
the fees and expenses of the Banks' accountants (it being understood
that, except as provided in paragraph (d) and this paragraph (e) and
in Sections 7 and 8 hereof, the Underwriters will pay their own
expenses, including the expense of preparing, printing and
reproducing any agreement among underwriters, the fees and expenses
of Cravath, Swaine & Moore in its role as counsel to the
Underwriters, any transfer taxes on resale of any of the Class [ ]
Notes by them and advertising expenses connected with any offers
that the Underwriters may make).
(f) Blue Sky. The Issuer will use its best efforts to arrange
for the qualification of the Class [ ] Notes for sale under the laws
of such jurisdictions as the Underwriters may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Class [ ] Notes and will arrange for the
determination of the legality of the Class [ ] Notes for purchase by
institutional investors.
(g) Reports. For so long as the Class [ ] Notes are
outstanding, the Banks and the Issuer will deliver to the
Representative by first-class mail and as soon as practicable a copy
of all reports and notices delivered to the Indenture Trustee and
the Master Trust Trustee or the holder of the Collateral Certificate
under the Pooling and Servicing Agreement, and any other material
relating to the Banks or the Issuer that is reasonably available to
the Banks or the Issuer and necessary for any Underwriter to deliver
a prospectus in connection with market-making activities as required
by the rules and regulations of the Commission.
(h) Other Information. For so long as the Class [ ] Notes are
outstanding, the Banks and the Issuer will (i) furnish to the
Representative as soon as practicable after the end of each fiscal
year, all documents required to be distributed to Class [ ]
Noteholders
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and (ii) advise the Representative of the availability, as soon as
practicable after filing, of any other information concerning the
Banks or the Issuer filed with any government or regulatory
authority which is otherwise publicly available.
(i) Ratings. To the extent, if any, that any rating provided
with respect to the Class [ ] Notes set forth in Section 6(r) hereof
is conditional upon the furnishing of documents reasonably available
to the Banks or the Issuer, the Banks or the Issuer will furnish
such documents.
SECTION 6. Conditions of Underwriters' Obligation. The obligation of
the Underwriters to purchase and pay for the Class [ ] Notes on the
Closing Date will be subject to the accuracy of the representations and
warranties of the Issuer and the Banks contained herein as of the
Execution Time and the Closing Date, to the accuracy of the statements of
the Issuer and the Banks made in any certificates delivered pursuant to
the provisions hereof, to the performance by the Issuer and the Banks of
their obligations hereunder and to the following additional conditions:
(a) Registration Statement. If the Registration Statement has
not become effective before the Execution Time, unless the
Underwriters agree in writing to a later time, the Registration
Statement will have become effective not later than (i) 6:00 p.m.
New York City time on the date of determination of the public
offering price, if such determination occurred at or before 3:00
p.m. New York City time on such date or (ii) 12:00 noon on the
business day following the day on which the public offering price
was determined, if such determination occurred after 3:00 p.m. New
York City time on such date; if filing of the Prospectus, or any
supplements thereto, is required pursuant to Rule 424(b), the
Prospectus, and any supplements thereto, will have been filed in the
manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration
Statement will have been issued and no proceedings for that purpose
will have been instituted or threatened.
(b) Banks' Certificate. Each of the Banks will have delivered
to the Underwriters a certificate, dated the Closing Date, signed by
its Chairman of the Board, President, Vice Chairman of the Board,
Executive Vice President, Senior Vice President, Vice President,
principal financial officer, principal accounting officer, treasurer
or cashier to the effect that the signer of such certificate has
carefully examined the Basic Documents, the Prospectus (and any
supplements thereto) and the Registration Statement and that:
(i) the representations and warranties of such Bank 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 such Bank are true and
correct as of such earlier date);
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(ii) such Bank 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 has been issued and no 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 such Bank made available to the
Underwriters pursuant to Section 1(j) hereof, there has been no
material adverse change in the condition (financial or
otherwise) of such Bank, except as set forth in or contemplated
in the Registration Statement and the Prospectus.
(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 the 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 or contemplated in such Registration
Statement and such Prospectus.
(c) Issuer's Certificate. The Issuer will have delivered to the
Underwriters a certificate, dated the Closing Date, signed by an
Issuer Authorized Officer to the effect that the signer of such
certificate has carefully examined the Basic Documents, the
Prospectus (and any supplements thereto) and the Registration
Statement and that:
(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 under this Agreement at or before the Closing Date;
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no 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 made available to the
Underwriters pursuant to Section 1(l) hereof, there has been no
material adverse change in the condition (financial or
otherwise)
12
<PAGE>
of the Issuer, except as set forth in or contemplated in the
Registration Statement and the Prospectus.
(d) Citibank (South Dakota) Opinion. The Underwriters will have
received an opinion of the General Counsel or an Associate General
Counsel of Citibank (South Dakota) or other counsel satisfactory to
the Representative substantially to the effect that:
(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 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). Each increase in the
Invested Amount of the Collateral Certificate 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 [ ] Notes, nor any increase in the Invested Amount of
the Collateral Certificate, 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
(A) any term or provision of the charter or by-laws of
Citibank (South Dakota) or any statute or regulation
currently applicable to Citibank (South Dakota) or any
South Dakota statute or regulation currently applicable to
the Master Trust or the Issuer,
(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
13
<PAGE>
(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.
(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 [ ] 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 that at its
effective date, the Registration Statement 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 that the Prospectus as of
its issue date or the Closing Date contained or contains any
untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein,
in light of the circumstances under which they were 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
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,
14
<PAGE>
except such as have been obtained under the Act and such as may
be required under the blue sky laws of any jurisdiction inside
the United States in connection with the issuance and
distribution of the Notes by the Underwriters and such filings
or other approvals (specified in such opinion) as have been
made or obtained.
(vii) Citibank (South Dakota) 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 (xi) 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 either "general
intangibles" or "accounts", in each case 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 the Receivables, are necessary to perfect the
interest of the Master Trust Trustee in the 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 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 Sellers as holders of the Sellers' Certificates. 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 Sellers as holders of the
Sellers' Certificates. If a court were to conclude that such
assignment was not a
15
<PAGE>
sale, the Pooling and Servicing Agreement and the transactions
provided for by the Pooling and Servicing Agreement would
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, and to the
extent that the Collateral consists of "general intangibles" as
defined in the South Dakota Uniform Commercial Code, 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 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 [ ] 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 the extent deemed proper and as
stated therein, on certificates of responsible officers of the
Banks, the Master Trust, the Issuer and public officials.
16
<PAGE>
(e) Citibank (Nevada) Opinion. The Underwriters will have
received an opinion of Lionel Sawyer & Collins, special Nevada
counsel to Citibank (Nevada), and an opinion of the General Counsel
or an Associate General Counsel of Citibank (South Dakota) or other
counsel satisfactory to the Representative, in his or her capacity
as counsel to Citibank (Nevada), substantially to the combined
effect that:
(i) Citibank (Nevada) 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, and to consummate the transactions contemplated by
the Basic Documents to which Citibank (Nevada) is a party.
(ii) Each of the Basic Documents to which Citibank
(Nevada) is a party has been duly authorized, executed and
delivered by Citibank (Nevada). Each increase in the Invested
Amount of the Collateral Certificate has been duly authorized
by Citibank (Nevada).
(iii) Neither the execution nor the delivery of each of
the Basic Documents to which Citibank (Nevada) is a party, nor
the issuance and delivery of the Collateral Certificate and the
Class [ ] Notes, nor any increase in the Invested Amount of the
Collateral Certificate, 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
(A) any term or provision of the charter or by-laws of
Citibank (Nevada) or any statute or regulation currently
applicable to Citibank (Nevada) or any Nevada statute or
regulation currently applicable to the Master Trust or the
Issuer,
(B) any term or provision of any order known to such counsel
to be currently applicable to Citibank (Nevada), the
Master Trust or the Issuer of any court, regulatory body,
administrative agency or governmental body having
jurisdiction over Citibank (Nevada), 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
(Nevada), the Master Trust or the Issuer is a party or by
which any of them or any of their properties are bound.
17
<PAGE>
(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 by the Basic Documents, or with respect to
Citibank (Nevada) which, in the case of any such action, suit
or proceeding with respect to Citibank (Nevada) if adversely
determined, would have a material adverse effect on the Master
Trust, the Issuer or the holders of the Class [ ] Notes or upon
the ability of Citibank (Nevada) to perform its obligations
under any of 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 (Nevada), the
Accounts, the Receivables, the business of Citibank (Nevada),
the Master Trust and the Issuer fairly summarize the matters
therein described.
(v) Such counsel has no reason to believe that at its
effective date, the Registration Statement 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 that the Prospectus as of
its issue date or the Closing Date contained or contains any
untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein,
in light of the circumstances under which they were 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
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 (Nevada), its credit card business 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 (Nevada), 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 Nevada) of the
transactions contemplated by the Basic Documents, except such
as have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction inside the United
States in connection with the issuance and distribution of the
Notes by the Underwriters and such filings or other approvals
(specified in such opinion) as have been made or obtained.
18
<PAGE>
(vii) With respect to all Receivables transferred by
Citibank (Nevada) to the Master Trust, at the time of such
transfer, Citibank (Nevada) 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 either "general
intangibles" or "accounts", in each case as defined in the
Uniform Commercial Code in effect in the State of Nevada.
(ix) A Uniform Commercial Code financing statement with
respect to the Certificateholders' Interest in the Receivables
transferred and to be transferred by Citibank (Nevada) to the
Master Trust and the proceeds thereof have been filed in the
office of the Nevada Secretary of State. No other filings or
other actions, with respect to the Master Trust Trustee's
interest in the Receivables, are necessary to perfect the
interest of the Master Trust Trustee in the 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 interest of Citibank (Nevada) 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 Sellers as holders of the Sellers' Certificates. 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 (Nevada) in and to such
Receivables to the Master Trust free and clear of any Liens,
but subject to the rights of the Sellers as holders of the
Sellers' Certificates. If a court were to conclude that such
assignment was not a sale, the Pooling and Servicing Agreement
and the transactions provided for by the Pooling and Servicing
Agreement would constitute a grant by Citibank (Nevada) 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 (Nevada) to the Master Trust, all documents and
instruments relating
19
<PAGE>
thereto and all proceeds thereof. In rendering such opinion
counsel may take such exceptions as are appropriate and
reasonably acceptable under the circumstances.
(xi) 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.
In rendering such opinion counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Nevada 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 the Banks, the
Master Trust, the Issuer and public officials.
(f) Opinion of New York Counsel to the Issuer and the Banks.
The Underwriters will have received an opinion of New York counsel
to the Issuer and the Banks substantially to the effect that:
(i) Each of the Basic Documents to which either of the
Banks is a party has been duly authorized, executed and
delivered by such Bank. Each of the Basic Documents to which
either of the Banks or the Issuer is a party (other than this
Agreement) constitutes the legal, valid and binding agreement
of such Bank 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 each Bank in accordance with the terms of the
Pooling and Servicing Agreement. The Collateral Certificate is
validly issued and outstanding, enforceable in accordance 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 [ ] 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
20
<PAGE>
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 either Bank or the Issuer is a party
nor the issuance and delivery of the Collateral Certificate or
the Class [ ] 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 the Banks, 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 governmental body or
agency is required for the consummation by the Banks, 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 [ ] Notes, except such as
have been obtained under the 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 [ ] 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 the Banks, 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 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 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 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 that at its
effective date, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to
21
<PAGE>
make the statements therein not misleading or that the
Prospectus as of its issue date or the Closing Date contained
or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were 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 Statement or any amendment thereto or the
Prospectus as to statements regarding tax or ERISA matters).
Such counsel has discussed the opinion described in this clause
with the counsel giving the opinions referred to in clauses (d)
and (e).
(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 the Banks 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 Sellers as
holders of the Sellers' Certificates. 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 the Banks in and to such Receivables to the Master
Trust free and clear of any Liens, but subject to the rights of
the Sellers as holders of the Sellers' Certificates. If a court
were to conclude that such assignment was not a sale, the
Pooling and Servicing Agreement and the transactions provided
for by the Pooling and Servicing Agreement constitute a grant
by the Banks to the Master Trust Trustee of a valid security
interest and, together with the filing of financing statements
with the Secretary of State of the State of South Dakota and
the State of Nevada, create a first priority perfected 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 Indenture constitutes a grant by the Issuer to the
Indenture Trustee of a valid security interest and, together
with the filing of financing statements with the Secretary of
State of the State of Delaware and the State of South Dakota
and delivery of the Collateral Certificate to Bankers Trust
Company, as Indenture Trustee, will create a first priority
perfected security interest in the Collateral to the Indenture
Trustee. No other filings or other actions are necessary
22
<PAGE>
to perfect 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 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 the
Banks, the Master Trust, the Issuer and public officials.
(g) Selling Agent Opinion. The Underwriters will have received
an opinion or opinions of Cravath, Swaine & Moore, special counsel
to the Underwriters, with respect to the issuance and sale of the
Notes and the Basic Documents and such other related matters as the
Underwriters may reasonably require.
(h) Master Trust Trustee Opinion. The Underwriters will have
received an opinion or opinions of Orrick, Herrington & Sutcliffe
LLP, counsel to the Master Trust Trustee substantially to the
following effect:
(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
23
<PAGE>
(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.
(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
by-laws 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) Issuer Delaware Opinion. The Underwriters will have
received an opinion of Richards, Layton & Finger P.A., special
Delaware counsel to the Issuer substantially to the following
effect:
(i) The Issuer has been duly formed and is validly
existing as a business trust under Delaware Business Trust Act,
12 Del. C. Section 3801, et seq. (the "Act"), and has the power
and authority under the Trust Agreement and the 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, the Class [ ] 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.
24
<PAGE>
(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,
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, and to the extent that the
Collateral consists of "general intangibles" as defined in the
Delaware Uniform Commercial Code, 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 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 on [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, we are not aware of
any legal or governmental proceeding pending against the Issuer.
(j) Issuer Trustee Delaware Opinion. The Underwriters will have
received an opinion of Richards, Layton & Finger P.A., counsel to the
Issuer Trustee substantially to the following effect:
(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
25
<PAGE>
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 Issuer Trustee.
(iii) Neither the execution, delivery and performance by Issuer
Trustee of the Trust Agreement, nor the consummation of any of the
transactions by 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
Issuer Trustee.
(iv) Neither the execution, delivery and performance by Issuer
Trustee of the Trust Agreement, nor the consummation of any of the
transactions by Issuer Trustee contemplated thereby, is in violation
of the charter or bylaws of 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
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 Issuer Trustee.
(v) To our knowledge, without independent investigation, there
are no proceedings pending or threatened against 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 Issuer Trustee to enter into or perform its
obligations under the Trust Agreement.
(k) Indenture Trustee Delaware Opinion. The Underwriters will have
received an opinion or opinions of Orrick, Herrington & Sutcliffe LLP,
special New York counsel to the Indenture Trustee substantially to the
following effect:
(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
26
<PAGE>
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.
(iii) The Class [ ] 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 by-laws 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.
(l) Federal Tax Disclosure. The Underwriters will have received an
opinion of Cravath, Swaine & Moore, special federal tax and ERISA counsel
to the Banks, in form and substance satisfactory to the Representative,
to the effect that the statements relating to United States law contained
under the heading "Tax Matters" in the Prospectus accurately describe the
material federal income tax consequences to holders of the Class [ ]
Notes and the statements contained under the heading "Benefit Plan
Investors" in the Prospectus, to the extent that they constitute
statements of matters of law or legal conclusions with respect thereto,
accurately describe the material consequences to holders of the Notes
under ERISA.
(m) Master Trust Tax Opinions and Issuer Tax Opinions. The
Underwriters will have received the Master Trust Tax Opinions and the
Issuer Tax Opinions to the extent required by Section 3.11 of the
Indenture.
(n) Master Trust UCC Filing. The Underwriters will have received
evidence satisfactory to them that Form UCC-1 financing statements have
been filed in the offices of the Secretaries of State of South Dakota and
Nevada, reflecting the interest of the Master Trust in the Receivables
and the proceeds thereof and are in full force and effect.
27
<PAGE>
(o) Issuer UCC Filings. The Underwriters will have received evidence
satisfactory to them that Form UCC-1 financing statements have been filed
in the offices of the Secretaries of State of Delaware and South Dakota,
reflecting the security interest of the Indenture Trustee in the
Collateral, and are in full force and effect.
(p) Other Documents. The Underwriters will have received such other
information, certificates, opinions and documents as the Underwriters or
counsel to the Underwriters may reasonably request.
(q) Accountant's Letter. At or before the Closing Date, KPMG LLP
will have furnished to the Underwriters a letter or letters, in form and
substance satisfactory to the Underwriters and counsel to the
Underwriters, confirming 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 the Banks) set forth in
the Registration Statement and the Prospectus, agrees with the accounting
records of the Issuer and the Banks, 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.
(r) Ratings. The Class [ ] Notes will be given a rating of [ ] by [
].
(s) No Adverse Change. After the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there will not have been any change, or any development involving a
prospective change, in or affecting the business or properties of the
Issuer, the Banks or Citigroup Inc. the effect of which, in any case
referred to above, is, in the judgment of the Underwriters (after
consultation with the Banks), so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the delivery
of the Class [ ]Notes as contemplated by the Registration Statement and
the Prospectus.
(t) Listing on Exchange. The Issuer and the Banks will have used
their best efforts to cause the Class [ ] Notes to be approved for
listing on the [Luxembourg Stock Exchange] as soon as practicable after
the Closing Date.
(u) Subordinated Amount. At the time of issuance of the Class [ ]
Notes, the Required Subordinated Amount of Notes, as defined in the
Indenture, will be Outstanding.
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
28
<PAGE>
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 the
Banks in writing or by telephone or telegraph confirmed in writing.
SECTION 7. Reimbursement of Expenses. If the sale of the Class [ ] Notes
provided for herein is not consummated because any condition to obligations of
the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Banks or the Issuer to perform any
agreement herein or to comply with any provision hereof other than by reason
of a default by the Underwriters, the Banks and the Issuer, jointly and
severally, will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that will have been incurred by the Underwriters in connection with
the proposed purchase and sale of the Class [ ] Notes.
SECTION 8. Indemnification and Contribution. (a) The Issuer and the
Banks, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
the 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 Class [ ] Notes as
originally filed or in any amendment thereof, or in any Preliminary
Prospectus, the Basic Prospectus or the 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 agree
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, that
(i) the Issuer and the Banks will not 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 Issuer or the Banks by or on behalf of any
Underwriter specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Prospectus will not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Class [ ] Notes which are the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as supplemented) excluding
documents incorporated therein by reference at or before the confirmation of
the sale of such Class [ ] Notes to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in any Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as supplemented). This indemnity agreement will
be in addition to any liability which the Issuer or the Banks may otherwise
have.
29
<PAGE>
(b) Each Underwriter, severally, agrees to indemnify and hold harmless
the Issuer, each of the Banks, each of their directors, each of the officers
who signs the Registration Statement, and each person who controls the Banks
within the meaning of the Act, to the same extent as the foregoing indemnities
from the Issuer and the Banks to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Issuer or
the Banks 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 the Banks 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 second (solely with respect to Salomon
Smith Barney Inc.) and fourth paragraphs 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, seventh and (solely with respect to Salomon Smith Barney Inc.)
tenth paragraphs under the heading "Underwriting" in the Prospectus Supplement
constitute the only information furnished in writing by or on behalf of any
Underwriter for inclusion in any Preliminary Prospectus, the Basic Prospectus
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 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
30
<PAGE>
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 the Banks, 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, the Banks 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 the Banks 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 [ ] Notes) be responsible for any amount in excess of the
underwriting discount applicable to the Class [ ] Notes purchased by such
Underwriter hereunder and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 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 Act will have the same rights to
contribution as such Underwriter, and each person who controls the Issuer or
each of the Banks within the meaning of the Act, each officer of the Issuer or
each of the Banks who has signed the Registration Statement and each director
of each of the Banks will have the same rights to contribution as the Issuer
and each of the Banks, 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).
SECTION 9. Termination. This Agreement will be subject to termination in
the absolute discretion of the Underwriters, by notice given to the Issuer and
the Banks before delivery of and payment for the Class [ ] Notes, if before
such time (i) trading in securities generally on the New York or Luxembourg
Stock Exchange will have been suspended or limited, (ii) a banking moratorium
will have been declared by Federal, New York, South Dakota, or Nevada 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 [ ] Notes.
SECTION 10. Representations and Indemnities To Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Issuer, the Banks or the officers of each of them 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
31
<PAGE>
behalf of the Underwriters or the Issuer, the Banks or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Class [ ] Notes. The provisions of
Sections 7 and 8 hereof will survive the termination or cancellation of this
Agreement.
SECTION 11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them c/o Salomon Smith Barney Inc.,
390 Greenwich Street, 6th Floor, New York, New York 10013, Attention of John
Dahl and, if sent to the Issuer or the Banks, will be mailed, delivered or
telegraphed and confirmed to them at 701 E. 60th Street, North, Sioux Falls,
South Dakota 57117, attention of General Counsel.
SECTION 12. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof.
SECTION 13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
SECTION 14. Miscellaneous. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and will not limit or otherwise affect the meaning
hereof.
SECTION 15. Default by an Underwriter. If any one or more Underwriters
fail to purchase and pay for any of the Class [ ] Notes agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
constitutes a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters will be obligated severally to take
up and pay for (in the respective proportions which the amount of Class [ ]
Notes set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Class [ ] Notes set forth opposite the names of all the
remaining Underwriters) the Class [ ] Notes which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, that if the aggregate
amount of Class [ ] Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase exceeds 10% of the aggregate principal amount of
Class [ ] Notes set forth in Schedule I hereto, the remaining Underwriters
will have the right to purchase all, but will not be under any obligation to
purchase any, of the Class [ ] Notes, and if such nondefaulting Underwriters
do not purchase all the Class [ ] Notes, this Agreement will terminate without
liability to any nondefaulting Underwriter, the Issuer or the Banks. In the
event of a default by any Underwriter as set forth in this Section 15, the
Closing Date will be postponed for such period, not exceeding seven days, as
the Underwriters determine in order that the required changes in the
Registration Statement and the Prospectus (and any supplements thereto) or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement will
32
<PAGE>
relieve any defaulting Underwriter of its liability, if any, to the Issuer,
the Banks and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
SECTION 16. Representation of Underwriters. The Representative will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all the
Underwriters.
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<PAGE>
If you are in agreement with the foregoing, please sign four counterparts
hereof and return one to each of the Banks and the Issuer, whereupon this
letter and your acceptance will become a binding agreement among the Banks,
the Issuer and the several Underwriters.
Very truly yours,
CITIBANK (SOUTH DAKOTA), N.A.,
by
-------------------------------------------
Name:
Title:
CITIBANK (NEVADA), NATIONAL
ASSOCIATION,
by
-------------------------------------------
Name:
Title:
CITIBANK CREDIT CARD ISSUANCE TRUST,
by Citibank (South Dakota), N.A., as
Managing Beneficiary,
by
----------------------------------------
Name:
Title:
ACCEPTED AND AGREED:
SALOMON SMITH BARNEY INC.,
by
-------------------------------
Name:
Title:
For itself and the other
several Underwriters named in
Schedule I to the foregoing
34
<PAGE>
SCHEDULE I
Principal Amount of
Underwriter Class [ ] Notes
--------------------------------------------- --------------------------------
Salomon Smith Barney Inc.................... $[ ]
[ ]........................ [ ]
[ ]........................ [ ]
[ ]........................ [ ]
------------
Total.................................. $[ ]
============
35
